Peralta Community College Dist. v. Fair Employment and Housing Com'n (Brown)

• Decision Date: 02 June 1986
• Citation: 226 Cal.Rptr. 794,214 Cal.App.3d 1222
• Parties: Previously published at 214 Cal.App.3d 1222 214 Cal.App.3d 1222, 42 Empl. Prac. Dec. P 36,980, 32 Ed. Law Rep. 698 PERALTA COMMUNITY COLLEGE DISTRICT, Petitioner and Respondent, v. FAIR EMPLOYMENT AND HOUSING COMMISSION of the State of California, Respondent and Appellant, Rose BROWN, Real Party In Interest. A025369.
• Court: California Court of Appeals Court of Appeals

Page 794

226 Cal.Rptr. 794

Previously published at 214 Cal.App.3d 1222

214 Cal.App.3d 1222, 42 Empl. Prac. Dec. P 36,980,

32 Ed. Law Rep. 698

PERALTA COMMUNITY COLLEGE DISTRICT, Petitioner and Respondent, v. FAIR EMPLOYMENT AND HOUSING COMMISSION of the State of California, Respondent and Appellant Rose BROWN, Real Party In Interest.

A025369.

Court of Appeal, First District, Division 2, California.

June 2, 1986.

Review Granted Aug. 21, 1986.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., San Francisco, for respondent and appellant.

Richard J. Moore, Co. Counsel, William E. Runstrom, Senior Deputy Counsel, Alameda County, Oakland, for petitioner and respondent.

Vivian Schneider, San Francisco, for real party in interest.

SMITH, Associate Justice.

The issue is whether the Fair Employment and Housing Commission has the authority to award compensatory damages. We hold that it does.

I

To start, we describe the procedure of the Fair Employment and Housing Act (the Act).

The Act establishes that freedom from employment discrimination is a civil right. (Gov.Code, § 12921.) ¹ It declares that such discrimination is against public policy and is unlawful. ( §§ 12920, 12940.) The Act sets up a comprehensive scheme to realize this state's public policy "to protect and safeguard the right of all persons to seek, obtain, and hold employment without discrimination...." ( § 12920; see also State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 428, 217 Cal.Rptr. 16, 703 P.2d 354.)

That scheme includes two administrative bodies--the Department of Fair Employment and Housing (the Department) and the Fair Employment and Housing Commission (the Commission). The Department investigates, conciliates, and prosecutes discrimination complaints. ( §§ 12930, 12961-12963.) The Department bears the expense of these functions, including the expense of an attorney to try the case. ( § 12969.) The Commission adjudicates complaints and makes rules regarding employment discrimination. ( § 12935.) It also promulgates regulations to implement the Act, provides technical assistance, and gathers statistics on the public employment work force. ( § 12935.) As an example of its power to promulgate regulations, the Commission in 1980 adopted California Administrative Code, title 2, section 7286.9, subdivision (c): "While normal monetary relief shall include relief in the nature of back pay, reasonable exemplary or compensatory damages may be awarded in situations involving violations which are particularly deliberate, egregious or inexcusable." ²

A person who claims that he or she is a victim of employment discrimination must file a complaint with the Department. The Department then can investigate, take depositions, issue subpoenas, pose interrogatories and request documents. ( §§ 12963, 12963.1, subd. (c), 12963.2, 12963.3, 12963.4.) Rose Brown, complainant in this action, filed her complaint with the Department. In it she alleged that her former employer, the Peralta Community College District, had violated the Act by firing her for refusing the sexual advances of her former supervisor.

Once a complaint is filed the Department can take various steps. It can attempt to remedy the unlawful practice through conference, conciliation, or persuasion. ( § 12965, subd. (a).) It can issue a right-to-sue letter, which allows the complainant to pursue a private court action. The letter is sent if the Department decides it will not issue an accusation or, automatically, if the Department does not issue an accusation within 150 days. ( § 12965, subd. (b).) A complainant cannot sue in court unless the Department issues this letter. The Department can also issue its own accusation, which is the administrative equivalent of a civil complaint. ( § 12965.) If the Department issues an accusation, it then steps into the role of prosecutor and advocate on behalf of the complainant, and also bears the costs of these functions. ( § 12969.) This latter course is what occurred in this case; the Department issued an accusation on behalf of Rose Brown and took over her case.

Once an accusation is issued, the Commission comes into the picture. The Commission adjudicates accusations by holding hearings. Commission hearings are full evidentiary proceedings governed by the California rules of evidence and conducted in accordance with the California Administrative Procedures Act. ( §§ 11500 et seq., 12972.) The hearings are presided over by an administrative law judge. ( § 11512, subd. (a).) If it feels that a remedy is appropriate, the Commission can issue cease and desist orders, order hiring, reinstatement, promotion, or back pay, or can take action "as, in the judgment of the commission, will effectuate the purposes" of the Act. ( § 12970, subd. (a).) In this case, the Commission held a hearing and later adopted the proposed decision of the administrative law judge that Peralta had discriminated against Rose Brown by sexually harassing her, and had caused Rose Brown to suffer emotional and physical stress. The Commission ordered Peralta to cease and desist from discriminating against female employees on the basis of sex, to develop a written policy and training program, to inform all employees of the policy regarding sexual harassment, and to pay Rose Brown $20,000 in compensatory damages.

The Commission's ruling may be reviewed by a petition for administrative writ of mandate. (Code Civ.Proc., § 1094.5.) If an employer petitions, the substantial evidence test applies. If an employee petitions, the independent judgment test is used. (American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 607, 186 Cal.Rptr. 345, 651 P.2d 1151; Kerrigan v. Fair Employment Practice Com. (1979) 91 Cal.App.3d 43, 52, 154 Cal.Rptr. 29, cert. den., 444 U.S. 930, 100 S.Ct. 273, 62 L.Ed.2d 187.) In this case, Peralta filed a petition for writ of mandate. The superior court denied each part of the writ except the part involving damages. It ordered that the award of compensatory damages was not within the authority of the Commission, and struck the award.

The Commission is entitled to appeal the adverse decision of the superior court; that is what occurred here. The Commission contends that it has authority to award compensatory damages under the Act.

II

Since the Commission's authority must come from the Act, the issue is, does the Act give the Commission the power to award compensatory damages? ³

As a starting point, we review the relevant language of the relevant statutes. The basic remedy section of the Act, section 12970, subdivision (a), states: "If the commission finds that a respondent has engaged in any unlawful practice under this part, it shall state its findings of fact and determination and shall issue and cause to be served on the parties an order requiring such respondent to cease and desist from such unlawful practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of this part...." (Emphasis added.)

It is true that the statute does not mention actual or compensatory damages. It is also true that the statute's language is expansive. The "judgment of the commission" is the only explicit limitation on the type of remedies allowed. The phrase "including, but not limited to" explicitly does not limit but instead enlarges the Commission's authority. (See American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal.3d at p. 611, 186 Cal.Rptr. 345, 651 P.2d 1151, dis. opn. of Mosk, J. ["including, but not limited to" meant as a "term of enlargement"].) And the Legislature has directed that the Act be construed "liberally." ( § 12993.) Thus, the plain language of the statute would seem to allow the type of damages at issue, if the judgment of the commission is that these damages are necessary.

However, the language of a statute " 'should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' [Citations.]" (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272, quoting Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.) Our task is to try to figure out what the Legislature intended with the current Fair Employment and Housing Act scheme. To do this, we look first at the expressed purposes of the law. (See Brown v. Superior Court, supra, 37 Cal.3d at p. 485, 208 Cal.Rptr. 724, 691 P.2d 272.)

The purpose of the Act, as spelled out in section 12920, is to "provide effective remedies which will eliminate such discriminatory practices" that are contrary to the public policy of the state. (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220, 185 Cal.Rptr. 270, 649 P.2d 912.) The question is whether compensatory damages are an effective remedy that will eliminate discrimination.

Compensatory damages include both out-of-pocket losses and actual damages for emotional distress. That the type of injury leading to compensatory damages occurs cannot be questioned. Courts have consistently recognized that emotional and mental injuries often occur as a result of discrimination. (Woods-Drake v. Lundy (5th Cir.1982) 667 F.2d 1198, 1203; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497-498, 86 Cal.Rptr. 88, 468 P.2d 216; Hess v. Fair Employment & Housing Com. (1982) 138 Cal.App.3d 232, 237, 187 Cal.Rptr. 712.) The state Legislature has recognized this concept in its 1982 amendment to the Act. "Loss of tangible job benefits shall not be necessary in order to establish harassment." ( § 12940, subd. (i).)

Various reasons convince us that these damages are a necessary and effective...