The sole issue in the subject case is whether a hearing tribunal of the Washington State Human Rights Commission (hereinafter Commission) has authority to award compensation for humiliation and mental suffering caused by unlawful age discrimination. We hold it has no such authority.
Mary Spangenberg applied for a teaching position at Garden Springs School in the Cheney School District (hereinafter District) in 1977 when she was 40 years of age. The only requisite qualification for the job listed in the job bulletin was a valid Washington state teaching certificate. At the time, Spangenberg held a valid teaching certificate and had been employed by the District for 7 years. Although she was found qualified, she was not hired. One of the reasons for refusing her employment was that the District wanted a younger person for the position. The District's
She filed a complaint with the Commission and the case was heard by a hearing tribunal. The tribunal found that the District did not hire Spangenberg because of her age, and awarded her a judgment of $4,500 for humiliation and mental suffering.
The District appealed to the Superior Court which ruled that the Commission and/or its hearing tribunal have no authority to award damages for mental suffering and/or humiliation in any amount. However, the court did grant judgment for nominal damages in the amount of $1,000. The Commission appealed to this court, claiming it had authority to award damages for humiliation and mental suffering and asked that the $4,500 award against the District be reinstated. The District did not appeal the $1,000 award for nominal damages, presumably on the basis that it did not include damages for mental suffering.
The Washington Law Against Discrimination, when originally enacted in 1949, covered only discrimination in employment because of race, creed, color or national origin. Laws of 1949, ch. 183. Tribunals were authorized only to issue cease and desist orders. Laws of 1949, ch. 183, § 8. In 1955, the Law Against Discrimination was revised and reenacted. At that time, RCW 49.60.250 was enacted, authorizing the tribunal to issue
(Italics ours.) The italicized language was added in 1957.
Pursuant to RCW 49.60.250 and the italicized language "or to take such other action," the Legislature granted the Commission the power to give hearing tribunals acting in
To determine the intent of the Legislature regarding the meaning of the words "or to take such other action as" as set forth in RCW 49.60.250, one must examine the 1957 journals of the House and Senate. There is no mention of the authority of the Commission to set up a tribunal having the power to award damages for humiliation and mental suffering. However, in the 1977 session of the Legislature, to wit, on February 7, 1977, Senate Bill 2482 was introduced which, on page 17, suggested an amendment to RCW 49.60.250 which, in part, provided
The suggested amendatory matter set forth in the above paragraph of SB 2482 is underlined. If the administrative law judge was guided by policies and precedents of the Commission, he would presumably have legislative authority to order damages for humiliation and mental suffering, for this is appellant's current policy. The Senate bill was reported out of committee on May 4, 1977. The Senate Journal, 45th Legislature (1977), at 1457-59, reflects legislative intent as to whether the Commission or a hearing tribunal appointed by the Commission had the authority to assess damages for humiliation and mental suffering. There is no mention specifically regarding the authority to assess damages, but the dialogue reflects legislative intent to expand the powers and authority of the Commission and its tribunals only as "expressly" stated in the statute.
Mary Spangenberg, who suffered damages by humiliation and mental suffering caused by age discrimination, is not without a remedy. She can sue for damages under RCW 49.60.030 which specifically grants a civil remedy for anyone injured by an act of discrimination as follows:
In Ellingson v. Spokane Mortgage Co., 19 Wn.App. 48, 573 P.2d 389 (1978), the appellate court held that courts may award compensation for humiliation and mental suffering in a discrimination case. Consequently, there is no compelling need to vest a law tribunal with the power to award such damages.
WAC 162-08-061(2) provides in part:
If the Commission is unable to resolve the complaint through the means specified in the statute, it is presented to a hearing tribunal for disposition under RCW 49.60.250.
While the Commission may have somewhat broad power concerning the identification of unfair practices, it has been provided with limited power to resolve them. The results of discrimination are not nearly as varied as the causes. For this reason, the Legislature enumerated the types of remedies it considered appropriate and granted a hearing tribunal, rather than the Commission, the power to effectuate them. Conspicuously absent is any mention of damages, other than an award for back pay. It seems apparent that these are allowed since they are easily ascertainable by a tribunal involving essentially a matter of computation.
The enumeration of remedies in RCW 49.60.250 is not consistent with the Commission's argument that the Legislature did not designate the remedies that are appropriate to eliminate and prevent discrimination, but gave the Commission the authority to do so. It is apparent that the Legislature gave specific guidance concerning what it felt were appropriate remedies that could be ordered by a hearing tribunal. While RCW 49.60.250 gives a tribunal the power to take "other action" to effectuate the chapter's purpose, it is to be noted that "such other action" is qualified by the phrase "and including a requirement for report of the matter
RCW 49.60.225 lends further legislative intent that the Legislature had not granted authority to award damages for humiliation and mental suffering for civil rights damages, by providing as follows:
Under this statute, in the field of unfair practices involving real estate, the Legislature specifically granted the power to the Commission to award damages up to the sum of $1,000 which presumably includes all types of damages including those for humiliation and mental suffering. If the Commission already had such authority under the language of the 1957 statute providing "or to take such other action as", there would have been no reason to specifically provide for it in RCW 49.60.225 and limit it to $1,000.
It is unrealistic to believe that the Legislature, 23 years earlier, would have granted to a lay tribunal more power than to a court concerning general damages for humiliation
Courts in Pennsylvania,
The Commission cites two cases from Massachusetts
A case (cited by the Commission) dealing with an award of damages by the New Jersey Division on Civil Rights for mental suffering is Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 421, 301 A.2d 754 (1973). There the court held that a nominal amount could be awarded for mental suffering. The reason for approving such award was a provision in their statute (there is no Washington counterpart) as follows:
(Italics ours.) Any relief sought in a proceeding before the New Jersey Division is exclusive, and a final determination in such proceeding precludes any further relief which is sought for the same grievance. This is contrary to applicable Washington law which permits a complainant to seek relief from the Commission and/or tribunal and yet maintain a civil action, as provided in RCW 49.60.030(2).
The Commission also cites McCabe v. Johnson Cy. Bd. of Cy. Comm'rs, 5 Kan.App.2d 232, 615 P.2d 780 (1980), which is inapplicable. Although the Kansas Commission on Civil Rights did award $5,000 damages, these were recovered by the employee as the result of retaliatory discharge. The Kansas Commission expressly found that no probable cause existed concerning the discrimination charge.
The Oregon Court of Appeals, in Williams v. Joyce, 4 Or.App. 482, 479 P.2d 513 (1971), reasoned that the award of damages to compensate for a victim's humiliation is an act reasonably calculated to eliminate the effects of discrimination.
The authority for a tribunal to award damages for humiliation and mental suffering is not provided for, either expressly or by inference. A person who has suffered humiliation caused by discrimination may seek relief through a civil action as provided for under RCW 49.60.030. For these reasons, we hold that a hearing tribunal of the Washington State Human Rights Commission has no authority to award compensation for humiliation and mental suffering caused by unlawful age discrimination. The judgment in favor of Spangenberg for $1,000 in nominal damages is hereby affirmed, because it was not challenged on this appeal.
DOLLIVER, WILLIAMS, and DIMMICK, JJ., and CUNNINGHAM, J. Pro Tem., concur. ROSELLINI, J. (concurring)
I do not find in the legislative history described in the majority opinion any indication of the Legislature's intent with respect to the award of damages. Furthermore, I disagree with an approach to statutory interpretation which looks first to legislative history, and only later to the language of the statute, where the intent of the law ought to be revealed. I do agree, however, that the language itself shows no intent to give the administrative agency the power of determining and awarding damages, except as specifically provided in the statutes. There is no authority conferred in RCW 49.60.250 to award
BRACHTENBACH, C.J., and UTTER, J., concur with ROSELLINI, J.
Reconsideration denied May 20, 1982.
"We have no idea what that is going to cost. We don't know who they are going to be billing or who they are going to be working with.'
"Senator Francis: `Senator Donohue, in answer to your question, I will first point out that you read out loud the part that says, "carry out the purposes of this human rights law." I think that that subsection 7 would all be interpreted that they would be limited by that, the requirements of this statute. What we are talking about is, say a woman is denied employment and believes it is because of her sex. She goes to the EEOC, and that is a federal agency. The question is, are they going to be duplicating the efforts of the human rights commission, or are we going to cooperate? Does that answer satisfy you, Senator Donohue?'
"Senator Donohue: `No.'
"Senator Francis: `Did you hear any of it?'
"Senator Donohue: `I heard enough to know that it didn't satisfy me.'
"Senator Francis: `I would really like you to be listening since you asked me these questions, and I think that that should have satisfied you if you were listening. Let me go over it again. The federal EEOC covers a lot of the same ground our state human rights law does. There is no reason for them to duplicate investigations if they can work together within their respective statutes to investigate a particular allegation or complaint. That is all it is talking about is to give them a right to work together.'
"POINT OF INQUIRY
"Senator Rasmussen: `Mr. President, I would like to ask Senator Francis a question. Senator Francis, my concern, Senator Francis, is the administrative law judge and the fact that he can be removed by the chairman if anybody expresses prejudice against him, and I don't like that section of the bill. I am not very fond of administrative law judges anyway. It doesn't spell out the qualifications. They are not elected by anybody, but they build a case against you so that when you do go before a regular court, why you are practically dead before you start. I don't like that section. I kind of agree with those people that are — you probably ought to take another look, and if the judiciary committee has gone as far as it can in cleaning this bill up, they can send it up to state government, and we will work on it for another three years.'
"Senator Francis: `Mr. President, I am not exactly sure what the question was. The reason for changing it to administrative law judge was because it was felt by some employers that a hearing tribunal of three persons who were members of the board was much too oriented towards enforcement, and that an administrative law judge would be more fair to them. So that is the reason for this change. I think that most of these changes for those who actually work in the field are regarded as highly desirable.'"