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Court of Appeal, First District, Division 5, California.

ALAMEDA COUNTY GENERAL SERVICES AGENCY, Plaintiff and Respondent, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, Defendant and Appellant. Luisa STUCKY, Real Party in Interest and Appellant.


Decided: March 25, 1987

John K. Van De Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Beverly Tucker, Deputy Attys. Gen., San Francisco, for defendant and appellants. Richard J. Moore, County Counsel, Willie Lott, Jr., Deputy County Counsel, County of Alameda, Oakland, for plaintiff and respondent.

We hold that the Fair Employment and Housing Commission does not have the authority to award an employee compensatory damages against an employer who has violated the Fair Employment and Housing Act.

The Fair Employment and Housing Commission (the Commission) appeals from a decision by the superior court granting the petition for writ of mandate (Gov. Code, § 11523;  Code Civ.Proc., § 1094.5) setting aside the determination by the Commission that the Alameda County General Services Agency (the County), through its employee and supervisor, Earl Herber, had unlawfully discriminated against real party in interest, Luisa Stucky, on the basis of sex in violation of the Fair Employment and Housing Act (the FEHA) (Gov.Code, § 12900 et seq.).

On March 11, 1982, Ms. Stucky filed a complaint with the Department of Fair Employment and Housing (the Department) alleging that she was the victim of sexual harassment.   On March 1, 1984, after a hearing before the Commission, the Commission found that Ms. Stucky's testimony was credible, and that she was the victim of sexual harassment and thus deprived of a discrimination-free work environment.   The Commission also found the County liable for the acts of its supervisor, Mr. Herber, and that the County, by terminating Ms. Stucky, at least partially because she had suffered sexual harassment, violated the FEHA.   Because of her poor job performance, however, the Commission decided not to order reinstatement and backpay;  however, it did award $20,000 in compensatory damages to Ms. Stucky for the mental and physical distress she suffered.1

The crucial question on appeal is whether the Commission is empowered to award compensatory damages against an employer who violates the FEHA.   We find that no such authority exists.

This question was expressly reserved by our Supreme Court in Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220–221, 185 Cal.Rptr. 270, 649 P.2d 912.   Indeed, we note that the question is now before our Supreme Court in a trio of cases:  Dyna-Med, Inc. v. Fair Employment & Housing Com. (1985) 184 Cal.App.3d 251, 220 Cal.Rptr. 158 (review granted Jan. 23, 1986 (S32145));  Peralta Community College Dist. v. Fair Employment & Housing Com. (1986) 181 Cal.App.3d 1065, 226 Cal.Rptr. 794 (review granted Aug. 21, 1986 (S25047));  Donald Schriver, Inc. v. Fair Employment & Housing Com. (1986) 186 Cal.App.3d 322, 230 Cal.Rptr. 620 (review granted Jan. 14, 1987 (S32294)).   Both Peralta and Dyna-Med, Inc. examined, inter alia, the statutory language and public policy, and they concluded that the Commission was authorized to award compensatory damages.   Schriver held to the contrary, again through scrutinizing the language of the statute.   All three opinions utilize exhaustive examinations of the statute, the legislative history, close parallels or similar statutes in both the California and federal systems, and use accepted techniques of statutory construction.

Briefly, we offer our view on the subject.   The language of Government Code section 12970, subdivision (a), we concede, is quite broad:  “If the commission finds that a respondent has engaged in any unlawful practice under this part, it ․ shall issue and cause to be served on the parties an order requiring such respondent ․ to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, and restoration to membership in any respondent labor organization․”  However, we do not find any talismanic power accorded to the phrase “including, but not limited to,” as is argued by the Commission.   The remedies enumerated in section 12970 are equitable in nature, and while these remedies may be quite expansive in nature and form, we cannot conclude that the remedy of damages is included.   As both counsel for the Commission and the County concede, no other agency within our state government possesses the authority to award damages.   Indeed, the remedial section of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e–5(g)), almost identical to Government Code section 12970, does not provide for monetary damages.

We are hesitant to find that specific and quite important authority exists for the Commission to award damages in the absence of specific statutory language to that effect.   Counsel for the Commission has conceded that with regard to housing the Legislature has spoken quite clearly with respect to the empowerment of the Commission to award damages in housing cases.  (See Hess v. Fair Employment & Housing Com. (1982) 138 Cal.App.3d 232, 236–237, 187 Cal.Rptr. 712 [affirming award of damages].)  The fact that the Legislature has spoken affirmatively through the enactment of Government Code section 12987 emphasizes the silence of Government Code section 12970 with regard to the power to award damages in employment discrimination cases.

Additionally, there exists further cause for concern compelling us to hold as we do.   The Seventh Amendment to the United States Constitution provides that “ ‘[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.’   Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time.”  (Curtis v. Loether (1974) 415 U.S. 189, 192–193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260.)   Thus, if a statute “creates legal rights and remedies, enforceable in an action for damages in the ordinary court of law,” the Seventh Amendment requirement of a jury trial is invoked.   (At p. 194, 94 S.Ct. at 1008.)   This is because a “damages action sounds basically in tort—the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach.”  (At p. 195, 94 S.Ct. at 1009.)   While the Legislature may challenge this constitutional provision and characterize an award of monetary relief as not “legal” within the meaning of the Seventh Amendment, we do not feel that a court of law, by judicial fiat, may create a cause of action in potential conflict with a constitutional mandate.

Because only damages were awarded in this case, the absence of statutory authority to award damages effectively moots all other issues in this case.   Therefore, the granting of the County's petition for writ of administrative mandamus is affirmed.


1.   The Commission also issued a cease-and-desist order against the County, however, that part of the remedy is not before this court.

LOW, Presiding Justice.

KING and HANING, JJ., concur.