Dyna-Med, Inc. v. Fair Employment & Housing Commission

743 P.2d 1323, 43 Cal. 3d 1379, 241 Cal. Rptr. 67, 1987 Cal. LEXIS 454, 44 Empl. Prac. Dec. (CCH) 37,503, 46 Fair Empl. Prac. Cas. (BNA) 1143

• Court: California Supreme Court
• Decided: November 2, 1987
• Docket: L.A. 32145
• Status: Published

Opinions

Opinion

PANELLI, J.

In Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211 [185 Cal.Rptr. 270, 649 P.2d 912] (hereafter Commodore Home), we held that a court may award punitive damages in a civil suit for job discrimination pursuant to the California Fair Employment and Housing Act (FEHA or Act) (Gov. Code, § 12900 et seq.).¹ The issue in the present case is whether the FEHA authorizes the Fair Employment and Housing Commission (Commission or the commission) to impose punitive damages, a question left unresolved in Commodore Home.2 (Id. at p. 220.) As will appear, we conclude that the FEHA does not authorize the commission to award punitive damages.

I. Background

The California Fair Employment Practice Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.; see Stats. 1959, ch. 121, § 1, pp. 1999-2005) and recodified in 1980 as part of the FEHA (Stats. 1980, ch. 992, § 4, p. 3140 et seq.). “The law establishes that freedom from job discrimination on specified grounds, . . . is a civil right. (§ 12921.) It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940). [Fn. omitted.]” (Commodore Home, supra, 32 Cal.3d at p. 213.) The statute creates two administrative bodies: the Department of Fair Employment and Housing (the department) (§ 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination (§ 12930), and the commission, which performs adjudicatory and rulemaking functions (§ 12935; see also § 12903). An aggrieved person may file a complaint with the department (§ 12960), which must promptly investigate (§ 12963). If the department deems a claim valid it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion. (§ 12963.7.) If that fails or seems inappropriate, the department may issue an accusation to be heard by the commission. (§§ 12965, subd. (a), 12969.) The department acts as prosecutor on the accusation and argues the complainant’s case before the commission. (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 428 [217 Cal.Rptr. 16, 703 P.2d 354]; Commodore Home, supra, 32 Cal.3d at p. 213.)

If an accusation is not issued within 150 days after the filing of the complaint or if the department earlier determines not to prosecute the case and the matter is not otherwise resolved, the department must give the complainant a “right to sue” letter. The complainant may then bring a civil suit in superior court. (§ 12965, subd. (b); see Commodore Home, supra, 32 Cal.3d at pp. 213-214.)

In the instant case Linda Olander initially filed a complaint with the department alleging that Dyna-Med, Inc. (Dyna-Med) discriminated against her with regard to wages and promotional opportunities on the basis of sex in violation of the FEPA. The complaint was resolved by means of a written settlement agreement pursuant to which Dyna-Med agreed, inter alia, not to engage in retaliatory action against Olander for filing the complaint.³ Approximately five hours after executing the agreement, Dyna-Med fired Olander. Olander filed a new complaint, alleging that she was fired in retaliation for her original complaint. Following a hearing, the commission issued its decision ordering Dyna-Med to pay Olander her lost wages, plus $7,500 in punitive damages.⁴ The superior court denied Dyna-Med’s petition for a writ of mandate. The Court of Appeal affirmed. We granted review.

The sole issue before us is whether the FEHA grants the commission authority to award punitive damages. Resolution of this issue depends on the meaning of section 12970, subdivision (a), which sets forth the scope of relief available from the commission. That section provides: “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 ... 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, and restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purposes of this part, and including a requirement for report of the manner of compliance.”

Before addressing the parties’ arguments we state briefly the basis for the Court of Appeal’s determination that the commission is authorized to award punitive damages.

“It is undisputed,” the Court of Appeal stated, “an administrative agency’s power to award such damages must arise from express authorization. Here, the Legislature delegated broad authority to the Commission to fashion appropriate remedies for unlawful employment practices in section 12970, subdivision (a): [ft] ‘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, as, in the judgment of the commission, will effectuate the purposes of this part, and including a requirement for report of the manner of compliance.’. . . [1¡] Attempting to harmonize this specific provision in context of the entire statutory framework, we find in section 12920 the underlying purpose of the act is to provide effective remedies to eliminate discriminatory employment practices. Consequently, considering the legislative mandate to liberally construe the act to further these purposes (§ 12993), we conclude it has statutorily authorized the Commission to impose punitive damages where necessary to effectively remedy and eliminate unlawful FEHA employment practices.” (Italics in original.)

In the Court of Appeal’s judgment, the facts of the instant case “prove ordinary restitutionary remedies are often ineffective in eliminating discriminatory practices.”⁵ The court thus determined that “in light of the limited remedial effect of [the] permissible compensatory remedies, the award of punitive damages may be the only method of fulfilling the purposes of the act, including encouraging plaintiffs to seek relief by increasing their potential recovery. ...”

II. Discussion

Petitioner Dyna-Med and its amici⁶ argue that although the Court of Appeal correctly recognized that the statutory language and legislative history of section 12970, subdivision (a) are determinative of the issue before us, the court misread the statute and misapplied common principles of statutory construction in concluding that the Legislature has authorized the commission to award punitive damages.

Respondent Commission and its amici⁷ maintain that the FEHA is unambiguous in authorizing broad relief limited only by the judgment of the commission as to what will effectuate the purposes of the Act, and that the commission has properly determined that the award of exemplary damages in appropriate cases is necessary to deter deliberate discrimination.

A. Statutory Language

Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844 [157 Cal.Rptr. 676, 598 P.2d 836]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224], and cases cited; see also Brown v. Superior Court (1984) 37 Cal.3d 477, 484-485 [208 Cal.Rptr. 724, 691 P.2d 272].) Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. (Alford v. Pierno (1972) 27 Cal.App.3d 682, 688 [104 Cal.Rptr. 110].) Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. (California Mfrs. Assn., supra, 24 Cal.3d at p. 844; see also Steilberg v. Lackner (1977) 69 Cal.App.3d 780, 785 [138 Cal.Rptr. 378].) A statute should be construed whenever possible so as to preserve its constitutionality. (See Department of Corrections v. Workers’ Comp. Appeals Bd. (1979) 23 Cal.3d 197, 207 [152 Cal.Rptr. 345, 589 P.2d 853]; County of Los Angeles v. Riley (1936) 6 Cal.2d 625, 628-629 [59 P.2d 139, 106 A.L.R. 903]; County of Los Angeles v. Legg (1936) 5 Cal.2d 349, 353 [55 P.2d 206].)

We consider, therefore, the statutory language in the context of the legislative purpose. The Legislature has declared that the purpose of the FEHA is to provide effective remedies which will eliminate discriminatory practices. (§ 12920.) Webster’s Dictionary defines a “remedy” in part as “something that corrects or counteracts an evil: corrective, counteractive, reparation .... [T]he legal means to recover a right or to prevent or obtain redress for a wrong. . . .” (Webster’s New Intemat. Diet. (3d ed. 1961) p. 1920, col. 1.) Here the statutorily authorized remedies—hiring, reinstatement, upgrading with or without back pay, restoration to membership in a respondent labor organization—are exclusively corrective and equitable in kind. They relate to matters which serve to make the aggrieved employee whole in the context of the employment.

Punitive damages, by contrast, are neither equitable nor corrective; punitive damages serve but one purpose—to punish and through punishment, to deter. “Punitive damages by definition are not intended to compensate the injured party, but rather tó punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct.” (Newport v. Fact Concerts, Inc. (1981) 453 U.S. 247, 266-267 [69 L.Ed.2d 616, 632, 101 S.Ct. 2748]; see Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13 [148 Cal.Rptr. 389, 582 P.2d 980].)

The general rule is that “[w]here the enabling statute is essentially remedial, and does not carry a penal program declaring certain practices to be crimes or provide penalties or fines in vindication of public rights, an agency does not have discretion to devise punitive measures such as the prescription of penalties or fines. The statutory power to command affirmative action is remedial, not punitive.” (Modjeska, Administrative Law Practice and Procedure (1982) Sanctions and Remedies, § 5.9, pp. 170-171, fns. omitted; see Edison Co. v. Labor Board (1938) 305 U.S. 197, 235-236 [83 L.Ed. 126, 143, 59 S.Ct. 206]; see also Youst v. Longo (1987) 43 Cal.3d 64, 82-83 [233 Cal.Rptr. 294, 729 P.2d 728] [where regulatory scheme provides for one kind of relief and is silent on another, it should be construed to exclude the latter].)

Commission acknowledges that punitive damages are different in kind from the enumerated remedies, but argues that in certain cases, as here, where there was “intentional egregious” discrimination and the make-whole remedies are inappropriate,⁸ the imposition of exemplary damages is necessary as a deterrent to effectuate the purpose of the Act to eliminate employment discrimination. Citing the statutory directive that the provisions of the Act shall be liberally construed (§ 12993), Commission argues that the language empowering it to take such action “including, but not limited to,” the specified actions, is sufficiently broad to authorize it to award punitive damages. By regulation since repealed and in its precedential decisions, the commission has itself so interpreted the statute.⁹

The contemporaneous construction of a new enactment by the administrative agency charged with its enforcement, although not controlling, is entitled to great weight. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281]; People v. McGee (1977) 19 Cal.3d 948, 961 [140 Cal.Rptr. 657, 568 P.2d 382]; City of Los Angeles v. Rancho Homes, Inc. (1953) 40 Cal.2d 764, 770-771 [256 P.2d 305].) The commission’s interpretation of the Act as authorizing it to award punitive damages was not, however, “contemporaneous.” Not until 1980—more than 20 years after the Act’s enactment—did the commission undertake to award damages. (See fn. 9, ante.) The final meaning of a statute, moreover, rests with the courts. An administrative agency cannot by its own regulations create a remedy which the Legislature has withheld. (Commodore Home, supra, 32 Cal.3d at p. 227 (dis. opn. of Richardson, J.); see Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal. 3d 101, 117 [172 Cal.Rptr. 194, 624 P.2d 244]; J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal. 3d 1, 29 [160 Cal.Rptr. 710, 603 P.2d 1306]; Morris v. Williams (1967) 67 Cal.2d 733, 748 [63 Cal.Rptr. 689, 433 P.2d 697].) “ ‘Administrative regulations that alter or amend the statute or enlarge or impair its scope are void and courts not only may, but it is their obligation to strike down such regulations.’ [Morris v. Williams, supra, and cases cited.] And this is the rule even when, as here, ‘the statute is subsequently reenacted without change.’ [Citation.]” (American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 618-619 [186 Cal.Rptr. 345, 651 P.2d 1151] (dis. opn. ofMosk, J.). See also Nadler v. California Veterans Board (1984) 152 Cal.App.3d 707, 718-719 [199 Cal.Rptr. 546].)

We take no issue with the premise that exemplary damages would serve to deter discrimination. Nor do we dispute that the phrase “including, but not limited to” is a phrase of enlargement. (See American National Ins. Co. v. Fair Employment & Housing Com., supra, 32 Cal. 3d at p. 611 (dis. opn. of Mosk, J.); Fraser v. Bentel (1911) 161 Cal. 390, 394 [119 P. 509]; 2A Sutherland, Statutory Construction (4th ed. 1984) § 47.07, p. 133 [hereafter Sutherland].) Nevertheless, given the extraordinary nature of punitive damages, these factors, in our view, are insufficient to support an inference that the Legislature intended sub silentio to empower the commission to impose punitive damages. Commission’s argument, taken to its logical conclusion, would authorize every administrative agency granted remedial powers to impose punitive damages so long as the statute directs that its provisions are to be liberally construed to effectuate its purposes.¹⁰

Seeking to alleviate concern that a “flood of agencies” would arrogate to themselves similar authority, Commission states that only four other agencies have been granted comparable statutory authority to order actions that will effectuate the purposes of the acts they enforce—the Agricultural La-bar Relations Board (ALRB) (Lab. Code, § 1160.3); the Public Employment Relations Board (PERB) (§ 3541.5); the State Personnel Board (§ 19702, subd. (e)); and the California Horse Racing Board (Bus. & Prof. Code, § 19440)&emdash;and none awards punitive damages.

That no similarly empowered agency awards punitive damages lends support, in our view, to the conclusion that the power to make punitive assessments will not be implied merely from a legislative directive that an act’s remedial provisions are to be liberally construed to effectuate its Indeed, in Youst v. Longo, supra, 43 Cal. 3d 64, we specifically that the broad powers the Legislature vested in the California Horse Racing Board do not include the power to award compensatory or punitive tort damages. “[T]he power to award compensatory and punitive tort damages to an injured party is a judicial function. Although the [Horse Racing] Board has very broad power to regulate and discipline wrongful conduct which involves horseracing in California, the relevant statutes do not affirmative compensatory relief such as tort damages.” (Id. at p. 80, italics omitted.)

As the United States Supreme Court stated in another context: “[I]t is not enough to justify the Board’s requirements to say that they would have the effect of deterring persons from violating the Act. That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end. [1J] . . . [A]ffirmative action to ‘effectuate the policies of this Act’ is action to achieve the remedial objectives which the Act sets forth.” (Republic Steel Corp. v. Labor Board (1940) 311 U.S. 7, 12 [85 L.Ed. 6, 10, 61 S.Ct. 77]; accord, Carpenters Local v. Labor Board (1961) 365 U.S. 651, 655 [6 L.Ed.2d 1, 4, 81 S.Ct. 875]; see Laflin & Laflin v. Agricultural Labor Relations Bd. (1985) 166 Cal.App.3d 368, 380-381 [212 Cal.Rptr. 415].)

A more reasonable reading of the phrase "including, but not limited to," is that the Legislature intended to authorize the commission to take such other remedial action as in its judgment seems appropriate to redress a particular unlawful emnlovment Dractice and to prevent its recurrence, thus eliminating the practice.¹¹ A reaciing or tile phrase as permitting only additional corrective remedies comports with the statutory construction doctrines of ejusdem generis,12 expressio unius est exclusio alterius¹³ and noscitur a sociis.14 (See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 25 Cal.3d at pp. 330-331 [applying ejusdem generis]; see also Richerson v. Jones (3d Cir. 1977) 551 F.2d 918, 927 {ejusdem generis invoked in concluding that the Federal Equal Employment Opportunity Act of 1972 does not authorize punitive assessments].) Although these canons of construction are mere guides and will not be applied so as to defeat the underlying legislative intent otherwise determined (Cal. State Employees' Assn. v. Regents of University of California (1968) 267 Cal.App.2d 667, 670 [73 Cal.Rptr. 449]), their application here to limit the commission’s authority to the ordering of corrective, nonpunitive action is consistent with both the remedial purpose of the Act and the ordinary import of the statutory language.

This reading, moreover, harmonizes the various parts of the statute. Section 12964, referring to resolution of allegedly unlawful practices through conciliation, provides that “such resolutions may be in the nature of, but are not limited to, types of remedies that might be ordered after accusation and hearing,” i.e., the section 12970 remedies. While the corrective remedies enumerated in section 12970 are appropriate to impose in the context of a resolution by conciliation, punitive damages are antithetical to the conciliation process and, as indicated, are not “in the nature of’ the type of remedy authorized by section 12970.

A construction of section 12970 that limits the commission to corrective, nonpunitive remedies also harmonizes the Act with the statutory provisions governing the award of punitive damages in civil actions. Civil Code section 3294, subdivision (a) allows the award of exemplary damages only when the defendant has been guilty of “oppression, fraud, or malice.” This provision codifies the universally recognized principle that “[t]he law does not favor punitive damages and they should be granted with the greatest caution.” (Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347, 355 [126 Cal.Rptr. 602].) Although the commission evidently has adopted the statutory standard, nothing in the FEHA requires it to do so or provides any guidelines for the award of punitive damages.¹⁵

Further, subdivision (b) of Civil Code section 3294 provides that in an action for the breach of an obligation not arising out of contract, an employer shall not be liable for exemplary damages based on the conduct of his employee unless “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct. . . or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” Because the FEHA contains no comparable limitation on an employer’s liability for his employee’s wrongful acts (see §§ 12926, subd. (c), 12940, subd. (a)), interpreting the Act as authorizing the commission to award punitive damages would expose an employer in an administrative proceeding to greater derivative liability than in a judicial action.

Finally, Civil Code section 3295 precludes discovery of a defendant’s financial condition in actions seeking exemplary damages until the plaintiff has established a prima facie entitlement thereto. (See generally Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86, 90-91 [227 Cal.Rptr. 806].) This protection is inapplicable to administrative proceedings (see Code Civ. Proc., § 22 [defining “action”]) and no comparable provision appears in the FEHA.

Statutes are to be given a reasonable and commonsense interpretation consistent with the apparent legislative purpose and intent “and which, when applied, will result in wise policy rather than mischief or absurdity.” (Honey Springs Homeowners Assn. v. Board of Supervisors (1984) 157 Cal.App.3d 1122, 1136, fn. 11 [203 Cal.Rptr. 886].) Absent express language dictating otherwise, it will not be presumed that the Legislature intended to authorize an administrative agency—free of guidelines or limitation—to award punitive damages in proceedings lacking the protections mandated in a court of law.

As we recognized in a related context, the Legislature’s objective in providing for an administrative rather than a judicial resolution of discrimination complaints was to provide a “speedy and informal” process unburdened with “procedural technicalities.” (Stearns v. Fair Employment Practice Com. (1971) 6 Cal.3d 205, 214 [98 Cal.Rptr. 467, 490 P.2d 1155] [concerning transfer to the Commission’s predecessor of housing discrimination complaints].) “To achieve this end the [Fair Employment Practices Commission] established procedures that are as simple and uncomplicated as possible. Complaints are drafted by laymen; the commission informally attempts to eliminate discriminatory practices before instituting formal accusations; the commission, on a finding of discrimination, may fashion remedies both to correct unique cases of such practice as well as to curb its general incidence.” (Ibid.) The award of punitive damages—“traditionally . . . limited to the judicial forum with its more extensive procedural protections” (Commodore Home, supra, 32 Cal.3d at p. 217, fn. 6; see also Curtis v. Loether (1974) 415 U.S. 189, 196-197 [39 L.Ed.2d 260, 268, 94 S.Ct. 1005])—has no place in this scheme.

In sum, we are of the view that the statutory language, given its ordinary import and construed in context of the purposes and objectives of the law, together with the Legislature’s silence on the issue of punitive damages, compels the conclusion that the Legislature did not intend to grant the commission authority to award punitive damages. If, as Commission argues, the inability to award such damages deprives it of an effective means to redress and prevent unlawful discrimination, it is for the Legislature, rather than this court, to remedy this defect. We are not, however, convinced that the commission lacks sufficient means to redress and eliminate discrimination. The Act authorizes class actions and permits the director of the department to address systematic problems, such as pattern and practice matters, by bringing a complaint on his or her own motion. (§§ 12960, 12961; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 867 [193 Cal.Rptr. 760].) The commission, in turn, has broad authority to fashion an appropriate remedy without resort to punitive damages. (See, e.g., fn. 11, ante; cf. McDaniel v. Cory (Alaska 1981) 631 P.2d 82, 88.) The statutory scheme provides for compliance review and judicial enforcement of commission orders (§ 12973) and makes it a misdemeanor offense for any person wilfully to violate an order of the commission (§ 12975).

Although we believe that statutory interpretation disposes of the issue, we nevertheless address the additional arguments advanced by the parties.

B. Legislative History

In support of their respective arguments, both parties cite the legislative history of the Act and the Legislature’s failure since its enactment to modify it or adopt various proposed amendments.

As indicated above, the FEPA was enacted in 1959 (former Lab. Code, § 1410 et seq.). That same year the Legislature also enacted the Hawkins Act (former Health & Saf. Code, § 35700 et seq., enacted by Stats. 1959, ch. 1681, § 1, pp. 4074-4077), prohibiting housing discrimination, and the Unruh Civil Rights Act (Civ. Code, §§ 51-52, enacted by Stats. 1959, ch. 1866, §§ 1-4, p. 4424, replacing former Civ. Code, §§ 51-54, added by Stats. 1905, ch. 413, §§ 1-4, pp. 553-554), prohibiting discrimination in business establishments. (See Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500 [86 Cal.Rptr. 88, 468 P.2d 216] [concurrent enactment of FEPA and Civil Rights Act evinced legislative intent to exclude employment discrimination from the latter act].) While both the Hawkins and Unruh Acts provided for judicial relief and authorized the award of damages,¹⁶ the FEPA provided for administrative relief and made no mention of damages.

In 1963 the Hawkins Act was replaced by the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq., enacted by Stats. 1963, ch. 1853, §§ 1-4, pp. 3823-3830), which for the first time afforded an administrative remedy for housing discrimination. Although the Rumford Act retained language authorizing the award of damages, it transformed the statutory minimum recoverable in judicial proceedings (see fn. 16, ante) into a statutory maximum in administrative proceedings.¹⁷ In 1980 the employment and housing statutory schemes were combined to form the FEHA, with enforcement of both sections of the Act vested in the commission. (Stats. 1980, ch. 992, §4, pp. 3140-3142.)

Dyna-Med argues that in light of the parallel development of legislation governing employment and housing discrimination and the ultimate union of the respective acts in one, with common enforcement procedures, it is significant that the Legislature, while authorizing the award of damages in housing cases, has never done so in employment cases. Had the Legislature intended to authorize the commission to award damages in employment cases, it knew how to do so, as it demonstrated in enacting the other civil rights statutes.

Commission, in turn, asserts that the separate origins of the housing and employment discrimination statutes explain why one explicitly allows damages and the other does not. Moreover, the remedy provisions in the housing section expressly note punitive damages only to limit their availability. (§ 12987, subd. (2).)¹⁸ Consequently, the absence of any express reference to such damages within the employment context should be construed not as a lack of authority, but rather, as a lack of limitation on such damages.

Commission’s argument is unpersuasive. A review of the relevant statutes discloses that when the Legislature intends to authorize an agency to award damages for discrimination, it does so expressly (e.g., § 12987, subd. (2) [housing]; § 19702, subd. (e) [civil service]; cf. Civ. Code, § 52, subd. (a) [civil action against business establishments]), and when it authorizes the award of a penalty or punitive damages, it limits the amount (§ 12987, subd. (2) [$1,000]; cf. Civ. Code, § 52, subd. (a) [no more than three times actual damages]).

Commission observes that since 1980 when it first interpreted the FEHA as authorizing the award of punitive damages, the Legislature has amended the Act several times without addressing the remedy provisions.¹⁹ This inaction, Commission argues, is an indication that its ruling was consistent with the Legislature’s intent. (See Coca-Cola Co. v. State Bd. of Equalization (1945) 25 Cal.2d 918, 922 [156 P.2d 1]; Action Trailer Sales, Inc. v. State Bd. of Equalization (1975) 54 Cal.App.3d 125, 133-134 [126 Cal.Rptr. 339].)

Dyna-Med, by contrast, relies on a bill introduced but not enacted by the Legislature in 1976 (Assem. Bill No. 3124, 2 Assem. Final Hist. (1975-1976 Sess.) p. 1658), which would expressly have authorized the commission to award limited damages in employment discrimination cases, and on the provision of Senate Bill No. 2012, introduced in 1984, which would have amended section 12970, subdivision (a) to specifically authorize compensatory and punitive damages as “declaratory of existing law,” but which was removed before the bill’s enactment (see Stats. 1984, ch. 1754, § 3, p. 6406).

We find the subsequent legislative history of the statute ambiguous and of little assistance in discerning its meaning. The Legislature’s failure to modify the statute so as to require an interpretation contrary to the commission’s construction is not determinative: “[A]n erroneous administrative construction does not govern the interpretation of a statute, even though the statute is subsequently reenacted without change. [Citations.]” (Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 757-758 [151 P.2d 233, 155 A.L.R. 405].) Similarly inconclusive is the Legislature’s rejection of specific provisions which would have expressly allowed the award of damages. Unpassed bills, as evidences of legislative intent, have little value. (See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 735, fn. 7 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161]; Miles v. Workers’ Comp. Appeals Bd. (1977) 67 Cal.App.3d 243, 248, fn. 4 [136 Cal.Rptr. 508]; see also United States v. Wise (1962) 370 U.S. 405, 411 [8 L.Ed.2d 590, 594-595, 82 S.Ct. 1354]; 2A Sutherland, supra, § 49.10, pp. 407-408.) This is particularly true here, where the rejected provisions manifest conflicting legislative intents: the 1976 provision would have limited the amount of damages the commission could award; the 1981-1982 provisions would have prohibited the commission from awarding punitive damages (see fn. 19, ante)-, and the 1984 amendment would have authorized the award of compensatory and punitive damages “as declaratory of existing law.” (See generally Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41, 58 [69 Cal.Rptr. 480].)

Were we, however, to consider unpassed legislation, we would find it significant that at the same time the Legislature rejected the provision declaring the commission’s authority to award damages, it amended the Civil Service Act to grant the Personnel Board authority identical to the commission’s, plus the power to award compensatory damages. (Stats. 1984, ch. 1754, § 6, pp. 6408-6409; see § 19702, subd. (e).)²⁰ Where the Legislature simultaneously empowers one agency to award damages and declines similarly to empower another, there is a strong inference of a legislative intent to withhold the authority from the nonempowered agency. (See City of Port Hueneme v. City of Oxnard (1959) 52 Cal.2d 385, 395 [341 P.2d 318].)

Further, if, as Commission argues, the nonexhaustive language of section 12970 were sufficient to embrace the authority to award damages, the specific references to damages in both the Civil Service Act and the housing section of the FEHA²¹ would be mere surplusage. “[Statutes must be harmonized, both internally and with each other, to the extent possible. [Citations.] Interpretive constructions which render some words surplusage . . . are to be avoided. [Citations.]” (California Mfrs. Assn. v. Public Utilities Com., supra, 24 Cal.3d at p. 844.)

As Justice Richardson, dissenting in Commodore Home, stated: “The express provision for damages in this parallel statutory scheme [the housing section of the FEHA]—strongly suggests . . . that the omission of [a punitive damages remedy] from the employment discrimination provisions was intentional. The Legislature has clearly demonstrated that it knows how to add a punitive remedy to this statute when it wishes to do so.” (32 Cal.3d at p. 225.)

C. Federal and Other State Legislation

The remedy language of section 12970 bears a close resemblance to section 10(c) of the National Labor Relations Act (NLRA) (29 U.S.C.A. § 151 et seq., § 160(c)) relating to unfair labor practices, which authorizes the National Labor Relations Board (NLRB) to issue a cease and desist order and require the violator “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter . . . .” Federal courts have continually interpreted the NLRA as not allowing monetary remedies other than back pay. (See Edison Co. v. Labor Board, supra, 305 U.S. 197, 235-236 [83 L.Ed.2d 126, 143]; Van Hoomissen v. Xerox Corporation (N.D.Cal. 1973) 368 F.Supp. 829, 837; see also Commodore Home, supra, 32 Cal.3d at p. 224 (dis. opn. of Richardson, J.).) Title VII of the federal Civil Rights Act of 1964, relating to employment discrimination, in section 706(g) similarly authorizes the trial court to “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . , or any other equitable relief as the court deems appropriate.” (42 U.S.C.A. § 2000e-5(g).) This language, which was modeled after the NLRA (Richerson v. Jones, supra, 551 F.2d 918, 927), also has been interpreted by the majority of federal courts as barring monetary remedies other than back pay (Great American Fed. S. & L. Assn. v. Novotny (1979) 442 U.S. 366, 374-375 [60 L.Ed.2d 957, 965-966, 99 S.Ct. 2345]; see, e.g., Shah v. Mt. Zion Hospital & Medical Ctr. (9th Cir. 1981) 642 F.2d 268, 272; Richerson v. Jones, supra, at pp. 926-927; Van Hoomissen v. Xerox Corporation, supra, 368 F.Supp. 829, 836-838; Commodore Home, supra, at p. 225 and cases cited (dis. opn. of Richardson, J.)).

Dyna-Med invokes the principle that the use of identical language in analogous statutes requires like interpretation. (Belridge Farms v. Agriculture Labor Relations Bd. (1978) 21 Cal.3d 551, 557 [147 Cal.Rptr. 165, 580 P.2d 665].) Commission argues that the foregoing principle is inapposite because of the limiting reference in the NLRA to affirmative action and in title VII to equitable relief, as contrasted with section 12970’s reference without modification to “action.” Commission points further to the differing purposes of the NLRA and the FEPA: the first exists to promote industrial peace and stability through collective bargaining and to create a cooperative atmosphere of recognition between labor and management (Carey v. Westinghouse Corp. (1964) 375 U.S. 261, 271 [11 L.Ed.2d 320, 327-328, 84 S.Ct. 401]; N.L.R.B. v. Pincus Bros., Inc.-Maxwell (3rd Cir. 1980) 620 F.2d 367, 372-373; Bloom v. N.L.R.B. (D.C. Cir. 1979) 603 F.2d 1015, 1019), whereas the latter is designed to provide effective remedies to vindicate the individual’s constitutional right to be free from employment discrimination and to eliminate discriminatory employment practices (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at 432).

When first enacted, the FEPA, like the NLRA, combined the prosecutorial and adjudicative functions and provided only for administrative relief.²² (Stats. 1959, ch. 121, § 1, pp. 1999-2005; see Commodore Home, supra, 32 Cal.3d at p. 218; cf. NLRA, § 10(b) & (c), 49 Stat. at pp. 453-454; Labor Board v. Jones & Laughlin (1937) 301 U.S. 1, 24-25 [81 L.Ed. 893, 904-905, 57 S.Ct. 615]; Haleston Drug Stores v. National Labor Relations Bd., supra, 187 F.2d 418, 421.) The FEPA also contained the identical “affirmative action” language as the NLRA. (Stats. 1959, supra, at p. 2004; Commodore Home, supra, 32 Cal.3d at p. 224 (dis. opn. of Richardson, J.).) In 1969 the Legislature amended Labor Code section 1426 to delete the word “affirmative.” (Stats. 1969, ch. 526, § 1, p. 1142.) The legislative history suggests that this amendment was passed not to expand the power of the FEPC, but rather, to avoid confusion with the newly acquired meaning of “affirmative action” that was embraced in a 1967 amendment authorizing the FEPC to engage in “affirmative actions” with employers, employment agencies, and labor organizations.²³ (See former Lab. Code, §§ 1413, subd. (g), 1431, added by Stats. 1967, ch. 1506, §§ 1-2, pp. 3573-3574; see now §§ 12927, subd. (a), 12988 [concerning housing discrimination].) Both the Enrolled Bill Report of the Department of Industrial Relations and the Enrolled Bill Memorandum of the Governor’s Legislative Secretary state that the aim of the amendment was to “clear up any ambiguities . . . between the two sections of the law. In other words,” according to the report and memo, “Affirmative Action in AB 544 [the 1967 amendment] was a little broader than Affirmative Action in Section 1426 of the Labor Code [the remedies provision].” (Italics in original; see also Commodore Home, supra, 32 Cal.3d at p. 224 (dis. opn. of Richardson, J.).) Deletion of the word “affirmative” thus is not dispositive of the Legislature’s intent concerning application to the commission of federal precedent.

In Commodore Home, in the context of a civil action for punitive damages, we stated that differences between the federal laws and the FEHA— the NLRA provides no right of civil action and title VII provides only for judicial handling of federal discrimination claims—“diminish the weight of the federal precedents.” (32 Cal.3d at p. 217.) The NLRA, we observed, “specifies remedies the board may impose, and the cases hold merely that its language prevents that agency from assessing compensatory or punitive damages. []|] Contrastingly, title VII. . . expressly describes remedies that courts may assess. ...[]]] The FEHA, on the other hand, provides separate routes to resolution of claims; first, a complaint to the Department; second, if that agency fails to act, a private court action. The statute discusses remedies only in the first context; here we are concerned with those available in the second. Federal precedents do not address that problem. [Fn. omitted.]” (Ibid., italics added.)

In the instant case, by contrast, the issue is the nature of administrative remedies—the only remedies provided by the NLRA and initially provided by the FEPA. In these circumstances federal precedent under the NLRA would seem to be apposite. Because the FEPA when first enacted had the identical language and procedure as the NLRA, it can reasonably be presumed that the Legislature intended the state agency to have the same powers—and only those powers—as its federal counterpart. (See Belridge Farms v. Agricultural Labor Relations Bd., supra, 21 Cal.3d at p. 557; cf. Van Hoomissen v. Xerox Corporation, supra, 368 F.Supp. at p. 837 [interpreting title VII in light of NLRA].) This is true notwithstanding the differing intents of the two acts, particularly since the remedial portion of each is designed to protect an employee against discriminatory practices.²⁴

Although courts in other states are divided on the availability of compensatory damages under statutory schemes similar to the FEHA (see Annot. (1978) 85 A.L.R.3d 351, 356-357), we are unaware of any case upholding the award of punitive damages. Rather, the courts seem uniformly to hold that the authority of a state agency to assess exemplary damages must be express and will not be implied from a broad authority to implement the objectives of the fair employment statute. (E.g., Woods v. Midwest Conveyor Co., Inc. (1982) 231 Kan. 763 [648 P.2d 234, 244-245]; McDaniel v. Cory, supra, 631 P.2d 82, 86-89; Ohio Civil Rights Commission v. Lysyj (1974) 38 Ohio St.2d 217 [67 Ohio Ops.2d 287, 313 N.E.2d 3, 6-7, 70 A.L.R.3d 1137]; see also High v. Sperry Corp. (S.D. Iowa 1984) 581 F.Supp. 1246, 1248; see Annot., supra, 85 A.L.R.3d at p. 357.)

D. Equal Protection and Policy Considerations

The FEHA, as indicated, provides two avenues for resolution of claims: “first, a complaint to the Department; second, if that agency fails to act, a private court action.” (Commodore Home, supra, 32 Cal.3d at p. 217; see §§ 12960, 12965, subd. (b).) Observing that punitive damages are available to persons who pursue court action (Commodore Home, supra, 32 Cal.3d at p. 221), Commission argues that the denial of such damages to administrative complainants will create a disparate situation that will undermine the administrative avenue and thwart the Act’s primary objective of resolving discrimination complaints through the administrative procedure: complainants will be encouraged to bypass the administrative forum in favor of court action; the department will forego seeking administrative relief in the most egregious cases when punitive damages are appropriate and be unable to engage in effective “conference, conciliation and persuasion” efforts to resolve the dispute (§ 12963.7); and because complete administrative relief will be unavailable, the victims of the most outrageous situations will be forced to await relief from our already overburdened courts.

Further, denying exemplary damages in the administrative adjudication, Commission asserts, will create two classes of complainants: those who can afford to hire a private attorney and file a civil action and those “equally or even more deserving victims who lack the resources to pursue litigation by themselves and rely, instead, on the administrative process.” Because economic standing is often strongly correlated with race, sex and other forms of prohibited discrimination (see Brown v. Superior Court, supra, 37 Cal.3d 477, 486), denial of the opportunity to obtain a punitive damages award solely because of the complainant’s economic or social circumstances is contrary to the Legislature’s intent to eliminate discrimination and raises serious equal protection concerns.

Commission’s policy and equal protection arguments rest on speculative and seemingly conflicting premises: on the one hand, that when a case is appropriate for punitive damages, complainants will bypass the administrative forum and the department will forego seeking administrative relief, thus defeating the Act’s objective of administrative resolution; and, on the other hand, that given the substantial volume of complaints received, the department pursues only the most egregious cases, with the result that claimants with weaker cases who can afford to sue will have access to exemplary damages while the most worthy victims whose cases are heard by the commission will be denied such recompense. We are aware of no authority supportive of either premise. Although Justice Richardson, dissenting in Commodore Home, spoke of the anomaly of allowing punitive damages to “accusers who have been unsuccessful administratively before the commission, [while denying] such damages to those whose claims have been successfully established” (32 Cal.3d at p. 222), this comment mistakenly assumes that a civil action is open only to those whose complaints the commission has refused to prosecute and overlooks the department’s evident policy to permit any complainant to sue who wishes to, as well as the unlikelihood in any event of judicial recovery by a litigant whose claim the department has in fact found unworthy.

Concerning department policy, a former counsel to the department states: “Some respondents have asserted that a private right of action cannot be pursued before 150 days have passed, but this argument has not been accepted by most courts to which it is addressed. Because the investigation process . . . takes time, and because the Department, as a matter of sound administrative policy, handles employment cases on a first-in-first-out basis, it is virtually impossible for an accusation to issue in an employment case before 150 days have passed. Furthermore, because of the incredible volume of cases handled by the Department—8,105 in fiscal year 1982—it would be a waste of resources to investigate a case the Department knows will be pursued in court. It is, therefore, the policy not to proceed on any case which will be pursued elsewhere. This decision is clearly within the Department’s discretion. . . .” (Gelb & Frankfurt, California’s Fair Employment and Housing Act: A Viable State Remedy for Employment Discrimination (1983) 34 Hastings L.J. 1055, 1066, fn. 87; see Commodore Home, supra, 32 Cal.3d at p. 218, fn. 8; Carter v. Smith Food King (9th Cir. 1985) 765 F.2d 916, 922-923.)

Thus, while the department no doubt pursues only cases it deems meritorious (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 434, fn. 14; see Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326 [136 Cal.Rptr. 421]; Marshall v. Fair Employment Practice Com. (1971) 21 Cal.App.3d 680 [98 Cal.Rptr. 698]), because its case load precludes the pursuit of all such claims, any complainant who so wishes may bring a private court action. In these circumstance neither policy considerations nor equal protection concerns require that the administrative and judicial remedies be identical. To the contrary, the separate avenues justify different remedies. We recognized as much in Commodore Home where, having noted that “the FEHA leaves an aggrieved party on his own if the Department declines to pursue an administrative claim in his behalf,” we stated that “[t]o limit the damages available in a lawsuit might substantially deter the pursuit of meritorious claims, . . .” (32 Cal.3d at pp. 220-221.)

Nor is an indigent complainant denied an equal opportunity to go to court. An eligible plaintiff may sue in forma pauperis (§ 68511.3, subd. (b); Cal. Rules of Court, rule 985; Isrin v. Superior Court (1965) 63 Cal.2d 153 [45 Cal.Rptr. 320, 403 P.2d 728]) and a complainant whose case is appropriate for the award of punitive damages is unlikely to have difficulty finding an attorney willing to serve on a contingent fee basis. Further, the court has discretion to award litigation expenses to the successful employee. (§ 12965, subd. (b).)

One recognized purpose of punitive damages is to make a civil action economically feasible. As one commentator has stated: “All serious misdeeds cannot possibly be punished by government prosecution. . . . [L]imited judicial and prosecutorial resources permit prosecution for only a fraction of the crimes and violations committed. For these reasons, individual members of society must play a significant role in instituting actions to impose sanctions for serious misconduct. Society’s interest in bringing a wrongdoer to justice is especially strong where the wrongdoer’s conduct exceeds all bounds of decency, [fl] The doctrine of punitive damages promotes this interest. By offering the potential for recovery in excess of actual damages, the doctrine encourages plaintiffs to bring such actions. This is particularly important where actual damages are minimal. . . . Punitive damages thus can be characterized as a reward for the plaintiff’s valuable role as a ‘private attorney general.’ Even where compensatory damages are substantial, an award of punitive damages helps to finance deserving claims by defraying the expenses of the action, such as attorneys’ fees, that generally are not recoverable in American courts.” (Mallor & Roberts, Punitive Damages: Toward a Principled Approach (1980) 31 Hastings L.J. 639, 649-650, fns. omitted.)

Moreover, in appropriate cases a complainant can seek punitive damages by filing an independent civil action alleging tort causes of action either with or without an FEHA count. (Commodore Home, supra, 32 Cal.3d at p. 220; see Brown v. Superior Court, supra, 37 Cal.3d at pp. 486-487; Agarwal v. Johnson (1979) 25 Cal.3d 932 [160 Cal.Rptr. 141, 603 P.2d 58]; cf. Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493.) “The FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination.” (State Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 431, citing § 12993, subd. (a).)

Although Commission asserts that denying it authority to award punitive damages will impede the administrative resolution of cases, the converse may well be true. As we recognized in Commodore Home, “One basis for federal holdings under title VII is a fear that the availability of punitive damages might hamper the EEOC’s efforts to resolve discrimination disputes by ‘conference, conciliation, and persuasion.’ [Citations.]” (32 Cal.3d at p. 217; cf. Naton v. Bank of California (9th Cir. 1981) 649 F.2d 691, 699 [same re pain and suffering damages under Federal Age Discrimination in Employment Act].) In Rogers v. Exxon Research & Engineering Co. (3d Cir. 1977) 550 F.2d 834, cited by the Ninth Circuit in Naton, supra, the court stated with respect to emotional distress damages: “While the existence of such an item of damages might strengthen the claimant’s bargaining position with the employer, it would also introduce an element of uncertainty which would impair the conciliatian process. Haggling over an appropriate sum could become a three-sided conflict among the employer, the Secretary, and the claimant.” (Id. at p. 841, italics added.) A fortiori the availability without limitation of punitive damages—usually a matter within the broad discretion of the jury after consideration of the defendant’s wealth, the egregiousness of his conduct and the amount of the plaintiff’s actual damages (see Wetherbee v. United Ins. Co. (1971) 18 Cal.App.3d 266, 270-272 [95 Cal.Rptr. 678]; BAJI No. 14.71 (7th ed. 1986); 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, §§ 867-869, pp. 3155-3158, (1984 Supp.) §§ 869A-869B, pp. 553-557)—would introduce an element of uncertainty detrimental to the conciliation process.

Nor does effective conciliation require that the administrative and judicial remedies be identical. Rejecting such a contention in Commodore Home, supra, we stated: “We are not persuaded. In the first place there is no right to sue, even after conciliation breaks down, unless the Department fails to file an accusation before the Commission. To that extent the availability of court remedies remains within the Department’s control. More importantly, the compliance structure of the FEHA encourages cooperation in the administrative process. While that process continues the Department acts on the victim’s behalf and absorbs costs of pursuing his claim. Court action inevitably is speculative, and the FEHA makes civil suit the claimant’s sole responsibility. That helps deter strategies of ‘holding out’ for court damages in inappropriate cases. Further, the possibility that an action might lead to punitive damages may enhance the willingness of persons charged with violations to offer fair settlements during the conciliation process. [Fn. omitted.]” (32 Cal.3d at p. 218.)

In short, Commission’s policy and equal protection arguments are fallacious. If a complainant wants relatively prompt restitutionary redress free of personal financial risk he or she can elect the administrative avenue of relief, with all expenses paid by the department. (State Personnel Bd. v. Fair Employment Housing & Com., supra, 39 Cal.3d at p. 432.) If, however, the complainant prefers to seek the potentially more lucrative redress of punitive damages, he or she can go to court like any other litigant.

III. Conclusion

In view of the foregoing, we conclude that the commission is not authorized to award punitive damages.²⁵ The Court of Appeal therefore erred in affirming the judgment of the trial court.

The judgment of the Court of Appeal is reversed. The Court of Appeal is directed to enter judgment reversing the trial court and directing it to issue a writ of mandate commanding Commission to vacate and set aside that part of its decision awarding Olander punitive damages and thereafter to take such further action not inconsistent with this opinion as it deems appropriate.

Lucas, C. J., Mosk, J., Arguelles, J., Eagleson, J., and Kaufman, J., concurred.

1 All further statutory references are to the Government Code unless otherwise indicated.

2 The majority in Commodore Home assumed for purposes of argument that punitive damages are not available from the commission. (32 Cal.3d at p. 218, fn. 7.) Justice Richardson, dissenting, joined by Justice Kaus, expressly concluded that the FEHA does not allow the commission to award exemplary damages. (32 Cal.3d at p. 228.)

3 Retaliation for filing a complaint was also prohibited by the FEPA. (Former Lab. Code, § 1420, subd. (e); see now Gov. Code, § 12940, subd. (f).)

4 The department did not initially ask for punitive damages, but did so only after the administrative law judge’s proposed decision, whereupon the commission granted the department leave to amend its accusation to include a prayer for exemplary damages and ordered that the matter be reopened for the taking of additional evidence and argument on the issue. (See §§ 11516, 11517, subd. (c).) Following the supplemental hearing, the administrative law judge (ALJ) denied the department’s request on grounds that to impose liability on DynaMed for exemplary damages would be “fundamentally unfair” and in violation of its right to due process of law in that the amended accusation seeking such damages was based in part on evidence given by Dyna-Med in defense of the original accusation, at which time Dyna-Med had no notice of a possible later charge “in aggravation and substantially enhanced liability, without legal precedent.”

In reversing the ALJ, the commission stated that the ALJ found that Dyna-Med’s conduct “was sufficiently egregious to support an award” of such damages. The record, however, shows that the ALJ found only that the department had “adduced evidence” in support of its allegations that Dyna-Med’s violations were particularly “deliberate, egregious or inexcusable” so as to support the award of such damages.

5 The court stated that awards of back pay are frequently insignificant because interim earnings are deducted or offset; the value of reinstatement may be negligible because by the time employment discrimination cases are resolved, the plaintiff has had to find another job; and upgrading, back pay and reinstatement in cases of retaliation, as here, may not be effective deterrents or satisfactory remedies because the original work environment may no longer be conducive to the complainant’s continued employment.

6 Amici appearing in support of Dyna-Med are the Chamber of Commerce of the United States, the California Chamber of Commerce, the Merchants and Manufacturers Association, the County of Madera, and Friendly Ford Peugeot. Arguments advanced by Dyna-Med and its supporting amici will hereafter be referred to as Dyna-Med’s arguments.

7 Amici appearing in support of the commission are the Employment Law Center of the Legal Aid Society of San Francisco and Equal Rights Advocates, Inc. Arguments advanced by the commission and its supporting amici will hereafter be referred to as Commission’s arguments.

8 Olander did not seek reinstatement at Dyna-Med. See also footnote 5, ante.

9 In 1980 the commission promulgated a regulation which provided: “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.” (Former Cal. Admin. Code, tit. 2, § 7286.9, subd. (c), Cal. Admin. Notice Register, tit. 2, Register 80, No. 25-A—6-21-80; see also D.F.E.H. v. Ambylou Enterprises, Inc. (1982) FEHC No. 82-06 [CEB precedential decisions 1982-1982, CEB 3].) This regulation was applied in the instant case. Although the regulation was repealed in 1985 (Cal. Admin. Notice Register, tit. 2, Register 85, No. 20—5-16-85), the commission continues to award exemplary as well as compensatory damages.

Neither the regulation nor the precedential decisions stating the commission’s authority to award punitive damages was in effect at the time of Olander’s discharge.

11 For example, in a recent age and race discrimination case involving the termination of a Black attorney, the negotiated settlement agreement provided for a year’s severance pay and a special retirement plan, plus the company’s informing all its supervisors that harassment is illegal and contrary to company policy. (Arco Settles With Former Employee, The Recorder (Mar. 10, 1987) p. 2, col. 4.)

10 The Court of Appeal reached just this conclusion. According to the Court of Appeal: “If the Legislature gives an agency responsibility to protect the public and authorizes it to take the appropriate steps necessary to carry out the purposes of an act it enforces, then such an agency should be authorized to determine claims for punitive damages.”

12 “ ‘[T]he doctrine of ejusdem generis . . . states that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The rule is based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.’ ” (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 331, fn. 10 [158 Cal.Rptr. 370, 599 P.2d 676], quoting Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819 [100 Cal.Rptr. 501].)

13 Expressio unius est exclusio alterius means that “the expression of certain things in a statute necessarily involves exclusion of other things not expressed. . . .” (Henderson v. Mann Theatres Corp. (1976) 65 Cal.App.3d 397, 403 [135 Cal.Rptr. 266].)

14 Under the rule of noscitur a sociis, “ ‘the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it is used.’ ” (People v. Stout (1971) 18 Cal.App.3d 172, 177 [95 Cal.Rptr. 593], quoting Vilardo v. County of Sacramento (1942) 54 Cal.App.2d 413, 420 [129 P.2d 165].)

15 We observe that the standard initially adopted by the commission and applied in this case—authorizing the award of punitive damages in cases of violations that are “particularly deliberate, egregious or inexcusable” (see fn. 9, ante)—was not in conformity with the statutory standard.

16 The Hawkins Act permitted complainants to sue for both equitable relief and damages in an amount of not less than $500. (Stats. 1959, ch. 1681, § 1, at p. 4076.) The Civil Rights Act authorized the award of actual damages, plus punitive damages in the amount of $250. (Stats. 1959, ch. 1866, § 2, p. 4424.)

17 The Rumford Act initially empowered the commission’s predecessor, the Fair Employment Practices Commission (FEPC), if it determined that certain make-whole remedies were not available, to award damages in an amount not to exceed $500. (Stats. 1963, ch. 1853, § 2, pp. 3828-3829.) In 1975 the maximum damage award was increased to $1,000. (Stats. 1975, ch. 280, § 1, p. 701.) In 1977 the act was amended to authorize the FEPC to order payment of “actual and punitive” damages not exceeding $1,000. The 1977 amendment also for the first time described the FEPC’s authority to require remedial action in housing discrimination cases as “including, but not limited to” the actions specified. (Stats. 1977, ch. 1187, § 10, p. 3893; ch. 1188, § 13.1, pp. 3905-3906.) In 1981 the statute was rewritten to remove the limit on the amount of compensatory damages, while retaining a $1,000 limit, adjusted for inflation, on punitive damages. (§ 12987, subd. (2), Stats. 1981, ch. 899, § 3, p. 3424.)

18 As indicated, section 12987, as amended 1981, provides for the payment of punitive damages not to exceed $1,000, adjusted annually for inflation, and the payment of actual damages. Before its amendment, the section provided for the payment of actual and punitive damages not to exceed $1,000. (See fn. 17, ante.)

19 During the 1981-1982 legislative session, the Legislature twice declined to enact statutes (Sen. Bill No. 516; Assem. Bill No. 879) which, in part, would have prohibited the commission from awarding punitive damages. (See Sen. Final Hist. (1981-1982 Reg. Sess.) p. 339; 1 Assem. Final Hist. (1981-1982 Reg. Sess.) p. 647.)

20 Subdivision (e), enacted 1984, provides in relevant part: “If the board finds that discrimination has occurred . . . the board shall issue ... an order requiring the appointing authority to cause the discrimination to cease and desist and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, and compensatory damages, which, in the judgment of the board, will effectuate the purposes of this part. Consistent with this authority, the board may establish rules governing the award of compensatory damages.” (Italics added.)

Subdivision (a) of section 19702 was amended at the same time to provide that “discrimination” includes harassment and that this provision “is declaratory of existing law.” (Stats. 1984, ch. 1754, § 6, p. 1173.)

21 Section 12987 provides in pertinent part that in housing discrimination cases the commission shall issue an order requiring the respondent to “cease and desist from such [discriminatory] practice and to take such actions, as, in the judgment of the commission, will effectuate the purpose of this part, including, but not limited to, any of the following: [fl] (1) The sale or rental of the housing accommodation . . . or . . . of a like housing accommodation, ... or the provision of financial assistance, . . . [H] (2) The payment of punitive damages in an amount not to exceed one thousand dollars dollars ($1,000), adjusted annually in accordance with the Consumer Price Index, and the payment of actual damages, [fi] (3) Affirmative or prospective relief.”

22 A 1947 amendment to the NLRA separated the prosecuting and adjudicating functions within the NLRB. (NLRA, § 3(d), 29 U.S.C.A. § 153(d); Haleston Drug Stores v. National Labor Relations Bd. (9th Cir. 1951) 187 F.2d 418, 421.) In 1977 the FEPA was amended to achieve a comparable separation within the department and to establish the private right of action when the department fails to act. (Stats. 1977, ch. 1188, §§ 18-37, pp. 3906-3912.)

23 The 1967 amendment authorized the Division of Fair Employment Practices to engage in “affirmative actions” with employers, employment agencies, and labor organizations, and defined “affirmative actions” as any educational activity for the purpose of securing greater employment opportunities for members of racial, religious, or nationality minority groups and any promotional activity designed to the same end on a voluntary basis. The amendment further provided that it should not be construed to promote employment on a preferential or quota basis. (Stats. 1967, ch. 1506, §§ 1-5, pp. 3574-3575.)

24 Section 8(3) and (4) of the NLRA (29 U.S.C.A. § 158(a)(3) and (4)) makes it an unfair labor practice to discriminate against employees for union membership or charges filed under the NLRA. Section 10(a) (29 U.S.C.A. § 160(a)) authorizes the NLRB to prevent unfair labor practices. (See generally Labor Board v. Jones & Laughlin, supra, 301 U.S. at pp. 30, 32 [81 L.Ed.2d at pp. 907-908, 908-909].)

25 Because our disposition rests on statutory interpretation, we need not now address whether the power to award unlimited punitive damages could be lodged in an administrative tribunal and we express no opinion concerning the validity of legislation seeking to grant such authority.