Gutwein v. Easton Publishing Co.

Murphy, C. J., delivered the opinion of the Court. This appeal from an order of the Circuit Court for Talbot County reversing an order of the Maryland Commission on Human Relations raises important questions regarding the reach of the Commission’s jurisdiction and the scope of its enforcement powers. Maryland Code (1972 Repl. Vol.) Art. 49B entitled “Human Relations Commission” makes provision in § 1 for a twelve-member Commission appointed by the Governor with the advice and consent of the Senate.

The Commission is authorized by § 3 “to make such surveys and studies concerning human relations, conditions and problems as it may determine, and to promote in every way possible the betterment of human relations”; to recommend legislation; and to hold an investigatory hearing “[w]henever any problem of racial discrimination arises . .. [and] to resolve the problem promptly by the gathering of all the facts from all the interested parties and making such recommendations as may be necessary.” Discrimination in places of public accommodation is made unlawful by § 11; discrimination in employment is prohibited by § 19; and discrimination in housing is prohibited by § 22. Section 12 provides for the filing and issuance of complaints by and with the Commission, alleging discrimination prohibited by the provisions of Article 49B. Section 13 requires that the Commission investigate such complaints and if probable cause is found to believe that a discriminatory act has been committed, the Commission is enjoined “to eliminate the discrimination by conference, conciliation and persuasion.” Section 14 provides that, failing voluntary agreement to ⁵⁶⁵ eliminate the discrimination, the Commission shall hold a public hearing and require the respondent to answer the charges set forth in the complaint. Section 14 (e), authorizing the Commission to issue “Cease and Desist” orders, provides: “If upon all the evidence, the Commission finds that the respondent has engaged in any discriminatory act within the scope of any of these subtitles, it shall so state its findings.

The Commission thereupon shall issue and cause to be served upon the respondent an order requiring the respondent to cease and desist from the discriminatory acts and to take such affirmative action as will effectuate the purposes of the particular subtitle.” Section 15 authorizes the Commission to institute litigation in the equity courts to compel compliance with its orders. In pursuance of the provisions of Article 49B, the appellant Gutwein, a white male, filed a complaint with the Commission on August 20, 1969, alleging that his employer, appellee Easton Publishing Co. (Easton), had unlawfully terminated his employment as a news reporter when it learned that his fiancee was black. 1 Following an investigation and evidentiary hearing, the Commission concluded, by order dated March 8, 1973, that Easton had unlawfully discharged Gutwein from his employment in violation of the racial discrimination provisions of § 19 (a) of Article 49B, which provide: “It shall be an unlawful employment practice for an employer: “(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of ⁵⁶⁶ such individual’s race, color, creed, sex, age or national origin.” (Emphasis added.) The Commission found from the evidence adduced before its hearing tribunal that Gutwein “was discharged [from his employment] for his association and relationship with his black girl friend.” The Commission ordered that Easton pay Gutwein the amount of $557.16, representing six weeks’ loss of pay, and $50 for moving expenses. On appeal by Easton, pursuant to the provisions of the Administrative Procedure Act, Article 41, §§ 244-256A, the circuit court reversed the Commission’s order, holding that because § 19 (a) only proscribed employment discrimination on account of “such individual’s race,” and since Gutwein’s discharge from Easton’s employ “involved not his own race, but rather his fiancee’s,” the provisions of the section were not applicable to Gutwein’s termination. The court further held that while there was substantial evidence “that a major reason for Gutwein’s termination was the employer’s discovery that (he being white) his fiancee was black,” the termination “was not discriminatory and . .. the employer has not been guilty of an unlawful employment practice.” The court concluded that since Gutwein failed to prove any redressable injury, “compensatory damages could not have accrued.” The Commission and Gutwein each appealed, raising these questions: 1.

Was the finding of an administrative agency that a white male was terminated from his employment because of his interracial association with a black female based upon substantial evidence? 2. Can a white male lawfully be terminated from his employment because of his interracial association with a black female? 3. Does the Human Relations Commission possess authority to award compensatory damages upon a finding of employment discrimination? ⁵⁶⁷ (1) The evidence before the Commission concerning the reason for Gutwein’s termination from Easton’s employment was in sharp conflict. There was substantial evidence to demonstrate that Gutwein’s discharge was triggered by improper job performance, poor work ability, a slovenly appearance, a bad attitude, and deficiencies in his personal conduct unassociated with the race of his fiancee.

There was other evidence, equally substantial if believed, tending to show that Gutwein’s employment was ended when Easton learned of his relationship with his black fiancee in the town of Easton. The Commission found as a fact from the evidence adduced at the hearing that it was the latter reason which precipitated Easton’s action in terminating Gutwein’s employment. Being supported by substantial evidence, the Commission’s finding should have been accepted by the circuit court. See Grosman v. Real Estate Comm’n, 267 Md. 259 , 297 A. 2d 257 (1972); Bernstein v. Real Estate Comm., 221 Md. 221 , 156 A. 2d 657 (1959); Article 41, § 255.

(2) As heretofore indicated, § 19 (a) makes it an unlawful employment practice for an employer “to discharge any individual . . . because of such individual’s race . . . .” Appellants maintain that this provision reaches racial discrimination however manifested and protects all persons from discriminatory practices. Easton maintains that the lower court was correct in concluding that it was the race of Gutwein’s fiancee that triggered his termination, and not his own race, and that consequently § 19 (a) has no applicability to the facts of this case. We think instances of discrimination in employment involving, as here, the termination of a white complainant’s employment because of his association with his black fiancee are plainly within the contemplation and coverage of § 19 (a). The race of Gutwein’s fiancee was manifestly not the only reason for his dismissal; rather his employment was terminated because he was white and was intimately associated with a black ⁵⁶⁸ woman, a relationship so offensive to Easton as to cause it to discharge Gutwein from his position. 2 (3) The enforcement powers vested in the Commission, contained in § 14 (e), authorize it to issue “an order requiring the respondent to cease and desist from the discriminatory acts and to take such affirmative action as will effectuate the purposes of the particular subtitle.” The appellants claim that the purpose of this provision is “to make whole victims of discrimination as well as insure against future unlawful conduct.” They contend that the Commission’s authority to order “affirmative action” is identical to that contained in virtually all civil rights laws, state and federal, and that such laws have been interpreted “expansively” to permit the payment of compensatory damages to victims of discrimination.

We note at the outset that the “affirmative action” provision in § 14 (e) is tied to “the purposes of the particular subtitle.” Section 17 of Article 49B sets forth the purpose of the subtitle on “Discrimination in Employment” as follows: “It is hereby declared to be the policy of the State of Maryland, in the exercise of its police power for the protection of the public safety, public health and general welfare, for the maintenance of business and good government and for the promotion of the State’s trade, commerce and manufacturers to assure all persons equal opportunity in receiving employment and in all labor management-union relations regardless of race, color, religion, ancestry or national origin, sex, or age, and to that end to prohibit discrimination in employment by any person, ⁵⁶⁹ group, labor organization, organization or any employer or his agents.” (Emphasis added.) Neither § 17 or § 14 (e) speaks in terms of remedying the “effects” of employment discrimination, or of preventing economic loss, redressing individual rights or compensating victims of discrimination. Section 17 is plainly couched in prohibitory and not compensatory terms. Unlike § 14 (e) of Article 49B, Title VII of the Federal Civil Rights Act has a separate enforcement provision (42 U.S.C.A. 2000e-5(g)) relating to discriminatory employment practices and the remedies authorized therein are court-enforced. The federal law provides: “(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may he appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. . . .’’(Emphasis added.) While the federal statute specifically provides for back pay awards, federal courts are divided over the question whether the statute authorizes payment of other compensatory damages.

Those courts which hold that Title VII authorizes compensatory damages do so on the basis that the statute was designed “to restore those wronged to their rightful economic status absent the effects of the unlawful discrimination,” Rosen v. Public Service Electric & Gas Co., 477 F. 2d 90, 96 (3d Cir. 1973) or “to put the aggrieved party in the same position he would have been but for the defendant’s illegal interference with the employer-employee ⁵⁷⁰ relationship,” Tidwell v. American Oil Co., 332 F. Supp. 424, 437 (D. Utah 1971). Those federal courts which hold that Title VII does not authorize compensatory damages have concluded that the statute grants only equitable relief, Loo v. Gerage, 374 F. Supp. 1338, 1341-42 (D. Hawaii 1974); or that an examination of the legislative history of the statute and of its legislative model — the National Labor Relations Act, 29 U.S.C.A. § 160 (c), and the damage provisions of the Fair Housing Act of 1968, 42 U.S.C.A. § 3612 , demonstrate that Congress did not intend a damage remedy, Van Hoomissen v. Xerox Corp., 368 F. Supp. 829, 835-38 (N.D. Calif. 1973); or that “the omission of any such provision in a statute which sets forth the types of relief which may be afforded to an aggrieved person must be deemed to have been intentional,” Howard v. Lockheed-Georgia Co., 372 F. Supp. 854, 856 (N.D. Ga. 1974). 3 State statutes specifically authorizing the administrative agency to make an award of compensatory damages for wrongful discrimination have been construed in some instances to sanction money damage awards for mental anguish and humiliation. 4 In State Commission for Human Rights v. Speer, 29 N.Y.2d 555 , 324 N.Y.S.2d 297 (1971), a housing discrimination case, the Court of Appeals of New York held that the statute empowering the Commission to require respondents “to take such affirmative action, including (but not limited to). . . awarding of compensatory damages to the person aggrieved by such [unlawful] practice, as, in the judgment of the division, will effectuate the purposes of this article,” sanctioned damage awards for mental anguish. In Massachusetts, the Commission is authorized by statute in housing discrimination cases to “award the petitioner damages not to exceed one thousand dollars .. . .” This statute was held to authorize an award of ⁵⁷¹ money damages for. humiliation in , Massachusetts Commission Against Discrimination v. Franzaroli, 357 Mass. 112 , 256 N.E.2d 311 (1970)v Other states- having statutes evidencing a clear legislativeAntent to eliminate the effects of discrimination or specifically sanctioning back pay awards have construed such statutes to authorize compensatory damages. In A. P. Green Services Division of Bigelow-Liptak Corp. v. State Fair Employment Practices Commission, Ill.

App. 2d, 312 N.E.2d 314 (1974), language empowering the; Commission to order the respondent “to take such affirmative or other actions with respect to the complainant as will eliminate the effect of the practice originally complained of,” was held to sanction compensatory damages. In Williams v. Joyce, 4 Or. App. 482 , 479 P. 2d 513 (1970), the court, viewing similar statutory language, coupled with an extensive recitation of purposes relating to the rights,