Appendix — Gutwein v. Easton Publishing Co.

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APPENDIX A

BEFORE THE HEARING TRIBUNAL OF THE

STATE OF MARYLAND COMMISSION ON HUMAN RELATIONS

FEP 69-681

Pau. D. GutweIn

v.

Easton Pusuisurxe CoMPaNny

Order

Pursuant to Rules 11 and 13 of the Rules of Procedures

of the Maryland Commission on Human Relations, it is

hereby ordered this 8th day of March, 1973 that the at-

tached Opinion of the Hearing Tribunal in the above cap-

tioned case is hereby adopted and issued as the Order of

the Commission the provisions of winch are to take effect

immediately upon receipt.

Relief to Mr. Gutwein is to be paid no later than March

23, 1973.

/s/ Jacos J. EpELMAN

Jacob J. Edelman, Chairman

Decision of the Hearing Tribunal

The above captioned matter was brought for hearing be-

fore a duly constituted Hearing Tribunal of the Maryland

Human Relations Commission on 12/11/72 at Easton, Mary-

land.

The original complaint in the matter was filed 8/20/69

alleging racial discrimination in the employment termina-

tion effective 8/21/69. The evidence is uncontested that

the Complainant was notified 8/11/69 of his discharge.

Respondent paid two (2) weeks severance pay unto the

Complainant although under no legal obligation thereon.

Respondent has raised objections to the filing of the com-

plaint prior to final date of unemployment. The crucial

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issue however, is the termination which was effectuated

8/11/69 and the cogent reasons motivating same. The

Tribunal finds no irregularities in the proceedural sequence

of events henceforth set forth.

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An amended complaint was filed by the Complainant

11/3/72 adding to the original charges:

A A. Maintenance of sex discrimination policies by vir-

Zz tue of my termination.

} B. Maintenance of racially discriminatory hiring and

; recruiting practices.

At the hearing on 12/11/72 after proper motion by the

Respondents Counsel the Tribunal dismissed the Count B

relating to the maintenance of racially discriminating hir-

ing and recruiting practices. The Tribunal deferred rul-

ing on Count A, to wit ‘*the maintenance of sex diserimi-

nation policies by virtue of my termination’’. Respondent

has raised numerons objections to the amended complaint

including but not limited to the timing, due process, ete.

The Tribunal seriously questions the need and ne¢éessity of

amending a complaintesome three years subsequent to ter-

mination of employment bringing matters before the Tri-

bunal not certitied for public hearing pursuant to Article

49 B, Section 26 and the applicable provisions of due proe-

j ess relating to an administrative hearing. Hewever in this

case the evidence presented being insafficient to sustain the

: charge enumerated in Count ‘*A’’ of the amended com-

plaint be and is hereby dismissed. Any further discussion

of the issues in view of this ruling renders the questions

raised as a moot problem.

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The Respondent has raised objections to the jurisdiction

of the Maryland Human Relations Commission as being

inapplicable to this case; however the weight of the au-

thorities, EEOC decision amply demonstrate that racial

discrimination however manifested cannot and will not be

tolerated.

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Numerous witnesses, exhibits, and a tape interview were

heard and examined by the Tribunal. From the evidence

the Tribunal determines as a finding of fact inter alia that

the complainant was discharged for his association and

relationship with his bleck girl friend, Racial diserimina-

tion being a cause for the termination, said act being pro-

hibited by the provisions of Article 49 B, Section 19 A, the

complainant be and is hereby entitled to an award of

damages.

Numerous items of damages were presented to the Tri-

bunal, including alleged losses on a purehase/sale of a

truck, rents, gas, oil, electric and lost wages. No evidence

of depreciation, wear and tear, marketability effect of

psyehedelie paint, ete. were presented and to award dam-

ages for the truck transaction would be indulging in spee-

ulation at the expense of the Respondents. Inasfar as rent,

gas and electricity is concerned, the evidence indicates the

complainant received the benefit of these experditures and

are therefore accordingly disallowed. Consequential dam-

ages be and are restricted to items that are directly related

to the wrongful discharge.

Tle Complainant is awarded damages for six (6) weeks

loss of pay, giving credit to the Respondent for the two (2)

weeks severance pay, in the amount of $557.16, plus $50.00

for moving expenses for a total of $607.16,

Respectfully submitted,

/s/ Exvotse C. Harn

s/ Ernest H. Lyte

/s/ Pavi W. Barnett,

Chairman of Hearing

Tribunal

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APPENDIX B

IN THE CIRCUIT COURT FOR TALBOT COUNTY

* No. 4096 Law

Pauu D. GuTWETIN, ET AL.

V.

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Easton PUBLISHING COMPANY

Opinion and Order

The Easton Publishing Company appeals from a finding

of the State Human Relations Commission that the em-

ployment of Paul D. Gutwein as reporter-assistant editor

of its weekly newspaper was terminated upon racial

grounds, in violation of Article 49B, and awarding Gut-

wein damages therefor.

The factual situation is extremely simple and I find, as

did the Commission, that there was substantial, competent

and material evidence (Art. 41, See. 255 g) that a major

reason for Gutwein’s termination was the employer’s dis-

covery that (he being white) his fianeee was black. Since

See. 19(a) of Art. 49B only proscribes employment dis-

crimination on account of ‘‘such individual’s race’’, the

short, simple, and obvious answer to Gutwein’s complaint

of violation is that the termination involved not his own

race, but rather his fianeee’s. It was coneeded by the Ap-

pellees in argument that, in a reverse situation, a black

employee who had a white fiancee would similarly have

been terminated, so that the trigger of termination would

clearly not be ‘‘such individual’s race’’, Indeed, had his

race been the factor, Gutwein would probably not have been

employed in the first place.

The Appellees, however, submit that a proper interpre-

tation of the law does not restrict it-to direct racial impli-

cations, and that it reaches as well indirect and consequen-

tial racial involvement. The Commission found the proper

construction to be ‘‘that racial discrimination however

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manifested cannot and will not be tolerated’’. Zeal and a

‘sense of mission, however, cannot be substituted for or-

dained intent and purpose, and the law itself does not seem

to warrant such an interpretation,

The very enactment of the law indicates a legislative ree-

ognition that we do not as yet have a millennial or absolute

equality. An analysis of its provisions reveals built-in

limitations of purpose, i.c., it disavows employment quotas,

it permits purposeful and warranted discriminations, and

allows disregard of classifications in instances of intrinsic

occupational qualifications. It has since been amended to

exempt specifically requirements in dress and grooming.

It demands and provides only that an employee’s class

shall not ipso facto be a factor in his employment (with

the defined exceptions). It nowhere implies any advantage

nor does it grant any special privilege.

The Appellant points out that a reporter-assistant editor

holds a sensitive position as contrasted to a typesetter or

proofreader, that a respect for the public mores and cus-

toms is necessary for his rapport and acceptability in the

community, and that without these his effectiveness is lim-

ited or destroyed. The Appelles, in response, submit that

even such peripheral and coincidental considerations are

proscribed by the law, and if there is any taint of discrimi-

nation it permeates the employment ab initio. With this

I cannot agree. Had this complainant been a gay libber

legally married to another man, would he have been able

to claim sexual discrimination? Were he an active parti-

san and publie protagonist in the present Middle East con-

frontation, would his termination be a religious discrimi-

nation? The questions almost answer themselves—it is not

his sex, race or religion, but what he is doing, that is the

crux of the matter.

With this perspective the issue here comes clearly into

focus, and the many authorities cited by the Appellees lose

relevance, because we are not primarily concerned with

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racial discrimination at all. Whatever it be called, the

factor involved is one of those indescribable, imprecise,

or even amorphous, considerations which are a part of

every employment to a greater or less degree. How much

more relevant it might be than technical skill in the sub-

ject position, as contrasted to a typesetter or proofreader,

is not significant. What is important is that this factor

was, and could have been at the time of employment, a

legitimate and controlling reason for preferment, entirely

apart from any question of ‘‘such individual’s raee’’—or

religion, or ancestry, ete. The purvose of the law (See. 17)

is ‘fto assure all persons equal opportunity * * * regard-

less of race,’’ ete. It clearly means that, while device or

contrivance may not be used to defeat it, neither may its

guise be used for defiance or reform of established social

and economic systems. It is a shield of protection and not

a sword of conquest. I find, therefore, that the present

termination was not discriminatory and that the employer

has not been guilty of an unlawful employment practice.

In addition to the defense of lack of statutory jurisdic-

tion of the subject-matter here, the Appellant offered an

extensive defense on the merits based upon professional

incompetency. The Commission made no specific findings

thereon, but in view of the above-stated conclusion, that

question is not reached and remand is unnecessary. The

Appellant also urged as a plea in bar that the complaint

was improperly filed the day before duty ceased and sever-

ance pay commenced. It is undisputed, however, t)at defi-

nite notice of termination, on an unspecified future date,

had been given ten days previously. This contention is

unsound, since the cause for complaint arose at the time of

notice and, in many cases, would be the most efficacious

time for action.

A corollary of the basie conclusion herein is that, through

failure of proof of any redressible injury, compensatory

damages could not have accrued. However, in the vein of

the holding of the Court of Appeals in Ferguson v. United

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Parcel Service, 270 Md. 202, the allowance of such in this

ease would nonetheless be improper. There was no evi-

dence of how hard the employee sought employment, or

where, or even what kind (he was a novice in news work),

and his bare statement that he ‘‘was looking for work for

approximately eight weeks’’ is not such substantial evi- é

dence as will support the decision under review, and this

is also true of the award for moving expenses.

Ir Is Turrevron, this 9th day of January, 1974, by the

Cireuit Court for Talbot County, Orverep, that the decision

of the Commission herein is reversed and the complaint :

dismissed.

/s/ James A. WIsE

Judge

APPENDIX C

IN THE COURT OF APPEALS OF MARYLAND

SEPTEMBER TERM. 1974

No. 19 :

Pavux D. Gutwery et aL t

Easton Pusiisnixnc Company ;

Before, Murphy, C. J., Singley, Digges, Levine, Eldridge, ;

' O'Donnel, JJ. pe.

Opinion by Murphy, C. J. :

Filed: October 8, 1974 :

This appeal from an order of the Cireuit Court for (

Talbot County reversing an order of the Maryland Com- 3

mission on Human Relations raises important questions

regarding the reach of the Commission’s jurisdiction and

the seope of its enforcement powers.

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Maryland Code (1972 Repl. Vol.) Art. 49B entitled

‘Human Relations Commission’? makes provision in §1

fora twelve-member Commission appointed by the Gov-

ernor 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 diserimina-

tion 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 pro-

hibited by $19; and discrimination in housing is pro-

hibited by $22. Section 12 provides for the filing and

issuance of complaints by and with the Commission, al-

leging discrimination prohibited by the provisions of

Article 49B. Section 13 requires that the Commission in-

vestigate such complaints and if probable cause is found

to believe that a discriminatory act has been committed,

the Commission is enjoined ‘‘to eliminate the discrimina-

tion by conference, conciliation and persuasion.’’ Section

14 provides that, failing voluntary agreement to 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:

‘‘Tf 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 affirma-

tive action as will effectuate the purposes of the

particular subtitle.’’

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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 apel-

lant Gutwein, a white male, filed a complaint with the

Commission on August 20, 1969, alleging that his em-

ployer, appellee Easton Publishing Co. (Easton), had un-

lawfully terminated his employment as a news reporter

when it learned that his fiancee was black.' 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:

“Tt 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

such individual’s race, color, creed, sex, age or na-

tional origin.’’ (Emphasis added.)

The Commission found from the evidence addueed before

its hearing tribunal that Gutweim**was discharged [from

his employment] for his association and relationship with

his black girl friend.”’) The Comms. on ordered that

Easton pay Gutwein the amount of *7.16, 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, $§ 2442564,

the circuit court reversed the Commission's order, holding

that because §19(a) only proscribed employment diserimi-

nation on account of ‘‘such individual's race,’’ and since

‘Easton employed Gutwein as a reporter for its weekly news-

vaper, the Easton Star Democrat, on August 4, 1969. His em-

ployment was terminated on August 21, 1969.

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Gutwein’s discharge from Kaston’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 diserimi-

natory and... the employer has not been’ guilty of an

unlawful employment practice.’’ The court coneluded

that since Gutwein failed to prove any redressable injury,

‘‘eompensatory damages could not have aeerued.”’

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

beeause of his interracial association with a black

female based upon substantial evidence?

2. Can a white male lawfully be terminated from his

employment beeause 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?

(1)

The evidenee before the Commission concerning the

reason for Gutwein’s termination from Easton’s employ-

ment 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

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that it was the latter reason which precipitated Easton’s

action in terminating Gutwein’s employment. Being sup-

ported by substantial evidence, the Commission’s finding

should have been aceepted by the cireuit court. See

Grosman vy. 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 ease. We think instances

of discrimination in employment involving, as here, the

termination of a white complainant’s employment beeause

of his association with his black fianeee are plainly within

the contemplation and coverage of $19(a). The race of

Gutwein’s fianeee was manifestly not the only reason for

his dismissal; rather his employment was terminated be-

eause he was white and was intimately associated with a

black woman, a relationship so offensive to Easton as to

eause it to discharge Gutwein from his position.? i

* Language identical to that in Section 19(a) is contained in

Title VII of the Federal Civil Rights Act, 42 U.S.C_A. 2000e-2(a).

The United States Equal Employment Opportunity Commission

has held that a white employee's interracial associations are pro-

tevted by the statute. See EEOC Decision No. 71-1902, decided

April 28, 1971, 3 FEP 1244; EEOC Deeision No. 71-969, decided

December 24, 1970. See also Langford v. City of Texarkana, 478

F.2d 262 (8th Cir, 1973).

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(3)

The enforcement powers vested in the Commission,

contained in $14(e), authorize it to issue ‘tan order re-

quiring the respondent to cease and desist from the dis-

criminatory 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 inter-

preted ‘‘expansively’’ to permit, the payment of eompen-

satory damages to victims of discrimination.

We note at the outset that the ‘‘affirmative action’’ pro-

vision in $ 14(e) is tied to ‘‘the purposes of the particular

subtitle.’’ Seetion 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 publie safety, publie 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 regard-

less of race, color, religion ancestry or national origin,

sex, or age, and to that end to prohibit discrimination

in employment by any person, group, labor organiza-

tion, 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 ecompen-

sating victims of discrimination. Section 17 is plainly

couched in prohibitory and not compensatory terms.

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Unlike § 14(e) of Article 49B, Title VII of the Federal

Civil Rights Act has a separate enforcement provision

(42 U.S.C.A 20000-5(g¢)) relating to discriminatory em-

ployment practices and the remedies authorized therein are

court-enforeed. The federal law provides:

‘*(¢) If the court finds that the respondent has in-

tentionally engaged in or is intentionally engaging in

an unlawful employment practice charged in the com-

plaint, the court may enjoin the respondent from en-

gaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

which may include, but is not limited to, renstatement,

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 compen-

satory 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 Elec-

tric & 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 relationship,’? Tidwell y American Oil

Co., 332 F.Supp. 424, 457 (D. Utah 1971). Those federa?

eourts which hold that Title VII does not authorize com-

pensatory 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 Actg29 U.S.C.A. § 160(e),

and the damage provisions of the Fair Housing Act of

1968, 42 U.S.C.A. § 3612, demonstrate that Congress did not

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intend a damage remedy, Van IHoomissen v. Xe¥oxr Corp.,

368 F.Supp. 829, 835-38 (N.D. Calit. 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 inten-

tional,’’ Hioward v. Lockheed-Georgia Co., 372 F.Supp.

854, 856 (N.D. Ga. 1974). *

State statutes specifically authorizing the administrative

agency to make an award of compensatory damages for

wrongful discrimination have been construed in some in-

stanees to sanction money damage awards for mental

anguisk and humiliation.* In State Commission for Human

Rights v. Speer, 29 N.Y.2d 555, 324 N.Y.S.2d 297 (1971),

a housing discrimination ease, the Court of Appeals of

New York held that the statute empowering the Commis-

sion to require respondents ‘‘to take such affirmative aec-

tion, including (but not limited to) ... awarding of com-

pensatory damages to the person aggrieved by such [un-

lawful] practice, as, in the judgment of the division, will

effectuate the purposes of this article,’’ sanctioned damage

awards for mental anguish. In Massachusetts, the Com-

missiou is authorized by statute in housing discrimination

vases to ‘‘award the petitioner damages_not to exceed one

thousand dollars ....'’ This statute was held to an-

thorize an award of money damages for humiliation in

Massachusetts Commission Against Discrimination vy.

Franzaroli, 507 Mass. 112, 256 N.E.2d 311 (1970). Other

states having statutes evidencing a clear legislative intent

to eliminate the effects of discrimination or specifically

sanctioning back pay awards have construed such statutes

* One federal court has said Title VII authorizes punitive but

not compensatory damages. Tooles v. Kellogg Co., 336 F. Supp.

14 (D. Neb. 1972).

* Seven states and the District of Columbia specifically author- .

ize courts or administrative agencies to make money awards for

damages suffered as a result of unlawful discrimination. See

BNA, Fair Employment Practice Manual, § 451.

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to authorize compensatory damages. In A. P. Green Serv-

ices Division of Bigelow-Liptak Corp. v. State Fair Em-

ployment Practices Commission, lll. 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, + Or. App. 482, 479 P.2d 518 (1970), the court,

viewing similar statutory language, coupled with an exten-

sive recitation of purposes relating to the rights, health

and dignity of the individual complainant, held in a hous-

ing discrimination ease that the Commission had power to

award damages not only for out-of-pocket expenses but for

mental anguish.®

*ORS ch. 659 provides that the commissioner shall issue *‘an

appropriate cease and desist order against any respondent found

to have engaged in any unlawful practice charged.’’ ORS 659.010

spells out what is meant by a cease and desist order:

**(2) ‘Cease and desist order’ meaus an order * * * issued

to eliminate the effects of any unlawful practice found. a!

dressed to a respondent requiring him to:

**(a) Perform an act * * * reasonably calculated +

out the purposes of ORS 659.010 to 659.110. elms

effects of an unlawful practice found, and protect ©

of the complainant and other persons similarly s°

ee 1a

ORS 659.022 states the purposes of ORS 659.010 to ONS be 1)

some of which are to ‘‘insure human dignity’ and © to pr

[the *cm’.! health * * * from the consequences of intergre

hosulity, tensions and practices of discrimination.”’ It says that

“* * * To accomplish this purpose the Legislative Assembly

intends by ORS 659.010 to 659.110 to provide:

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**(2) An adequate remedy for persons aggrieved by certain

acts of discrimination because of race, religion, color, sex or

national origin or unreasonable acts of discrimination in em-

ployment based upon age.”’

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In Jackson yv. Concord Co., 54 N.J. 113, 253 A.2d 793

(1969), a housing (diserimination case, the Supreme Court

of New Jersey, cou sidering a statute similar to the federal

law,® concluded from the specifie mention of a back pay

award and a legislative intent to create an effective en-

forcement agency that money damage awards were per-

mitted? In 1973, this damage remedy was held to au-

thorize a monetary award for pain and suffering. Zahorian

v. Russell’ Fitt Real Estate Agency, 62 N.J. 399, 301 A.2d

754 (1973).

Other state courts viewing enforcement provisions prac-

tically identical to those contained in the New Jersey

statute have concluded that their statutes do not empower

a Commission to award money damages for unlawful di--

crimination. In the most recent, Ohio Civil Rights Cex.

®The enforeement provisions of most state civil rights laws or

fair employment practice acts follow the federal model by de-

lineating the meaning of ‘‘affirmative action’’ and specitically

sanctioning back pay awards.

™The New Jersey statute provides:

“If, upon all evidence at the hearing the director shall find

that the respondent has engaged in any unlawful employment

practice or unlawful discrimination as defined in this aet, the

director: shall state his findings of fact and conclusions of

law and shall issue and cause to be served on such respondent

an order requiring such respondent to cease and desist from

such unlawful employment practice or unlawful diserimina-

tion and to take such affirmative action, ineluding, but not

limited to, hiring, reinstatement or upgrading of employees,

with or without back pay, or restoration to membership, in

any respondent labor organization, or extending full and

equal accommodations, advantages, facilities, and privileges

to all persons, as, in the judgment of the director, will effee-

tuate the purpose of this act, and including a requirement for

report of the manner of compliance. The director shall have

the power to use reasonably certain bases, including but not

limited to list, caiaiogue or market prices or values, or con-

tract or advertised terms and conditions, in order to deter-

mine particulars or performance in giving appropriate rem-

edy 2° @ef*

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mission v. Lysuj, 38 Ohio St. 2d 217, 315 N.F.2d 3 (1974),

‘a housing discrimination ease, the Supreme Court of Ohio

said:

**The authority to take ‘aflirmative action’ may well

include extensive powers to effectuate the purpose of

the Civil Rights Act, but, under existing statutory

language, those powers are to be directed towards

ending the unlawful discriminatory practice and seeur-

ing compliance with the cease and desist order. If the

General Assembly had intended to authorize the com-

mission to grant compensatory or punitive damages,

it would have been a simple matier to explicitly so

provide, as was done elsewhere in the Act.’’

In Zamantakis v. Commonwealth Human Relations Com-

mission, 10 Pa. Comm. 107, 117, 308 A.2d 612, 616 (1973),

it was said:

‘*As we view our role in this case, on this issue, we

must determine whether ovr Legislature intended our

Commission to award compensatory damages for

‘humiliation and mental anguish.’ We firsi note that

in the Pennsylvania statute, there is no specifie legis-

lative language authorizing the Commission to award

such damages. Next, we note thai the statutorily pre-

vided proceeding is directed to be expeditious and in-

formal, as are most administrative procedures. There

are none of the formal trappings, evidentiary protec-

tiens, and strict procedures of a court of law. In addi-

tion, the members of the Commission necessarily need

not be trained or learned in tle law. As so often hap-

pens in an administrative proceeding, the Commission

and its employes are the investigators, the prosecutors,

the judges and jury. On balance, this results in an

unduly heavy foree on the side of the proponents of

damages. Traditionally, damages, in this Common-

wealth, have been a matter for courts of law, under an

adversary system of justice, and therefore unless the

Legislature clearly authorizes the Commission § to

award damages, we cannot extend to it such authority

by judicial fiat, nor ean we broaden the scope of the

Commission’s authority into a full seale lawsuit.’’

(Emphasis in original.)

18a

And in Iron Workers Local No, 67 v. Hart, 191 N.W.2d 758,

767 (Iowa 1971), the courgsaid ;

“The right granted Commission to allow back pay

for employees ordered hired, reinstated or upgraded

is only incidental to affirmative action equitably decreed

and cannot by analogy generate a power to enter judg-

ment for other common law damages, If the legislature

had intended to constitute Commission as an additional

court for adjudicating damages it would have so

stated,’’

These cases indicate that even when the legislature is

fairly explicit about the meaning of ‘‘affirmative action,’’

a monetary damage remedy is not to be lightly implied.

Those cases that have implied the existence of such a dam-

age remedy have involved statutory language plainly indica-

tive of a legislative intent to authorize monetary awards.

No court, however, without more statutory direction, has

construed the bare words, ‘‘afiirmative action as will effee-

tuate the purposes*’ of the statute, as set forth in § 14(e),

to authorize a monetary award,

In Mendota Apertments v. D.C. Commission on Human

Rights, 315) A.2d 8382, 886 (D.C. 1974), the District of

Columbia Court of Appeals, viewing language identical to

that contained in § 14(e) held:

‘If the Commissioners had intended to give the

Commission the extraordinary and unusual power to

award damages, surely they would have said so in

express words, specifying the basis on which damages

could be awarded and some limitation on the amount

that could be allowed. In our opinion the authority to

order a respondent to ‘take such affirmative action as

will effectuate the purposes of this Article’ did not

include the authority to award civil damages. ...’’ §

See also Murphy v. Industrial Commission, 37 Wis.2d 704,

157 N.W, 2d 568 (1968), where the Supreme Court of Wis-

* The District of Columbia statute now in foree specifically au-

thorizes the Commission to award compensatory damages.

19a

consin held that the State Fair Employment Practices Act

did not authorize a back pay award.’

We do not think that the General Assembly of Maryland,

in enacting § 14(e), intended that the Commission be em-

powered to make auy monetary awards for compensatory

or other damages." In so concluding, we note that through-

out its 47-year history, the Commission has seen its powers

ebb and flow almost as many times as its name has been

changed. In 1927, the Interracial Commission was created

‘to consider questions concerning the welfare of colored

people residing in the State of Maryland, recommend

legislation and sponsor movements looking to the welfare

of said people, and to the improvement of interracial re-

lations, and to cooperate with other State agencies to these

ends.’’ Chapter 559 of the Acts of 1927. The Commission

was also empowered to make by-laws and regulations and

was vested with ‘full and plenary powers to investigate

interracial conditions and to promote the welfare of the

colored race and the betterment of interracial relations.”’

In 1943, the Interracial Cominission beeame the ‘*Com-

mission to Study Problems Affecting the Colored Popula-

tion,’? and was at the same time divested of its specific

power to investigate interracial conditions, recommend

legislation, make regulations and ‘*sponsor movements.”’

See Chapter 431 of the Acts of 1948. The Commission was

authorized by that act only ‘‘to make such surveys and

studies concerning colored problems and interracial con-

diitons as it may determine and shall have full power and

ee

"The ‘Wisconsin statute provides :

“Tf, aZter hearing, the commission finds that the respondent

has engaged in discrimination, the commission shall make

written findings and recommend such action by the respond-

ent as will effes.nate the purpose of this subchapter... ."’

'’ No question is raised in this case concerning the constitution-

ality of authorizing an administrative agency to make monetary

awards. See County Council v. Investors Funding, 270 Md. 403,

312 A.2d 225 (1973).

Gp em as

Bien Pee cane ee

20a

authority to promote, in every way possible, the welfare of

the colored race and the betterment of interracial rela-

tions.’’ In 1951, this body became the ‘‘Commission on

Interracial Problems and Relations’’ and reacquired the

power to recommend legislation. See Chapter 548 of the

Acts of 1951. But once again its powers were seemingly

curbed as its authority ‘‘to promote the welfare of the

colored race and the betterment of interracial relations’’

was specifically tied to its study and survey funetions.

In 1960, this restriction was dropped, but at the same time

the clause was confined to promoting the betterment of

interracial relations. See Chapter 100 of the Acts of 1960,

It was not until 1963 that the Commission was given en-

forcement powers—coincidental with the state ban on ra-

cial discrimination in places of public accommodation.

Chapters 227 and 228 of the Acts of 1963. Although the

Commission’s jurisdiction was later extended to cases in-

volving discrimination in employment (Chapter 717 of

the Acts of 1965) and discrimination in housing (Chapter

324 of the Acts of 1971) and its general powers were aug-

mented to a degree in 1968" and 1969,” its enforcement

provisions have remained generally unchanged.”

11Jn 1968, the Commission on Interracial Problems and Rela-

tions became the Human Relations Commission, Chapter 83 of

the Acts of 1968, and acquired the power, reminiscent of the 1927

law, to hold an investigatory hearing whenever any problem of

racial discrimination arose. Chapter 464 of the Acts of 1968. The

original version of this bill gave the Commission itself the power

to petition an equity court to secure compliance with its recom-

mendations, but this provision was eliminated from the final enact-

ment.

In 1969, the Commission, rather than the State’s Attorney,

was given the authority to seek court enforcement of its orders.

Chapter 153 of the Acts of 1969.

13 Chapter 408 of the Acts of 1972 modified the Commission’s

hearing procedures. Provisions in the bill originally which would

have empowered the Commission to m. ke regulations and to a

degree insulated its orders from judicial review were stricken from

the final enactment. Chapter 408 of the Acts of 1972.

2la

In view of the Commission’s legislative background, the

failure of §14(e) to specifically authorize an award of

compensatory damages, the unlikelihood of a legislative,

grant of unbridled power to an administrative agency to

make monetary awards without guidelines or limitations,

and the cited eases, we conclude that the Commission’s

order granting Gutwein six weeks’ loss of pay and moving

expenses was plainly beyond its power and jurisdiction.

Orper or Tuk Crrcvrr Court ror TaLsot County ReE-

VERSING THE OrpDER or THE CoMMIssION on IH]UMAN

Revations Revensev; TuHar Part or tue Commis-

sion’s Orpen Awanpixc Money Damaces Vacatep;

Eacu Party to Pay Own Costs.

APPENDIX D

Excerpts from Petitioner's Brief Before the

Maryland Court Raising Federal Questions

* » * * * ” * * * *

Courts have also recognized the implicit authority and

the constitutional duty of state and local civil rights agen-

cies to award adequate remedies. State of Minnesota v.

Bergeron, supra; Gilliam vy. City of Omaha, 331 F.Supp. 4

(1971) rev’d on other grounds, 459 F.2d 63 (5th Cir. 1972).

In the face of the indisputable national and state policies

to eliminate discrimination, failure or refusal of the Com-

mission or Court to identify and demand those actions nee-

essary to eliminate discrimination constitutes state encour-

agement of such unlawful practices. Burton v. Wilmington

Parking Authority, 365 U.S. 715 (1961) ; State of Minnesota

v. Bergeron, supra. The Supreme Court has made clear its

mandate in race discrimination cases:

[T]he court has not merely the power but the duty to

render a decree which will so far as possible eliminate

the discriminatory effects of the past as well as bar

discrimination in the future. Louisiana v. United

States, 386 U.S. 145, 154 (1965). [Emphasis added].

22a

Nothing contained in Art. 49B suggests a restrictive view

should’ be taken of the Commission’s remedial authority.

Indeed, analogous decisions of other states and the federal

courts indicate the contrary. Therefore, the Commission’s

authority to award back pay as compensatory damages in |

an employment discrimination case should be upheld.

[pp. 20-21]

APPENDIX E

Excerpts from the Maryland Fair Employment Practices Act,

Art. 49B, Md. Code Ann. (1957, 1973 Supp.)

{Substantive Provisions]

DISCRIMINATION IN) EMPLOYMENT

See. 17. Declaration of Policy

It is hereby declared to be the policy of the State of

Maryland, in the exercise of its police power for the pro-

tection of the public safety, public health and general

welfare, for the maintenance of business and good govern-

ment and 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, group, labor

organization, organization or any employer or his agents.

* *~ *

See. 19. Unlawful employment practices

(a) It shall be unlawful employment practice for an em-

ployer:

(1) To fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, age or national origin; or

=

23a

(2) To limit, segregate, or classify his employees or ap-

plicants for employment in any way which would deprive

or tend to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status as an em-

ployee, because of the individual’s race, color, religion,

sex, age or national origin.

* * * * * » * , > so

[Remedial Provisions]

x * *

See. 14.

(e) Cease and Desist Order—If upon all the evidence,

the Commission finds that the respondent has engaged in

any discriminatory act within the seope of any of these

subtitles, it shall so state its findings. The Commission

thereupon shall issue and eause to be served upon the

respondent an order requiring the respondent to cease and

desist from the discriminatory acts and to take such affirm-

ative action as will effectuate the purposes of the partic-

ular subtitle.

APPENDIX F

Excerpis from Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e (1970) as amended by the Equal Opportunity

Act of 1972, 86 Stat 103 (1972).

[Substantive Provisions]

See. 703. Discrimination because of race, calor, religion,

sex, or national origin,

(a) It shall be an unlawful employment practice for an

employer:

(1) to fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race,

color, religion, sex, or national origin; or

nm

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FO Nd TRE

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EIRENE TE EIN HAE ANCE MP OE RET E

Qwest em es ..

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24a

(2) to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any individual

of employment opportunities or otherwise adversely affect

his status as an employee, because of such individual's

race, color, religion, sex, or national origin.

i o *

[Procedural Provisions, Emphasis Supplied]

See. 706. |

* * as

(b) Whenever a charge is filed by or on behalf of a

person claiming to be aggrieved, or by a member of the

Commission, alleging that an employer, employment agency,

labor organization, or joint labor-management committee

controlling apprenticeship or other training or retraining,

including on-the-job training programs, has engaged in an

unlawful employment practice, the Commission shall serve

a notice of the charge (including the date, place and cir-

cumstances of the alleged unlawful employment practice)

on such employer, employment agency, labor organization,

or joint labor-management committee (hereinafter referred

to as the ‘‘respondent’’) within ten days, and shall make

an investigation thereof. Charges shall be in writing

under oath or affirmation and shall contain such informa-

tion and be in such form as the Commission requires.

Charges shall not be made public by the Commission. If

the Commission determines after such investigation that

there is not reasonable cause to believe that the charge

is true, it shall dismiss the charge and promptly notify the

person claiming to be aggrieved and the respondent of its

action. In determining whether reasonable cause cxists,

the Commission shall accord substantial weight to final

findings and orders made by State or local authorities in

proceedings commenced under State or local law pursuant

to the requirements of subsections (c) and (d)....

25a

(c) In the ease of an alleged unlawful employment prac-

tice occurring in a state, or politieal subdivision of a state,

which has a state or local law prohibiting the unlawful

employment practice alleged and establishing or authoriz-

ing a state or local authority to grant or seek relief from

such practice or to institute criminal proceedings with

erespect thereto upon receiving notice thereof, no charge

may be filed under subsection (a) by the person aggrieved

before the expiration of sixty days after proceedings have

been commenced under the state or local law, unless such

proceedings have been earlier terminated, provided that

such sixty-day period shall be extended to one hundred

and twenty days during the first year after the effective

date of such state er local law. If any requirement for

the commencement of such proceedings is imposed by a

state or local authority other than a requirement of the

filing of a written and signed statement of the facts upon

which the proceeding is based, the proceeding shall be

deemed to have been commenced for the purposes of this

subsection at the time sueh statement is sent by registered

mail to the appropriate state or local authority. [As

amended Mareh 24, 1972, P.L. 92-261, See. 4].

APPENDIX G

United States Constitutional Provisions

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof: and all Treaties

made, or which shall be made, under the Authority of the

United States, shall be the Supreme Law of the Land, and

the Judges in every State shall be bound thereby; any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding. {Article VI, Cause 2).

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and the State wherein they reside. No

State shall make or enforee any law which shall abridge

ee ccs etree

Ber. "

26a.

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its — the equal protection

of the laws. [Fourteenth Afiendment, Seetion 1].

APPENDIX H

Complaint of Discrimination in Employment

(Under Provisions of Article 49B, Annotated Code of Md.)

The act of discrimination must be based on race, color,

religious creed, sex or national origin.

Name Paul D. Gutwein (Telephone (none)

Address Box 278 C, RFD 4

City—Easton State—Maryland Zip Code 20601

Name of Company, Labor Organization, or Employment

Agency Involved—Easton Publishing Company

Exact Date of Discrimination 8/11/69

Address Hanson Street, Easton, Maryland

Discrimination for Race or Color

What did it involve? Termination

Have you filed a complaint with a Federal, State ‘or

Local Agency? Check Yes 0 or No

The Complaint: Tell the full story of this act of diserim-

ination. Show all dates, places, and the names and

titles of persons involved.

In the spring and early summer of 1969, I was living in

Francisville, Indiana and engaged in writing mostly poetry

and music. In the carly part of July; I was visiting my

fiancee in the District of Columbia and noticed in the Wash-

ington Post an ad placed by the Easton Publishing Com-

pany, the publisher of the Easton Star Democrat newspaper

J CR

27a

‘indicating a vacancy for a reporter. Since I was quite low

on funds at the time and anxious to obtain employment,

and since the job bf a newspaper reporter seemed to square

with my interest in writing, I submitted a resume, and later

was granted an interview in Easton, Md., by a Mr. Mont-

gomery who is now the editor of the Easton Star Demo-

crat. Mr. Montgomery offered me a job with the newspaper

and I accepted it. Thereupon, 1 returned to Francisville,

Indiana, purchased a truck for the purpose of transporting

my belongings from Indiana to Maryland, and returned to

Easton in the truck with my belongings at considerable ex-

pense. On or about August 4th, 1969, I entered into the per-

formance of my duties for the Easton Publishing Company.

lr. Montgomery was aware, when he employed me, that I

was engaged. Ie was not aware, nor did he inquire of me,

as to the race or color of my fiancee. It happens that she is

black and Iam white. Prior to beginning my job in Easton,

I had leased a dwelling in Talbot County for a period of

one year. Ina chance encounter with my landlord, he dis-

covered that my fiancee was black, and raised some ques-

tion as to whether or not I could continue to occupy the

leased premises. I discussed this incident with Mr. Mont-

gomery, and shortly after he lvl of the fact that my

fiancee was black, he informed me that I would no longer

be of any value to the Easton Publishing Company as a

reporter, because once people in the community learned of

my fiancee’s race, no one would talk to me and I would be

unable to perform my duties. He thereupon advised me

that my appointment was terminated, although I am being

permitted to continue work on a temporary basis while try-

ing to find another job. I was advised of the termination of

my employment on August 11th, 1969. It was made very

plain to me that the reason for the termination of my em-

ployment was that my fiancee is black and I am white. At

the time of the termination of my employment, the Easton

Publishing Company employed approximately fifty-two em-

ployees and had employed at least twenty-five or more em-

\

2 egay.

Arne

Dakar irrrrincranrdronr

LLL AECL GOD ALLS BN a ta

28a

ployees for each working day in each twenty or more cal-

endar weeks in the current or preceeding calendar year.

The Easton Publishing Company is engaged in industry,

namely, the publication of the Easton Star Democrat news-

paper, certain job printing activities and the printing of

some twenty-three other newspapers.

No civil or criminal action based on the allegations set

forth in this complaint have been instituted by the com-

plainant in any court. I do hereby attest that I have read

the foregoing complaint, know the contents thereof, in that

the complaint is based upon my own personal knowledge

except as to matters stated on information and belief, and

that, as to those matters, I believe the same to be true.

/s/ Pavut D. GutTwern

Signature of Complainant

Sworn To and Subscribed:

Before me this 20th day

of Augnst, 1969.

/s/ Norma Jean CarTer

Notary Public

(Seal)

My Commission Expires July 1, 1970.

[Italicized portion of complaint was completed by» Mr.

Gutwein].°