# Appendix — Gutwein v. Easton Publishing Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0450%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 420 U.S. 991 ## Text ian eT ee ee ae OBIE OS 8) 3a SAAS LCL E Mig D8 at tO TENE OR la 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 r tees ee eT ee J 2a 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. = - a) ett Sti “ep Peete Waele FE 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. ewer Caer re | Pop Ap Qh tow hin aes es Ra * view Sticke 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. 4 i, | zg A 4 4 & a a og 4 : ¥ 4 % % oe aor 3a 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 4a APPENDIX B IN THE CIRCUIT COURT FOR TALBOT COUNTY * No. 4096 Law Pauu D. GuTWETIN, ET AL. V. = 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 5a 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 4 & e. : 6a 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 t, 7a is 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. 8a 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.’’ 9a 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. be AUN ce EM La co DY betel tay ar RTO MENDEL IPITEPNE C NE Sipe oes, al Shatin © 1Va : 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 lla 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). Qa tse ee me oe 12a (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. 13a 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 gQueewn— - com ee ee ee a Ce eas Dis eee | See eo BSNL WALI l4a 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. OA OTR 8 eine Dehn a iba 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: ee **(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.”’ cee 8" 5 sk OES Be 8 . SpaeitdeGatiaaa ay SR eda Red Aj de OI EEO l6a 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* ° l7a 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 oeacaann FO Nd TRE ~ EIRENE TE EIN HAE ANCE MP OE RET E Qwest em es .. a 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].° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0450%3A2. Public record. Not legal advice.