Civil Rights
Jul. 31, 2002
Court Broadens Awards for Housing Bias
SAN FRANCISCO - In a victory for tenants rights advocates, California's civil rights enforcement agency won permission Monday from the state Supreme Court to award damages for emotional distress to victims of housing discrimination.
Monday's 6-1 ruling reversed an 11-year-old decision that said it was unconstitutional for administrative hearing officers at the Fair Employment and Housing Commission to impose noneconomic damages that traditionally are awarded only by courts.
In Konig v. Fair Employment and Housing Commission, 2002 DJDAR 8447, Monday's majority concluded that the Legislature in 1992 and 1993 fixed the constitutional defects identified by the court in Walnut Creek Manor v. Fair Employment and Housing Commission, 54 Cal.3d 245 (1991).
The commission's San Francisco-based executive director and legal affairs secretary said Konig gives teeth to an administrative process that allows discrimination victims to file complaints without the need for hiring lawyers.
"It really goes to the core of the commission's ability to remedy housing discrimination," said Steven Owyang. "The damage that's done by race discrimination cases goes beyond getting the apartment. It's really an insult to dignity."
In Konig, the commission awarded $10,000 to a black female police officer who inquired about a Long Beach rental unit and allegedly had the door slammed in her face by a white landlord who said, "I'm not going to rent to a person like you."
The commission then used white and black "testers" to investigate the police officer's complaint and concluded that the landlord, Nancy Ann Konig, was engaging in racial discrimination.
The $10,000 sanction against Konig was the maximum amount allowed by statute - in the absence of any out-of-pocket losses incurred by the discrimination victim.
But a Los Angeles trial judge and the 2nd District Court of Appeal both sided with Konig, agreeing that the $10,000 award ran afoul of Walnut Creek Manor.
In that case, the commission awarded $50,000 to an unmarried black man in Contra Costa County who allegedly was denied a rental opportunity based on both his marital status and his race.
The Supreme Court determined that the commission's award of unlimited compensatory damages for emotional distress and other intangible injuries violated the judicial powers clause of the California Constitution. The Walnut Creek Manor majority found that redress for intangible injuries must come through private tort actions filed in court, not through the commission.
In the two years following that decision, the Legislature rewrote the fair housing law to permit either party in a discrimination case to pursue the matter in court if they are unsatisfied with the administrative process.
The Konig majority said the revisions to the law, by giving parties a choice, address the constitutional problems spelled out in Walnut Creek Manor.
Writing for the majority, Justice Ming W. Chin said the administrative complaint process is a "streamlined and economic" alternative to duking out discrimination battles in civil suits.
"However, with the judicial option provision of [Government Code] Section 12989, subdivision (a), respondents now have the ability to require complainants to pursue civil remedies in court rather than seek administrative relief," Chin wrote.
Although Konig had the option of moving her case to court before the commission reached a decision, she allowed the administrative process to run its course. She then represented herself pro per in court.
At one level, Monday's decision does not change much because the commission has been rendering economic distress awards since the Legislature amended the law a decade ago.
Court documents indicate that most of the administrative complaints that were sustained resulted in damage awards ranging from several hundred dollars to a few thousand dollars - far lower than the usual stakes in tort cases. The highest award cited by the commission since the housing law was amended was a $15,000 sanction imposed in 1996.
But lawyers on both sides said Monday's decision may well change the landscape for future discrimination complaints.
Berkeley plaintiffs attorney James D. Smith said uncertainty surrounding the law has discouraged some victims from bringing meritorious administrative complaints.
"Not that many cases make it to the commission," he said, adding that he expects more people now will pursue emotional distress claims without searching for lawyers who are often gun-shy about taking such cases.
Likewise, a spokeswoman for state Attorney General Bill Lockyer called Monday's ruling "welcome news giving Californians important redress in discrimination cases." Lockyer's office argued Konig on behalf of the plaintiff, Sheryl Annette McCoy.
But a Sidley, Austin, Brown & Wood attorney representing an advocacy organization called the Employers Group expressed concern that Konig will tilt the playing field against landlords.
The attorney, James M. Harris, lauded Monday's dissent by Justice Janice Rogers Brown, who argued that the judicial branch should not be so quick to hand over its exclusive power to administrative agencies.
"We are disappointed in the majority's decision and agree with Justice Brown that Walnut Creek got it right in holding that the commission does not have the constitutional authority to award emotional distress damages in housing cases," Harris said in a prepared statement relayed by a colleague.
Peter Blumberg
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com