dissenting:
I respectfully dissent. In view of the significant public interest in eliminating discrimination in employment, I do not believe section 24-34-405, 10 C.R.S. (1982), should be interpreted to prohibit the Colorado Civil Rights Commission (Commission) from awarding back pay to an employee discharged as a result of sex discrimination when the employee neither seeks nor desires reinstatement to her former position. A basic principle of statutory construction, in my view, supports the Commission’s authority to order a back pay award to the discharged employee independently of an order of reinstatement.
In enacting a statute, it is presumed that the legislature intended a just and reasonable result. § 2-4-201(l)(c), IB C.R.S. (1980). The purpose underlying the creation of the Colorado Civil Rights Commission is the elimination of unfair or discriminatory practices in several important spheres of life, including employment. § 24-34-305, 10 C.R.S. (1982 and 1983 Supp.). In regard to the employment relationship, section 24-34-402(l)(a), 10 C.R.S. (1982), defines a discriminatory or unfair employment practice to include the discharge of an employee on the basis of sex. Section 24-34-405 attempts to effectuate the goal of eliminating sex discrimination in employment by authorizing the Commission to fashion various remedies against an employer who has engaged in a discriminatory employment practice. These remedies include, as pertinent here, an order to the employer “to take affirmative action regarding hiring, reinstatement, or upgrading of employees, with or without back pay.”
In contrast to the majority, I do not read this statutory grant of remedial authority in section 24-34-405 as a prohibition against an award of back pay in the absence of an order of reinstatement. If the Commission can impose the greater sanction on the employer — reinstatement with back pay — I see no reason why it cannot impose the lesser sanction of back pay only. An award of back pay to an employee who was discharged as a result of sex discrimination and no longer desires reinstatement is the most effective way of redressing the wrong committed against the employee. A construction that conditions the Commission’s authority to award back pay on an order for reinstatement requires a discharged employee not desirous of reinstatement to engage in the questionable and futile practice of requesting a form of relief that she has no intention of accepting.
I acknowledge that the precursor of section 24-34-405 granted the Commission broad authority to require the employer to take affirmative action, “including (but not limited to) hiring, reinstatement, or upgrading of employees, with or without back pay ... as in the judgment of the commission will effectuate the purposes” sought to be achieved by the proscription against discriminatory employment practices. § 24-34-307(12), 10 C.R.S. (1973). Although the legislature in 1979 modified this all-inclusive language when it enacted section 24-34-405,1 view the modification as an effort to dispel the notion that the Commission’s authority extended to an award of consequential damages, over and above back pay, that might otherwise be arguably implied from the “including but not limited” *1202language of the prior statute. An award of back pay to a discharged employee not requesting reinstatement is, in my opinion, the very type of affirmative relief that the legislature intended to authorize in section 24-34-405. If section 24-34-405 was intended to prohibit an award of back pay independently of an order of reinstatement, I can only assume that the legislature would have made its intent known by a clear statement to that effect.
I believe the court of appeals provided the appropriate rationale for resolving this case when it stated:
“Once an employee has been found the victim of a discriminatory firing, he or she should not be forced to seek reinstatement with the same employer in order to receive an award of back pay. The appropriateness of this rule is particularly revealed in the many cases where the discharged employee will have mitigated damages by obtaining another job prior to the Commission’s discrimination decision.” World Wide Construction Services, Inc. v. Chapman, 665 P.2d 132, 133 (Colo.App.1982).
I would therefore affirm the judgment.
I am authorized to say that ERICKSON, C.J., and NEIGHBORS, J., join in this dissent.