dissenting:
I concur with the majority’s decision upholding the Commission’s award of out-of-pocket expenses to Jackson. I also concur with the majority’s decision affirming the trial court’s failure to enter a finding of discrimination against Stovall or to award him out-of-pocket losses. However, I must respectfully dissent from that portion of the majority opinion reversing the Commission’s award of emotional distress damages.
For the reasons set forth in my dissent in Indiana Civil Rights Comm’n v. Washburn Realtors, Inc., 610 N.E.2d 293, 297-99 (Ind.Ct.App.1993), I believe Indiana Civil Rights Comm’n v. Holman, 177 Ind.App. 648, 380 N.E.2d 1281 (1978) was wrongly decided and thus the majority’s decision is based on precedent which is fundamentally flawed. As I stated in Washburn, awards of emotional distress damages represent a necessary component of the statutory mandate to enforce the remedial policies expressed in civil rights legislation. Washburn, 610 N.E.2d at 299 (Rucker, J., dissenting). Accordingly, I would apply the plain, everyday, and common meaning of the term “losses” in Ind.Code § 22-9-l-6(k) to include emotional distress damages. Such a construction is consistent with the statute’s plenary grant of discretionary remedial power to the Commission as well as with the manifest purpose of the civil rights statute. Id. at 298,299.
Further, the law is well settled that plaintiffs who suffer emotional distress as the result of intentional torts are permitted to recover damages if the tort is one which would foreseeably provoke an emotional disturbance of the kind normally to be aroused in the mind of a reasonable person. Shuamber v. Henderson, 579 N.E.2d 452, 455 (Ind.1991); Cullison v. Medley, 570 N.E.2d 27, 30 (Ind.1991). The majority’s application of I.C. § 22-9-l-6(k) operates to deny victims of civil rights violations emotional distress damages while the law grants such damages to victims of intentional torts. In my view such a distinction lacks a lawful basis. Accordingly, I find that the application of I.C. § 22-9-l-6(k) to deny compensatory damages to victims of housing discrimination violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution as well as the Equal Privileges Clause of Article 1, § 23 of the Indiana Constitution.
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” The threshold question for federal equal protection analysis concerns the level of scrutiny. Those laws which involve a suspect classification, like race or alienage, and those that burden the exercise of fundamental rights, like reproduction or expression, receive the strictest scrutiny. Department of Envtl. Management v. Chemical Waste Management, Inc., 643 N.E.2d 331, 337 (Ind.1994). In order to survive strict scrutiny a state action must be a necessary means to a compelling governmental purpose and be narrowly tailored to that purpose. Statutes rarely survive this level of scrutiny. Id.
In this case the protected classes under the Civil Rights Act are race, religion, color, sex, disability, national origin, and ancestry. I.C. § 22-9-1-2. These are classifications grounded upon suspect traits. See State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind.1994), reh’g denied (examples of suspect classes are race, gender, national/ethnic origin and alien-age). Accordingly the application of I.C. *1282§ 22-9-l-6(k) to deny emotional distress damages to victims of civil rights violations must be a necessary means to a compelling governmental purpose and be narrowly tailored to that purpose. See Chemical Waste Management, 643 N.E.2d at 337. Holman and its progeny provide no compelling governmental purpose for denying such damages and I can discern none. The foreseeable result of housing discrimination is emotional injury and trauma. The federal courts have long so held. See, e.g., United States v. Balistrieri, 981 F.2d 916, 932 (7th Cir.1992), cert. denied, 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28 (1993) (the more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action); Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir.1977) (remanding for consideration of emotional damages based on plaintiffs testimony that he was “humiliated and embarrassed” by defendant’s conduct); Seaton v. Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir.1974) (humiliation can reasonably be inferred from circumstances as well as established by testimony). Civil rights violations are serious affronts to an individual’s personal dignity and the resulting emotional distress is as reasonably foreseeable in those cases as it is where an individual is the victim of an intentional tort. The unequal treatment between those protected under the Civil Rights Act and the larger class of persons who suffer emotional trauma as the result of another’s wrongful acts violates the Equal Protection Clause.
The Equal Privileges Clause of Article 1, § 23 of the Indiana Constitution provides that “[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” Where statutes confer unequal privileges or immunities to various classes of persons, two factors must be considered to determine whether the statute violates Article 1, § 23. First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes; and second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994). As to the first component of the test, it has repeatedly been said that the basis for the classification “must inhere in the subject matter.” Id. at 78. Stated differently, where the legislature singles out one class of persons to receive a privilege or immunity not equally provided to others, such classification must be based upon distinctive, inherent characteristics which rationally distinguish the unequally treated class, and the disparate treatment accorded by the legislation must be reasonably related to such distinguishing characteristics. Id. at 78-79.
I can discern no distinctive or inherent characteristics which rationally distinguish the class of victims of civil rights violations from the larger class of victims of intentional torts for purposes of the damages recoverable. As previously stated, a person who experiences the pernicious effects of discrimination suffers no less emotional trauma than does the person who is the victim of an intentional tort. In my view the application of I.C. § 22-9-l-6(k) to deny victims of discrimination emotional distress damages places an unequal burden upon victims of discrimination and thereby implicitly grants a special privilege or immunity to victims of intentional torts. Because emotional distress damages are unequally recoverable among differing classes which are not rationally distinguishable, the application of I.C. § 22-9-l-6(k) to deny such damages to victims of discrimination amounts to a violation of Article 1, § 23.
I agree with the majority that nothing precludes a victim of discrimination from recovering emotional distress damages by filing a civil action for intentional infliction of emotional distress. This is especially true where the victim’s primary focus is the recovery of money damages for emotional trauma. However, in this ease the Commission awarded Jackson the modest sum of $80.00 representing damages for her emotional distress. Clearly those damages were an incidental rather than a primary part of the action. The difference in focus was addressed in State Human Rights Comm’n v. Pearlman Realty Agency, 161 W.Va. 1, 239 S.E.2d 145 (1977). In that case the Human Rights Commission determined that the complainant had *1283been the victim of racial discrimination in housing and entered a remedial order requiring, among other things, that the perpetrator cease and desist from discriminatory practices, adopt an appropriate advertising program, make regular compliance reports to the Commission, and pay the complainant $1,000.00 “as compensation and damages for the humiliation, embarrassment, emotional and mental distress, and loss of personal dignity.” Id., 239 S.E.2d at 146. On appeal the court held that the Commission could, as part of its cease and desist order, award the complainant incidental damages as compensation for emotional and mental distress without proof of monetary loss. In so doing the court noted that victims of unlawful discrimination have access to the courts when the main object of their complaint is to recover damages. Id. at 148. However, the effect upon the defendant of an incidental monetaiy award to an injured party as part of a cease and desist order is to secure compliance with the Commission’s order and to depress the discriminator’s ambition to repeat the misbehavior. Id. at 147. “[A]n award of an incidental amount of money to a complainant is, from the defendant’s perspective, nothing more or less than another facet of the Commission’s powers of enforcement which require defendant to expend money in order to comply with the cease and desist order and secure his nondiseriminatory conduct in the future.” Id. at 148.
In this case the legislative mandate grants the Commission the power to order a perpetrator to comply with a broad range of affirmative remedial actions. See I.C. § 22-9-1-6(k). Where, as here, a victim suffers incidental emotional distress damages as the result of such discrimination, the Commission should be permitted to compensate the victim as part of its larger mission of effectuating the statute’s purposes.
For the foregoing reasons I would reverse that part of the trial court’s order concluding that the Commission is without authority to assess emotional distress damages pursuant to the Indiana Civil Rights Act.