dissenting.
I respectfully dissent. As I previously stated in dissent in Crutcher v. Dabis (1991), Ind.App., 582 N.E.2d 449, trans. pending, IC 22-9-1-6, properly construed, permits the emotional distress award granted by the Indiana Civil Rights Commission.
The section of the Federal Civil Rights Act comparable to IC 22-9-1-6 provides: “If the administrative law judge finds that a respondent has engaged or is about to engage in a discriminatory housing practice, such administrative law judge shall promptly issue an order for such relief as may be appropriate, which may include actual damages suffered by the aggrieved person and injunctive of other equitable relief.” (emphasis added). 42 U.S.C. § 3612(G)(3). This section has been construed by the federal courts to include emotional distress damages. See Steele v. Title Realty Co., 478 F.2d 380 (10th Cir.1973) (damages in a discriminatory housing action are not limited to out-of-pocket losses but may include an award for emotional distress and humiliation).
Under IC 22-9-1-6, the ICRC has the power to “restore the complainant’s losses [as] necessary to assure justice.” It cannot logically be maintained that the emotional distress suffered by a victim of sexual harassment is not a compensable “loss” under the statute. Assuring justice necessarily requires the making whole of an injured person, and a person found to have suffered emotional distress certainly is not whole. I would therefore reverse the trial court’s determination that the ICRC acted capriciously and not in accordance with law and its disallowance of Ware’s emotional distress damages.