concurring specially.
It would be possible, and logical, to construe the Fair Employment Practices Act, OCGA § 45-19-20 et seq. (FEPA), not to permit an award by a special master of attorney fees to a prevailing complainant (thus overruling the Court of Appeals decision of Kilmark v. Bd. of Regents, 175 Ga. App. 857, 870 (5) (334 SE2d 890) (1985)). This is because FEPA, while it tracks its federal counterpart (Title VII of the federal Civil Rights Act of 1964, 42 USC § 2000 et seq.) in many respects, does not contain a specific provision for an award of fees to a prevailing claimant. Compare 42 USC § 2000e5(k). Moreover, this state has traditionally followed the rule that attorney fees are not recoverable by a prevailing party except where specifically provided for by contract or statute. Harrison v. Harrison, 208 Ga. 70 (1) (65 SE2d 173) (1951).
Nevertheless, I agree with the majority’s choice to follow Kilmark’s holding that OCGA § 45-19-38 implicitly authorizes a special master to award reasonable attorney fees to a successful complainant. I disagree, however, that the fact that Finney did not incur attorney fees is dispositive of her right to recover them. Rather, I would hold, as did the Court of Appeals, that the determinative factor for the opportunity of an award by a special master of attorney fees to a prevailing party is whether the party has obtained counsel appointed by the administrator of the Office of Fair Employment Practices (OFEP) pursuant to OCGA § 45-19-27 (3) or, whether the party has retained private counsel pursuant to OCGA § 45-19-37 (i).1
As pointed out by the Court of Appeals, FEPA establishes that a complainant may always have adequate representation in pursuing his or her claim before the special master, and may obtain the services of an attorney for that purpose in one of two ways: the complainant may utilize the services of the OFEP administrator, who, *305pursuant to OCGA § 45-19-27 (3), will arrange legal representation; or the complainant may retain his or her own private counsel, OCGA § 45-19-37 (i). Here, Finney chose the former alternative. Accordingly, her attorney was provided to her by OFEP and compensated under a contract executed by OFEP and the attorney. Having delegated to OFEP all arrangements for representation by a state agent in pursuing Finney’s claim against another division of the state, Finney, although a beneficiary of that arrangement, should not now be able to claim fees thereunder. Finney did not, as she could have under OCGA § 45-19-37 (i), retain private counsel to represent her. Had she done so, in my view, and consistent with that of the Court of Appeals, she would have been able to pursue a claim for attorney fees before the special master.
It is not necessary, in this appeal, to reach the question of the extent of attorney fees which a special master may award a successful FEPA complainant who seeks fees for the services of a privately retained attorney, i.e., those fees actually incurred, or all reasonable fees. However, when that issue is presented, this court should examine, in light of the remedial nature of FEPA, whether there is any justification for distinguishing between an award of attorney fees to a successful claimant at the special master level and that to a successful claimant following judicial review in superior court pursuant to OCGA § 45-19-39 (c) (which specifically provides for an award, in the court’s discretion, of reasonable attorney fees).2
I am authorized to state that Chief Justice Clarke joins in this special concurrence.
By the term privately retained attorney, I mean an attorney not appointed by the FEPA administrator pursuant to OCGA § 45-19-27 (3). Thus, privately retained attorneys would include those employed by a legal aid or legal services organization or others who undertake the work on a pro bono, or reduced fee, basis.
Because the Court of Appeals has not yet ruled on the issue, I agree with the majority’s remand to that court of the question whether the superior court erred in failing to grant attorney fees to Finney pursuant to OCGA § 45-19-39 (c) in connection with the Department of Corrections’ appeal to the superior court of the special master’s award. However, since Finney’s attorney at the superior court level was not compensated under the contract with the OFEP administrator, see OCGA § 45-19-27 (3), unlike the proceedings before the special master, Finney would not be precluded from a fee award under the rationale of this special concurrence.