specially concurring.
I concur in the opinion of the majority because the questions raised by petitioner with respect to the award of damages were disposed of in Williams v. Joyce, 4 Or App 482, 479 P2d 513, 40 ALR3d 1272, rev den (1971), and this court’s interpretation of the Act was approved in School District No. 1 v. Nilsen, 271 Or 461, 534 P2d 1135 (1975). The question is whether the legislature in 1977 (Oregon Laws 1977, Ch 453, § 7) has sent us the message that both we and the Supreme Court were wrong in the interpretation of the Act. The answer must come from the Supreme Court.
Specifically, I agree that the evidence of discrimination in the form of harassment was "so substantial that the inference is reasonable that Hayes suffered humiliation as a consequence.” (39 Or App at 265) It would take an unusually calloused person not to feel humiliation as a result of the conduct complained of. Further, the award of $4,000, based upon my own subjective judgment, is justified, and may not be adequate.
But therein lies the rub. The majority states that it has found no "helpful authority on the scope of judicial review of an administrative award of money compensation for an unquantified compensable condition.” (39 Or App at 265.) The reason it has found none seems apparent: the proper forum for *271assessing damages is a court of law where the parties are entitled to have a jury of their peers make the determination, Art I, § 17, and Art VII, § 3, Oregon Constitution, and not have them fixed by an advocate charged with enforcing the Act. The majority resolves the problem by concluding that any administrative action is valid if "it may be reasonably considered to advance a statutory purpose.” (39 Or App at 265.) It follows, then, that the award fits that test because "it removes the effects of unlawful discrimination.”
Using that test, I can think of no more appropriate administrative action to remove the effects of discrimination than an award of punitive damages which, historically, are designed to punish and deter the offender, and others similarly situated, from future wrongful conduct which violates societal interests. See Noe v. Kaiser Foundation Hosp., 248 Or 420, 435 P2d 306 (1967), 27 ALR3d 1268 (1969); McGill v. Huling Buick Company, 259 Or 413, 487 P2d 656 (1971). In determining such damages the wealth and financial condition of the offender is relevant. Phelan v. Beswick, 213 Or 612, 326 P2d 1034 (1958). Are we prepared to uphold an award of $100,000 in punitive damages against a corporation with a net worth of one hundred million dollars? If not, have we construed the Act properly?
It appears that these questions have been answered by the legislature in Oregon Laws 1977, chapter 453, section 7 (ORS 659.121),1 at least with respect to acts *272of discrimination taking place after July 19, 1977, its effective date. The majority, I think, passes off the amendment too glibly: "The statements of legislators in 1977 are not probative of the legislative intent of the statutes in effect in 1972, when the discrimination in this case occurred.”
A brief summary of the 1977 amendment is enlightening. Subsection 1 of the new statute permits any person claiming to be aggrieved by an unlawful employment practice prohibited by enumerated sections of ORS chapter 659, (including 659.030 defining all of the unlawful employment practices, including the one involved here) to file a civil suit in the circuit court for injunctive relief; it authorizes the court to order such other equitable relief as may be appropriate, including but not limited to reinstatement or the *273hiring of employees with or without back pay, and authorizes the award of attorney’s fees and costs to the prevailing party. It does not authorize the recovery of damages.
Subsection (2) of the new section authorizes any person claiming to be aggrieved by discrimination in housing,2 or discrimination against mentally or physically handicapped persons in real estate transactions to file a civil action in the circuit court "to recover compensatory damages or $200, whichever is greater, and punitive damages not to exceed $2500. The court may provide such equitable relief as it deems appropriate.” It also authorizes the prevailing party to recover attorney’s fees and costs.
Subsection (4) of the amendment expressly provides that the filing of a civil proceeding shall constitute both an election of remedies as to the rights of that individual with respect to those matters alleged in the complaint filed with the commissioner, and a waiver with respect to the right to file a complaint with the commissioner pursuant to the act.
It seems clear to me that the new section provides the complainant with an election of remedies, either to pursue the administrative remedy or to file a civil proceeding in the circuit court, and, in either case, compensatory or punitive damages are only allowed in a civil action in the circuit court with respect to certain kinds of discrimination, but not those in employment practices.
Assuming this to be the case, it seems to me the legislature has delivered a message that we were wrong in Williams, and the Supreme Court was wrong in Nilsen. Because I think it is up to the Supreme Court to interpret that message in light of what it said in Nilsen, I concur in the majority opinion.
ORS 659.121 (Oregon Laws 1977, ch 453, § 7) provides:
“(1) Any person claiming to be aggrieved by an unlawful employment practice prohibited by ORS 659.024, 659.026, 659.030, 659.410, 659.415 or subsection (1) of 659.425 may file a civil suit in circuit court for injunctive relief and the court may order such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employes with or without back pay. Back pay liability shall not accrue from a date more than two years prior to the filing of a complaint with the Labor Commissioner, pursuant to ORS 659.040, or if no such complaint has first been filed, then, more than two years prior to the filing of the civil suit provided for in ORS 659.040,659.045, *272659.095 and this section. In any suit brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees.
"(2) Any person claiming to be aggrieved by alleged violations of subsection (1) or (2) of ORS 659.033, subsection (2) of 659.425 or ORS 659.430 may file a civil action in circuit court to recover compensatory damages or $200, whichever is greater, and punitive damages not to exceed $2,500. The court may provide such equitable relief as it deems appropriate. In any action brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees.
"(3) Where no complaint has been filed pursuant to subsection (1) of ORS 659.040 or subsection (1) of 659.045 and except as otherwise provided herein, the civil suit or action shall be commenced within one year of the occurrence of the alleged unlawful employment practice. Where a complaint has been filed pursuant to subsection (1) of ORS 659.040 or subsection (1) of 659.045 the civil suit or action provided for herein shall be commenced only in accordance with the time limitations provided for in ORS 659.095. The filing of a complaint with the commissioner under subsection (1) of ORS 659.040 or subsection (1) of 659.045 shall not be a condition precedent to the filing of civil suit or action under this section.
"(4) This section shall not be construed to limit or alter in any way the authority or power of the commissioner or to limit or alter in any way any of the rights of an individual complainant until and unless the complainant commences civil suit or action. The filing of a civil suit or action shall constitute both an election of remedies as to the rights of that individual with respect to those matters alleged in the complaint filed with the commissioner, and a waiver with respect to the right to file a complaint with the commissioner pursuant to subsection (1) of ORS 659.040 or subsection (1) of 659.045.”
The majority states (39 Or App at 262) that the distinction between discrimination in housing and that in employment is a distinction without a difference. However much I might agree, the legislature has made that distinction, and with a difference.