concurring and dissenting.
I concur with all of the majority opinion except the reversal of the trial court’s denial of a jury trial.
We hold that an employer may not discriminate on the basis of gender or race by refusing to train and transfer a female black employee, despite an agreement condoning the refusal. Moses asserts three claims: that the failure to transfer her was discriminatory; that the failure to train her, when similarly situated white male officers received such training, was discriminatory; and that the refusal to train her was also a breach of contract based upon the statute that requires training for peace officers.
As to the claims of discrimination, NDCC § 14-02.4-20 is controlling and I believe it sets forth in straightforward fashion with clear language that “the court” is to determine whether there is “an unlawful practice,” i.e., discrimination, and “the court” is to choose among remedies and order “appropriate relief ... which may include, but is not limited to, temporary or permanent injunctions, equitable relief, and back pay....” While the statute does not limit the relief available to one seeking redress for discrimination, it clearly limits the entity authorized to render that relief.
The legislature has specifically decreed that a claim for relief under ch. 14-02.4 is to be heard and resolved by “the court.” A plaintiff is entitled to a jury trial if a jury could have been demanded as a matter of right at common law. Dobervich v. Central Cass Public School Dist. No. 17, 283 N.W.2d 187, 190 (N.D.1979). However, there was no action for human rights violations at common law. Nor is there a right to jury trial in a statutory action in the nature of an equitable proceeding. General Electric Credit Corp. v. Richman, 338 N.W.2d 814, 817 (N.D.1983). Just as Title VII claims are equitable in nature, see Olin v. Prudential Ins. Co. of America, 798 F.2d 1, 7 (1 Cir.1986), so too are claims under NDCC ch. 14-02.4.
Moses’ claim for damages based on breach of contract is a legal claim, and generally, legal claims are to be heard by a jury. See General Electric Corp., supra. However, when there are both equitable *197and legal claims, the plaintiff is entitled to a jury trial on the legal claim, if the legal claim is not merely incidental to the equitable claim. General Electric Credit Corp., supra at 818; Dobervich, supra; 50 C.J.S., Junes, § 25 (1947).
Webster’s New World Dictionary defines “incidental” as “1 .a) happening as a result of or in connection with something more important; b) likely to happen as a result or concomitant. 2. secondary or minor, but usually associated.” See also Black’s Law Dictionary where “incidental” is defined as “[depending upon or appertaining to something else as primary....” Black’s Law Dictionary 686 (5 ed. 1979).
The question is whether Moses’ breach of contract claim is (1) connected with but less important than (2) a result of or concomitant with (3) secondary to but associated with her claims of discrimination.
One of the reasons given by the sheriff for not training Moses was that she was hired to be exclusively and presumably eternally, a correctional officer in women’s detention and thus she was not a “peace officer” entitled to training. The contract claim for denial of training is thus a result of the discrimination. It certainly is connected with the discrimination. The discrimination claims are more important in the sense that the conduct upon which they are based is also the basis for the breach of contract claim. Similarly, the contract claim is concomitant with the discriminatory refusal to train and transfer and is thus secondary and less important than the claims of discrimination. Therefore, I would hold that the breach of contract to train is incidental to the equitable claims of discrimination and not triable to a jury.
In my view, the legislature has clearly expressed its intention that the court is to hear claims based on discrimination and that the court may order, inter alia, back-pay. This is an action for backpay and other money damages and it should be heard by the court, not a jury. The statute does not say that the court or jury is to determine the issues and order relief. Compare NDCC § 14-02.4-20 with NDCC § 32-03-07 (court or jury may award exemplary damages). Nor does the statute omit any reference to either court or jury. If it did, we could infer that either court or jury may decide the matter, depending on whether a legal or equitable remedy is sought. Compare with NDCC § 32-03-09 (no reference to either court or jury in measure of damages for breach of contract).
I would hold that there is no right to a jury trial for the claims of discrimination under NDCC § 14-02.4-20 or for the incidental breach of contract claim. I would therefore affirm the trial court’s denial of a jury trial. To this extent, I respectfully dissent.
I must add a postscript. I certainly agree with Justice VandeWalle’s observation that “where the reason for the Federal rationale does not exist in North Dakota there is no reason we should adopt it indiscriminately.” (VandeWalle, J., concurring in part and dissenting in part, p. 6) See State v. Ringquist, 433 N.W.2d 207 (N.D.1988) (Levine, J., dissenting). I add my “amen” to his caveat that we should not treat our state law as an “echo” of the Federal Civil Rights statutes. Cf. State v. Ringquist, supra (Levine, J., dissenting).
However, I also believe that we should avoid reinventing the wheel and that where federal law has ironed out some wrinkles, we should take advantage of that experience. Far from importing the baggage of federal law, we are in the enviable position of incorporating the wheat, while rejecting the chaff. The majority has drawn on useful federal analogy in its analysis of our state Human Rights Act. Our act is broader in scope and more generous in the protection it affords than federal civil rights statutes but there are obvious similarities. Federal law is a rich resource which we would be foolish to ignore.
I join in the majority opinion except its resolution of the issue of the right to trial by jury.