concurring in part: *
I agree with the majority’s disposition of the issue of facial hair and, generally, with most of what Judge PRYOR has written. In my opinion, however, the Fire Department’s hair length regulations can be sustained on the present record.
I.
Section 3 of the Mayor’s Order defines “personal appearance,” in pertinent part, as follows:
The outward appearance of any person, ... including, but not limited to, hair style and beards. It shall not relate, however, to the requirement of cleanliness, uniforms, or prescribed standards, when uniformity applied to a class of employees, for a reasonable business purpose....
(Emphasis added). With respect to hair length, the controversy has focused largely on whether the prescribed standards have been “uniformly applied.”
The hearing examiner made eight findings of fact (Nos. 14 through 21) pertinent to the issue of uniform application. Of these, only one dealt explicitly with hair length:
15. Women firefighters may use hairpins, hairpieces, or wigs to disguise long hair.
The hearing examiner further found as follows:
20. Enforcement of the grooming regulations varies from company to company, officer to officer.
21. Based upon the Findings of Fact ## 14 through 20, inclusive, I find that the Fire Department’s regulations create three classes of grooming rules — women, male firefighters without pseudofolliculitis bar-bae, and male firefighters with pseudofolli-culitis barbae — and that discipline under the grooming regulations has not been uniformly and equally applied to persons within the three defined classes.
In my opinion, these findings, even if clarified on remand, provide no basis for invalidating the Fire Department’s hair length standards.
II.
The hearing examiner’s first (and, I think, principal) reason for finding that the regulations have not been uniformly applied was that women firefighters are permitted to grow their hair longer than men, and may use hairpins or other devices to disguise their hair length. Differentiation between men and women in this regard, however, does not invalidate the regulations.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on, inter alia, sex. 42 U.S.C. § 2000e et seq. The Act was aimed at rooting out all employment restrictions based on sexual stereotypes. City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707, 98 S.Ct. 1370, 1374-75, 55 L.Ed.2d 657 (1978).1 Courts construing this comprehensive remedial statute have recognized, however, that while men and women have equal rights, the two sexes are not the same. Different grooming requirements for men and women, including different rules as to the wearing of long hair, are permitted by Title VII so long as the burdens which they impose on the two sexes are comparable. See, e.g., Dodge v. *861Giant Food, Inc., 160 U.S.App.D.C. 9, 13, 488 F.2d 1333, 1337 (1973). Different hair length requirements for men and women do not foreclose job opportunities for either sex or impose greater burdens on one sex than they do on the other. See Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 23-25, 481 F.2d 1115, 1123-25 (1973) (collecting authorities); Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 605-06 (9th Cir.1982) (en banc).
Kennedy does not question the correctness of these decisions, but contends that they have no application here because he has alleged discrimination based on personal appearance, rather than on sex. Since the gravamen of his submission with respect to hair length is that conduct which is permissible for women is not allowed for men, his grievance sounds more like a complaint of sex discrimination than of personal appearance discrimination. But even if the issue is characterized as whether the regulations discriminate on the basis of personal appearance, Kennedy cannot prevail.
The Human Rights Act, like the Mayor’s Order, permits employers to adopt grooming regulations “uniformly applied to a class of employees for a reasonable business purpose.” D.C.Code § 1-2502(22). In 1973, when the prohibition against discrimination on the basis of personal appearance was proposed as a part of the identical predecessor to § 1-2502(22), the Hospital Council objected somewhat inelegantly that the statute as drafted “would prohibit the disqualification of a transvestite because it requires that uniforms be unisex.” A District of Columbia Council staff memorandum addressed to the members of the Council responded as follows:
This is an incorrect interpretation. The definition contains an exemption for uniform requirements if they are applied for a ‘reasonable business purpose,’ which would include requiring men to dress as men and women as women.
See October 11, 1973 Council Memorandum on Proposed Draft Clarification, 34 D.C.R.R. at 7 (1973). The Council enacted the statute as proposed, and there is no reason to believe that it meant to proscribe different grooming standards for men and women. The language of the Mayor’s Order is identical in pertinent part to that of the statute, and we should construe it accordingly.2
III.
Kennedy also claims that the Fire Department’s hair length regulations have not been “uniformly applied” because some supervisors did not strictly enforce them. As the District points out, however, there is no doubt that the regulations were adopted as a uniform policy, at least for male firefighters. The evidence before the hearing examiner shows only that there were a few instances in which the grooming regulations were not enforced. There are more than 1300 firefighters.
Men and women are finite beings. Perfection is a rare commodity. See, e.g., Allen v. United States, 603 A.2d 1219, 1228 (D.C.1992 (en banc). The regulations were intended to be uniformly applied, and where, as here, there is no allegation or finding that the requirements were routinely waived for most men as a matter of course, the regulations cannot be invalidated simply because their enforcement was less than flawless.
ON PETITION FOR REHEARING
In response to a petition for rehearing, and an opposition thereto from our initial decision in this matter, we take this opportunity to resolve the specific questions raised.1 Kennedy contends he is entitled to recover both attorneys’ fees and compensatory damages under the provisions of Mayor’s Order 75-*862230 § 19(b), 1975 D.C.Stat. at 526. Section 19(b) of Mayor’s Order 75-230 states, in pertinent part:
When the Director [of] EEO finds that an employee of a department was discriminated against ... the department shall take remedial actions which shall include one or more of the following, but need not be limited to these actions:
(1) Retroactive promotion, with backpay
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(2) Consideration for promotion ...
(3) Cancellation of an unwarranted personnel action and restoration of the employee
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(4) Expunction from the department’s records of any
reference to or any record of unwarranted disciplinary action ...
(5) Full opportunity to participate in the employee benefit denied him....
Mayor’s Order 75-230 § 19(b), 1975 D.C.Stat. at 526-27 (emphasis added). Specifically, Kennedy asserts he is entitled to attorneys’ fees and compensatory damages because section 19(b) states that remedial actions “need not be limited” to those enumerated. We find this assertion unpersuasive.
Under the “American Rule,” a prevailing party is not entitled to recover attorneys’ fees in the absence of express statutory or contractual authorization. See, e.g., Schlank v. Williams, 572 A.2d 101, 108 (D.C.1990); Key Tronic Corp. v. United States, — U.S. -, 114 S.Ct. 1960, 1965, 128 L.Ed.2d 797 (1994); Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 257, 95 S.Ct. 1612, 1621, 44 L.Ed.2d 141 (1975). “The absence of specific reference to attorney’s fees is not dispositive if the statute otherwise evinces an intent to provide for such fees.... Mere ‘generalized commands,’ however, will not suffice to authorize such fees.” Key Tronic, supra, — U.S. at -, 114 S.Ct. at 1965 (citation omitted) (emphasis added); see also Schlank, supra, 572 A.2d at 108 (“Unless the legislature has made ‘specific and explicit provisions for the allowance of attorneys’ fees,’ [citation omitted] or there is ‘clear support’ in the language or legislative history of a statute for such an intent, [citation omitted] no statutory basis for an award of attorneys’ fees exists”) (emphasis added). Without statutory or contractual authorization, a prevailing party will be entitled to recover attorneys’ fees only if one of the recognized exceptions to the “American Rule” is applicable. See, e.g., Alyeska, supra, 421 U.S. at 257-59, 95 S.Ct. at 1621-22.2
In Zenian v. Office of Employee Appeals, 598 A.2d 1161 (D.C.1991), we held that the term “compensation system” within the context of the Comprehensive Merit Personnel Act (CMPA) should be construed to include attorneys’ fees. Id. at 1162. In so holding, we gave a broad construction to the City Council’s use of the words “need not be limited to.” Id. at 1164. However, the critical difference between this ease and Zenian is that in Zenian there was explicit statutory authorization for the recovery of attorneys’ fees. Although the CMPA did not expressly mention attorneys’ fees, the CMPA expressly incorporated by reference the “compensation system ... in effect on December 31, 1979,” which included the Federal Back Pay Act (FBPA) and, the FBPA contained an express provision for attorneys’ fees. Id. at 1165. Thus, attorneys’ fees were found to be recoverable because “the FCPA’s explicit authorization for such ‘make whole’ relief ha[d] been effectively incorporated by reference.” Id. at 1166 n. 10. Because the legislative intent was clear from the overall remedial structure of the CMPA, we concluded in Zenian that attorneys’ fees were recoverable even though they were not specifically mentioned in the text of the CMPA.
Neither the language nor the legislative history of Mayor’s Order 75-230 offer “clear support” for the recovery of attorneys’ fees (nor for the recovery of compensatory damages). Pursuant to § 29.3 of Title 34 *863DCRR, Mayor Washington, on October 31, 1975, issued Mayor’s Order 75-230.3 In 1977, the District of Columbia Council reenacted Title 34 DCRR as the D.C. Human Rights Act of 1977, D.C.Code § 1-2501 et seq. (1987), without making any substantive changes in its provisions.4 Title III of the D.C. Human Rights Act is entitled “Procedures,” and it is in Title III, at § 313, that the Council authorized the D.C. Commission on Human Rights to award a successful discrimination complainant “compensatory damages” and “reasonable attorney fees.” See D.C.Code § 1-2553 (1987). Also in Title III, at § 303, the Council directed the Mayor to establish a separate set of “rules of procedure for the investigation, conciliation and hearing of complaints filed against District government agencies ... alleging violations of this act.” D.C.Code § 1-2543 (1987) (emphasis added). Since the remedial provisions were included under the “Procedures” subdivision of the Act, in directing that the Mayor establish “rules of procedure,” the Council was directing the Mayor to establish, inter alia, the remedies that would be available to persons who filed complaints of discrimination against the District government.5
In terms of compensatory damages, Kennedy is seeking recovery for his emotional trauma arising from Ms employer’s discriminatory treatment towards him prior to the filing of Ms claim and for a ten-year period thereafter:6 Our ease law in tMs area is both sparse and admittedly unsettled. However, one point is crystal clear: if Kennedy was seeking recovery for discriminatory acts engaged in by a private employer (or other private entity), he would be entitled to both compensatory damages and attorneys’ fees under the D.C. Human Rights Act. See D.C.Code § l-2553(a)(l) (1987). In tMs situation, upon an adequate showing of discrimination, Kennedy would be entitled to recover for embarrassment and humiliation, but not necessarily for pain and suffering and emotional distress. See Doe v. D.C. Comm’n On Human Rights, 624 A.2d 440, 447-48 (D.C.1993).7 As a former D.C. government employee, however, Kennedy is not entitled to compensatory damages or attorneys’ fees.
In Williams v. District of Columbia, 467 A.2d 140 (D.C.1983), we clearly stated that D.C. government employees, unlike non-government employees, are required to exhaust the admimstrative remedies available to them under the D.C. Human Rights Act. Id. at 142. In Lamont v. Rogers, 479 A.2d 1274 *864(D.C.1984), we indicated that the remedies available to a D.C. government employee under Mayor’s Order 75-230 need not be limited to those enumerated in section 19(b). Id. at 1277.8 We have observed, however, that the Human Rights Act places the remedies provisions under the “Procedures” subdivision of the Act. Therefore, in directing the Mayor to establish “rules of procedure” for the resolution of complaints filed against the D.C. government, it is logical to conclude (as both Mayors Washington and Barry have done in the past) that the Council was directing the Mayor to establish, inter alia, the remedies available to complainants who successfully pursue Human Rights violations against the District.9 Moreover, in Lamont we never stated which remedies — beyond those enumerated in section 19(b) — (if any) were available under Mayor’s Order 75-230.10
Although it is clear from the language of section 19(b) of Mayor’s Order 75-230 that the remedies available to a successful complainant are not limited to those enumerated therein, it is not clear enough from the language or legislative history of the Order that the Council intended for the recovery of attorneys’ fees and compensatory damages, which are quite different in kind from the types of remedies specified in section 19(b). Therefore, absent explicit statutory language or other clear legislative intent, we must rely upon rules of statutory construction, including the doctrine of ejus-dem generis. We conclude that we lack the requisite statutory authorization to award attorneys’ fees or compensatory damages. As to the latter, compensatory damages are an important form of relief. A right of action is much more valuable when such a remedy is available. Under these circumstances, we deem it improbable that the drafters intended such a remedy to be inferred from language which makes no mention of it, espe-eially where other remedies of equal or lesser significance are explicitly enumerated.
So Ordered.
Senior Judge Pryor is in general agreement with the legal analysis in this opinion, but believes for the reasons stated in the majority opinion that a remand is appropriate.
. "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women re-suiting from sex stereotypes. [Title VII] subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoyment which have plagued women in the past."
Manhart, 435 U.S. at 707 n. 13, 98 S.Ct. at 1375 n. 13 (quoting Sprogis v. United Airlines, Inc., 444 F.2d 1194, 1198 (7th Cir.1971)).
. I am also satisfied that the Fire Department’s hair length regulations pass muster under the requirement of the Mayor's Order that they be uniformly applied "for a reasonable business purpose.” See Marshall v. District Unemployment Compensation Bd., 377 A.2d 429, 434-35 & n. 10 (D.C.1977) (sustaining hair length regulation for police officer despite the view of the Director of the Office of Human Rights that trimmed hair was not a bona fide occupational qualification).
. For our prior decision in this case, see [page 851] Brian R. Kennedy v. District of Columbia, Nos. 91-CV-1503 & 91-CV-1504 (D.C. Sept. 12, 1994).
. These exceptions have traditionally been narrowly construed. See, e.g., Alyeska, supra, 421 U.S. at 247, 95 S.Ct. at 1616. None of the recognized exceptions, including the bad faith exception, appear to be even remotely applicable here and Kennedy does not argue to the contrary.
. Section 29.3 is entitled "Complaints against D.C. Agencies," and provides in pertinent part:
Notwithstanding any other provision of this Title, the Mayor-Commissioner shall establish rules of procedure for the investigation, conciliation and hearing of complaints filed against D.C. Government agencies ... alleging violations of this Title.
34 DCRR § 29.3 (1975) (emphasis added).
. The sole purpose of reenacting Title 34 as a statute was to give its provisions greater stature and force. Committee on Public Services and Consumer Affairs, Committee Report on Bill 2-179, July 5, 1977, at 1-3.
. This is the way Mayor Washington interpreted the identical provision, § 29.3, of Title 34 before the Council reenacted it without change in § 303 of the Human Rights Act of 1977 — as illustrated by the remedial provisions of Mayor’s Order 75-230. And, this is the way Mayor Barry interpreted § 303 when he issued the rules to implement it. See "Equal Employment Opportunity Rules Governing Complaints of Discrimination in the District of Columbia Government,” 31 DCRR §§ 56, 67, 77-78 (1984).
. Kennedy retired from his employment with the D.C. Fire Department in 1992 or 1993. However, because the Mayor’s Order clearly requires the prompt presentment of claims, and because Kennedy faded to file any additional claims against his employer, we are unable to review Kennedy's new claim for compensatory damages arising from alleged discriminatory treatment occurring after his initial claim was filed. See Mayor's Order 75-230 §§ 7, 8, 1975 D.C.Stat. Thus, our discussion will focus on Kennedy's original claim for compensatory damages.
."Section 213.4 [of the D.C. Commission on Human Rights’ current "Guidelines For Payment of Compensatory Damages and Attorney’s Fees Under the Human Rights Act of 1977,” 31 D.C.Reg. § 213.4, at 6266 (1984)] requires reliable evidence to determine 'the amount of damages,’ but not to determine if damages were suffered. Because § 211 provides that humiliation, embarrassment and indignity flow naturally from a finding of discrimination....” Id. at 447 (emphasis added). However, in order to recover expenses incurred for pain and suffering and emotional distress, the complainant is required to present sufficient evidence linking his present mental condition to the discriminatoiy act. Id. at 448.
. Specifically, we stated: “They [respondents] maintain that her [petitioner] available remedies are limited to those spelled out in section 19(b) ... which does not mention compensatory damages. We reject this argument because section 19(b) also states that remedial actions ... ‘need not be limited' to those enumerated. Thus it may he that there are more remedies available to petitioner under the Human Rights Law than under Title VII. But she has not sought compensatory damages_ Absent any claim for further damages, the purported disparity in the available remedies makes no difference ...” Id. (emphasis added).
. See text and accompanying notes, supra, at 863.
. See supra note 7.