concurring in part and dissenting in part. I concur with the majority’s decision to dismiss the Association’s cross-appeal and clarify the triggering mechanism for the mixed motive analysis under Appeal of Montpladsir, 147 N.H. 297, 300 (2001). I write separately, however, because I would uphold the DOL’s ruling that RSA 275-E:4, I (1999) does not authorize the award of attorney’s fees and expenses.
RSA 275-E:4,1, provides, in pertinent part:
[T]he labor commissioner or the designee appointed by such commissioner shall render a judgment on such matter, and shall order, as the commissioner or his designee considers appropriate, reinstatement of the employee, the payment of back pay, fringe benefits and seniority rights, any appropriate injunctive relief, or any combination of these remedies.
The statute does not by its plain language authorize an award of attorney’s fees. However, both the petitioner and the majority rely upon two cases to argue that, notwithstanding this omission, the statute nonetheless authorizes an award of attorney’s fees. See Appeal of Bio Energy, 135 N.H. 517 (1992); E. D. Swett, Inc. v. N.H. Comm. for Human Rights, 124 N.H. 404 (1983).
In E.D. Swett, Inc., 124 N.H. at 407, the commission for human rights entered an order against an employer that included back pay, compensatory damages and attorney’s fees. The commission relied upon RSA 354-A:9, II (1966), which expressly authorized back pay, but did not expressly authorize either compensatory damages or attorney’s fees. Id. at 411. The relevant portion of RSA 354-A:9, II (1966) authorized the commission
to take such affirmative action, including (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, or the extension of full, equal and unsegregated accommodations, advantages, facilities and privileges to all *820persons, as in the judgment of the commission will effectuate the purpose of this chapter____
Id.
On appeal, we held that the commission could award attorney’s fees as “consistent with the discretion granted the commission in fashioning equitable remedies in view of the legislative purpose behind the statute.” Id. at 412. We refused, however, to hold that the statute authorized the commission to award compensatory damages, stating: “[W]e prefer to await a more express indication from the legislature that its intent is indeed to authorize the commission to award compensatory damages.” Id.
Unlike the statute at issue in Swett, RSA 275-E:4, I, does not contain expansive language authorizing “such affirmative action, including (but not limited to),” nor does it explicitly permit remedies that “will effectuate the purposes of this chapter.” Indeed, the language of RSA 275-E:4, I, narrowly restricts the DOL to a list of specific remedies or “any combination of these remedies.” Because the authority conferred by RSA 275-E:4,1, is not as broad as that conferred by RSA 354-A:9, II, the Swett case does not support the petitioner’s argument.
The second case — Appeal of Bio Energy — involves the statute at issue in this case, but does not concern attorney’s fees. Rather, the issue in Bio Energy was whether the statute authorized the DOL to award back pay. Appeal of Bio Energy, 135 N.H. at 521. In Bio Energy, the court emphasized that RSA 275-E:4, I, authorized “any appropriate injunctive relief,” and held that “back pay is an indispensable facet of the DOL’s injunctive power.” Id. The court also noted that “if employees are to be encouraged to report illegal acts, they must have assurance that they will not be punished monetarily,” and that “[ejmployers would have little incentive to comply with the Act if they faced only the prospect of future reinstatement of an employee.” Id. at 522.
The same cannot be said of attorney’s fees. Unlike back pay, attorney’s fees are not indispensable to the DOL’s injunctive power. To construe “any injunctive relief” to include back pay is consistent with the other express remedies in RSA 275-E:4, I, such as reinstatement, fringe benefits and seniority rights. By contrast, to construe “any injunctive relief” to include attorney’s fees is to add a remedy that is incongruous with the express remedies and inconsistent with the common understanding of the scope of “injunctive relief.”
To be sure, both Swett and Bio Energy contain broad language concerning the desirability of authorizing administrative agencies to impose a remedy that is not expressly authorized by the statute, because such remedy is “consistent with the discretion granted the commission in *821fashioning equitable remedies in view of the legislative purpose behind the statute,” E.D. Swett, Inc., 124 N.H. at 412, or “furthers the legislative purpose of the Act,” Appeal of Bio Energy, 135 N.H. at 522. In my view, however, the test cannot simply be whether the new remedy is consistent with the purpose of the statute, but rather whether a remedy not expressly authorized is “an indispensable fact of [the agency’s] injunctive power.” Id. at 521. Otherwise, in Swett, we would have upheld the award of compensatory damages. By broadening the test, we risk creating uncertainty as to the scope of remedies generally available from administrative agencies and infringing on the legislative prerogative to circumscribe the authority of the agencies they create.
For the foregoing reasons, I would uphold the DOL’s decision with respect to attorney’s fees. Consequently, I respectfully dissent.
DALIANIS, J., joins in the opinion of DUGGAN, J.