dissenting.
Although I highly commend the majority for its well-reasoned resolution of the damages issue in this case, I believe that a proper construction of ORS 659.015 would have obviated the need to reach that issue in the first place. Accordingly, I dissent. ORS 659.015 provides:
“It is declared to be the public policy of Oregon that available manpower should be utilized to the fullest extent possible. To this end the abilities of an individual, and not any arbitrary standards which discriminate against an individual solely because of his age, should be the measure of the individual’s fitness and qualification for employment.” (Emphasis supplied.)
The majority’s construction of ORS 659.015 makes it unlawful to give age any consideration whatsoever in any hiring decision. Reliance by the employer on any number of other legitimate and equally determinative factors is apparently irrelevant. Thus, for example, an employer who turns down an applicant because she has no experience or no education or is seriously addicted to drugs or has a history of committing violent crimes against her employers and because she also happens to be too young or old for the job would be acting unlawfully.
That the legislature intended otherwise is obvious, given its use of the word solely in ORS 659.015. Solely means “to the exclusion of alternate or competing things,” Webster’s Third New International Dictionary, which, when read in context, suggests to me that this statute was intended to outlaw arbitrary discrimination based exclusively on age. It was not, as the majority concludes, intended to prohibit employers from considering age along with other proper factors in making a hiring decision.
The erroneous nature of the majority’s interpretation becomes even more apparent after considering that the legislature felt it necessary to issue two separate policy statements *252regarding employment discrimination. ORS 659.015 is directed at discrimination “against an individual solely because of his age.” In contrast, ORS 659.020 (amended by Or Laws 1983, ch 225, § 2) addresses discrimination “against any of [the state’s] inhabitants because of race, religion, color, sex, marital status or national origin.” Although the former provision only prohibits discrimination based solely on age, the latter provision contains no equivalent limiting language. That omission leads me to conclude that the legislature intended to enact different standards for dealing with age and non-age based employment discrimination.
Moreover, the word solely is also conspicuously absent from 29 USC § 623, the federal employment discrimination statute. I question the relevance of federal case law construing a statute that differs in such a material way from our own. The majority’s reliance thereon is misplaced.
The commissioner specifically found that petitioner relied on two factors in addition to the applicant’s age. Although she does not identify the other two factors, we must assume that they were non-discriminatory. Accordingly, because petitioner did not rely solely on age, in my opinion she did not violate the statute.
The commissioner and the majority conclude that, because petitioner considered age at all, she behaved unlawfully. I do not believe the legislature intended to impose such a narrow and rigid standard. Therefore, I would find that the commissioner relied on an erroneous interpretation of ORS 659.015 in reaching her decision and would remand this case for further action consistent with this opinion. ORS 183.482(8) (a) (B).