recognizing a wrongful discharge claim insofar as the discharge was motivated by the employee’s lawsuit against a co-worker for sexual harassment (which amounted to assault and battery) because employees have a right to bring a civil action for sexual harassment and the “same clear public policy ... makes tortious a discharge that retaliates against that recourse”
How later courts described this case
- recognizing a wrongful discharge claim insofar as the discharge was motivated by the employee’s lawsuit against a co-worker for sexual harassment (which amounted to assault and battery) because employees have a right to bring a civil action for sexual harassment and the “same clear public policy ... makes tortious a discharge that retaliates against that recourse”
- stating that “it is for the court to determine, on any state of facts generated by the evidence, whether the relevant public policy considerations constitute the [requisite] ‘clear mandate’ ” of public policy
- concluding that a wrongful discharge action lies for termination of at-will employee for bringing suit against another employee for "workplace sexual harassment culminating in assault and battery”
- distinguishing Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179 (1989)(holding that abusive discharge claim did not lie for employee who alleged that she was discharged because of her pregnancy; sex discrimination statutes created both right and remedy for alleged public policy violation) and Chappell v. So. Md. Hosp., Inc., 320 Md. 483, 578 A.2d 766 (1990)(personnel director, an at-will employee, did not have cause of action against private hospital for abusive discharge where director had available remedies under Maryland Fair Employment Practices Law and the Civil Rights Act of 1964 for discharge allegedly based on director’s attempts to remedy alleged illegal discriminatory practices and violations of public policies at the hospital.)
Written by the judges who cited it.
The opinion
ELDRIDGE, Judge,
concurring in part and dissenting in part.
Although I concur with parts II and IV of the majority’s opinion, I disagree with Part III. The majority holds that, while it would contravene public policy for Peoples to discharge Ms. Watson for filing a lawsuit against Mr. Strausser alleging sexual harassment, it would not violate public policy for Peoples to discharge Ms. Watson for filing a lawsuit against Peoples based on identical allegations. Because I believe the majority’s reasoning and conclusion to be fundamentally flawed, I dissent.
I.
As established in Adler v. American Standard Corp., 291 Md. 31, 47 , 432 A.2d 464, 473 (1981), and reiterated *488 today by the majority, “Maryland does recognize a cause of action for abusive discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy.” Adler made clear that, “when determining the public policy of this State,” this Court “has not confined itself to legislative enactments, prior judicial decisions or administrative regulations.” 291 Md. at 45 , 432 A.2d at 472 . The majority today, however, seems to hold that, absent a statute clearly, establishing a mandate of public policy, an employer may fire an employee for suing the employer, regardless of the basis of the complaint. In deciding that there is “no clear mandate of public policy which would make actionable Peoples’ discharge of Watson if that discharge were motivated solely by Watson’s initial claims against Peoples,” the majority misapprehends the facts of the case and disregards the principles of law enunciated in Adler , in Makovi v. Sherwin-Williams Co., 316 Md. 603 , 561 A.2d 179 (1989), and elsewhere in the majority opinion in the present case.
As stated by Judge Bishop, dissenting from the decision of the Court of Special Appeals in this case,
“[wjhile the institution of a suit against an employer alone may not be enough to contravene public policy, this Court should not ignore the nature of the suit and the employer’s conduct which may provoke it. The grounds for the suit itself may be in contravention of public policy---- [T]he abusive discharge count, includes by reference all of the allegations included in the previous ... counts. These counts clearly contain the sexual harassment claims and the facts contained in them____” Peoples Security Life v. Watson, 81 Md.App. 420, 433-434 , 568 A.2d 835, 841-842 (1990).
The majority ignores the underlying allegations of sexual harassment by Mr. Strausser as well as allegations and evidence presented at trial that Peoples ratified Mr. Strausser’s conduct. The record supports a finding that Peoples knew of Mr. Strausser’s actions but failed to take prompt or adequate remedial action. See Monge v. Beebe Rubber Co., *489 114 N.H. 130, 132-134 , 316 A.2d 549, 551-552 (1974) (plaintiff wrongfully discharged where she was terminated, in part, for refusing foreman’s advances and manager of company “knew her foreman used his position to force his attentions on the female employees”). See also College-Town v. Mass. Com’n Against Discrim., 400 Mass. 156, 163-167 , 508 N.E.2d 587, 591-593 (1987) (plaintiff wrongfully discharged when employer fired her after she filed EEOC complaint alleging sexual harassment where employer knew of sexual harassment and did nothing to abate it).
The record shows that before the assault and battery on Ms. Watson, she spoke with Mr. Leidhecker, her supervisor, about Mr. Strausser’s bothering her by calling her at home at night and asking her to come to the office to see him. Mr. Leidhecker said that he would talk to Mr. Strausser and to Mr. Shoemaker, the Agency Manager who had supervisory control over Mr. Strausser. Mr. Leidhecker also suggested that Ms. Watson speak directly with Mr. Shoemaker. Ms. Watson testified at trial that when she told Mr. Shoemaker about the harassing phone calls, he “kind of laughed at me and told me not to worry about it.” In fact there is no indication from the record that anyone in management at Peoples, before or after the assault and battery, took any meaningful steps to stop Mr. Strausser’s harassment of Ms. Watson. Nevertheless, shortly after Ms. Watson filed suit against Mr. Strausser and Peoples because of the sexual harassment, she was fired. 1 According to the majority’s opinion, it was consistent with public policy for Peoples to fire Ms. Watson for filing a complaint containing allega *490 tions of sexual harassment on the job even though it was aware of the harassment and did nothing to stop it.
The majority states in Part IV of its opinion, citing Makovi v. Sherwin-Williams Co., supra, 316 Md. 603 , 561 A.2d 179 , that there may be “multiple sources of public policy, some within and some without Title VII and the [Maryland Fair Employment Practices Law, Code (1957, 1991 Repl.Vol.), Art. 49B, §§ 14-18].” But, when discussing Peoples’ discharge of Ms. Watson for filing suit against it based on the same facts alleged in her complaint against Mr. Strausser, the majority ignores any alternate sources of public policy. Contrary to the majority’s myopic view, whether the public policy is found in the Maryland Constitution, in other statutes, in the common law, or in the actions of Maryland governmental entities, “[i]t cannot seriously be doubted that this State has an undeclared yet clearly mandated public policy” proscribing workplace sexual harassment. Peoples Security Life v. Watson, supra, 81 Md.App. at 434 , 568 A.2d at 842 (Bishop, J., dissenting).
Article 46 of The Maryland Declaration of Rights provides that “[e]quality of rights under the law shall not be abridged or denied because of sex.” Although this constitutional provision may not directly apply to private employers, it nonetheless establishes a public policy in Maryland that an individual should not be subjected to sex-based discrimination. See James v. Marinship Corp., 25 Cal.2d 721, 739-740 , 155 P.2d 329, 339 (1944). It is well settled that workplace sexual harassment is a form of sex-based employment discrimination. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 , 106 S.Ct. 2399, 2405 , 91 L.Ed.2d 49, 59 (1986); Katz v. Dole, 709 F.2d 251, 254-255 (4th Cir.1983); Holien v. Sears, Roebuck and Co., 298 Or. 76, 87 , 689 P.2d 1292, 1298 (1984). Therefore, if Peoples fired Ms. Watson for filing a complaint against it alleging ratification of sexual harassment on the job, it contravened a clear public policy mandated by the Maryland Constitution. See, e.g., Rojo v. Kliger, 52 Cal.3d 65 , 276 Cal.Rptr. 130, 145-146 , 801 P.2d 373, 388-389 (1990).
*491 As noted by the majority today, this Court stated in Makovi v. Sherwin-Williams Co., supra, 316 Md. at 620 , 561 A.2d at 187 , that “the facts underlying a discharge [may] constitute both a violation of an anti-discrimination statute and of another, more narrowly focused, statute reflecting clear public policy but providing no civil remedy. Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir.1984), illustrates an analysis which utilizes the narrower ground. There the plaintiff alleged that she had been fired because she refused to sleep with her foreman. The court reasoned that ‘[a] woman invited to trade herself for a job is in effect being asked to become a prostitute.’ ” See also, Harrison v. Edison Brothers Apparel Stores, Inc., 924 F.2d 530 (4th Cir.1991). Given the facts of the present case, I fail to see why this Court could not find that Peoples’ discharge of Ms. Watson violated a clear mandate of public policy as set forth in Maryland’s statute prohibiting pandering. 2 The record reflects that Mr. Strausser, although he did not directly supervise Ms. Watson, held a higher position at Peoples than Ms. Watson. In addition, the record shows that, aside from making inappropriate comments to the plaintiff at work, he called her at home in the evenings imploring, “I want you to come in here. I have to sleep on the floor in the office. And doll face, you can make a lot of money if you do this.” Furthermore, the plaintiff testified that Mr. Strausser threatened that if she did not come into the office with him at night he would use his position to “hurt [her] financially.”
Even absent constitutional or statutory provisions, I believe that Peoples violated a clear mandate of public policy if it fired Ms. Watson in retaliation for her lawsuit against Peoples. See Maryland Special Joint Committee, Gender Bias in the Courts, at 80-83, 93-96 (1989) (the report generated by the committee appointed by Chief Judge Murphy condemns sexual harassment in the workplace); Chamberlin v. 101 Realty, Inc., 626 F.Supp. 865, 867 (D.N.H. *492 1985), citing Monge v. Beebe Rubber Co., supra, 114 N.H. 130 , 316 A.2d 549 (recognizing that under New Hampshire law workplace sexual harassment is against public policy). See also Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1062 (5th Cir.1981) (court finds cause of action for wrongful discharge where seaman alleged discharge in retaliation for filing personal injury suit under the Jones Act, stating “[t]he employer should not be permitted to use his absolute discharge right to retaliate against a seaman for seeking to recover what is due him or to intimidate the seaman from seeking legal redress. The right to discharge at will should not be allowed to bar the courthouse door”).
Finally, the cases relied on by the majority for the proposition that, “absent a statute expressing a clear mandate of public policy, there ordinarily is no violation of public policy by an employer’s discharging an at will employee in retaliation for that employee’s suing the employer,” are distinguishable from the present case. First, it is apparent from the cases cited by the majority from Alabama and Florida that those courts did not recognize the cause of action for abusive discharge. Second, other cases cited involve such issues as salary disputes; none involve “such an intensely personal affront to the employee as in the case sub judice, where the employee was sexually harassed to the point of an assault and battery”. Watson v. Peoples, 81 Md.App. at 434 , 568 A.2d at 842 (Bishop, J., dissenting). See also Carlson v. Crater Lake Lumber Co., 103 Or.App. 190, 194 , 796 P.2d 1216, 1219 (1990).
II.
The majority in Part III B of its opinion reiterates the holding set forth in Makovi v. Sherwin Williams, supra, 316 Md. 603 , 561 A.2d 179 , and Chappell v. Southern Maryland Hosp., 320 Md. 483 , 578 A.2d 766 (1990), that Title VII and the Maryland Fair Employment Practices Law, Code (1957, 1991 Repl.Vol.), Art. 49B, §§ 14-18, provide the exclusive remedies against the employer for sex discrimination in employment. With regard to this part of *493 the majority opinion, I continue to adhere to the dissents in both of those cases.
. The record reflects that Ms. Watson also filed a complaint against John Strausser and Peoples with the Equal Employment Opportunity Commission. The EEOC conducted an investigation and found no probable cause to believe that Peoples had engaged in unlawful sexual discrimination and advised her of her right to file an action under Title VII. At the time, Ms. Watson may have elected not to proceed under Title VII because it may have been assumed that federal courts had exclusive jurisdiction over Title VII claims. It has become settled since Ms. Watson’s trial that Maryland courts have concurrent jurisdiction over Title VII claims. Sweeney v. Hartz Mountain Corp., 319 Md. 440, 443 , 573 A.2d 32, 33 (1990).
. Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 426.