Wholey v. Sears Roebuck6/19/2002
ect to change not only via statute, but via judicial fiat if the courts believe the "common law rule is a vestige of the past, no longer suitable for the circumstances of our people"); Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611, 614 (1977) (recognizing tort of intentional infliction of emotional distress); Deems v. Western Maryland Ry., Co., 247 Md. 95, 108-09, 231 A.2d 514, 522 (1967) (changing common law rule to make actions for loss of consortium available only jointly to husbands and wives as a legal entity); see also Deborah A. Ballam, Employment-at-will: The impending death of a doctrine, 37 Am. Bus. L. J. 653, 656 (2000)(stating that " ort law, perhaps more than any other area of modern U.S. law, is the magic mirror reflecting the ways changes in society lead to changes in the law").
Courts must, however, use care in creating new public policy; in Adler, we quoted approvingly, the United States Supreme Court's conclusion that "public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection. The public policy of one generation may not, under changed conditions, be the public policy of another." Adler, 291 Md. at 46, 432 A.2d at 472 (quoting Patton v. United States, 281 U.S. 276, 306, 50 S. Ct. 253, 261, 74 L. Ed. 854, 867 (1930))(emphasis in original). In exercising our measured authority to define public policy, therefore, we must strive to confine the scope of public policy mandates to clear and articulable principles of law and to be precise about the contours of actionable public policy mandates.
The first limiting factor with respect to adopting a "new" public policy mandate for a wrongful discharge claim is derived from the generally accepted purpose behind recognizing the tort in the first place: to provide a remedy for an otherwise unremedied violation of public policy. See Chappell v. Southern Maryland Hosp., 320 Md. 483, 493, 578 A.2d 766, 772 (1990)(finding it unnecessary to apply a tort remedy where the employee had other civil remedies available under both state and federal law); Makovi v. Sherwin-Williams Co., 316 Md. 603, 626, 561 A.2d 179, 190 (1989). For example, in Makovi, supra, we held that the tort of wrongful discharge is inapplicable where the public policy sought to be vindicated - in that case, sex discrimination in the work place - is expressed in a statute which carries its own remedy for violation of that public policy. See Makovi, 316 Md. at 609, 561 A.2d at 182. We noted that Title VII of the Civil Rights Act of 1964, 42 U.S.C., §§ 2000e-2000e-17 (1982)("Title VII") and the Fair Employment Practices Act ("FEPA"), Maryland Code (1957, 1986 Rep. Vol.), Art. 49B §§14-18, set forth remedies for employees subject to unlawful sex discrimination. Id. at 623, 561 A.2d at 189. We therefore concluded that "the generally accepted reason for recognizing the tort, that of vindicating an otherwise civilly unremedied public policy violation, does not apply. Further, allowing full tort damages to be claimed in the name of vindicating the statutory public policy goals upsets the balance between right and remedy struck by the Legislature in establishing the very policy relied upon." Id. at 626, 561 A.2d at 190. The Legislature had already defined the precise remedy for the "policy violation" of sex discrimination. Had we deemed the tort of wrongful discharge applicable to Makovi's case, we would have expanded the available remedies for such violation beyond that which was articulated by the Legislature; namely, the remedies would include compensatory and punitive tort damages whi
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