Wholey v. Sears Roebuck6/19/2002
ch were unavailable under the statute and would have "upset the balance between right and remedy struck by the Legislature in establishing the very policy relied upon." Id. Because the Legislature, upon considering the effect of violations of the policies they elected to promote, explicitly provided relief, it struck the appropriate balance "between right and remedy;" therefore, "provision by the courts of a further remedy goes beyond what the legislature itself thought was necessary to effectuate that public policy." Id. at 615, 561 A.2d at 185 (quoting Lapinad v. Pacific Oldsmobile-GMC, Inc., 670 F.Supp. 991, 993 (D. Haw. 1988)). Such expansion by the courts is inappropriate.
A second limiting factor in defining a public policy mandate as a cause of action in tort is the notion that the policies should be reasonably discernible from prescribed constitutional or statutory mandates. See Makovi, 316 Md. at 622, 561 A.2d at 188 ("Judicial power to create a tort `is to be exercised in the light of relevant policy determinations made by the [legislative branch].'")(quoting Bush v. Lucas, 462 U.S. 367, 373, 103 S. Ct. 2404, 2409, 76 L. Ed. 2d 648, 654 (1983). While this Court has not confined itself strictly to prior judicial opinions, legislative enactments, or administrative regulations in determining the public policy of Maryland, we have, nevertheless, recognized that the establishment of "an otherwise undeclared public policy as a basis for a judicial decision involves the application of a very nebulous concept to the facts of a given case, and that declaration of public policy is normally the function of the legislative branch." Adler, 291 Md. at 45, 432 A.2d at 472.
For example, in Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996), a case in which we, again, reviewed the provisions of the Fair Employment Practices Act ("FEPA"), we held that Art. 49B provided a clear statement of public policy with respect to all employers who discriminated based on sex, despite the fact that Section 15(b) of FEPA explicitly exempted employers with fewer than fifteen employees from the administrative process of the Act. Id. at 628, 672 A.2d at 612. While such employers were exempted from the process under Section 15(b) of FEPA, they were not exempted from the policy articulated in Section 14, which, generally speaking, "assures all persons equal opportunity in receiving employment." Id. The Legislature clearly articulated its policy with respect to equal opportunity in employment under FEPA; pursuant to this policy, we held that Molesworth's wrongful discharge cause of action was viable. Id. at 637, 672 A.2d at 616; see Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 480-81, 486, 588 A.2d 760, 766, 769 (1991)(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").
We have similarly concluded that a wrongful discharge cause of action based on a public policy violation existed when an employee was discharged solely because that employee filed a workers' compensation claim. See Finch v. Holladay-Tyler Printing, Inc., 322 Md. 197, 202, 586 A.2d 1275, 1278 (1991); Ewing, 312 Md. at 50, 537 A.2d at 1175. The policy mandate, pursuant to Maryland Code (1957, 1985 Repl. Vol.), Article 101, Section 39A, explicitly prohibited discharging an employee for filing workers' compensation claims. While Section 39A created a criminal cause for those employers who violate the mandate, we held a civil
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