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Insignia Residential Corporation v. Ruejahlyn Ashton
No. 151, Sept. Term, 1999
Action for abusive discharge may lie when at-will employee discharged for refusing to engage in sexual
conduct that would violate State law against prostitution, even though the discharge might also be unlawful
under Federal and State employment discrimination laws.
Circuit Court for Prince George’s County
Case Nos. CAL97-15194 and CAL98-02469
IN THE COURT OF APPEALS OF MARYLAND
September Term, 1999
INSIGNIA RESIDENTIAL CORPORATION
Opinion by Wilner, J.
Eldridge, J., concurs in the judgment only.
Cathell and Harrell, JJ., dissent.
Filed: July 21, 2000
In Adler v. American Standard Corp., 291 Md. 31, 35, 432 A.2d 464, 467 (1981), we
confirmed the long-standing common law rule that “an employment contract of indefinite duration, that is,
at will, can be legally terminated at the pleasure of either party at any time.” We also held, however, that
that common law rule is subject to modification both by statute and by judicial decision, and we recognized
in Adler that a cause of action in tort may lie for the “abusive discharge” of an at-will employee “when the
motivation for the discharge contravenes some clear mandate of public policy.” Id. at 47, 432 A.2d at
473. In Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179 (1989), we added the caveat
that an action for abusive discharge will not lie when the public policy violated by the discharge arises from
a statute that provides its own remedy for the violation. A separate tort action, we said, was unnecessary
in such a situation. In Watson v. Peoples Ins. Co., 322 Md. 467, 588 A.2d 760 (1991), we noted that
there may be multiple sources of public policy and held that when, in such an instance, at least one public
policy mandate violated by a discharge does not arise from a law that provides its own remedy for the
violation, an action for abusive discharge based on that violation may lie.
Appellee, Ruejahlyn Ashton, contends, and a jury in the Circuit Court for Prince George’s County
found, that she was discharged from her employment by appellant, Insignia Residential Corporation,
because she refused to engage in sexual intercourse with one of Insignia’s officials, Michael Coleman. A
discharge for such a reason constitutes a violation of Federal and State employment discrimination laws that
provide one or more remedies for the violation. Accordingly, in Insignia’s view, Makovi controls, and an
action for tortious abusive discharge is precluded. Ms. Ashton responds that a discharge in retaliation for
her refusal to acquiesce in what she regards as a form of quid pro quo sexual harassment also violates
an independent mandate of public policy. Maryland Code, Article 27, § 15 prohibits a person from
engaging in prostitution. Coleman’s entreaties, she avers, constituted a solicitation for her to engage in
prostitution, as defined in § 16 — to offer her body for sexual intercourse for hire — but there is no other
civil remedy available to her for the loss of her employment due to her resistance to that entreaty. The tort
action for abusive discharge is therefore necessary in her view to vindicate the public policy against
prostitution. The issue thus presented by Ms. Ashton is whether Maryland recognizes a common law
wrongful discharge claim based on a theory that she was wrongfully discharged because she refused to
acquiesce in a form of “quid pro quo” sexual harassment that would have amounted to an act of
prostitution.1 The Circuit Court for Prince George’s County held that such a claim is cognizable. We
agree and shall affirm.2
Ms. Ashton’s employment relationship with Insignia lasted only three months — from December
2, 1996 to March 1, 1997. Much of the evidence regarding that relationship was in dispute, but, as Ms.
Ashton prevailed on the wrongful discharge claim, we shall view the evidence in the light most favorable
The issue articulated by Insignia, as appellant, is much broader — whether Maryland recognizes
a wrongful discharge action based on a theory that the employee was wrongfully terminated “because she
refused to acquiesce to ‘quid pro quo’ sexual harassment.” Ms. Ashton phrases the question as whether
an action lies when the employee is terminated “because she refused to become her boss’s prostitute.”
Ashton’s statement of the issue, though lacking legal formalism, is the more appropriate one, given the facts
in this case. “Quid pro quo sexual harassment” covers a wide range of conduct, much of which might not
fall under Article 27, §§ 15 and 16, and, although the answer may be the same with respect to some of that
penumbral conduct, that issue is not before us in this case and we do not address it.
Ms. Ashton never asserted the laws against pandering, contained in §§ 426 - 433 of Article 27,
as providing a public policy mandate with respect to the conduct attributed to Mr. Coleman, so we shall
not consider whether an action for abusive discharge may be based on the violation of those statutes.
Insignia owns and operates a number of apartment developments along the East Coast. Ms.
Ashton lived in one of those developments, known as Glenarden Two. In November, 1996, she applied
for a job with Insignia at the Insignia office located in the apartment development. She was interviewed
by Michael Coleman, Insignia’s on-site Property Manager, and Michael Peeples, its Regional Property
Manager. Soon after her interview, Mr. Peeples called her and offered her a job. When Ms. Ashton
reported for work on December 2, 1996, Mr. Coleman was on vacation, and she was assigned to work
as an office assistant. Upon Coleman’s return, he promoted her to the position of assistant property
Ms. Ashton alleged that a pattern of sexual harassment commenced about two weeks after she
began work. It first involved Mr. Peeples, who, in contravention of company policy, called her at home
one evening and asked her to come to a hotel where he was staying and sleep with him. He said that he
could help Ms. Ashton “move forward” in the company. Ms. Ashton declined the offer and complained
to Michael Coleman’s brother, Emmanuel, whom she knew and who also worked for Insignia. Her
complaint eventually reached Jack Cervilla, Insignia’s Regional Vice President, who called Ms. Ashton to
assure her that Peeples would be transferred and would no longer have occasion to be at the Insignia office
on the Glenarden Two property. He asked if she wanted to file a formal complaint against Peeples, to
which she replied that she just wanted to be left alone.
Despite Cervilla’s assurance, Peeples continued to visit the property for a time — until the end of
December. Ms. Ashton said that she wrote to Mr. Cervilla about Peeples’s continued presence, which
she found discomforting, even though there were no further incidents of harassment on his part. The next
upsetting event was at an office Christmas party, when Michael Coleman asked Ms. Ashton “when was
I going to go out with him, when I was going to sleep with him.” He added that, if she slept with him, “he
could help me out” and that she “could go places.” She declined, whereupon, somewhat inconsistently,
he apologized but grabbed her chest area. She made no complaint about the episode. Coleman made no
further sexual comments after the party although, according to Ms. Ashton, he did other things such as
“rubbing up against me if I’m trying to make copies or stuff like that.”
At the end of January, an incident, which later served as the asserted basis for her termination,
occurred in the building in which Ms. Ashton lived. A downstairs neighbor, Ms. Wichard, was allegedly
playing music too loudly late at night. Ms. Ashton asked another neighbor, Ms. Potts, who worked with
Ms. Ashton for Insignia, to accompany her to Ms. Wichard’s apartment in order to quell the disturbance.
According to Ms. Potts, Ms. Ashton cursed Ms. Wichard, although Ms. Ashton said that she merely asked
the woman to lower the noise. The incident was reported, however, to Mr. Coleman, who informed Ms.
Ashton that he intended to investigate the matter. On February 9, 1997, Ms. Ashton wrote to Mr.
Coleman, complaining that she had not received the increase in salary that should have accompanied her
promotion from office assistant to assistant property manager. She stated as well in her letter her belief that
it was unacceptable to “date in the office” and expressed the hope that he would not “take it personal
because I won’t go out with you.” At some point, according to Ms. Ashton, Mr. Coleman told her that
she “wasn’t serious about the job or the raise” because, “[i]f I was I would have gone out with him. I
would have slept with him.”
The next significant contact with Mr. Coleman came on February 14. In the course of another
conversation, he told Ms. Ashton that she was being discharged because of the incident with Ms. Wichard.
When Ms. Ashton began to cry, Mr. Coleman relented but then asked her to sleep with him and advised
that “[i]f I go out with him everything would be all right.” She declined, announced that she was quitting
and intended to sue, and turned to leave the office, whereupon Coleman hugged her and squeezed her
breasts. Ashton left the office, followed by Coleman, who apologized and asked her not to quit. She
agreed, apparently on the condition that he would not touch her again or ask “any questions about being
in relations with him.” Two days later, she wrote to him, again advising of her policy not to date coworkers or supervisors and of her discomfort in being hugged and squeezed.
On March 1, 1997, Mr. Coleman informed Ms. Ashton in writing that she was being discharged
due to the confrontation she had with Ms. Wichard. Coleman indicated that Ms. Wichard had complained
that Ms. Ashton verbally abused her by calling her several degrading names and that Ms. Potts and another
resident had confirmed her inappropriate behavior. In February, 1998, Ms. Ashton filed this lawsuit.
Although several causes of action were initially pled against Insignia, Coleman, and Peeples, the case
proceeded to trial on only two counts — a claim of battery against Coleman for the offensive touching that
allegedly occurred on February 14, 1997, and a wrongful discharge claim against Insignia. The latter count
charged that “[t]he actual reason for the termination was that the Plaintiff had twice refused to exchange
her job status for sexual favors,” that “[t]he demand, that the Plaintiff act as a prostitute, violates public
policy,” and that “[i]t is a violation of Maryland’s public policy to terminate the Plaintiff for refusing to
comply with the demands of her supervizors [sic] at Insignia.”
After listening to all of the evidence, including Mr. Coleman’s denials of much of what Ms. Ashton
had to say, the jury found that Coleman had not intentionally and offensively touched Ms. Ashton, and thus
returned a verdict for him on the battery claim. The jury did find, however, that Ms. Ashton was terminated
from her employment because she refused to engage in a sexual relationship with Coleman. Upon that
verdict, it awarded her damages of $22,240. This appeal ensued when the court denied Insignia’s motion
for judgment N.O.V. with respect to the wrongful termination claim.
We have set forth above, in summary fashion, the holdings in Adler, Makovi, and Watson that
frame the issue. We need now to consider Makovi and Watson in greater detail and to bring in some
Ms. Makovi was employed, on an at-will basis, as a chemist in a Sherwin-Williams paint factory.
In October, 1983, upon its discovery that Ms. Makovi was pregnant, the employer informed her that she
could not work at her job while pregnant and that her pay and medical benefits would cease until she
became “disabled” because of the pregnancy. Makovi filed an employment discrimination complaint with
the Federal Equal Employment Opportunity Commission, which determined that there was not “reasonable
cause to believe” that she had been the victim of sex discrimination but notified her of her right under Title
VII of the Civil Rights Act of 1964 to file an action in U.S. District Court. Instead, she filed a tort action
for abusive discharge in the Circuit Court for Baltimore City. She asserted that the employer’s health
concern was a pretext and that her discharge violated the public policy embodied in Title VII and in Article
49B of the Maryland Code. The Circuit Court dismissed the complaint, and we affirmed.
Although at the beginning of the Opinion we announced the principle that an action for abusive
discharge was “inherently limited to remedying only those discharges in violation of a clear mandate of
public policy which otherwise would not be vindicated by a civil remedy,” Makovi, 316 Md. at 605, 561
A.2d at 180, our holding in the case was more limited. The only asserted basis for the public policy
mandate allegedly violated by Sherwin-Williams was that arising from Title VII and the Maryland
counterpart in Article 49B. Those laws, we pointed out, not only created the prohibition against
employment discrimination on the ground of sex but provided certain remedies for the violation of that
prohibition, including injunctive relief, reinstatement as an employee, and an award of back pay. It was thus
that we agreed with the employer’s argument that the tort of abusive discharge does not lie “where the
public policy sought to be vindicated by the tort is expressed in a statute which carries its own
remedy for vindicating that public policy.” Id., 316 Md. at 609, 561 A.2d at 182 (emphasis
added). We returned twice to that theme. We pointed out that Ms. Makovi’s argument that the judicially
created tort occupies “the entire spectrum of discharges which are contrary to public policy” failed to
recognize “that the remedies provided to eliminate prohibited discrimination form part of the antidiscrimination policy.” Id., 316 Md. at 621, 561 A.2d at 188. Our ultimate conclusion was that, in cases
of discharge motivated by employment discrimination prohibited by Title VII and Art. 49B:
“the statutes create both the right, by way of an exception to the
terminable at-will doctrine, and remedies for enforcing that exception.
Thus, 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
Id. at 626, 561 A.2d at 190 . See also Chappell v. Southern Maryland Hosp., Inc., 320 Md. 483,
578 A.2d 766 (1990).
Insignia reads Makovi as barring a tort action for abusive discharge whenever the discharge might
be found to be an act of sexual harassment for which a remedy exists under the employment discrimination
laws. That is not the case. Ms. Makovi’s action was barred because it was based exclusively on those
employment discrimination laws. The only right allegedly transgressed was that arising from those laws,
for which a statutory remedy was provided. We expressly left open the prospect of an action for abusive
discharge lying when the discharge violated a mandate of public policy independent of the employment
discrimination laws. Presaging this very case, we noted:
“Sometimes the facts underlying a discharge 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.’ Id. at 1205. Prostitution was a
crime denounced by Arkansas statute. The Eighth Circuit predicted the
Supreme Court of Arkansas would find an abusive discharge because the
plaintiff ‘should not be penalized for refusing to do what the law forbids.’”
Makovi, 316 Md. at 620, 561 A.2d at 187.
The prospect that we left open in Makovi became confirmed in Watson. Ms. Watson, an at-will
insurance sales agent, was subjected to sexual harassment on three occasions by a fellow employee. The
first occasion involved offensive verbal invitations to engage in sexual activity. Ms. Watson complained to
a supervisor, who laughed and told her not to worry. The second incident involved a battery and an assault
— the co-worker placed his hands on her shoulders and attempted to bite her breast. When that incident
was reported, the supervisor ordered the co-worker to stay away from Ms. Watson. The third incident
involved both an assault and verbal abuse. On March 13, shortly after the third incident, Ms. Watson filed
an action against the co-worker and the employer, charging both with assault and intentional infliction of
emotional distress and charging the employer with failure to remedy the first incident and abate the
harassment. She requested medical leave for the next day, March 14, which was granted.
When the employer learned of the suit, a regional vice-president called a meeting in order to
investigate the matter. Ms. Watson refused to meet with the official unless her lawyer was present, a
condition rejected by the vice-president. She also refused to attend the regular weekly meeting of sales
agents set for March 21, after being warned that she would be discharged if she did not appear. By letter
dated March 20, Ms. Watson was discharged, allegedly for failing to appear at the March 14 meeting and
for failing to report to work on March 20. Following her discharge, Ms. Watson amended her complaint
to add another count, for abusive discharge, claiming that her discharge was in retaliation for her having filed
the lawsuit against the employer and the co-worker, in contravention of her Federal and State
Constitutional rights of free speech and to petition the court for redress. At trial, all claims but two were
dismissed. The jury found that the co-worker had assaulted Ms. Watson and returned a judgment in her
favor against him. It also found that Ms. Watson had been wrongfully discharged and awarded damages
of $35,000. The Court of Special Appeals reversed the judgment against the employer, effectively holding
that the tort of abusive discharge would not lie when the motivation for the discharge was to remove an
employee who was actively suing the employer.
We, in turn, vacated the judgment of the Court of Special Appeals, but on a very limited and
focused basis. The trial court’s instructions allowed the jury to find that the discharge was abusive if it was
in retaliation for Ms. Watson’s exercise of her general Constitutional right to redress in the courts. That,
we held, was error, but, because there was some question whether the employer had preserved the issue,
we did not decide the case on that basis. We agreed with the intermediate appellate court that, absent a
statute expressing a clear mandate of public policy, there is ordinarily no public policy violated by an
employer who discharges an at-will employee in retaliation for the employee suing the employer, at least
when the dispute is over compensation or other benefits. In such a circumstance, we said, the employer
is not required either to retain a disgruntled employee or risk an abusive discharge suit. Watson, 322 Md.
at 478-79, 588 A.2d at 765.
We also concluded that an action for abusive discharge could not be founded upon a lawsuit against
the employer based on its toleration of a “hostile environment” form of sexual discrimination. Hostile
environment sexual discrimination is actionable under Title VII. Indeed, we held that “[t]he source of the
policy against hostile environment sexual discrimination is statutory, and exclusively statutory.” Id. at 480,
588 A.2d at 766. Those statutes, we noted, provide the remedies for their violation, and, citing Makovi,
we concluded that “the abusive discharge tort would not reach [the employer’s] retaliation even if Watson’s
suit against it is interpreted to be based on [the employer’s] permitting a ‘hostile environment’ in which [the
co-worker] committed the assault.” Id.
The saving feature for Ms. Watson was the prospect that the jury may have found that her
discharge was motivated by her suit against the co-worker for assault and battery. Based on this
possibility, we held that “it is contrary to a clear mandate of public policy to discharge an employee for
seeking legal redress against a co-worker for workplace sexual harassment culminating in assault and
battery.” Id. at 480-81, 588 A.2d at 766. We explained that the public policy that may have been
violated “was the individual’s interest in preserving bodily integrity and personality, reinforced by the state’s
interest in preventing breaches of the peace, and reinforced by statutory policies intended to assure
protection from workplace sexual harassment.” Id. at 481, 588 A.2d at 767.
In finding the prospect of liability on that basis, we rejected the employer’s argument, made here
as well, that the case was controlled by Makovi. Preclusion under Makovi, we iterated, applies only
when the public policy sought to be vindicated “is expressed in a statute which carries its own remedy for
vindicating that public policy.” Id. at 485, 588 A.2d at 768 (quoting Chappell v. Southern Maryland
Hosp., Inc., supra, 320 Md. at 490, 578 A.2d at 770). Preclusion was not mandated, however, simply
because the assault and battery arose out of workplace sexual harassment. We explained that public
policy, manifested in both the civil and criminal law, provided sanctions against the harmful and offensive
touching of the person, whether or not sexually motivated, long before either Title VII or Art. 49B was
enacted, and that, had those statutes never been enacted, that independent mandate of public policy would
have supported Ms. Watson’s recourse against the co-worker. Thus, we noted, there were “multiple
sources of public policy, some within and some without Title VII and [Art. 49B]” and that, “[b]y including
prior public policy against sexual assaults, the anti-discrimination statutes reinforce that policy; they do not
supersede it.” Id. at 486, 586 A.2d at 769. Indeed, we pointed out that Makovi itself “foreshadowed
this approach to multiple sources of public policy” by its “favorable reference” to Lucas v. Brown &
Root, Inc., supra, 736 F.2d 1202, a decision “sustaining the tort where the discharge was in retaliation
for resisting quid pro quo sexual harassment.” Id.
Lucas is close in point. Ms. Lucas was an at-will employee who claimed that she was discharged
because she refused to sleep with her foreman. She sued in Federal court under Title VII and, alleging
diversity of citizenship, for breach of contract and intentional infliction of emotional distress. The Eighth
Circuit Court of Appeals affirmed the dismissal of her Title VII claim because it was filed too late but,
applying Arkansas law, reversed the dismissal of her State law claims, predicting that they would be found
viable by the Arkansas Supreme Court. Arkansas law recognized, it said, a public policy exception to the
at-will employment doctrine, allowing an action for breach of contract when a discharge was in violation
of public policy. The court took note of the Arkansas equivalent to Article 27, § 15, making prostitution
a crime. It declared that “[a] woman invited to trade herself for a job is in effect being asked to become
a prostitute,” and that a “[p]laintiff should not be penalized for refusing to do what the law forbids.” Lucas,
736 F.2d at 1205. Accordingly, it held that Ms. Lucas had pled a sufficient cause of action for breach of
contract. The court rejected the employer’s argument that allowance of such a claim would circumvent the
limitations of Title VII, noting the non-preemption provision in 42 U.S.C. § 2000e-7.
Lucas does not stand alone. A similar result was reached in Harrison v. Edison Bros.
Apparel Stores, Inc., 924 F.2d 530 (4th Cir. 1991). There, too, an at-will employee sued for abusive
discharge, claiming that she was discharged for refusing to accede to the sexual demands of the employer.
Applying North Carolina law, the Fourth Circuit Court of Appeals determined that North Carolina
recognized a breach of contract action when an at-will employee is discharged for refusing to violate the
law, that North Carolina, by statute, prohibits prostitution, that “the exchange of sexual intercourse for the
valuable economic benefit of a job fits within North Carolina’s criminal prohibition,” that the plaintiff was
asked to commit a criminal act and was fired for refusing, and that her complaint therefore “states a claim
for wrongful discharge.” Id. at 534.
In Collins v. Rizkana, 652 N.E.2d 653 (Ohio 1995), an at-will employee was subjected to
repeated sexual harassment in the form of offensive touchings and inappropriate language, and, when she
refused to sign a paper attesting that that conduct had not occurred, she was fired. An Ohio statute
precluded a person from having sexual contact with another, not the person’s spouse, when the offender
knows that the sexual contact is offensive. Both that statute and the employment discrimination laws
established a clear public policy against workplace sexual harassment, and, citing Watson, supra, the
court concluded that “[i]n cases of multiple-source public policy, the statute containing the right and
remedy will not foreclose recognition of the tort on the basis of some other source of public policy, unless
it was the legislature’s intent in enacting the statute to preempt common-law remedies.” Collins, 652
N.E.2d at 660 (emphasis in original).3 See also Wagenseller v. Scottsdale Memorial Hosp., 710
P.2d 1025 (Ariz. 1985), superceded by statute as stated in Chaboya v. American Nat. Red
Cross, 72 F. Supp. 2d 1081 (D. Ariz. 1999) (action for wrongful discharge recognized when at-will
employee discharged for refusing to engage in act that would constitute indecent exposure under Arizona
In McNeil v. State, 356 Md. 396, 739 A.2d 80 (1999), we traced the history of the efforts in
Maryland and elsewhere to control prostitution and the social problems generated by the commercialization
of that activity. The statute precluding prostitution and attempts to induce or coerce women and men into
engaging in prostitution represents a clear mandate of public policy that is violated when an at-will employee
is discharged for refusing to engage in conduct that would constitute prostitution (or lewdness or
assignation, which is also prohibited by § 15 of Article 27). The fact that both the inducements themselves
and a discharge for rejecting them may constitute a violation of the Federal and State employment
discrimination laws does not require that we ignore that such conduct also violates the entirely separate,
independently based, public policy embodied in § 15. Ms. Ashton’s action for abusive discharge is not
The majority opinion in Collins is rather far-reaching in its search for public policy, and we do
not necessarily endorse all of it. The three concurring Justices would have recognized the cause of action
for a discharge in violation of the public policy against offensive sexual contact manifested in the particular
statute. The full court was in agreement on that much.
precluded by Makovi; it is authorized by Watson.
JUDGMENT AFFIRMED, WITH COSTS.
Concurring Opinion follows:
Eldridge, J., concurring.
I concur in the judgment for the reasons set forth in my concurring and dissenting opinion
in Watson v. Peoples Ins. Co., 322 Md 467, 487, 588 A.2d 760, 770 (1991); in Judge Adkins’s
dissenting opinion, joined by Judges Eldridge and Cole, in Chappell v. Southern Maryland Hosp.,
320 Md. 483, 498-503, 578 A.2d 766, 774-776 (1990); and by Judge Adkins’s dissenting opinion,
joined by Judges Eldridge and Cole, in Makovi v. Sherwin-Williams Co., 316 Md. 603, 627-646,
561 A.2d 179, 190-200 (1989). See also Caldor v. Bowden, 330 Md. 632, 677, 625 A.2d 959,
980-981 (1993) (Eldridge, J., joined by Bell, J., dissenting).
An employee such as the plaintiff Ashton, who is discharged from her employment because
she refuses to engage in sexual intercourse with one of her employer’s officials, clearly has a common law
cause of action in tort for abusive discharge under the principles set forth in Adler v. American
Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). That common law cause of action under Adler
should not be precluded simply because there may exist limited statutory remedies under the Human
Relations Article of the Maryland Code (Art. 49B) or Title VII, particularly since this Court has held that
the Art. 49B and Title VII remedies are neither exclusive nor primary. Md.-Nat’l Cap. P. & P.
Comm’n v. Crawford, 307 Md. 1, 19-30, 511 A.2d 1079, 1088-1094 (1986). See also, e.g.,
Zappone v. Liberty Life, 349 Md. 45, 64-66, 706 A.2d 1060, 1070 (1998); Makovi v. SherwinWilliams Co., supra, 316 Md. at 631-638, 561 A.2d at 193-196 (Adkins, J., dissenting); National
Asphalt v. Prince Geo’s Co., 292 Md. 75, 79-80, 437 A.2d 651, 653-654 (1981). The General
Assembly has neither restricted the common law cause of action for abusive discharge recognized in Adler
v. American Standard Corp., supra, nor modified our holdings that the Article 49B remedy is not
exclusive or primary.
The majority today circumvents this Court’s ill-advised opinion in Makovi v. SherwinWilliams Co., supra, by stating that the holding in that case was more limited than the language of the
opinion, and by the strained route of relying on the criminal statute making it unlawful “[t]o engage in
prostitution . . . .” Code (1957, 1996 Repl. Vol.), Art. 27, § 15 (g). If that were the only way to afford
relief to someone who was fired because she refused to have sexual intercourse with her boss, I would
mute my protest. The straightforward and more principled way to afford relief to those in the plaintiff’s
position, however, is to overrule Makovi and its progeny.
Dissenting Opinion follows:
Dissenting opinion by Cathell, J. :
I respectfully dissent. Judge Eldridge writes separately in concurrence because the majority
declines to overrule Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179 (1989), and its
progeny. I write in dissent because the majority fails to apply the holding of Makovi v. SherwinWilliams Co., supra.
I do agree with most of Judge Eldridge’s statement that
[t]he majority today circumvents this Court’s . . . opinion in Makovi v. SherwinWilliams Co., supra, by stating that the holding in that case was more limited than the
language of the opinion, and by the strained route of relying on the criminal statute making
it unlawful “[t]o engage in prostitution . . . .”
Normally, I might be inclined to defer to the majority’s apparently superior academic knowledge
of the subject matter, but, under its reasoning, a person declining a sexual entreaty “until the ring is on my
finger,” is a prostitute or a person requesting sexual activity, promising marriage, or any number of other
things in return, is soliciting prostitution. With its opinion, the majority, by logical inferential extension, has,
I fear, turned millions of Marylanders into prostitutes or those who solicit prostitution.
Whatever the majority and others think prostitution is, this, in vernacular language, “ain’t it.”
I would reverse.
Judge Harrell has authorized me to state that he joins in the views expressed herein.