Insignia Residential Corp. v. Ashton , 359 Md. 560 ( 2000 )

ELDRIDGE, J.,

concurring.

I concur in the judgment for the reasons set forth in my concurring and dissenting opinion in Watson v. Peoples Security Life 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 in 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. Sherwin-Williams 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. Sherwin-Williams 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 plaintiffs position, however, is to overrule Makovi and its progeny.