dissenting:
¶21 I respectfully dissent. While the present case concerns the limited issue of age discrimination by employers with fewer than fifteen employees (“small employers”), the majority’s decision will apply to all kinds of employment discrimination. Specifically, by determining that Dr. Burton has no cause of action for age discrimination against his employer because the employer employs fewer than fifteen employees, the majority has opened the door to all small employers to discriminate not only on the basis of age, but also on the. basis of the other categories protected by the Utah Anti-Discrimination Act (“Act”), Utah Code Ann. §§ 34A-5-101 to -108 (1997 and Supp.1999),1 including race, sex, religion, and disability. In light of the fact that the vast majority of Utah employers qualify as small employers, we should not open this door. Instead, this court should recognize a common law cause of action for wrongful termination against employers who discriminate on the basis of age.
¶22 This court adopted a public policy exception to the employment-at-will doctrine in Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1042 (Utah 1989) (Durham, J., joined by Stewart, J.). There, we stated:
[W]e recognize that a public policy exception is necessarily a threshold issue implicated in our reexamination of the scope of Utah’s at-will rule, and we have therefore been willing to consider and define it. We also stress that actions for wrongful termination based on this exception must involve substantial and important public policies. To this end, we will construe public policies narrowly and will generally utilize those based on prior legislative pronouncements ... applying only those principles which are so substantial and fundamental that there can be virtually no question as to their importance for promotion of the public good.
Id. at 1043 (Durham, J., joined by Stewart, J.). The majority has failed to undertake the careful analysis of public policy that Berube demands, creating an enormous loophole which Utah employers may exploit to the detriment of many Utah employees. Prohibiting employers from discriminating on the basis of age constitutes a substantial and important public policy sufficient to support a common law cause of action.
¶ 23 In the Act, the legislature pronounced that “[i]t is a discriminatory ... employment practice ... for an employer to ... discharge [or] ... terminate any person ... otherwise qualified, because of race, color, sex, pregnancy, childbirth, or pregnancy-related conditions, age, ... religion, national origin, or handicap.” Utah Code Ann. § 34-35-6(l)(a)(i). The legislature, in limiting the Act’s coverage to employers with more than fifteen employees, appears to have been balancing two policies: vigorously opposing discrimination in employment practices while simultaneously protecting small business from the burdens of the statutory remedies. The legislature’s decision not to extend the Act’s remedies to employees of small employers in no way undermines the significance of its core policy principles. It is not in the public interest to permit discrimination in employment based on age, race, sex, religion, and disability.
¶ 24 The Act creates a substantial bureaucratic system to implement its aims. It mandates the creation of the Utah Anti-Discrimination Division (the “Division”), as well as the Anti-Discrimination Advisory Committee to that Division (the “Committee”). See id. §§ 34-35-3, -4.5(1). The governor is directed to appoint the members of the Committee, including “one small business representative." Id. § 34-35^4.5(l)(a)(i) (emphasis added). The Division is given broad powers, including the authority to “receive, reject, investigate, and pass upon complaints alleging discrimination in employment ... or the existence of a discriminatory or prohibited employment practice by a person, [or] an employer.” Id. § 34-35-5(l)(c) (emphasis added). Significantly, the Division is not lim*1269ited to acting against “employers” in its fact finding or its passing upon discrimination complaints; rather, it is also empowered to act against “persons.” Id. § 34 — 35—5(l)(c). Repeatedly, the Division is charged with the ambitious task of fighting employment discrimination by such means as advising the governor, recommending legislation, and cooperating with both public and private groups. See id. § 34-35-5(l)(h), (j), (k). It is even given the power to subpoena witnesses, administer oaths and compel the production of documents and papers. See id. § 34 — 35—5(3)(a)(i) to (iii). Finally, the legislature has instructed the Division to “issue publications and reports of investigations and research that will tend to promote good will among the various racial, religious, and ethnic groups of the state, and that will minimize or eliminate discrimination in employment because of race, color, sex, religion, national origin, age, or handicap.” Id. § 34-35-5(l)(g) (emphasis added). Clearly, the legislature believed the Act’s purposes were to have broad and important implications for the welfare of Utah workers.
¶25 In addition to this strong statutory support for recognizing claims for wrongful termination based on age discrimination, two other policy considerations support the availability of such a cause of action. First, a significant majority — 69.7%—of the Utah employer population employs fourteen or fewer employees.2 Thus, the legislature’s broad goal of eliminating employment discrimination is addressed in only a limited way by the Act, and can in fact be avoided by the majority of Utah employers. Second, the way in which a state regulates relations between employees and employers has a significant impact on the quality of life for many of its citizens, and ultimately for the society as a whole. The “workplace climate” of a state is an important part of its opportunities for economic growth and long-term development. It is an entirely appropriate arena for the operation of policy choices intended to benefit the public interest, as indeed is manifest by the legislature’s choice to embody anti-discrimination principles in statute. Utah should not be a place where workers can be fired, paid less, or otherwise treated less favorably by nearly 70% of all employers on the basis of their race, sex, religion, disability, or age.
¶ 26 The majority decision undermines Utah’s publicly proclaimed desire to eliminate employment discrimination. Because there is no reason in logic, history, case law, or policy why discrimination on the basis of race, sex, religion, and disability may be distinguished from that based on age, I believe the majority’s decision will apply to all categories protected in the Utah Anti-Discrimination Act and will affect all forms of invidious discrimination by small employers. It seems strange indeed that this court should declare that it is not a violation of public policy to discriminate against someone in employment because of race, sex, religion, disability, or age, no matter the size of the employer.
¶27 The issue before us has been addressed by other jurisdictions. Noteworthy is Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996). In that case, the plaintiff, alleging sex discrimination against a small employer, also sought to bring an action based on common law wrongful termination. Id. at 611-12. The court was faced with a broad statute including the Maryland Legislature’s intent to prohibit invidious employment discrimination and a limitation appearing to exempt small employers. See Md. Ann.Code art. 49B, §§ 14, 15(b) (1999). The court stated 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.” Molesworth, 672 A.2d at 613 (internal quotation and citations omitted). The court then analyzed the various enforcement provisions of the statute, including one creating an agency called the Commission on Human Relations, with powers and a mandate similar to the Utah Division. Id. at 613. While there are differences between the Maryland statute and case law and our own, they are minor compared to the similarity of the over*1270all intent exhibited in both cases: the elimination of the detrimental effects of employment discrimination on the public interest. The Molesworth court found that the statutory scheme was not intended to exclude small employers from employment discrimination policies, but rather to “provide[] a clear statement of public policy sufficient to support a common law cause of action for wrongful discharge against an employer exempted by [having fewer than fifteen employees].” Id. at 616. The court, in analyzing the intent of the legislative scheme, found that while small businesses were excluded from the burdens imposed by the administrative mechanism, they were not excluded from the important public policy at the heart of the statute. See id.; Kerrigan v. Magnum Entertainment, Inc., 804 F.Supp. 733, 735-36 (D.Md.1992); Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653, 660-61 (1995); Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258, 1264-66 (1990). I would adopt the reasoning of the Molesworth court as I believe its holding is in keeping with the legislature’s statutory scheme and with the substantial and important public policy behind that statutory scheme.
¶ 28 In conclusion, the language of Berube is clear: “Public policy is most obviously, but not exclusively, embodied in legislative enactments. The legislature, acting in consonance with constitutional principles and expressing the will of the people, determines that which is in the public interest and serves the public good.” Berube, 771 P.2d at 1043. I believe that the “public good” in this case would be best served by permitting a common law cause of action for wrongful termination against employers who discriminate on the basis of age, race, sex, religion, and disability.
¶ 29 Justice STEWART concurs in Associate Chief Justice DURHAM’S dissenting opinion.. At the time the instant case was filed, the Act was codified at title 34, chapter 35 of the Utah Code. The relevant sections of the Act were not affected by the subsequent renumbering and amendments. Unless otherwise noted, all reference to the Act hereinafter are to the 1994 version.
. This number is based on data from the second quarter of 1999 and is provided by the Division of Workforce Information and Payment Services.