concurring.
I agree that plaintiffs common law damage claim for wrongful discharge is not precluded by the fact that the legislature has enacted other remedies for employment discrimination on the basis of sex. I write separately to emphasize the importance of not confusing these two kinds of claims in this case.
If plaintiffs tort claim were one for “discriminatory discharge,” that is to say, if her claim were that she was discharged by reason of her sex, there would be serious doubt that the remedies for employment discrimination enacted by the legislature leave room for an action for damages or that the common law would recognize it. But this plaintiffs case does not hinge on showing that her employer, Sears, Roebuck and Co., discharged her by reason of her sex. Her case depends on showing that Sears discharged her for exercising a legal right to resist a supervisor’s sexual advances, which is a very different thing.
As the Court states, plaintiff must bring her common law claim of tortious discharge within the premises stated in Delaney v. Taco Time Int’l. 297 Or 10, 681 P2d 114 (1984). In Delaney we sharpened the earlier generalized phrasing that it is tortious to discharge an employee at will for a “socially undesirable motive,” Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975). We noted that, more specifically, our cases had held it a tort to discharge an employee either for fulfilling a societal obligation or for pursuing a legal right related directly to his or her status or role as an employee. A discharge for either reason gives rise to a tort claim for damages unless there is reason to conclude that the legislature intended another remedy to be sufficient to protect the discharged employee.
*101The exact phrasing used in Delaney may not represent final perfection in every respect. Few tort opinions do. Perhaps the cases covered by exclusive legislative remedies are not strictly a parallel third category, as Delaney suggests, ■but rather an exclusion if one of the two bases for a tort claim is found. Also, in my view, it is inaccurate that a court will weigh whether another remedy is “adequate” in order to determine whether the employer’s act is a tort, as Delaney, 297 Or at 16, repeated from Walsh v. Consolidated Freightways, 278 Or 347, 351-52, 563 P2d 1205 (1977). Rightly understood, the references to statutory remedies in Walsh and in Brown v. Transcon Lines, 284 Or 597, 588 P2d 1087 (1978), mean remedies for the same discharge or other employer action for which the employee seeks tort damages, and the “adequacy” of these other remedies is relevant only to determining whether the legislature likely intended to make them exclusive. Here, however, it is immaterial if the legislature intended to provide exclusive remedies for discrimination under ORS chapter 659. Plaintiffs tort claim is not for the alleged discriminatory harassment, but for allegedly being discharged for resisting it.
Plaintiff has a legal right to resist a supervisor’s harassment under the federal statute and decisions cited by the Court.1 They hold that such harassment can be a form of discrimination, and for this discrimination the statutory remedies perhaps are exclusive. But what is discriminatory is the on-the-job harassment, not — at least not necessarily — plaintiffs discharge for resisting it. Sears, or another employer, might have a practice of discharging anyone employed at will who gets into extended controversy with a supervisor over a personal relationship, or perhaps over any other matter. The practice might apply quite neutrally to men and women in similar circumstances. Such a discharge might be entirely nondiscriminatory.
If the employee is discharged as a result of a controversy in which the employee’s position does not rest on a societal obligation or an employment-related legal right, Delaney provides no tort action for the discharge. This may be an unsatisfactory state of the law for nonsupervisory workers, *102but it reflects the common law view of employment at will in the absence of statute or contract. Cf. Swanson v. Van Duyn Choc. Shops, 282 Or 491, 579 P2d 239 (1978). But if an employee pleads a tortious discharge for having asserted a job-related legal right, it does not matter whether this was a right against discrimination or something else. If it is alleged to have been a right against discrimination, as here, that does not turn the subsequent discharge into a “discriminatory discharge” or the tort action for wrongful discharge into a claim for employment discrimination.
In the present case most of the allegations in plaintiffs tort action are incorporated by reference from her statutory claim of employment discrimination, and in other respects the two theories have not been kept clearly distinct throughout these proceedings. If plaintiffs discharge is presented merely as an element in the alleged discriminatory harassment, the statutory remedies provided for such discrimination may indeed be exclusive. But the allegations contain enough to raise an issue of tortious discharge.2 On remand plaintiff may be able to show not only that she was subjected to sexual harassment by her supervisor, but that Sears discharged her for exercising or asserting her federally protected, job-related right against such harassment. The alleged tort does not involve any showing that the discharge itself was discriminatory, and it is not displaced by statutory remedies for employment discrimination in ORS chapter 659. I therefore concur in the Court’s decision.
We need not consider whether the same would be held under ORS chapter 659; the federal right suffices for the employee’s right to resist the harassment.
Three paragraphs incorporated by reference in plaintiffs second cause of action state:
V.
“During this period, Plaintiff, at all times, refused any and all said sexual advances and admonished Defendant, PAUL BLASKO, to stop the sexual harassment.”
VI.
“Said sexual advances and harassment became a term and condition of Plaintiffs employment, in that as a result of Plaintiffs refusal to submit to said sexual advances and harassment, Plaintiff received a derogatory employment evaluation and was ultimately fired by Defendants.”
XI.
“On June 6,1978, Plaintiff was terminated by Defendants for her inability to be compatible with her supervisor, Defendant, PAUL BLASKO.”