Makovi v. Sherwin-Williams Co.

*627ADKINS, Judge, dissenting.

Because I cannot agree that “[a]busive discharge is 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,” 316 Md. at 605, 561 A.2d at 180, I respectfully dissent. The majority’s conclusion is required neither by this Court’s decision in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981), nor by the existence of limited administrative remedies in the federal and Maryland statutes dealing with sex discrimination.

In Adler, we recognized “a cause of action for abusive or wrongful discharge by an employer of an at will employee when the motivation for the discharge contravenes some clear mandate of public policy....” 291 Md. at 47, 432 A.2d at 473. We noted that sources for public policy include Constitutions, legislative enactments, prior judicial decisions, or administrative regulations. Id. at 45, 432 A.2d at 472. See, e.g., Adler v. American Standard Corp., 538 F.Supp. 572 (D.Md.1982); 830 F.2d 1303 (4th Cir.1987) (discharge resulting from employee’s threatened exposure of employer’s violations of federal tax laws violates clear mandate of public policy); Ewing v. Koppers Co., 312 Md. 45, 587 A.2d 1173 (1988) (discharge of employee in retaliation for employee’s filing a workers’ compensation claim violates clear mandate of Maryland public policy); Moniodis v. Cook, 64 Md.App. 1, 494 A.2d 212, cert. denied, 304 Md. 631, 500 A.2d 649 (1985) (discharge resulting from refusal to submit to a polygraph examination violates dear mandate of Maryland public policy).

The Court of Special Appeals was correct when it recognized that Adler focused on what we perceived to be a void in the law. Makovi v. Sherwin-Williams Co., 75 Md.App. 58, 64, 540 A.2d 494, 497 (1988). It was also correct when it stated that Adler contains “no clear expression ..., one way or the other, as to whether the common law action it *628recognized is preempted or otherwise unavailable where an alternative statutory remedy exists.” Id. But those accurate statements do not lead inevitably to the conclusion that any statutory remedy for a clear violation of public policy necessarily precludes a common law action for abusive discharge based on that same violation. In Adler, we surely did not preclude the availability of the common law action as an alternative to the more limited relief typically available through a statutory administrative scheme. Instead, we recognized, without express limitation, that an at-will employee can maintain an action for abusive discharge “when the motivation for the discharge contravenes some clear mandate of public policy____” Adler, 291 Md. at 47, 432 A.2d at 473. It is noteworthy that we made specific reference to the employment discrimination provisions of Article 49B, but never suggested that a common law action would not lie for violation of the public policy they embody. See id. at 35, 432 A.2d at 467.

Indeed, when we extended the Adler doctrine to contractual employees, Judge McAuliffe, for the Court, pointed out that “the public policy component of the tort is significant, and recognition of the availability of this cause of action to all employees, at will and contractual, will foster the State’s interest in deterring particularly reprehensible conduct.” Ewing, 312 Md. at 49, 537 A.2d at 1175. There is a strong emphasis, in other words, on the policy-violating conduct of the employer; the nature of that conduct weighs heavily in the balance when the availability of the common law doc - trine is in question. What is more, while we observed in Ewing that the tort of abusive discharge “is not intended to reach every wrongful discharge,” we again recognized only one factor respecting its availability: that “the discharge contravene [] some clear mandate of public policy.” Id.

Ewing further illustrates that the existence of some statutory remedy will not bar a common law abusive discharge action. The problem in that case was a discharge allegedly in retaliation for the filing of a claim for workers’ compensation. That sort of retaliation is a criminal offense. *629Md.Code (1985 Repl.Vol.), Art. 101, § 39A. But we did not suggest that the existence of that “remedy” would bar a common law action by Ewing. The criminal sanction was no remedy for Ewing. Explaining that the wrong asserted by Ewing “contravenes the clear mandate of Maryland public policy” we declared that “our perception of the magnitude of the public interest in preserving the full benefits of the workers’ compensation system to employees, and deterring employees from encroaching upon those rights, is ... strong.” 312 Md. at 50, 537 A.2d at 1175. As a consequence, “[t]he question ... is not whether a cause of action for abusive discharge generally exists in favor of union employees-—it does.” Id. A statutory remedy that provides no direct relief to the discharged employee is no bar to an Adler tort action. Adler should not be viewed as narrowly as the majority and the Court of Special Appeals read it.

II.

Sex discrimination in employment contravenes clear mandates of public policy. That policy is declared in various enactments, including Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2, 2000e-3)1 and the Maryland Fair Employment Practices Law (Md.Code (1986 Repl.Vol., 1988 Cum.Supp.), Art. 49B, §§ 14-18).2 The policy is rein*630forced by Article 46 of the Maryland Declaration of Rights.3 Thus, it would appear that the only prerequisite to a common law abusive discharge, at least the only one prescribed by Adler, is met by the allegations of Makovi’s complaint. Ironically, however, the majority makes the statutes that establish the public policy, allegedly contravened here, the means of depriving Makovi of the benefits of an abusive discharge action. It does so by limiting the scope of the public policy to the statutory remedies provided by Title VII and Article 49B. These remedies become, in the majority view, the exclusive means of vindicating the declared policy against sex discrimination in employment.

In reaching this result by that route, the majority disclaims any reliance on notions of legislative preemption, exhaustion of administrative remedies, or the doctrine of primary jurisdiction. 316 Md. at 609, 561 A.2d at 182. It could hardly do otherwise in light of our decisions in Md-Nat’l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1, 511 A.2d 1079 (1986), and National Asphalt v. Prince George’s Co., 292 Md. 75, 437 A.2d 651 (1981). But the majority’s exclusivity approach is functionally the same as though it applied the concept of legislative preemption. The history of Title VII and the pertinent portions of Article 49B belie that line of reasoning.

As the majority demonstrates, Title VII and Article 49B are closely related, the employment provisions of the latter being modeled on the former. 316 Md. at 608, 561 A.2d at 181. See Burnett v. Grattan, 468 U.S. 42, 51, 104 S.Ct. 2924, 2930, 82 L.Ed.2d 36, 45 (1984) (recognizing that employment discrimination provisions of Article 49B are modeled on Title VII); State Comm’n on Human Rel. v. Baltimore, 280 Md. 35, 371 A.2d 645 (1977) (relying almost *631exclusively on provisions of Title VII in construing § 18 of Article 49B); see also Willis v. State, 802 Md. 363, 375, 488 A.2d 171, 178 (1985) (two sets of statutes which are in pari materia should be interpreted in similar fashion). Cases dealing with Title VII demonstrate that its limited administrative remedies are not exclusive with respect to one who charges employment discrimination, nor do they mark the outer boundaries of relief for one who has been harmed by gender bias in employment.

A.

In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Supreme Court was asked to

decide under what circumstances, if any, an employee’s statutory right to a trial de novo under Title VII may be foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.

415 U.S. at 38, 94 S.Ct. at 1015, 39 L.Ed.2d at 152. An employee had submitted a grievance, alleging racial discrimination, both to arbitration and to the EEOC. The arbitrator found that the employee “had been ‘discharged for just cause.’ ” Id. at 42, 94 S.Ct. at 1017, 39 L.Ed.2d at 155. Thereafter, the EEOC determined that there was no reasonable cause to believe there was racial discrimination and notified the claimant of his right to sue in the United States District Court. Id. at 43, 94 S.Ct. at 1017, 39 L.Ed.2d at 155. The employee did file a private suit; the District Court granted the employer’s motion for summary judgment, holding that the claim had been resolved adversely to the claimant by the arbitrator and that having decided to pursue the remedy under his collective-bargaining agreement, the claimant was bound by the arbitrator’s decision and thus precluded from suing under Title VII. Id.

In order to decide the issue before it, the Supreme Court had to determine whether Congress, in enacting Title VII, intended that the remedy under Title VII be exclusive or *632independent of other available remedies for employment discrimination. Justice Powell, writing for the Court, noted the plenary powers federal courts have in securing enforcement of Title VII and explained the importance of the private right of action as “an essential means of obtaining judicial enforcement of Title VII” and as a means, of allowing a private litigant to vindicate “the important congressional policy against discriminatory employment practices.” Id. at 45, 94 S.Ct. at 1018, 39 L.Ed.2d at 156.

The Court examined the legislative history behind Title VII. That history revealed that Congress “considered the policy against discrimination to be of the ‘highest priority.’ ” Id. at 47, 94 S.Ct. at 1019, 39 L.Ed.2d at 158. Citing 42 U.S.C. §§ 1981, 1983, the Court noted that various legislative enactments pertaining to discrimination intended to “accord parallel or overlapping remedies against discrimination.” Id. at 47, 47 n. 7, 94 S.Ct. at 1019, 1019 n. 7, 39 L.Ed.2d at 158, 158 n. 7 [footnote omitted]. In fact, the Senate in 1964 defeated an amendment to Title VII which would have made Title VII the exclusive federal remedy for employment discrimination. See id. at 48 n. 9, 94 S.Ct. at 1019-1020 n. 9, 39 L.Ed.2d at 158 n. 9, see also Keller v. Prince George’s County, 827 F.2d 952, 959-960 (4th Cir. 1987) (discussing legislative history behind 1972 amendments to Title VII and noting that three proposals to make Title VII and exclusive remedy were rejected by the Senate). Also, the Senate Committee Report on the Civil Rights Act of 1964 explained that Title VII was not intended to “ ‘affect existing rights granted under other laws.’ ” Id.

The Court found that despite their “distinctly separate nature ... no inconsistency results from permitting [the contractual and statutory rights] to be enforced in their respectively appropriate forums.” Id., 415 U.S. at 50, 94 S.Ct. at 1020, 39 L.Ed.2d at 159. In holding that Title VII afforded the claimant independent remedies, the Court noted that the policy underlying Title VII would be promoted by the enforcement of discrimination claims in different *633forums—in Alexander, arbitration of the contract claim and the court action pursuant to Title VII. Id. at 50-51, 94 S.Ct. at 1021, 39 L.Ed.2d at 159. Thus, the claimant was entitled to de novo review of his claim in the district court. Id. at 59-60, 94 S.Ct. at 1025, 39 L.Ed.2d at 165.

In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Court was presented with the issue of whether the timely filing of a Title VII claim tolled the running of the statute of limitations to an action, based on the same facts, under 42 U.S.C. § 1981. 421 U.S. at 455, 95 S.Ct. at 1717, 44 L.Ed.2d at 298. The Court held that the § 1981 claim and the Title VII claim were independent remedies; “[d]espite Title VII’s range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies____” Id. at 459, 95 S.Ct. at 1719, 44 L.Ed.2d at 301. Further, Congress recognized that the dual remedies are coextensive and that their procedures augment each other. Id.

Thus, because the two remedies were independent, the Court held that the limitations period for the § 1981 claim was not tolled by the filing of the Title VII claim. Id. at 466, 95 S.Ct. at 1723, 44 L.Ed.2d at 305; see also Patterson v. McLean Credit Union, — U.S. --, -—, 109 S.Ct. 2363, 2375, 105 L.Ed.2d 132, —— (1989) (recognizing potential for overlap of claims arising under both Title VII and § 1981); International Union of Elec. Workers v. Robbins & Myers, 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) (grievance procedure under collective-bargaining agreement and Title VII are independent remedies); Brown v. General Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Title VII is not exclusive remedy for private employees, but legislative history is clear that Title VII is exclusive remedy for federal employees); Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573-1576 (5th Cir. 1989) (remedies under Title VII and § 1983 are independent when employer’s unlawful conduct encroaches upon rights created by Title VII and first amendment); Zombro v. *634Baltimore City Police Dep’t, 868 F.2d 1364, 1376 (4th Cir.1989) (Murnaghan, J., concurring in part and dissenting in part) (“... Congress clearly believed that the need to retain a variety of methods to combat discrimination outweighed the risk that multiple remedies would undermine Title VIPs comprehensive enforcement mechanism”); Keller v. Prince George’s County, supra, (remedies under Title VII and § 1983 are independent); Napoleon v. Xerox Corp., 656 F.Supp. 1120, 1121-1124 (D.Conn.1987) (remedies under Title VII and § 1981 are independent); Hall v. Board of County Comm’rs of Frederick County, 509 F.Supp. 841 (D.Md.1981) (Title VII and state contract claims are independent remedies, notwithstanding that same circumstances gave rise to both claims); Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, supra, (Title VII remedy does not preclude state or local government employee from maintaining § 1983 claim); see generally Greenbaum, Toward a Common Law of Employment Discrimination, 58 Temp.L.Q. 65, 88-94 (1985) (discussing legislative intent behind Title VII and concluding that it was not intended to be an exclusive remedy). But see Great Am.Fed. S. & L. Ass’n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (no independent remedy for employment discrimination exists under § 1985(3) because that section creates no “right,” only a remedy for the violation of rights designated in other statutes).4

*635The Court of Appeals for the Eighth Circuit, in Lucas v. Brown & Root, Inc., 786 F.2d 1202 (8th Cir.1984), determined that a person alleging sex discrimination in employment may sue in tort for wrongful discharge. The court held that Title VII does not preclude such an action because employers are not exempt from liability or penalty “ ‘provided by any present or future law of any State...736 F.2d at 1206 (quoting 42 U.S.C. § 20008-7) [emphasis added].5

From these decisions it is clear that Title VII contemplates the use of multiple remedies to cure instances of employment discrimination and that these remedies may include common law or statutory remedies sounding in contract or tort.6 I agree with the United States Court of Appeals for the Fourth Circuit:

*636A remedial focus on the problem of employment discrimination reveals that a battery of remedies is required to combat entrenched discrimination. Indeed, Congress recognized in adopting Title VII that no single approach to the problem of employment discrimination could be a panacea. See Alexander v. Gardner-Denver Co., 415 U.S. [at 47-49, 94 S.Ct. at 1019-1020, 39 L.Ed.2d at 157-158].

Keller v. Prince George’s County, 827 F.2d at 957 [footnote omitted].

B.

The nonexclusivity interpretation given to Title VII applies with equal force to Article 49B. As Judge Eldridge has noted for the Court, its provisions dealing with employment discrimination are contained in “five relatively brief sections ... which do not comprehensively cover the entire field.” National Asphalt, 292 Md. at 79, 437 A.2d at 653; see also Equitable Life v. State Comm’n, 290 Md. 333, 336-338, 430 A.2d 60, 62-63 (1981) (Human Relations Commission and Insurance Commissioner have concurrent jurisdiction over alleged unfair discriminatory practices by insurers); Equitable Trust Co. v. State Comm’n, 287 Md. 80, 85-87, 411 A.2d 86, 89-90 (1980) (similar conclusion with respect to Human Relations Commission and Bank Commissioner). The legislature, Judge Eldridge explained, did not intend to preempt the field of employment discrimination. National Asphalt, 292 Md. at 79-80, 437 A.2d at 653-654.

We expanded on that same theme in Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, supra. In that case Ms. Crawford asserted that, by denying her an employment transfer, *637her employer violated the Equal Protection Clause of the United States Constitution. She filed an action under 42 U.S.C. § 1983. We held, among other things, that she was not required to exhaust her remedies before the Commission. 307 Md. at 30-31, 511 A.2d at 1094.

En route to that conclusion, Judge Eldridge, for the Court, first made dear that “[n]othing in the 1965 statute [initially adopting the employment discrimination provisions of Article 49B], in the then existing provisions of Article 49B, or in any subsequent enactments by the General Assembly, remotely indicates that the administrative enforcement machinery in Article 49B must be invoked prior to pursuing a specific independent judicial remedy.” 307 Md. at 24, 511 A.2d at 1090.7 “Moreover,” he continued,

*638the practical ramifications strongly suggest that the Legislature had no such intent. For example, under the position urged by the amici in this case, where an act of employment discrimination because of race, color, religion, or national origin constitutes a clear breach of an employment contract, the party discriminated against would not be able to maintain a breach of contract action in court unless he had first invoked and exhausted the time consuming and multi-step administrative procedure before the Human Relations Commission____ Unlike other situations involving the relationship between independent judicial actions and administrative proceedings (cf Bd. of Ed. for Dorchester Co. v. Hubbard [305 Md. 774, 506 A.2d 625 (1986)]), we very much doubt that the Legislature intended such results.

307 Md. at 24, 511 A.2d at 1090-1091. If a common law contract action based on illegal discrimination can be maintained without problems of exhaustion of administrative remedies or primary jurisdiction, the same should be so as to a common law tort action similarly based when the relief sought is not that encompassed by a specific statutory remedy. In both cases the basic reason is the same: lack of legislative intent to require that the administrative remedy be either exclusive or primary. See Md. Nat’l Cap. P. & P. v. Wash. Nat’l Arena, 282 Md. 588, 600, 386 A.2d 1216, 1225 (1978). And this lack of preclusive intent is particularly apparent when the administrative scheme is of limited comprehensiveness. Crawford, 307 Md. at 25-27, 511 A.2d at 1091-1092.

*639The remedial scheme adopted in Article 49B’s employment discrimination provision is, as I have noted, not comprehensive. See Crawford, 307 Md. at 26, 511 A.2d at 1092; see also Burnett v. Grattan, supra, 468 U.S. at 53, 104 S.Ct. at 2931, 82 L.Ed.2d at 47 (recognizing the limited remedial authority of the Commission pursuant to Article 49B). A common law abusive discharge action seeks relief essentially of a different kind and much more extensive than any remedy afforded by Article 49B. Moreover, Makovi’s claim is not grounded entirely upon the provisions of that article. That distinguishes this case from Dillon v. Great Atl. & Pac. Tea Co., 43 Md.App. 161, 403 A.2d 406 (1979).

In Dillon, the plaintiff sued a company which had refused to hire him. The plaintiff alleged handicap discrimination. The Court of Special Appeals held that Article 49B did not create a private cause of action of that type; the administrative remedy had to be followed. 43 Md.App. at 167, 403 A.2d at 409; see also Crawford, 307 Md. at 25 n. 10, 511 A.2d at 1091 n. 10. Makovi, however, is not asserting a private cause of action created by Article 49B. Her suit is based on a common law action, recognized by this Court in Adler, one element of which involves violation of the clear mandate of the public policy established by Article 49B and by Article 46 of the Declaration of Rights. Given the established absence of legislative preemption and related doctrines, as well as the established availability of diverse remedies for employment discrimination, it is difficult for me to follow the majority’s argument that the statute establishing the policy against employment discrimination itself operates to bar the common law remedy.

There are, of course, cases holding that Article 49B has exactly that effect in the context of an Adler claim. These include Parlato v. Abbott Laboratories, 850 F.2d 203 (4th Cir.1988) (per curiam) (age and race discrimination); Butler v. Westinghouse Elec. Corp., 690 F.Supp. 424 (D.Md.1987) (race discrimination); Chekey v. BTR Realty, Inc., 575 F.Supp. 715 (D.Md.1983) (age discrimination); MacGill v. *640Johns Hopkins Univ., 33 Fair Empl.Prac.Cas. (BNA) 1254 (D.Md.1983) (age discrimination); and Vasques v. National Geographic Soc’y, 34 Fair Empl.Prac.Cas. (BNA) 295 (D.Md.1982) (national origin discrimination). All of these cases, however, stem from a misreading of Maryland law.

Vasques, the earliest of them, relied to some degree on several of the cases interpreting Pennsylvania law—cases which I have already distinguished in note 7, supra. 34 Fair Empl.Prac.Cas. at 297. More fundamentally, though, it purported to follow Soley v. State Comm’n on Human Relations, 277 Md. 521, 356 A.2d 254 (1976), which the trial court read as holding “that the statutory remedy under Article 49B is exclusive.” Id. at 297. MacGill also looked to the federal cases applying Pennsylvania law as well as to Dillon, but like Vasques, depended more heavily on Soley. 33 Fair Empl.Prac.Cas. at 1258. Essentially the same is true of Chekey (which also cited MacGill). Chekey, 575 F.Supp. at 717. Butler cited Chekey. 690 F.Supp. at 429. When the issue reached the Fourth Circuit in Parlato, that court cited Soley and Dillon, and the United States Bistrict Court cases we have just discussed. 850 F.2d at 205-206. But the federal court of appeals, absent a squarely on-point decision from this Court, found the Court of Special Appeals’ opinion in Makovi controlling. 850 F.2d at 206-207.8

I have already explained why this case is unlike Dillon. The other Maryland case underlying all of these federal decisions is Soley. With all due respect, I believe the federal courts have read Soley too broadly.9

*641In Soley, the Maryland Commission on Human Relations issued subpoenas to the plaintiffs pursuant to its investigatory authority granted by Article 49B. See Art. 49B, § 10(a). The plaintiffs filed suit in the circuit court seeking a declaratory judgment to the effect that the subpoenas were “ ‘illegal and invalid’ ” because the Commission lacked the authority to issue them. 277 Md. at 523, 356 A.2d at 256. We held that the plaintiffs were not entitled to declaratory relief at that point; they had to exhaust their administrative remedies available under Article 49B. Id. at 525-528, 356 A.2d at 257-258. This decision was not based on the comprehensive or noncomprehensive nature of Article 49B, but on the mandate of § 3-409(b) of the Courts and Judicial Proceedings Article (1984 Repl.Vol.) that declaratory relief is not available when another statute “provides a special form of remedy.” We held that the remedy under Article 49B was such a “special form of remedy” in the context of a declaratory judgment action. Id.; cf. Wash. Nat’l Arena, supra (declaratory relief available in tax dispute because court shared concurrent power with tax agencies to construe contractual provisions). The Soley decision, however, does not reflect upon the comprehensiveness of Article 49B, in the context of the case presently before us.

Thus, I strongly disagree that the policy against employment discrimination is restricted by and to the administrative remedies provided by Title VII and Article 49B. Nothing in the legislative history of pertinent portions of Article 49B supports that reasoning.

We are told, for example, that to allow Makovi to seek “full tort damages ... in the name of vindicating the statutory public policy goals [would upset] the balance between right and remedy struck by the Legislature in establishing the very policy relied upon.” 316 Md. at 626, 561 A.2d at 190. As I have already explained, whatever balancing the legislature engaged in in no way precluded the common law remedy Makovi now seeks. Had preclusion of a tort remedy been the legislative goal, it would *642have preempted other remedies, either expressly or by implication. See note 7, supra. Even the majority does not argue that this was done. And the kind of balancing and compromise that occurs in the adoption of provisions like Article 49B is well illustrated by the background of Ch. 937, Acts of 1977, discussed by the majority; 316 Md. at 624, 561 A.2d at 189.

As the majority notes, SB 288 of 1976 would have permitted the Human Relations Commission to award actual damages caused by employment discrimination in addition to backpay. The bill did not pass. Indeed, it is said to have “created a furor in hearings before the Senate Constitutional and Public Law Committee.” Reports of Legislative Committees to 1977 General Assembly, 1976 Interim Legislative Policy Committee, Report of the Joint Committee on the Human Relations Commission at 242. But as examination of materials (letters from opponents of the bill) on file at the Department of Legislative Reference shows, the “furor” was produced, not by those who objected to the damages provision, but by those who opposed provisions of the bill that would have curbed severely the Commission’s administrative and investigative powers.

House Bill 458 of 1977 (which became Ch. 937) originally contained a damages provision, but that was deleted and language taken from Title VII substituted. None of this requires one to conclude that the General Assembly carefully balanced a civil administrative remedy against tort damages. It might have wished to do nothing more than track Title VII, which does not (as I have shown) preclude common law actions. It might have been reluctant to allow an administrative agency to award tort damages.10 But even were that the legislative goal, this does not mean that the legislature meant to prevent the judicial award of damages, or that it established the anti-discrimination policy only to *643the extent that it could be vindicated by a limited administrative remedy.

III.

Makovi alleges that her employer discriminated against her because of her sex. That sort of discrimination violates a clear mandate of public policy. Therefore, Makovi has alleged the existence of the only stated precondition to an Adler action.

I conclude that Makovi is entitled to choose between available alternative remedies and may pursue the one she has chosen: a common law action in the Maryland courts.11 This would not, as Sherwin-Williams asserts, “undermine the legislative framework” of Title YII and Article 49B. The statutory remedies will remain viable alternatives for victims of employment discrimination. For example, an employee hoping to remain with the same employer may find that conciliation is a preferable means of resolving any discriminatory practices.

Conciliation and persuasion through the administrative process, to be sure, often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission’s efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress [and the General Assembly] has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. Under some *644circumstances, the administrative route may be highly preferred over the litigatory; under others the reverse may be true.

Johnson v. Railway Express Agency, Inc., 421 U.S. at 461, 95 S.Ct. at 1720, 44 L.Ed.2d at 302. Also, the remedy available through the administrative process may be more desirable because it sometimes is more expedient and less expensive and because of the administrative agency’s expertise in uncovering discriminatory practices. See Art. 49B, §§ 9-12 (the Commission investigates discrimination charges; will, if necessary, bring civil action; and is responsible for the enforcement of its orders); see also Lolly v. Copygraphics, 85 N.J. 668, 672-673, 428 A.2d 1317, 1319 (1981) (per curiam).12

The availability of multiple or parallel remedies may deter future discrimination and may assist in the combat against entrenched existing discriminatory practices in employment. The availability of the common law remedy supplements rather than hinders the goals of the statutes. See, e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. at 459, 95 S.Ct. at 1719, 44 L.Ed.2d at 301; Alexander v. Gardner-Denver Co., 415 U.S. at 47-51, 94 S.Ct. at 1019-1021, 39 L.Ed.2d at 157-159; Keller v. Prince George’s County, 827 F.2d at 957; Lucas v. Brown & Root, Inc., 736 F.2d at 1205-1206. Other courts have ruled similarly. See, e.g., Broomfield v. Lundell, 159 Ariz. 349, 767 P.2d 697 (Ct.App.1988), review denied, (Ariz.1989) (sex discrimination); Rojo v. Kliger, 209 Cal.App.3d 10, 257 Cal.Rptr. 158 (1989) (sex discrimination); Holmes v. Houghton Elevator Co., 404 Mich. 36, 272 N.W.2d 550 (1978) (age discrimination); Pom*645pey v. General Motors Corp., 385 Mich. 537, 189 N.W.2d 243 (1971) (race discrimination); Lally v. Copygraphics, supra (New Jersey statute provided a remedy for retaliatory discharge, but common lav/ action will augment the policy behind the statute); Erickson v. Marsh & McLennan Co., 227 N.J.Super. 78, 545 A.2d 812, cert. granted, 113 N.J. 640, 552 A.2d 165 (1988) (sex discrimination); Holien v. Sears, Roebuck and Co., 298 Or. 76, 689 P.2d 1292 (1984) (sex discrimination); Savage v. Holiday Inn Corp., 603 F.Supp. 311 (D.Nev.1985) (age and sex discrimination); see also Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780 (1989) (discussing N.Y. Exec. Law § 297(9) (Consol.1983), which provides one aggrieved of employment discrimination a choice of either a judicial or administrative remedy).

The common law remedy should be open to victims of employment discrimination because the remedies available under the statutes often

fail to capture the personal nature of the injury done to a wrongfully discharged employee as an individual and the remedies provided by the statutes [may] fail to appreciate the relevant dimensions of the problem. Reinstatement, back pay, and Injunctions [may] vindicate the rights of the victimized group without compensating the plaintiff for such personal injuries as anguish, physical symptoms of stress, a sense of degradation, and the cost of psychiatric care. [In such cases, !]egal as well as equitable remedies are needed to make the plaintiff whole.

Holien, 298 Or. at 97, 689 P.2d at 1303-1304; see also Broomfield v. Lundell, 159 Ariz. at 756, 767 P.2d at 705 (administrative remedy may, in some cases, be inadequate).13

*646For the reasons stated, I would reverse the judgment of the Court of Special Appeals.

Judges ELDRIDGE and COLE have authorized me to state that they join in this dissenting opinion.

. Relevant to this case, § 2000e-2(a) provides:

(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

. Article 49B, § 14 declares it “to be the policy of the State of Maryland ... to assure all persons equal opportunity in receiving employment ... regardless of race, color, religion, ancestry or nation*630al origin, sex, age, marital status, or physical or mental handicap ..., and to that end to prohibit discrimination in employment by any person____”

. Article 46 proclaims: “Equality of rights under the law shall not be abridged or denied because of sex.”

. Many cases holding that a statutoiy remedy for discrimination is exclusive can be distinguished because they often involve federal law other than Title VII, i.e., the Age Discrimination in Employment Act (ADEA) or cursory determinations of the legislative intent embodied in particular state statutes. See, e.g., Zombro v. Baltimore City Police Dep’t, 868 F.2d 1364 (4th Cir.1989) (the ADEA, unlike Title VII, provides exclusive remedy for discrimination); Blum v. Witco Chem. Corp., 829 F.2d 367, 376-377 (3d Cir.1987) (New Jersey statutory law and ADEA provide exclusive remedy for age discrimination); Bonham v. Dresser Indus., Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978) (Pennsylvania statutory law provides exclusive remedy for age discrimination); Napoleon v. Xerox Corp., 656 F.Supp. 1120, 1125 (D.Conn.1987) (Connecticut statutory law provides exclusive remedy for race discrimination); Guevara v. K-Mart Corp., 629 F.Supp. 1189 (S.D.W.Va.1986) (West Virginia statu*635tory law provides exclusive remedy for national origin discrimination); Greene v. Union Mut. Life Ins. Co., 623 F.Supp. 295, 299 (D.Me.1985) (Maine statutory law provides exclusive remedy for age discrimination); Strauss v. A.L. Randall Co., 144 Cal.App.3d 514, 194 Cal.Rptr. 520 (1983) (California statutory law provides exclusive remedy for age discrimination); Melley v. Gillette Corp., 19 Mass.App. 511, 475 N.E.2d 1227 (1985), aff’d, 397 Mass. 1004, 491 N.E.2d 252 (1986) (Massachusetts statutory law provides exclusive remedy for age discrimination); Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273 (1980) (New Hampshire statutory law and ADEA are exclusive remedies for age discrimination); Bourque v. Wausau Hosp. Center, 145 Wis.2d 589, 427 N.W.2d 433 (Ct.App.1988) (Wisconsin statutory law provides exclusive remedy for retaliatory discharge and age discrimination); Allen v. Safeway Stores Inc., 699 P.2d 277, 283 (Wyo.1985) (Wyoming statutory law provides exclusive remedy for sex discrimination).

. The majority attempts to explain Lucas on the ground that the plaintiffs ability to sue for wrongful discharge was based on the fact that she was being forced into prostitution in violation of a criminal statute, 316 Md. at 620, 561 A.2d at 187. This is unpersuasive. The plaintiff alleged she was a victim of quid pro quo sexual harassment, a violation of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Thus, she was allowed to bring a wrongful discharge action despite the existence of a civil remedy under Title VII.

. The Supreme Court has not had occasion to address a case involving a party asserting a common law abusive discharge action. As we have noted, in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, *63639 L.Ed.2d 147 (1974), the Court held that Title VII did not preclude a contract action arising in the context of a collective bargaining agreement. See also Hall v. Board of County Comm'rs of Frederick County, 509 F.Supp. 841, 850 (D.Md.1981) (existence of Title VII remedy does not preclude common law contract action, arising from same circumstances). Because many tort and contract remedies have their genesis in the common law, we perceive no reason for treating a tort action differently from a contract action in this context.

. The lack of an express exclusivity provision in Article 49B distinguishes a number of the cases cited by Sherwin-Williams, some of which also were cited by the Court of Special Appeals. For example, courts have read the Pennsylvania Human Relations Act to have an express exclusivity provision, and a number of cases reaching the result here sought by Sherwin-Williams have relied on that provision in whole or in part. See Wolk v. Saks Fifth Ave., Inc., 728 F.2d 221 (3d Cir.1984); Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3d Cir.1982); Bonham v. Dresser Indus., Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); McFadden v. Burton, 645 F.Supp. 457 (E.D.Pa.1986); Freeman v. Calma Co., 41 Fair Empl. Prac. Cas. (BNA) 1287, 1986 WL 8260 (E.D.Pa.1986); Shaffer v. National Can Corp., 565 F.Supp. 909 (E.D.Pa.1983). Recently, the Supreme Court of Pennsylvania in Clay v. Advanced Computer Applications, Inc., -— Pa.-, 559 A.2d 917 (1989), agreed, holding that the Pennsylvania Act is the exclusive remedy for one aggrieved of sexual harassment and discrimination, a result “indicated by express provisions of the [Act], as well as established judicial interpretations of legislative intent." —— Pa. at ——, 559 A.2d at 919. The Illinois Human Rights Act has been read in the same way, Mein v. Masonite Corp., 109 Ill.2d 1, 92 Ill.Dec. 501, 485 N.E.2d 312 (1985).

The General Assembly of Maryland has demonstrated that it knows how to express the exclusivity of a statutory remedy. See McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989) (Md.Ann.Code (1988 Cum.Supp.), Art. 41, § 4-102.1(1) expressly provides that inmate is not entitled to file grievance in court until administrative remedy is exhausted); Prince George’s Co. v. Blumberg, 288 Md. 275, 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981) (Md.Ann.Code (1987 Repl.Vol.), Art. 25A, § 5(U) expressly provides exclusive remedy for revocation of building permit); McLean Contracting Co. v. MTA, 70 Md.App. 514, 521 A.2d 1251, cert. denied, *638310 Md. 130, 527 A.2d 51 (1987) (legislative intent of Md.Ann.Code (1988 Repl.Vol.), State Fin. & Proc. §§ 15-201 et seq. is clear that administrative remedy for contract appeal is exclusive); Md.Ann.Code (1988 Cum.Supp.), Art. 101, § 36 (providing exclusive remedy for workers’ compensation "in lieu of any and all rights of action whatsoever ...’’); see also Pratt v. Delta Air Lines, Inc., 675 F.Supp. 991 (D.Md.1987) (abusive discharge action may not be maintained based on violation of ERISA because federal law expressly precludes such action).

. The United States District Court for the District of Maryland found Article 49B to be exclusive in the context of a claim of discriminatory constructive discharge. Glezos v. Amalfi Ristorante Italiano, Inc., 651 F.Supp. 1271 (D.Md.1987). That case, too, relied heavily on Soley v. State Comm'n on Human Relations, 277 Md. 521, 356 A.2d 254 (1976), and Dillon v. Great Atl. & Pac. Tea Co., 43 Md.App. 161, 403 A.2d 406 (1979). 651 F.Supp. at 1276.

. The Court of Special Appeals apparently agrees. See Makovi v. Sherwin-Williams, 75 Md.App. 58 n. 3, 540 A.2d 494, 498 n. 3 (1988).

. A reluctance to permit an administrative agency to award tort damages also may explain the failure of SB 569 of 1976. See Makovi, 316 Md. at 625, 561 A.2d at 190.

. As to the situation in which a plaintiff situated like Makovi elects to file both an administrative claim and an independent judicial action, see Md.-Nat’l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1, 31 n. 14, 511 A.2d 1079, 1094 n. 14 (1986).

. It may not always be true that the administrative remedy is expeditious and inexpensive. At least recent items in the press so suggest. See After 7 Years, Job Bias Complaint is Still Unresolved, Baltimore Sum 26 March 1989 at 1A, col. 3; Justice Denied, Baltimore Sun 30 March 1989 at 2A, col. 1 (editorial) (both items charge that massive case backlogs in the Human Relations Commission have made the Commission ineffective for a period of years). Thus, the availability of alternative remedies may be important to vindicate the policy against discrimination.

. The majority’s reliance on Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), is misplaced. 316 Md. at 622, 561 A.2d at 188. In Bush, a federal employee brought suit, alleging that he had been demoted in retaliation for statements he had made about his employer, the National Aeronautics and Space Administration, to the media. The Court held that the plaintiff must pursue a remedy, not in *646court, but within "the elaborate remedial system ... constructed” by Congress. 462 U.S. at 388, 103 S.Ct. at 2417, 76 L.Ed.2d at 664. The circumstances in Bush differ from those in the instant case. The Court, in Bush, obviously determined that the plaintiffs first amendment rights were adequately protected by the statutory (administrative) remedy. On the contrary, the Court has also determined that parallel remedies are necessary in order to combat instances of employment discrimination covered by Title VII. See, e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). But see Brown v. General Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Title VII is exclusive remedy for federal employees).