Collins v. Rizkana - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Collins, Appellant, v. Rizkana, Appellee.
[Cite as Collins v. Rizkana (1995), Ohio St.3d .]
Employment relations -- Cause of action may be brought for
wrongful discharge in violation of public policy based on
sexual harassment/discrimination.
---
In Ohio, a cause of action may be brought for wrongful
discharge in violation of public policy based on sexual
harassment/discrimination.
(No. 94-136--Submitted April 26, 1995--Decided August 16, 1995.)
Appeal from the Court of Appeals for Stark County, No.
CA-9310.
On May 8, 1992, appellant, Rebecca Collins, filed a
complaint against appellee, Dr. Mahfouz Ali Rizkana, D.V.A., in
the Stark County Court of Common Pleas, alleging wrongful
discharge and intentional infliction of emotional distress.
Dr. Rizkana filed an answer denying the allegations of the
complaint.
During pretrial discovery, each side took the deposition
of the other. In appellant's deposition, Collins testified
that she first worked for Dr. Rizkana at the Acme Animal
Hospital in Canton, Ohio, between 1982 and 1986. She left the
doctor's employ in 1986 because of "the groping and grabbing
and touching." At that time, she took no remedial action
because "sexual harassment was not thought of. *** I didn't
know of the Ohio Civil Rights Commission or anything of that
nature. I went directly to an unemployment bureau."
However, in 1987, Collins returned to work for Dr. Rizkana
after being assured that he would not touch her again. Shortly
thereafter, she was given the position of manager at a salary
of $300 per week. Beginning in 1988, Collins testified, Dr.
Rizkana "would start the same thing. He'd get you in a corner,
try to feel you up, he'd grab your hand, try to put it in his
pants. If he had a chance as you were walking by, he'd pinch
your boob. He'd grab your butt when you were in the med
room." She also testified that the doctor was "constantly
talking of sexual stuff, wanting to know how my husband and my
sex life was, that you never lived until you had a foreign

experience. He told me about prostitutes that he had in I do
believe it was Paris." At times, she would tell him "don't
touch me, leave me alone. I would start getting loud. There
have been times when he's put his hand across my mouth to shut
me up or he would tell me, 'Shh, there's customers.' I didn't
want him to touch me so I was getting loud." Also, "[t]here
were times he tried to kiss [her]."
In November 1991, a coworker had asked Dr. Rizkana if he
had ever touched Collins. The doctor replied that she (the
coworker) should ask Collins, to which Collins replied in the
affirmative. Dr. Rizkana then became "very upset" and "that's
when things started definitely going down on my job. *** [H]is
attitude had changed towards me." On December 11, 1991, Dr.
Rizkana handed Collins a "blank sheet of paper. *** He
specifically told [her], 'I want you to write out a statement
stating there's never been any sexual harassment in this
office, that I have never touched you.'" Instead, Collins
replied, "'My lawyer told me to never write my name on
anything.'"
Collins then testified that "as the day progressed, he was
very quiet that day. And as I was getting ready to leave he
told me, 'Oh, yeah, by the way,' he said, 'I'm dropping your
pay by a hundred dollars a week,'" and appointed Collins's
coworker to the position of office manager. The next day,
Collins attempted to discuss the matter with Dr. Rizkana but he
would only reply, "'Well, you're going to quit anyway so you
might as well go,'" to which Collins said, "fine, you know, you
have made me leave my job. You are the one that has actually
made me leave. Here are your keys back."
Collins then "drove directly to the Ohio Civil Rights
Commission." She was precluded, however, from filing a
complaint because Dr. Rizkana at no time employed four or more
persons and, therefore, did not fall within the definition of
"employer" set forth in R.C. 4112.01(A)(2).
Dr. Rizkana denied any form of sexual harassment or sexual
discrimination. He testified that "[t]he only time she
[Collins] mention[ed] sexual harassment is when she start[ed]
asking for [a] raise and she saw [the] Anita Hill-Clarence
Thomas case. 'You give me $50 or I will sue you for sexual
harassment.'" Instead, Dr. Rizkana stated that although he
never reduced Collins's pay, he did tell her that her excessive
absenteeism was becoming a problem and that if she didn't work
consistently, he would "cut every hour [she] call[ed] off."
Thereafter, Collins quit, threatening a lawsuit for sexual
harassment.
The trial court entered summary judgment in favor of Dr.
Rizkana on Collins's wrongful discharge claim. The court found
that "the Greeley [v. Miami Valley Maintenance Contrs., Inc.
(1990), 49 Ohio St.3d 228, 551 N.E.2d 981] case clearly allows
an exception to the employment-at-will doctrine only when an
employee is discharged in violation of a statute. Plaintiff
was not discharged in violation of R.C. 4112.02 because that
statute only applies to an 'employer' who is defined in R.C.
4112.01(A)(2) as 'any person employing four or more persons
within the state.' ([E]mphasis added[.]) Dr. Rizkana never
employed four or more persons at the Acme Animal Hospital."
Collins then voluntarily dismissed her claim for intentional

infliction of emotional distress pursuant to Civ.R. 41(A)(1).
The court of appeals affirmed the summary judgment upon a
similar basis.
The cause is now before the court pursuant to the
allowance of a motion to certify the record.

Karen Edwards-Smith and Robert A. Edwards, for appellant.
Gutierrez, Mackey & Tatarsky Co., L.P.A., and Kathleen O.
Tatarsky, for appellee.

Alice Robie Resnick, J. The issue before the court is
whether Ohio should recognize a common-law tort claim for
wrongful discharge in violation of public policy based upon
alleged sexual harassment/discrimination.
As a threshold matter, we must construe the evidence most
strongly in favor of Collins. Civ.R. 56(C). In so doing, we
must conclude that a genuine issue of material fact remains as
to whether Dr. Rizkana subjected Collins to a series of
unwanted and offensive sexual contacts and retaliated against
her for refusing to disclaim the occurrences, resulting in her
constructive discharge.
The traditional rule in Ohio and elsewhere is that a
general or indefinite hiring is terminable at the will of
either party, for any cause, no cause or even in gross or
reckless disregard of any employee's rights, and a discharge
without cause does not give rise to an action for damages. See
Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 102, 23
OBR 260, 261-262, 491 N.E.2d 1114, 1116; Mers v. Dispatch
Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d
150, paragraph one of the syllabus; Henkel v. Educational
Research Council of Am. (1976), 45 Ohio St.2d 249, 255, 74
O.O.2d 415, 418, 344 N.E.2d 118, 121-122. See, also,
Wagenseller v. Scottsdale Mem. Hosp. (1985), 147 Ariz. 370,
375-376, 710 P.2d 1025, 1030-1031. This has become known as
the "employment-at-will" doctrine.
In the latter half of the twentieth century, an exception
developed throughout the country which has come to be known as
a cause of action for "wrongful discharge," "abusive
discharge," "retaliatory discharge," or "discharge in
derogation of public policy." Under this exception, an
employer who wrongfully discharges an employee in violation of
a clearly expressed public policy will be subject to an action
for damages. See, generally, Holloway & Leech, Employment
Termination: Rights and Remedies (2 Ed.1993), Chapter 3.
The origin of the public policy exception to the
employment-at-will doctrine can be traced to the case of
Petermann v. Internatl. Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., Local 396 (1959), 174 Cal.App.2d
184, 344 P.2d 25. There, the California appellate court held
that:
"***It would be obnoxious to the interests of the state
and contrary to public policy and sound morality to allow an
employer to discharge any employee, whether the employment be
for a designated or unspecified duration, on the ground that
the employee declined to commit perjury, an act specifically
enjoined by statute. The threat of criminal prosecution would,
in many cases, be a sufficient deterrent upon both the employer

and employee, the former from soliciting and the latter from
committing perjury. However, in order to more fully effectuate
the state's declared policy against perjury, the civil law,
too, must deny the employer his generally unlimited right to
discharge an employee whose employment is for an unspecified
duration, when the reason for the dismissal is the employee's
refusal to commit perjury." Id. at 188-189, 344 P.2d at 27.
In the approximately thirty-five years since the Petermann
decision, an overwhelming majority of courts have recognized a
cause of action for wrongful discharge in violation of public
policy. See Holloway & Leech, Employment Termination: Rights
and Remedies, supra, at 135, fn. 5; Individual Employment
Rights Manual (BNA Lab.Rel.Rptr.[1994]), Section 505:51;
Annotation, Modern Status of Rule That Employer May Discharge
At-Will Employee for Any Reason (1982), 12 A.L.R.4th 544. In
adopting the exception, it is often pointed out that the
general employment-at-will rule is a harsh outgrowth of
outdated and rustic notions. The rule developed during a time
when the rights of an employee, along with other family
members, were considered to be not his or her own but those of
his or her paterfamilias. The surrender of basic liberties
during working hours is now seen "to present a distinct threat
to the public policy carefully considered and adopted by
society as a whole. As a result, it is now recognized that a
proper balance must be maintained among the employer's interest
in operating a business efficiently and profitably, the
employee's interest in earning a livelihood, and society's
interest in seeing its public policies carried out." Palmateer
v. Internatl. Harvester Co. (1981), 85 Ill.2d 124, 129, 52
Ill.Dec. 13, 15, 421 N.E.2d 876, 878. See, also, Wagenseller,
supra, 147 Ariz. at 376, 710 P.2d at 1031; Pierce v. Ortho
Pharmaceutical Corp. (1980), 84 N.J. 58, 417 A.2d 505; Blades,
Employment at Will vs. Individual Freedom: On Limiting the
Abusive Exercise of Employer Power (1967), 67 Colum.L.Rev.
1404, 1416-1418.
In Greeley, supra, 49 Ohio St.3d at 233-234, 551 N.E.2d at
986, the court stated that "the time has come for Ohio to join
the great number of states which recognize a public policy
exception to the employment-at-will doctrine." Allowing a
cause of action for wrongful discharge violative of R.C.
3113.213(D), the court held as follows:
"1. Public policy warrants an exception to the
employment-at-will doctrine when an employee is discharged or
disciplined for a reason which is prohibited by statute. (R.C.
3113.213[D], construed and applied.)
"2. Henceforth, the right of employers to terminate
employment at will for 'any cause' no longer includes the
discharge of an employee where the discharge is in violation of
a statute and thereby contravenes public policy. (Fawcett v.
G.C. Murphy & Co. [1976], 46 Ohio St.2d 245, 75 O.O.2d 291, 348
N.E.2d 144, modified.)
"3. In Ohio, a cause of action for wrongful discharge in
violation of public policy may be brought in tort." Id. at
syllabus.
Recently in Painter v. Graley (1994), 70 Ohio St.3d 377,
639 N.E.2d 51, at paragraph three of the syllabus, this court
held further that:

"'Clear public policy' sufficient to justify an exception
to the employment-at-will doctrine is not limited to public
policy expressed by the General Assembly in the form of
statutory enactments, but may also be discerned as a matter of
law based on other sources, such as the Constitutions of Ohio
and the United States, administrative rules and regulations,
and the common law."
In considering whether Collins has a viable cause of
action in tort for wrongful discharge on the basis of alleged
sexual harassment in accordance with the law as set forth in
Greeley and Painter, we adopt the following suggested analysis
in Painter, supra, 70 Ohio St. 3d at 384, 639 N.E.2d at 57, fn.
8:
"In reviewing future cases, Ohio courts may find useful
the analysis of Villanova Law Professor H. Perritt, who, based
on review of cases throughout the country, has described the
elements of the tort as follows:
"'1. That [a] clear public policy existed and was
manifested in a state or federal constitution, statute or
administrative regulation, or in the common law (the clarity
element).
"'2. That dismissing employees under circumstances like
those involved in the plaintiff's dismissal would jeopardize
the public policy (the jeopardy element).
"'3. The plaintiff's dismissal was motivated by conduct
related to the public policy (the causation element).
"'4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding justification
element).' (Emphasis sic.)
"H. Perritt, The Future of Wrongful Dismissal Claims:
Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev.
397, 398-399."
We note further that the clarity and jeopardy elements,
"both of which involve relatively pure law and policy
questions," are questions of law to be determined by the
court. "The jury decides factual issues relating to causation
and overriding justification." H. Perritt, The Future of
Wrongful Dismissal Claims: Where Does Employer Self Interest
Lie?, supra, at 401.
The first task then is to identify whether a clear public
policy exists in Ohio which this conduct violates (the clarity
element). There are at least two sources of statutorily
expressed public policy prohibiting the alleged sexual
harassment/discrimination in this case, each independently
sufficient to allow for the recognition of a cause of action
for wrongful discharge in violation of public policy.
First, as pertinent to the allegations in this case, R.C.
2907.06,1 prohibiting sexual imposition, expresses a public
policy protecting sexual bodily security and integrity and
prohibiting offensive sexual contact. In addition, R.C.
2907.21 through 2907.25 prohibit prostitution, as well as
compelling, promoting, procuring and soliciting prostitution.
These are sufficiently clear expressions of public policy to
justify an exception to the employment-at-will doctrine. In
order to more fully effectuate the state's declared public
policy against sexual harassment, the employer must be denied
his generally unlimited right to discharge an employee at will,

where the reason for the dismissal (or retaliation resulting in
constructive discharge) is the employee's refusal to be
sexually harassed. Although there may have been no actual
crime committed, there is nevertheless a violation of public
policy to compel an employee to forgo his or her legal
protections or to do an act ordinarily proscribed by law.
Other courts have similarly found the sex offense statutes
in their respective jurisdictions to embody sufficiently clear
expressions of public policy to justify the public policy
exception in cases of sexual harassment/discrimination. In
Watson v. Peoples Sec. Life Ins. Co. (1991), 322 Md. 467, 588
A.2d 760, the plaintiff alleged that she was discharged in
retaliation for having sued a coworker for sexual harassment.
The harassment included two attempts by the coworker to bite
the plaintiff's breast, the second attempt occurring even
though the plaintiff had protested the first. The court noted
that Md. Crim. Law Code Ann. 464C (1990) makes it a fourth
degree sexual offense for a person to engage in sexual contact
with another person against the will and without the consent of
the other person. Id. at 482, 588 A.2d at 767. The court
found that "[t]he clear mandate of public policy which Watson's
discharge could be found to have 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. The court explained that even "[h]ad
Title VII or the [Maryland Fair Employment Practices] Act never
been enacted, a clear mandate of public policy still supported
Watson's recourse to legal redress against Strausser under the
circumstances here," and concluded that "the same clear public
policy which encourages Watson's legal recourse against one who
degradingly assaulted her makes tortious a discharge that
retaliates against that recourse." Id. at 486, 588 A.2d at
769. See, also, Rojo v. Kliger (1990), 52 Cal.3d 65, 91, 276
Cal.Rptr. 130, 146-147, 801 P.2d 373, 389-390.
In Wagenseller, supra, the Supreme Court of Arizona was
confronted with a claim that discharge was motivated by the
plaintiff's refusal "to participate in activities which
arguably would have violated [Arizona's] indecent exposure
statute, A.R.S. { 13-1402." Id., 147 Ariz. at 380, 710 P.2d at
1035. The court explained that the statute recognizes "bodily
privacy as a 'citizen's social right.' *** We thus uphold this
state's public policy by holding that termination for refusal
to commit an act which might violate A.R.S. { 13-1402 may
provide the basis of a claim for wrongful discharge. *** In
this situation, there might be no crime, but there would be a
violation of public policy to compel the employee to do an act
ordinarily proscribed by the law." Id. at 380, 710 P.2d at
1035.
In Lucas v. Brown & Root, Inc. (C.A.8, 1984), 736 F.2d
1202, plaintiff alleged that she was fired because she would
not sleep with her foreman. In Harrison v. Edison Bros.
Apparel Stores, Inc. (C.A.4, 1991), 924 F.2d 530, the plaintiff
alleged termination motivated by her complaints against her
manager stemming from conduct including unconsented-to sexual
touching and requests for sex. Both courts, applying Arkansas

and North Carolina law, respectively, reached the conclusion
that a wrongful discharge claim is justified on the basis of
each state's public policy prohibiting prostitution. Both
courts also pointed out that even though the act, if
consummated, may not have been criminally prosecuted, such fact
would not serve to defeat a civil action where the plaintiff
was fired for refusing to do what public policy forbids.
Lucas, supra, at 1205; Harrison, supra, at 534.
The second source of expressed public policy prohibiting
sexual harassment/discrimination is R.C. 4112.02, which
provides:
"It shall be an unlawful discriminatory practice:
"(A) For any employer, because of the race, color,
religion, sex, national origin, handicap, age, or ancestry of
any person, to discharge without just cause, to refuse to hire,
or otherwise to discriminate against that person with respect
to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to
employment."
Additionally, in Kerans v. Porter Paint Co. (1991), 61
Ohio St.3d 486, 495, 575 N.E.2d 428, 435, we commented that the
adoption of Title VII, "Section 2000e et seq., Title 42,
U.S.Code, the enactment of R.C. Chapter 4112, and this court's
recent decision in Helmick v. Cincinnati Word Processing, Inc.
(1989), 45 Ohio St.3d 131, 543 N.E.2d 1212, reflect Ohio's
strong public policy against workplace-based sexual harassment."
It is clear that a civil rights statute prohibiting
employment discrimination on the basis of sex may provide the
necessary expression of public policy on which to premise a
cause of action for wrongful discharge based on sexual
harassment/discrimination. See, e.g., Kerrigan v. Magnum
Entertainment, Inc. (D.Md.1992), 804 F.Supp. 733; Holien v.
Sears, Roebuck & Co. (1984), 298 Ore. 76, 689 P.2d 1292. See,
also, Clipson v. Schlessman (1993), 89 Ohio App.3d 230, 236,
624 N.E.2d, 220, 224, where the Sixth District Court of Appeals
aptly explained that:
"It is an unlawful discriminatory practice for an employer
to discharge an employee without just cause because of a
handicap. R.C. 4112.02(A). This statement of public policy
has been effective since July 1976. Am.Sub.S.B. No. 162, 136
Ohio Laws, Part I, 424, 432, effective 7-23-76. Since
appellant alleges that he was discharged for a reason
prohibited by statute, public policy warrants an exception to
the employment-at-will doctrine and appellant may bring a cause
of action for wrongful discharge."
The foregoing establishes a clear public policy against
workplace sexual harassment. Thus, having found clear public
policy sufficient to justify an exception to the
employment-at-will doctrine, we must now determine whether
sexually motivated dismissals would jeopardize the public
policy (the jeopardy element). The issue that most often
arises under the jeopardy analysis, and upon which the courts
are split, is whether the public policy tort should be rejected
where the statute expressing the public policy already provides
adequate remedies to protect the public interest. This issue
is oftentimes complicated by virtue of the fact that courts
confuse it with the issue of preemption. See, e.g., Watson,

supra, 322 Md. at 485-486, 588 A.2d at 768-769. See,
generally, Annotation, Pre-emption of Wrongful Discharge Cause
of Action by Civil Rights Laws (1994), 21 A.L.R.5th 1. In this
case, however, there are two reasons why the availability of
remedies under R.C. Chapter 4112 will not serve to defeat
Collins's sexual harassment tort claim, irrespective of whether
such statutory remedies would have a preclusive effect in other
wrongful discharge cases.
First, the issue of adequacy of remedies is confined to
cases "[w]here right and remedy are part of the same statute
which is the sole source of the public policy opposing the
discharge." (Emphasis added.) Watson, supra, at 486, 588 A.2d
at 769. In 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. Bennett v. Hardy (1990), 113
Wash.2d 912, 784 P.2d 1258; Rojo, supra; Froyd v. Cook
(E.D.Cal.1988), 681 F.Supp. 669; Drinkwalter v. Shipton Supply
Co., Inc. (1987), 225 Mont. 380, 732 P.2d 13352; Holien, supra,
298 Ore. at 91-97, 689 P.2d at 1300-1303. See, also, Phillips
v. J.P. Stevens & Co., Inc. (M.D.N.C.1993), 827 F.Supp. 349,
352-353.
In Helmick, supra, 45 Ohio St.3d 131, 543 N.E.2d 1212, at
paragraphs one and two of the syllabus, we held that:
"R.C. Chapter 4112 was intended to add protections for
victims of sexual harassment rather than reduce the protections
and remedies for such conduct.
"Allowing a plaintiff to pursue common-law remedies in
lieu of the relief provided under R.C. Chapter 4112 creates no
conflict and serves to supplement the limited protection and
coverage of that chapter."
In so holding, the court explained that "there is nothing
in the language or legislative history of R.C. Chapter 4112
barring the pursuit of common-law remedies for injuries arising
out of sexual misconduct." Id at 133, 543 N.E.2d at 1215. The
court concluded, "common-law tort actions are not preempted by
R.C. Chapter 4112." Id at 135, 543 N.E.2d at 1216.
Since Collins presents a viable wrongful discharge claim
under Greeley independent of R.C. Chapter 4112, and since R.C.
Chapter 4112 does not operate to preclude that claim, there is
no need to consider whether the remedies contained in R.C.
Chapter 4112 should serve as a basis to reject her claim.
Second, in the context of this case, the availability of
remedies under R.C. Chapter 4112 cannot serve to defeat
Collins's wrongful discharge claim because those remedies are
simply not available to Collins. She is precluded from
availing herself of those remedies by virtue of R.C.
4112.01(A)(2), which removes her employer from the scope of
R.C. Chapter 4112 because he never employed "four or more
persons within the state." Since R.C. Chapter 4112 does not
preempt common-law claims, we cannot interpret R.C.
4112.01(A)(2) as an intent by the General Assembly to grant
small businesses in Ohio a license to sexually
harass/discriminate against their employees with impunity.
Instead, we can only read R.C. 4112.01(A)(2) as evidencing an
intention to exempt small businesses from the burdens of R.C.

Chapter 4112, not from its antidiscrimination policy. See
Kerrigan, supra, 804 F.Supp. at 736..
We do not mean to suggest that where a statute's coverage
provisions form an essential part of its public policy, we may
extract a policy from the statute and use it to nullify the
statute's own coverage provisions. However, in the absence of
legislative intent to preempt common-law remedies, we can
perceive no basis upon which to find that R.C. 4112.01(A)(2)
forms part of the public policy reflected in R.C. 4112.02(A).
Therefore, we cannot find it to be Ohio's public policy that an
employer with three employees may condition their employment
upon the performance of sexual favors while an employer with
four employees may not.
Thus, the issue of whether the availability of remedies
should defeat a wrongful discharge claim is irrelevant and need
not be decided in this case. Collins may therefore pursue her
sexual harassment/discrimination claim irrespective of the
remedies provided by R.C. Chapter 4112.
We hold, therefore, that in Ohio, a cause of action may be
brought for wrongful discharge in violation of public policy
based on sexual harassment/discrimination.
Accordingly, the decision of the court of appeals is
reversed, and the cause is remanded to the trial court for
further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
Douglas, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., Wright and Cook, JJ., concur in judgment only.

FOOTNOTES:
1R.C. 2907.06 provides:
"(A) No person shall have sexual contact with another, not
the spouse of the offender; cause another, not the spouse of
the offender, to have sexual contact with the offender; or
cause two or more other persons to have sexual contact when any
of the following applies:
"(1) The offender knows that the sexual contact is
offensive to the other person, or one of the other persons, or
is reckless in that regard.
"(2) The offender knows that the other person's, or one of
the other person's, ability to appraise the nature of or
control the offender's or touching person's conduct is
substantially impaired.
"(3) The offender knows that the other person, or one of
the other persons, submits because of being unaware of the
sexual contact.
"(4) The other person, or one of the other persons, is
thirteen years of age or older but less than sixteen years of
age, whether or not the offender knows the age of such person,
and the offender is at least eighteen years of age and four or
more years older than such other person.
"(B) No person shall be convicted of a violation of this
section solely upon the victim's testimony unsupported by other
evidence.
"(C) Whoever violates this section is guilty of sexual
imposition, a misdemeanor of the third degree."
2As recognized in Romero v. J & J Tire, JMH, Inc. (Mont.

1989), 777 P.2d 292, and Harrison v. Chance (Mont.1990), 797
P.2d 200, the Montana Human Rights Act was amended in 1987 to
provide that "[t]he provisions of this chapter establish the
exclusive remedy for acts constituting an alleged violation of
this chapter ***. No other claim or request for relief based
upon such acts may be entertained by a district court other
than by the procedures specified in this chapter." Mont.Code
Ann. 49-2-509(7). Thus, Drinkwalter is superseded by
statute. This, however, serves to illustrate the expression of
legislative intent necessary to preempt common-law remedies.
Wright, J., concurring in judgment only. I agree with the
majority opinion to the extent that it recognizes a cause of
action in tort for the wrongful discharge of an employee in
violation of public policy against offensive sexual contact, as
manifested in R.C. 2907.06. In the interest of judicial
restraint, I would decide this case on that narrow, but
dispositive, basis.