Appeal from the Order of the Superior Court Entered October 21, 2005 at No. 394 MDA 2005 Vacating and Remanding the Order of the Snyder County Court of Common Pleas, Civil Division, Entered February 23, 2005 at No. CV- 0273 2003 885 A.2d 1073 (Pa. Super. 2005).
The opinion of the court was delivered by: Mr. Justice Baer
Under the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963, employers with four or more employees are prohibited from discriminating against their employees on the basis of sex. See 43 P.S. §§ 954 (defining employer), 955 (listing "unlawful discriminatory practices"). At common law, an employer may terminate an at-will employee for any reason unless that reason violates a clear mandate of public policy emanating from either the Pennsylvania Constitution or statutory pronouncements.*fn1 In this case, we address the intersection of the PHRA and the public policy exception to at-will employment, namely, whether an employer with fewer than four employees, although not subject to the PHRA's prohibition against sexual discrimination, nevertheless is prohibited from discriminating against an employee on the basis of sex. Because the PHRA reflects the unambiguous policy determination by the legislature that employers with fewer than four employees will not be liable for sex discrimination in Pennsylvania, we are constrained to conclude that a common law claim for wrongful discharge, resulting from sex discrimination, will not lie against those employers. We therefore reverse the Superior Court.
In August of 2001, John K. Shipman and Appellant Walter W. Harpster (Employer)*fn2 hired Appellee Mallissa Weaver (Employee) as an at-will employee to be the administrative assistant and office manager at their small financial planning office.*fn3 At all relevant times, Employer employed less than four employees. During the year of her employment, Employee alleges that she was subjected to continued sexual harassment by Employer. According to her complaint, Employer invited Employee to engage in a sexual relationship and committed various inappropriate sexual and physical contacts, such as rubbing, touching and hugging her, making inappropriate comments about her appearance, attire, and sexual proclivities, and closely following her around the office and to the bathroom. Employer also offered Employee money to go to bed with him and requested her company on a trip "for entertainment purposes." Amended Complaint, 1/20/2004 at 4. Employee repeatedly rejected these unwelcomed advances, and demanded that the behavior cease. Upon being rejected, Employer made Employee's working conditions intolerable. Id. at 5. Due to the unbearable working conditions created by Employer, Employee resigned on June 24, 2002.*fn4
The PHRA recognizes as a "civil right" the opportunity "for an individual to obtain employment for which he is qualified," without discrimination on the basis of sex. See 43 P.S. § 953. This right is enforceable pursuant to the PHRA, id., which empowers the Pennsylvania Human Relations Commission (PHRC) to accept and investigate complaints of sex discrimination by employers of four or more employees. See 43 P.S. § 954(b).*fn5
Following the PHRC's rejection of her claim, Employee alleged that she had exhausted her administrative remedies through the PHRC, and filed an action in the court of common pleas alleging the following eight counts of wrongdoing against Employer: (1) quid pro quo sexual harassment; (2) hostile work environment sexual harassment; (3) discrimination and harassment in violation of the PHRA, see 43 P.S. § 955; (4) constructive discharge in violation of the PHRA, see id.; (5) wrongful discharge; (6) assault and battery; (7) invasion of privacy; and (8) loss of consortium.*fn6 Employer filed preliminary objections, averring that Employee could not plead causes of action based upon alleged violations of the PHRA because Employer was not an employer as defined by the PHRA, and, further, that sex discrimination claims are not legally cognizable at common law because the PHRA is the exclusive remedy for employment related discrimination. The trial court agreed, finding on June 28, 2004 that Employee's complaint could not proceed because Employer had fewer than four employees and therefore did not qualify as an "employer" under the PHRA, and further finding that Pennsylvania does not recognize a common law cause of action sounding in sex discrimination, sexual harassment, or termination of at-will employment based upon sex discrimination, outside of the PHRA. Consequently, the trial court dismissed the first five counts and permitted the case to proceed on the remaining counts, sounding in assault and battery, invasion of privacy, and loss of consortium.*fn7
Following a jury trial for assault and battery and loss of consortium, the jury returned a verdict in favor of Employer. Employee appealed to the Superior Court, requesting reversal of two counts of her amended complaint that the trial court dismissed pre-trial in its June 28, 2004 order: discrimination and harassment in violation of the PHRA (Count 3), and constructive discharge in violation of the PHRA (Count 4). Employee urged the Superior Court to find a public policy exception to the at-will employment doctrine, arguing that it would be arbitrary and against public policy to foreclose all avenues of relief for victims of sexual harassment by employers of less than four employees. The Superior Court agreed with Employee, finding that although aggrieved parties must first exhaust their administrative remedies with the PHRC, see Clay v. Advanced Computer Applications, 559 A.2d 917 (Pa. 1989), they are not deprived of ultimately resorting to the courts. Weaver v. Harpster, 885 A.2d 1073, 1075 (Pa. Super. 2005) (citing 43 P.S. § 962(c), which provides that if the PHRC dismisses a complaint, the complainant "shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this Act"). The court recognized that there is no common law cause of action against an employer for termination of an at-will employee, see Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974), except where the termination would subvert a well-established public policy, see Highhouse v. Avery Transp., 660 A.2d 1374 (Pa. Super. 1995).
The Superior Court agreed with Employee that there is, in fact, a clear public policy against sex discrimination and/or sexual harassment in the workplace without regard to the size of the employer. The court found an expression of this public policy in the PHRA's declaration of the right to be free from discrimination in the workplace based on sex. 43 P.S. § 953.*fn8 The court found further support for this clear public policy against sex discrimination and sexual harassment in the Pennsylvania Equal Rights Amendment (Equal Rights Amendment), Article I, Section 28 of the Pennsylvania Constitution, which provides: "Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." PA. CONST. art. 1, § 28.
The Superior Court found that because sex discrimination is prohibited under the PHRA and the Equal Rights Amendment, it constitutes "a legal injury whose recompense is mandated by the remedies clause, Article I, Section 11, of the Pennsylvania Constitution." Weaver, 885 A.2d at 1077. This section provides:
All courts shall be open; and every man for an injury done him in his lands, goods person or reputation shall have remedy by due course of law; and right and justice administered without sale, denial or delay.
PA. CONST. art. I, § 11. Considering the remedies clause, the Superior Court reasoned that the legislature would not have defined certain acts as illegal via both the Constitution and the PHRA, thus establishing a public policy unequivocally condemning such conduct, and then remove all judicial recourse for the victims of that conduct. Weaver, 885 A.2d at 1077. Upon agreeing with Employee that sex discrimination is prohibited under the PHRA and the Equal Rights Amendment, the Superior Court determined that "to prevent an employee who is alleging sexual harassment from pursuing her claim in court only because her employer has less than four employees appears a direct contravention of a clear public policy.." Weaver, 885 A.2d at 1077. According to the Superior Court, this clear public policy provides an exception to the at-will employment doctrine. Thus, the Superior Court vacated the order of the trial court that granted Employer's preliminary objections to the counts for discrimination and harassment in violation of the PHRA and constructive discharge in violation of the PHRA.
We granted allowance of appeal to determine whether Pennsylvania recognizes a common law cause of action for discriminatory termination of at-will employment in cases where the employee is precluded from pursuing a remedy under the PHRA.*fn9 Our standard of review over questions of law is de novo and our scope of review is plenary, as this Court may review the entire record in making its decision. Kripp v. Kripp, 849 A.2d 1159, 1164 n.5 (Pa. 2004); Buffalo Township v. Jones, 813 A.2d 659, 664 n. 4 (Pa. 2002). Although Employer emphasizes an employer's right to terminate an at-will employee for any reason, he recognizes that there can be a common law cause of action for wrongful discharge of an at-will employee where the employer's conduct in terminating the employment violates a clear mandate of public policy. See Clay, 559 A.2d 917. Employer argues that this exception is extremely narrow, and that in most instances, courts have refused to find violations of public policy when an employee challenges the termination of employment. See, i.e., Tourville v. Inter-Ocean Ins. Co., 508 A.2d 1263 (Pa. Super. 1986) (finding no public policy violation where an employee was discharged for being unable to work because of a hospitalization); Martin v. Capital Cities Media, Inc., 511 A.2d 830 (Pa. Super. 1986) (finding no public policy violation where employee discharge was result of employee placing an advertisement in a competing newspaper); Gillespie v. St. Joseph's Univ., 513 A.2d 471 (Pa. Super. 1986) (finding no public policy violation where employee was discharged following an unsubstantiated accusation of criminal behavior).
Citing Clay, Employer asserts that it is "well settled" that a plaintiff may not bring a common law claim for employment discrimination where the claim cannot be brought under the PHRA. Nor can she bring an independent common law cause of action outside of the PHRA for wrongful termination based upon employment discrimination, because there is no public policy exception to the at-will employment doctrine for sex discrimination by an employer of less than four employees.
In reaching this conclusion, Employer disputes both sources of public policy relied upon by the Superior Court and argues that neither the PHRA nor the Equal Rights Amendment can properly be relied upon as a source of public policy against Employee's termination. First, regarding the PHRA, Employer argues that it is clearly inapplicable because it exempts small employers of less than four employees, thus demonstrating a public policy to protect small employers from defending against claims based on sex discrimination. To find in the PHRA a public policy that reaches small employers when the language of the PHRA itself is explicitly limited to employers of four or more employees would, according to Employer, require this Court to usurp the role of the legislature and extend protections to employees that the legislature chose not to protect in the PHRA.
Employer asserts that the courts have never utilized a wrongful termination statute such as the PHRA to recognize a public policy exception to the at-will employment doctrine beyond the protections afforded by that statute. See Holewinski v. Children's Hosp. of Pittsburgh, 649 A.2d 712 (Pa. Super. 1994). In Holewinski, the plaintiff asserted that she was wrongfully discharged because she had acted as a whistleblower. The Superior Court acknowledged that although the Commonwealth has a Whistleblower Law, it only applied to employees discharged from government entities. As the defendant in Holewinski was not a government entity, the plaintiff was not protected by the Whistleblower Law. Therefore, the Superior Court declined to find a public policy exception in the plaintiff's case premised on the need to protect whistleblowers. Holewinski, 649 A.2d at 715. Similarly, Employer urges this Court to decline to find a public policy exception to at-will employment for employees who are sexually harassed by small employers premised upon a statute that exempts small employers. Second, regarding the Equal Rights Amendment as the source of public policy, Employer argues that by its terms, the Amendment affords "equality of rights under the law" (emphasis added by Employer). Affording equal rights under the law circumscribes the conduct of state and local governmental entities and officials in their formulation, interpretation, and enforcement of statutes and regulations. See Hartford Accident. & Indem. v. Ins. Comm'r, 482 A.2d 542 (Pa. 1984). Here, Employer argues that Employee cannot point to any law under which she does not possess equal rights.
Because Employer does not believe that a clear public policy was violated here, it does not address the Superior Court's reasoning with regard to the Remedies Clause. Employer, however, argues that Employee herein is not without remedies for her injury. Specifically, Employer argues that Employee had the opportunity to obtain remedies premised on the torts of assault, battery, and invasion of privacy. See DeAngelo v. Fortney, 515 A.2d 594, 596 (Pa. Super. 1986) ("an action for invasion of privacy will ordinarily be an adequate remedy for highly offensive conduct which unreasonably interferes with another's right to be left alone.").
In response, Employee argues that she is entitled to bring a common law cause of action for the termination of at-will employment because her termination implicates a clear mandate of public policy articulated in the PHRA and the Equal Rights Amendment. See Davenport v. Reed, 785 A.2d 1058, 1063 (Pa. Cmwlth. 2001) ("to justify the application of the public policy exception, the employee must point to a clear public policy articulated in the constitution, statutes, regulations, or judicial decisions directly applicable to the facts in the case."). Although she acknowledges that we have never held that there is a common law cause of action for termination of an at-will employee due to sex discrimination, ...