§ 1.2.8.1.2 WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY UNDER THE EMPLOYMENT PROTECTION ACT.

• Jurisdiction: Arizona

§ 1.2.8.1.2 Wrongful Termination in Violation of Public Policy Under the Employment Protection Act. Under the EPA, an employee may bring a lawsuit if the employer terminated the employee in violation of Arizona's statutes or constitution. If the statute allegedly violated does not provide a remedy, the employee may bring a tort claim for wrongful termination in violation of public policy. However, if the statute does provide for a remedy, the remedies provided in the statute are the exclusive remedies for violation of the public policy covered by the statute.¹⁰³ For example, an employee with a claim under state law for sexual harassment resulting in discharge is limited to the statutory remedy available under the Arizona Civil Rights Act, i.e., back-pay and reinstatement with the offending employer, but no compensatory or punitive damages. Moreover, the definitions and restrictions of the statute would apply to any party alleging a violation of that statute. Thus, in Taylor v. Graham County Chamber of Commerce¹⁰⁴ an employee who worked for an employer with fewer than 15 employees was not covered by the Arizona Civil Rights Act and could not sue for the employer's alleged violation of that act.

The EPA limits sources of public policy to Arizona statutes and constitution. This is a more restrictive view of "public policy" than the courts had recognized in the Wagenseller v. Scottsdale Memorial Hospital¹⁰⁵ and Broomfield v. Lundell¹⁰⁶ line of cases dealing with wrongful discharge in violation of public policy based upon other than a violation of state statutory law or the state constitution. Under this line of cases, an employer could not terminate an employee "for bad cause?that which violates public policy."¹⁰⁷ In determining what was public policy, courts could look to public policy as found in the state's judicial decisions as well as its constitution and statutes.¹⁰⁸ An explicit statutory expression of public policy was not required.

Under the EPA, however, claimants must establish an actual violation of a state statute or the constitution to claim wrongful termination in violation of public policy. The preamble of the EPA addresses Wagenseller. The preamble states that the court in Wagenseller came to the right conclusion but for the wrong reason: according to the legislature, the court should have found an actual violation of the indecent exposure statute, not merely a violation of the public policy manifested by the statute. The preamble criticizes...