Virginia Plaintiff Finds New Loophole To Sue Employer For Wrongful Discharge

In Virginia, the state of the law regarding wrongful discharge continues to change, as plaintiffs' lawyers have now broken through with one means of escaping the General Assembly's statutory limitations on claims based on sex and race discrimination in employment.

History of Wrongful Discharge Claims in Virginia

Virginia first recognized a claim for wrongful discharge in Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). In the Bowman case, shareholders claimed they were fired as company employees in retaliation for their refusal to accede to a proposed shareholder action.

The Supreme Court gave these plaintiffs a cause of action for wrongful discharge, based on the public policy of the corporation laws regarding the rights of shareholders.

Following Bowman and subsequent cases, wrongful discharge cases in Virginia must be based on some kind of explicit public policy contained in the Virginia Code. Ordinarily, the legislature, rather than the courts, defines the "public policy" of the Commonwealth and what remedies if any may be obtained for violations of public policy.

Only last year, the Supreme Court affirmed that there is no generalized whistleblower claim under Virginia law, and reemphasized that employees can only bring claims based on particular kinds of statutes. See Dray v. New Market Poultry Products, Inc., 258 Va. 187, 518 S.E.2d 312 (1999).

Plaintiffs seeking to avoid the limitations of federal law and procedure based wrongful discharge claims on the public policy against employment discrimination contained in the Virginia Human Rights Act. The VHRA prohibits employment discrimination based on "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability." Va. Code § 2.2-3903.

A divided Supreme Court recognized a wrongful discharge claim based on the VHRA. See Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). In response, the General Assembly deliberately modified the VHRA, to rule out any claims based not only on the VHRA itself but on any other statute reflecting the same policies as the VHRA. Va. Code § 2.2-3903.

The Supreme Court applied the amendment as the legislature intended in dismissing a number of wrongful discharge claims See Conner v. National Pest Control Ass'n., 257 Va. 286, 513 S.E.2d 398 (1999); Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).

Concurring in Conner, Justice Hassell declared that "[g]ender discrimination should not be countenanced in any manner and victims of such discrimination should be accorded a tort remedy that fully and fairly compensates them for injuries caused by an employer's repugnant conduct," but acknowledged that "the General Assembly of this Commonwealth has chosen to impose limitations on the right of a woman to recover damages against an employer who discriminates against her because of her gender [and] this Court, which does not, and constitutionally cannot, act as a super-legislative body, is required to apply these restrictions as expressed by the General Assembly."

New Loophole for Plaintiffs

The firm views of members of the Court against employment discrimination encouraged lawyers seeking a way to avoid the legislature's actions. In January of 2000, the plaintiffs' bar found a loophole that worked. The plaintiff in Mitchem v. Counts, 523 S.E.2d 246 (Va. 2000), claimed that she was discharged because she refused to engage in unlawful sex with her employer.

She based her claim not on the public policy against discrimination in employment, but rather on the public policy supporting the criminal statutes prohibiting assault and fornication. Another divided court approved this reasoning, despite the transparency of the plaintiff's rationale as a means to avoid the clearly expressed intention of the legislature in the amendments to the VHRA.

In Mitchem, the majority reasoned that the public policy against fornication and other unlawful sexual acts stood separate and apart from the public policy reflected in the VHRA. The three dissenting justices pointed out that plaintiff's claim was no more or less than the type of claim outlawed by the legislature following Lockhart, and chastised the majority for overstepping the bounds of judicial authority in precisely the manner Justice Hassell recognized as improper in his concurring opinion in the Conner case.

Effects of Mitchem

Already, other courts have begun to apply the Mitchem decision, to the detriment of Virginia employers in pending cases. In a decision by Judge Glen Williams in the case of King v. Donnkenny, Inc., 2000 WL 249209 (W.D.Va.), although not a sexual harassment case, the court noted that "Virginia courts are becoming increasingly sympathetic toward plaintiffs who are fired for bringing an employer's criminal transgressions to light where the underlying public policy in outlawing the conduct dictates that citizens are entitled to live free from such activity." Federal courts applying Virginia law are bound by the decisions of the Virginia Supreme Court.

Limitations of the Mitchem Loophole

Mitchem does not reopen completely the door that was thought to be closed after Conner and Doss. The limitation of the rationale in Mitchem to criminal statutes suggests that it would have no application in cases of discrimination where there was no criminal conduct involved.

Thus, for example, in a case where the plaintiff claimed that she was discharged on account of her pregnancy might remain barred by the anti-Lockhart amendments to the VHRA. Likewise, the Mitchem rationale would not apply in the "hostile environment" kinds of harassment cases, where the plaintiff claims she was constructively discharged by intolerable discriminatory conditions in the workplace, but was not solicited for sex.

The Supreme Court has not dealt at length with any claims for constructive discharge, and generalized sexual harassment, involving no criminal conduct, would be outside the Mitchem case.