Virginia has always been an at-will employment state, meaning that employers can fire employees for any reason, or for no reason at all, unless of course the employment contract stipulates otherwise. The big exception to at-will employment is the "public policy" exception, whereby an employee fired for reasons that shock Virginia public policy (e.g., race discrimination or resistance to sexual harrassment) may sue for wrongful discharge notwithstanding the at-will rule.
In a decision rendered Nov. 1, in response to a reference from the Fourth Circuit Court of Appeals, the Virginia Supreme Court has expanded this liability further, holding that a NON-employer may be sued for wrongful discharge if he or she was in fact the individual violator of Virginia's public policy.
The suit, filed in federal court by a woman who claimed to have been both the victim of gender discrimination in violation of Title VII of the Civil Rights Act of 1964, and also to have been wrongfully discharged because she would not yield to her supervisor's repeated sexual advances in violation of Virginia public policy. The suit was filed against the woman's supervisor, Dr. Stephen Grubb, who was the owner of the Virginia Limited Liability Corporation that employed her. The District court dismissed the wrongful discharge suit against Dr. Grubb on the grounds that he was not plaintiff's employer. On appeal, the Fourth Circuit referred to the Virginia Supreme Court the question whether a suit for wrongful discharge could be filed against a non-employer.
By a 4-3 decision, the Court answered in the affirmative, ruling that if a non-employer was in fact the violator of public policy he can be sued for wrongful discharge. The majority rejected Grubb's argument that discharge can be performed only by an employer, and therefore that only said employer can be liable for wrongful discharge. The majority emphasized the need to deter wrongful discharge, which need would not be accomplished in cases such as this one without the liability of the "fellow employee." The upshot, of course, is that the plaintiff can pursue the defendant's personal assets, not merely the assets of the corporation.
Noteworthy, however, was the vibrant dissent by Chief Justice Kinser. The Chief Justice emphasized the logical impossibility of a non-employer firing an employee. Though the supervisor's behavior was wrongful, it was NOT in violation of his duty not to discharge an employee for reasons contrary to public policy. That duty can only be violated by an employer, and since breach of duty (not wrongfulness) is necessary for tort liability, the supervisor cannot be liable in tort.
In this very interesting decision, therefore, the majority seems to have waived the need for breach of duty, in favor of wrongfulness, for tort liability.
Angela VanBUREN v. Stephen A. GRUBB. Docket No. 120348.