Answering a certified question from the United States Court of Appeals for the Fourth Circuit, the Virginia Supreme Court held last week that “Virginia recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was not the plaintiff’s actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as a supervisor or manager.” VanBuren v. Grubb, No. 120348, slip op. at 11-12 (Va. Nov. 1, 2012). That decision, in line with similar decisions in the District of Columbia, Arizona, Iowa, New Jersey, Pennsylvania and West Virginia, is in conflict with the Fourth Circuit’s longstanding position that individual supervisors cannot be held personally liable for unlawful discharges under Title VII. See Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998).
In VanBuren, VanBuren alleged that Dr. Stephen A. Grubbs had sexually harassed her and attempted to persuade her to have sex with him. Allegedly, when she refused, Grubbs fired her. Claiming that Grubbs had fired her for refusing to engage in criminal conduct, namely adultery and open and gross lewdness and lasciviousness, the married VanBuren sued Grubbs for wrongful discharge in violation of Virginia public policy.
Grubbs moved to dismiss the claims against him, filed in the United States District Court for the Western District of Virginia. The District Court dismissed the claims against Grubbs, and VanBuren appealed to the Fourth Circuit. The Fourth Circuit, unable to predict how the Virginia Supreme Court would rule on this issue, certified the individual liability question to the Virginia Supreme Court. In a split decision, with three of the seven justices dissenting, the Supreme Court held that individual supervisors can be held liable for their misconduct in a wrongful discharge.
Given the criminal laws in Virginia that may apply in claimed sexual (and likely other illegal) harassment cases, careful employers, following VanBuren, should provide separate and recurring training for supervisors on harassment, to emphasize that illegal harassment and comparable misconduct can “cost you,” and to help “drive home” to them that harassment is illegal.