It’s good to be the King. That is, it’s good to be the Commonwealth of Virginia or one of its political subdivisions (i.e., state agencies, counties, cities, incorporated towns, school divisions, and more) when it comes to defending against claims of discrimination under the Virginia Human Rights Act.
In the recent case of Fogleman v. Virginia Commonwealth University, Judge Clarence N. Jenkins of the City of Richmond Circuit Court dismissed a claim against VCU by a former student asserting age discrimination under the VHRA. Nichole Fogleman, a female student in her 50s, sued VCU.
VCU, which is a public university, filed a plea in bar arguing that the doctrine of sovereign immunity acted as an absolute defense to Ms. Fogleman’s claim. This is because the General Assembly chose not to expressly and explicitly waive this longstanding doctrine, which is meant to “protect the state from burdensome interference with the performance of its governmental functions and preserve its control over state funds, property, and instrumentalities.” City of Va. Beach v. Carmichael Dev. Co., 259 Va. 493, 499 (2000).
Such a waiver is effective only when the General Assembly passes legislation that “explicitly and expressly announce[s]” such a waiver. Ligon v. County of Goochland, 279 Va. 312, 317 (2010). It is not enough for such waivers to merely be “implied” from “general statutory language.” Indeed, the General Assembly knows how to expressly waive sovereign immunity as can be seen, for example, most recently in the Virginia Overtime Wage Act, Va. Code § 40.1-27.2. There, the definition of “person” who may be liable for the nonpayment of overtime wages is defined expressly and explicitly to “constitute a waiver of sovereign immunity by the Commonwealth.” See id. § 40.1-27.2(A).
Ms. Fogleman insisted that the language of the VHRA was expansive enough to constitute a waiver. After all, the VHRA seeks to “[s]afeguard all individuals within the Commonwealth from unlawful discrimination.” Va. Code § 2.2-3900(B)(1). Bringing her claim under Va. Code § 2.2-3904, which makes it “an unlawful discriminatory practice for any person” to discriminate on the basis of age, among other things, Ms. Fogleman also argued that VCU was a “person” under Va. Code § 1-230. However, this use of “person” is found in a statute defining terms of general application at the beginning of the Code of Virginia, which is an insufficient way for the General Assembly to waive sovereign immunity no matter how comprehensive a statute is drawn in application.
Unfortunately for Ms. Fogleman, the Richmond Circuit Court ultimately found no express and explicit waiver of sovereign immunity in the VHRA and dismissed her suit against the Commonwealth, including VCU, on March 16, 2022.
The Fogleman case joins a prior case from the Norfolk Circuit Court that also upheld the doctrine of sovereign immunity to protect the Commonwealth from a lawsuit raised by business owners in Norfolk and Virginia Beach. In Patel v. Commonwealth, No. CL21-6527, 2021 Va. Cir. Lexis 150 (July 2, 2021), numerous business owners sought injunctive relief and sought a temporary restraining order to delay the General Assembly’s ban of skill games in the workplace. These plaintiffs claimed that members of the General Assembly exhibited bias and discriminatory intent in violation of the VHRA in the process of pursuing this legislative ban.
The Patel plaintiffs presented with numerous obstacles to proving the likelihood of success on the merits of their claim, especially with regards to their irreparable harm suffered, but the Norfolk Circuit Court reached the same conclusion as Fogleman—the Commonwealth has not waived sovereign immunity with respect to the Virginia Human Rights Act. No injunctive relief was granted to the plaintiffs as a result.
This is good news for public employers who have been bracing themselves for the potential wave of claims now possible with the new causes of action created by the Virginia Values Act in 2020. These cases serve as a good reminder to public employers that the doctrine of sovereign immunity is “alive and well” and may be a powerful tool to wield in their defense.