In VanBuren v. Grubb, the Supreme Court in a 4-3 decision held that individuals other than an employer can be liable in tort for wrongful discharge. The decision makes a major change in Virginia law for the purpose, it seems, of making sure that bad apples like Dr. Grubb get to be punished in court.
The history in Virginia of wrongful discharge claims based on sex discrimination is complex. At one time, Virginia plaintiffs 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 § 2.1-715. 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 § 2.1-725(D). 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).
The plaintiff in Mitchem v. Counts 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.
Some years later, in Martin v. Ziherl, the Virginia Supreme Court overruled its decision in Zysk v. Zysk and held that a Virginia plaintiff is not prohibited by the illegality of fornication from suing his or her partner for giving him or her venereal disease. I complained about this decision at the time, but concluded that "this Martin case is officially the death of at least part of the much-maligned Mitchem decision, the wrongful discharge case based on the fornication statute." See Torabipour v. Cosi, Inc., 1:11-CV-1392 GBL/TCB, 2012 WL 2153168 (E.D. Va. June 12, 2012) ("The Court holds Plaintiff Torabipour fails to state a claim for wrongful termination because section 18.2–344 has been invalidated under the Fourteenth Amendment of the U.S. Constitution.").
Evidently I was wrong. Notwithstanding Martin, the Court in VanBuren had no problem concluding that "lewd and lascivious cohabitation" remains an enforceable crime in the Commonwealth. This seems like a surprising outcome to me - if someone was actually prosecuted for "lewd and lascivious cohabitation," it seems likely to me based on Martin that the crime of cohabitation would go the way of the crime of fornication in the Commonwealth. The theory of Mitchem fails once the criminal statutes on which it is based "have been invalidated." The Eastern District has rejected this argument, however - see Mercado v. Lynnhaven Lincoln-Mercury, Inc., 2:11CV145, 2011 WL 5027486 (E.D. Va. Oct. 21, 2011) (refusing to find the cohabitation statute unconstitutional) - and evidently now the Virginia Supreme Court has, too.
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