The disturbing answer, shown by a recent Virginia Supreme Court decision, is yes. The federal employment discrimination laws generally do not allow suits against supervisors and managers for personnel choices they make for the company. Despite this protection, however, other federal and state employment laws allow supervisors to be held liable for management decisions in some instances. This is shown by the Virginia Supreme Court’s recent decision extending wrongful discharge liability to supervisors and individual owners in their personal capacity. The case is VanBuren v. Grubb, 2012 Va. LEXIS 193 (Nov. 1, 2012).
Although Virginia strictly adheres to the principle of “at-will employment,” which allows for termination with or without cause, there are narrow exceptions. One of these exceptions is the tort of wrongful discharge. This tort only applies when a discharge violates an established public policy, such as firing someone when exercising a statutory right, or for refusing to engage in criminal conduct. This is a relatively rare claim for an employee to make.
Nevertheless, one common claim that often qualifies as a wrongful discharge tort is sexual harassment. In the VanBuren case, for example, the plaintiff, Angela VanBuren, claimed that the owner and manager of her employer, Stephen Grubb, touched her inappropriately and solicited sex from her. She further claimed that Mr. Grubb fired her for refusing to engage in adultery and cohabitation, which are criminal acts under Virginia law.
As a result Ms. VanBuren tried to sue Mr. Grubb personally for wrongful discharge in federal court, a claim that was originally dismissed based on the federal law logic that only the company can be liable for discriminatory misconduct. Ms. VanBuren appealed to the Fourth Circuit, however, which certified to the Virginia Supreme Court the question of whether wrongful discharge allows supervisor liability. The Virginia Supreme Court effectively reversed the federal court’s decision by ruling that a supervisor can be held personally liable for wrongful discharge.
In expanding wrongful discharge liability to supervisors (in addition to the actual employer), the Virginia Supreme Court allowed potential plaintiffs to reach the assets of owners and managers as well as those of the company. While Virginia wrongful discharge claims are relatively uncommon, the fact that a supervisor, manager, or owner can be held liable for personnel actions for the company creates additional danger for them and their employers. Among other things, supervisors should consult with their own employment counsel when making tough personnel choices as their own livelihoods could be at stake.