ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Saturday, January 11, 1997 TAG: 9701130028
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
Women cannot be fired for getting pregnant, the Virginia Supreme Court ruled Friday in a Roanoke case that turned what seemed to be the obvious into a complex legal battle.
In a 4-3 opinion, the high court reinstated a lawsuit filed by Lisa Bailey, who said that getting pregnant cost her a job as sales coordinator of a construction rental company in Cloverdale.
The lawsuit - which alleged that officials at Scott-Gallaher Inc. fired Bailey because she was no longer "dependable" after giving birth, and that "her place was at home with the child" - was dismissed by Roanoke Circuit Judge Clifford Weckstein in 1995. Weckstein ruled that Bailey had no case because state law does not include pregnancy and childbirth in its definition of sexual discrimination.
Now it does, the Supreme Court said.
If Bailey's claim is true, "this basis for termination is a classic example of gender discrimination which is repugnant to Virginia's strong public policy," Justice Lawrence Koontz of Salem wrote for a majority opinion that reversed Weckstein and sent the case back to Roanoke for trial.
Critics of Weckstein's ruling said it would have forced working mothers in Virginia to choose between having children or careers.
"This is a very important case for mothers and children and families," said Terry Grimes, a Roanoke lawyer who represents Bailey. "The Virginia Supreme Court has held that becoming a mother is not grounds for termination of employment in Virginia. It's as simple as that."
Some legal observers wondered why it took Virginia so long to recognize that firing someone solely because she is pregnant is a form of sexual discrimination.
"I'm glad to see that Virginia has finally come into the 20th century, just as we're getting ready to enter the 21st," said Nancy Duff Campbell, co-president of the National Women's Law Center in Washington, D.C.
But it's not quite that simple, according to Scott-Gallaher's lawyers, Weckstein and three Supreme Court justices who sided with the judge in a dissenting opinion.
They all said that while Virginia perhaps should include pregnancy-based termination as a form of sexual discrimination, there is nothing in current law to that effect. For the Supreme Court to hold otherwise, the argument went, it would have to rewrite the law instead of just interpret it.
"My quarrel is not with the idea that female employees should be protected from discrimination based on pregnancy," said Clinton Morse, a Roanoke lawyer who represents Scott-Gallaher. "But however laudable that goal may be, you have to be able to cite a statute on which to base it."
In a dissenting opinion, Justice Christian Compton wrote that "sound public policy may indeed justify legislation to prohibit the sort of conduct about which [Bailey] complains. However, that public policy should be declared by the General Assembly, not four judges."
Virginia is an at-will employment state, meaning that employers can fire workers - and workers can quit their jobs - at any time without having to state a reason.
There are so-called "public policy" exceptions that bar termination on the grounds of sex, race, religion or national origin. However, Weckstein ruled that state law does not specifically define sexual discrimination as applying to issues of pregnancy or childbirth.
Weckstein based his ruling on a 1974 U.S. Supreme Court decision holding that female employees of General Electric Co. in Salem were not unfairly denied benefits for the time they missed from work because of pregnancy. "While it is true that only women can become pregnant," now Chief Justice William Rehnquist wrote at the time, GE nonetheless did not practice sexual discrimination when it excluded pregnancy and childbirth from its benefits policy.
That decision was quickly bypassed when Congress enacted the Pregnancy Discrimination Act, which bars termination because of pregnancy. But that's under federal law, which does not apply to businesses with 15 or fewer employees.
Because Scott-Gallaher has only about a dozen employees, Grimes filed suit in state court.
According to the lawsuit, Bailey became pregnant in 1994. After experiencing premature labor in July 1994, she was told by her doctor not to work. After the baby was born, her doctor cleared her to return to work in October 1994. Bailey called the company to ask when she should report back and was told that she had been fired.
The com- pany's president, Ron Scott, told Bailey she had been let go "because she was no longer dependable since she had delivered a child," the suit alleged.
Scott also said Bailey's "place was at home with her child, that babies get sick sometimes, and Bailey would have to miss work to care for her child, and that he needed someone more dependable," the suit claimed.
For purposes of argument, both Weckstein and the Supreme Court treated the allegations as if they were true, but according to Morse, Bailey was let go for reasons that had nothing to do with her pregnancy. He declined to elaborate.
Bailey, who was 27 and living in Roanoke County when the lawsuit was filed, has since moved out of the area. She could not be reached for comment.
Joining Compton's dissent were Chief Justice Harry Carrico and Roscoe Stephenson. Justices Elizabeth Lacy, Leroy Hassell and Barbara Keenan sided with the majority opinion written by Koontz.
Friday's decision creates precedent on an issue that had split Virginia judges. About the same time Weckstein ruled, a Newport News judge went the opposite way in a similar case.
After the Supreme Court agreed to hear Bailey's appeal last year, Attorney General Jim Gilmore entered the fray, filing a friend-of-the-court brief on her behalf.
"This is a major victory for working mothers throughout Virginia," Gilmore said of the ruling. "This means that women cannot be made to choose between having a family and having a job. No man is ever put to such a choice, and no woman should be."
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