THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Monday, January 20, 1997 TAG: 9701200033
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: 181 lines
Lisa Bailey had a baby, lost a job, then sued her ex-boss.
Now she has made Virginia legal history.
In a landmark ruling, the state Supreme Court used Bailey's case this month to recognize a new right in Virginia - a worker's right to sue for pregnancy discrimination. The court said pregnancy discrimination is a form of sex discrimination.
That was the obvious news in Bailey vs. Scott-Gallaher, a case that came from Roanoke and was decided in Richmond Jan. 10. It made headlines statewide.
But for court-watchers, Bailey was more than that. It was new evidence of a trend that started in 1985, gained strength in 1994, and shows no signs of letting up:
The old Virginia doctrine of employment at-will - the idea that a boss can legally hire and fire workers for any reason, or no reason at all - is dying.
What's more, the 4-to-3 ruling is giving businessmen new nightmares as they see younger, progressive judges joining the court while older, more conservative judges are leaving.
The deciding vote in the Bailey case came from the court's newest justice, Lawrence L. Koontz Jr., who joined the court in 1995. Meanwhile, one of the three dissenting justices, Roscoe B. Stephenson Jr., will retire July 1.
``This case does not make Virginia employers feel comfortable,'' said Burt H. Whitt, a Norfolk lawyer who represents businesses. ``It does not bode well that Koontz was in the majority.''
Who is Lisa Bailey? How did she win her case? And what does it mean in the long run?
The case
Lisa Bailey was a sales coordinator for Scott-Gallaher, a small Roanoke company that rents construction equipment. She worked four years, then became pregnant at age 27.
The baby was born premature but fine. A few months later, Bailey was ready for work again. She called company president Ronald E. Scott to see when she could return.
Don't bother, Scott told her. You're fired.
According to Bailey's lawsuit, the boss told her ``she was no longer dependable since she had delivered a child; that 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.''
Bailey sued the company a few months later, in June 1995.
The case never got to trial. Circuit Judge Clifford R. Weckstein killed it. He ruled in December 1995 that Bailey had no grounds under state law to sue for pregnancy discrimination.
While such discrimination has been illegal under federal law since 1978, small companies of 14 employees or fewer are exempt. And Scott-Gallaher was just such a company. That's why Bailey sued in state court.
In dismissing Bailey's case, Judge Weckstein cited Virginia's Human Rights Act, which prohibits several forms of discrimination - race, color, religion, national origin, sex, age, marital status and disability - but does not mention pregnancy.
``The words of the Virginia Human Rights Act are clear and unambiguous,'' Weckstein ruled. He wrote that Bailey had no recourse under Virginia law.
(Coincidentally, just one week earlier, a Newport News judge ruled exactly the opposite in a similar case, saying pregnancy discrimination is grounds for a state lawsuit. He ordered a trial, but the plaintiff lost that case in June. It is believed to be the only pregnancy discrimination trial in a Virginia state court.)
In Roanoke, Bailey appealed. Her attorney, Terry N. Grimes, argued that pregnancy discrimination is a form of sex discrimination, which is banned by the Virginia Human Rights Act.
On Jan. 10, the Supreme Court ruled 4-3 that Bailey has a case, and sent it back to Roanoke for trial.
``Bailey's factual allegations, if proven true, would support a reasonable inference by (a judge or jury) that Scott-Gallaher terminated Bailey solely because of her status as a woman who is also a working mother,'' Justice Koontz wrote for the majority. ``Certainly, this basis for termination is a classic example of gender discrimination which is repugnant to Virginia's strong public policy.''
Three dissenters disagreed.
``Pregnancy discrimination is not expressly prohibited by the Virginia Human Rights Act . . . or any other Virginia law,'' Justice A. Christian Compton wrote for the minority. ``Sound public policy may indeed justify legislation to prohibit the sort of conduct about which the plaintiff complains in this case. However, that public policy should be declared by the General Assembly, not four judges.''
The history
It didn't start with Bailey.
For centuries, bosses in Virginia didn't need a reason to fire a worker. Bad attitude? Out. Sloppy dresser? Gone. Jewish? Black? Woman? Smoker? Drinker? Religious? Non-religious? Goodbye.
Under state law, an employer could hire or fire anyone, at any time, for any reason.
Then came Betty Bowman.
Bowman was a bookkeeper for the State Bank of Keysville. She owned stock in the bank. In the early 1980s, the bank was about to merge with another, and the stockholder vote would be close.
Bowman opposed the merger, but the bank president warned her that if she voted against the merger it might hurt her job. Bowman voted for the merger, then took back her vote, saying it was made under duress. She was fired.
Bowman sued the bank. She said she was fired in retaliation for exercising her rights as a stockholder.
And the state Supreme Court agreed. In 1985, the court ruled that Virginia's at-will doctrine is not absolute. There are exceptions.
Specifically, the court said a firing that violates Virginia's ``public policy'' is grounds for a lawsuit. And Bowman's firing, the court said, was indeed a violation of Virginia's public policy on stockholders.
Bowman became a celebrity.
Instantly, a new phrase entered the legal language in Virginia. Today, a worker's lawsuit against the boss for an illegal firing is called a ``Bowman claim.''
It spread from there.
In 1994, the Supreme Court took the next big leap. The case came from Norfolk. A woman named Lockhart sued Commonwealth College for race discrimination.
Again the Supreme Court ruled that the woman had a case. The court paired Lockhart's case with another involving sex discrimination, and ruled that both workers had valid claims because race and sex discrimination violate Virginia's ``public policy'' - the state Human Rights Act.
``In Bowman,'' the court ruled, ``we recognized the plaintiff's rights to bring actions'' for violations of stockholder rights. ``Here, however, we are concerned with rights of even greater importance, the personal freedom to pursue employment free of discrimination based upon race or gender.''
The 4-to-3 ruling struck fear among business lawyers - and glee among plaintiffs' attorneys.
``It's an earth-shattering decision,'' Whitt, the Norfolk lawyer, said at the time.
``This pushes us far to the left,'' said Thomas M. Lucas, another Norfolk business lawyer.
Lockhart's lawyer, Lowell A. Stanley of Norfolk, responded, ``I can understand why employers are frightened. They're afraid they're not going to continue to get away with what they've gotten away with all these years.''
The fallout
Sure enough, after Lockhart, state courts were deluged with new worker discrimination cases.
Virginia Lawyers Weekly, a legal newspaper, called it one of the Top 10 stories of 1996. ``Employment Law Is Still Hot,'' the newspaper declared last month.
Virginia Business magazine took notice. ``Employment-At-Will: On The Run In Virginia,'' the magazine announced. ``The bedrock of Virginia employment law - the employment-at-will doctrine - is under attack from all sides,'' wrote King Tower, a Richmond labor lawyer.
Lawyers wondered how far the Supreme Court would go.
``It all does depend on Justice Koontz, in my opinion,'' Elaine C. Bredehoft, a Reston labor lawyer, told a Norfolk legal conference in October.
Now comes the Bailey case.
Lawyers don't agree on exactly how important Bailey's case is.
``I would not read a larger meaning into this,'' said Grimes, Bailey's attorney. ``It is not an expansion of Lockhart. . . The Supreme Court is really saying: `We said what we said in Lockhart and we meant it.' ''
Others aren't so sure.
``It's real important in a larger sense than just pregnancy discrimination,'' said Thomas F. Hennessy, a Chesapeake labor lawyer who represented the Newport News pregnancy plaintiff. ``It tells me the court, by a 4-to-3 majority, is willing to . . . chip away at the employment-at-will rule.''
Stanley, who represented Lockhart, agreed.
``Basically, the Supreme Court has told the legislature: We decide what sexual discrimination is and you don't,'' Stanley said. ``I think the court is finally catching up with the realities of the 20th century.''
The last word
Business lawyers offer a word of caution. They note that the General Assembly amended the Virginia Human Rights Act in 1995, in a way that may limit future discrimination cases.
Indeed, Bailey's firing came before the 1995 amendments. That means the Supreme Court may limit or abandon the Lockhart precedent in future cases.
The majority opinion in Bailey did not even mention the General Assembly's 1995 amendments. But the three dissenting justices did, and in an ominous way: ``The continued viability of Lockhart,'' the dissenters wrote, ``is doubtful.''
The next Bowman-Lockhart case to reach the Supreme Court will be crucial. By then, Justice Stephenson - one of the Bailey dissenters - will be gone. Then the court will decide whether the General Assembly's tinkering with the Virginia Human Rights Act means no more Bowman claims.
``That,'' said Lucas, ``is the one to watch for.'' ILLUSTRATION: TO READ THE OPINION
For the Supreme Court's opinion in Bailey vs. Scott-Gallaher on the
World Wide Web, go to: www.vacle.org/ opinions/960530.txt
KEYWORDS: VIRGINIA SUPREME COURT DECISION PREGNANCY
DISCRIMINATION