
DATE: Saturday, November 1, 1997            TAG: 9711010708

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY MARC DAVIS, STAFF WRITER 

                                            LENGTH:  149 lines

BIAS SUITS RESTRICTED IN STATE COURTS VIRGINIA HIGH COURT DELIVERS LANDMARK RULING, 7-0

Fired because you're black? A woman? Jewish? Over 40? Don't bother suing in state court anymore.

On Friday, the Virginia Supreme Court slammed the door on most employment discrimination cases in Virginia state courts.

In a landmark 7-0 ruling, the court said discrimination cases based on the Virginia Human Rights Act of 1987 can no longer be brought in state courts.

That effectively bars hundreds of lawsuits across Virginia that claim discrimination based on race, color, religion, national origin, sex, age, marital status or disability.

The ruling, based on the case of a Lynchburg woman who was fired because she was pregnant, does not leave victims with nowhere to turn. It means most must now go to the U.S. Equal Employment Opportunity Commission and federal courts.

In federal court, however, discrimination cases are harder to win and money damages are strictlylimited, unlike state courts.

An analysis of the 69 discrimination cases filed in Norfolk federal court last year showed that about half were settled out of court, but none of the rest was won by plaintiffs.

The ruling Friday, written by Chief Justice Harry L. Carrico, was based on changes to the Virginia Human Rights Act in 1995, made by the General Assembly. Those changes effectively banned new lawsuits based on the act.

For workers, the ruling was bad news.

``I view it as a legislative enactment that takes away common law rights of employees,'' said Gregory A. Giordano, a Virginia Beach lawyer. ``I'm not real happy with the decision from a plaintiff's standpoint.''

For businesses, though, especially small businesses that cannot afford costly lawsuits, it was good news.

``I think it is a major victory for employers and the authority of the General Assembly,'' said Burt H. Whitt, a Norfolk lawyer. ``I don't think the General Assembly wanted Virginia to turn into a state like California, where every time an employer makes a decision, it turns into a major liability event.''

The ruling is a stunning, 180-degree turnaround in a state legal trend that began 12 years ago.

Until 1985, a worker could not sue a company in state court over an illegal firing. Virginia was an ``at-will'' state. Bosses could fire workers at will, for any reason.

Then, in 1985, the state Supreme Court recognized an employee's right to sue for ``wrongful termination.'' The court said workers can sue if they are fired in violation of any state ``public policy.''

In 1994, in a landmark case from Norfolk, the court recognized the right to sue for race discrimination in employment. The case was Lockhart vs. Commonwealth College and it created a new phrase in Virginia's legal circles: the ``Lockhart claim.''

Another case that year recognized the right to sue for sex discrimination or harassment. In January, in a case from Roanoke, the Supreme Court expanded that right to pregnancy discrimination.

Now, all those precedents appear to be out the window.

``Lockhart is dead,'' said Norfolk lawyer Lowell A. Stanley, who represented the plaintiff in the 1994 Lockhart case. Stanley said Friday's ruling is a bitter blow to workers.

``I think the Supreme Court has said it's not our job anymore to protect the citizens of Virginia. . . . The Supreme Court has effectively passed the buck to the legislature,'' Stanley said.

But Thomas M. Lucas, the defense lawyer in the Lockhart case, sees hope in Friday's ruling for Virginia businesses. ``Obviously it's a wonderful decision for us,'' Lucas said.

He also noted that the Supreme Court's 11-page ruling left open the small possibility that a creative plaintiff's lawyer might find some other state law on which to base a discrimination case - something other than the Human Rights Act.

``But I can't imagine what would be left'' for plaintiffs, Lucas said. ``Employment discrimination claims will go to federal court, it would seem.''

The ruling Friday stemmed from a pregnancy case.

A Lynchburg woman named Laura Doss was fired from an advertising distributor on her second day of work, after telling her boss she was pregnant.

The company said it couldn't afford to have Doss out during the busy winter holiday season. Doss said her firing was sex discrimination.

The case went to federal court. Then came a sticky question: Could Doss claim violation of the Virginia Human Rights Act, even if the legislature had just changed the act to stop lawsuits like hers?

Doss was fired in March 1996. The General Assembly changed the Human Rights Act one year earlier.

On Friday, the Supreme Court ruled that the General Assembly clearly meant to stop lawsuits like Doss'. ``In enacting the 1995 amendments . . . the General Assembly plainly manifested an intent to abrogate the common law with respect to causes of action for unlawful termination,'' the court ruled.

Doss' attorney, Gary Coates of Lynchburg, said it is ironic. Federal law protects workers in big companies, but not in small businesses - where most of the new jobs are.

``Someone who's a victim of sexual or racial discrimination has no meaningful remedies'' in Virginia courts, he said Friday.

But for companies across Virginia, the ruling means the end of 12 years of doubt over what is protected in state courts.

``Finally,'' said attorney Lynn Jacob of Richmond, ``we have some closure on this issue.'' Jacob represents Jamco Inc., the company that fired Doss. ILLUSTRATION: Color photos

Barbara M. Keenan

Elizabeth B. Lacy

Harry L. Carrico

A. Christian Compton

Henry H. Whiting

Leroy R. Hassell Sr.

Lawrence J. Koontz Jr.

Graphic

LANDMARKS

Landmarks in Virginia discrimination law

Before 1985: Virginia's ``at-will doctrine'' says boses can fire

workers at will, for any reason.