Women and Justice: Keywords

Domestic Case Law

Mitchem v. Counts Supreme Court of Virginia (2000)

Sexual harassment

Mitchem filed a motion for judgment against her former employer, Counts, alleging wrongful discharge in violation of the common law following her refusal to have a sexual relationship with him, as well as several instances of 13.  She argued that her discharge violated Virginia’s policy “that all persons . . . are entitled to pursue and maintain employment free of discrimination based upon gender.”  The trial court held that the amendments to the Virginia Human Rights Act “eliminated the VHRA as a source of public policy to support a common law cause of action for wrongful termination.  The trial court also held that Code §§ 18.2-57, -344 and -345 do not articulate public policies that support a common law action for wrongful termination.  The court dismissed Mitchem’s action with prejudice, and Mitchem appealed from this judgment. On appeal, Mitchem withdrew parts of her previous claim, arguing that she was discharged from employment due, not to gender but rather, to the fact that she would not consent to her employer’s demands that she violate sections of the Virginia code prohibiting fornication, lewd and lascivious cohabitation, and was discharged for failing to “consent to commission of a battery upon her person.” The court addressed whether Code §2.1-725(D) “bars a common law action for wrongful termination based on public policies not reflected in the VHRA, when the conduct alleged in the motion for judgment also violates a public policy reflected in the VHRA.”  That section states, “Causes of action based upon the public policies reflected in this chapter shall be exclusively limited to those actions, procedures and remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.”  The court noted that the statute only abrogated common law causes of action for wrongful discharge based on public policies in the VHRA; common law causes of action for wrongful discharge based on public policies not in the VHRA are not prohibited by the section.  The Court upheld the trial court’s dismissal of plaintiff’s wrongful discharge claim based on the public policy of “refusing to consent to commission of battery upon her person” – since if she had consented, there would have been no battery.  However, it reversed the trial court’s holding as to wrongful termination based on public policy in Code §§ 18.2-344 and -345, which prohibit fornication, and lewd and lascivious behavior respectively.



Middlekauf v. Allstate Ins. Co. Supreme Court of Virginia (1994)

Sexual harassment

A former employee brought an action against supervisor and employer for intentional infliction of emotional distress due to harassment. She alleged that her supervisor intentionally sought to humiliate her in front of her co-workers and made harassing, sexist, and belittling comments.  Although she complained to her manager and other supervisors, they failed to intervene.  The Defendant argued that her claims were barred by the exclusivity provision (Code § 65.2-307) of the Virginia Workers’ Compensation Act.  The court held that her allegations of gradually incurring severe emotional distress due to harassment did not amount to “injury by accident” under the Workers’ Compensation Act; therefore the action against the employer was not barred by the exclusivity provision of the Act.