Terminating an Employee for Her Refusal to Have an Abortion Does not Contravene Virginia’s Public Policy

Terminating an Employee for Her Refusal to Have an Abortion Does not Contravene Virginia’s Public Policy

While Virginia strongly adheres to the employment-at-will doctrine, many employers have worried that the Virginia Supreme Court’s recognition of a public policy exception to this doctrine would make employers vulnerable to a host of wrongful discharge claims.  However, a Federal Court has recently emphasized the narrowness of this public policy exception, refusing to expand its reach, even to a situation where the employer’s actions “offend[ed] the conscience of the Court.”  The case is Shomo v. Junior Corp.,  Civil Action No.: 7:11-cv-508 (W.D.Va.  Jun. 1, 2012), and the employee claimed she was wrongfully terminated because she refused to have an abortion.

The defendant Corporation owns and operates restaurants in the Virginia area.  The President’s son is a co-owner and manager of one of these restaurants.  According to the Complaint, in September 2010, a restaurant server became pregnant with the President’s son’s child.  In October 2010, the son told the server that she would be fired if she did not terminate her pregnancy.  On January 30, 2011, the President of the Corporation told the server that, although he was satisfied with her work, she was being fired because of her pregnancy.

The server filed suit against her former employer, claiming among other things, that the Corporation wrongfully terminated her employment in violation of Virginia common law.  Virginia adheres to the at-will employment doctrine, which means that if the contract is for an unspecified term, then either the employer or the employee can terminate their relationship at any time, for any reason, or for no reason at all.  Based on the at-will employment doctrine, the Corporation filed a Motion to Dismiss.  Meanwhile, the server argued that she fell within the recognized “public policy exception” to the at-will doctrine, which states that it is unlawful for an employer to fire an employee if the firing was contrary to the public policy of Virginia.  Not surprisingly, the server argued that she was fired because she refused to abort her unborn child and this was contrary to Virginia public policy, and therefore unlawful.

Nonetheless, the court reiterated that such public policy exceptions, or “Bowman Claims” are very narrow.  An employee bringing such claims must identify the sources of public polices allegedly violated with specificity.  In this case, the server specifically argued that her termination was a violation of Virginia public policy because requiring her to have an abortion is effectively requiring her to commit battery, which is a criminal act, in order to keep her job.  The court rejected this argument because the Corporation never required her to actually commit battery; and if the server had obtained an abortion, this would not have been considered a “battery.”  Second, the employee argued that a Virginia statute prohibits denial of employment to any person who refuses to participate in abortion.  However, the court held that this statute is geared more towards medical professionals, and requires an employee to state his/her objection to abortion in writing, but the server had not done so.  Lastly, the server argued that the Corporation violated the Virginia Constitution’s policy of religious liberty by attempting to force the employee to have an abortion in contravention of her religious beliefs. The court rejected this final argument as well because it was not stated in the server’s complaint and because discrimination on the basis of religion is specifically outlined in the Virginia Human Rights Act (“VHRA”).  An individual cannot bring a Bowman claim based upon a policy that is reflected in the VHRA.  Thus, the server’s common law wrongful discharge claim was dismissed.

This case is another reminder that Bowman is a very narrow exception to Virginia’s employment at-will doctrine, and does not easily allow employees to file common law causes of action for wrongful discharge against their employers.

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