On June 13, 2023, the City of Norfolk Circuit Court held in Jordan v. Sch. Bd. of the City of Norfolk that sovereign immunity bars a plaintiff’s claims against the Norfolk City School Board for allegedly violating the Virginia Human Rights Act (VHRA).
Plaintiff, an elementary school principal, sued her employer, a school board in Virginia. Plaintiff alleged violations of the VHRA, including disability discrimination, refusal to provide reasonable accommodations for her medical conditions, and retaliation. The school board raised sovereign immunity through several motions, including a special plea of immunity. The court sustained the plea, noting that it had no reason to reach any remaining motions.
The court held the plaintiff’s claim under the VHRA was barred for two reasons. First, the VHRA does not contain an explicit waiver of sovereign immunity. Second, the VHRA does not create a private cause of action against the school board. The court explained that sovereign immunity extends to the Commonwealth’s agencies, including local school boards acting in their governmental capacities. The court reiterated that the VHRA lacked any explicit legislative waiver of sovereign immunity, and the Commonwealth is not a “person” against whom the legislature authorized lawsuits.
Significantly, the court considered a regulation issued by the Office of Civil Rights — which is charged with the duty to enforce the VHRA — to define “person” to include any “government” or “political subdivision.” The court ruled that this regulation cannot waive sovereign immunity because the General Assembly of Virginia did not promulgate this regulation. Additionally, the court noted that a regulation “may not conflict with the authorizing statute,” namely the VHRA.
Plaintiff unsuccessfully argued the broad remedial purpose of the VHRA requires a liberal construction that advances the legislature’s intended remedy. Plaintiff also argued the special plea was untimely filed. The court disagreed, explaining that when sovereign immunity applies, a court lacks subject matter jurisdiction to adjudicate a claim, and subject matter jurisdiction can be raised at any time.
This ruling is potentially significant for governmental employers. Federal anti-discrimination laws, such as the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, include caps on compensatory and punitive damages, whereas the VHRA does not. Moreover, because Virginia procedural rules do not permit the use of deposition testimony for summary judgment purposes (in most cases), plaintiffs can increase their chances of reaching a jury by pursuing their claims solely under the VHRA rather than federal law. Thus, since the Virginia Values Act amended the VHRA in 2020, state court plaintiffs have had increased leverage. The Jordan court’s ruling, if adopted by other courts, would effectively send government employees back to federal court, which is generally viewed as a more favorable forum for employers.
