United States: Sovereign Immunity Available In Virginia Human Rights Act Cases

On Sept. 19, 2023, the Virginia Court of Appeals held in Fogleman v. Commonwealth of Virginia, that the General Assembly has not waived sovereign immunity under the Virginia Human Rights Act (VHRA), either expressly or by necessary implication.

The appellant challenged a circuit court's order granting the Commonwealth and Virginia Commonwealth University's plea of sovereign immunity. On appeal, she argued that the VHRA permits a cause of action for age discrimination against the Commonwealth and waives sovereign immunity. Disagreeing with the appellant's position and finding no error below, the Court of Appeals affirmed the trial court's judgment.

The Court of Appeals explained that generally the only way the General Assembly may abrogate sovereign immunity regarding a particular claim is by an express statutory provision. Although the VHRA contains comprehensive language that outlines the policy of the Commonwealth, which purports to "safeguard all individuals" and "prohibit discriminatory practices," it does not contain a clear and unequivocal waiver of sovereign immunity. The court added that, given the General Assembly's express waiver in other laws, the lack of such clear and unequivocal language in the VHRA compels the conclusion that sovereign immunity is not waived.

The court also explained that sovereign immunity is not waived through necessary implication by the VHRA, contrary to the appellant's argument. A necessary implication is an implication so strong in its probability that anything to the contrary would be unreasonable. The court found that this high standard was not met in the VHRA to justify waiver of sovereign immunity.

By holding that the General Assembly did not waive sovereign immunity under the VHRA, the Court of Appeals has paved the way for other public universities and Virginia agencies to assert sovereign immunity as a bar to claims under the VHRA.

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