Best Ohio Employment Discrimination Attorney Answer: Can I bring a wrongful termination claim if I don’t have a statutory remedy? What should I do if I was fired today for no reason? Can I sue for sexual harassment if my boss keeps asking me to sleep with him?
The term “wrongful termination” is often misunderstood. In states like Ohio that have employment at will laws, employers can fire you for wrong and even stupid reasons. For example, your boss can fire you because he or she wrongly believes that you broke a piece of equipment, or your manager wrongly believes that you revealed that he wears a toupee. The reasons that you got fired would be wrong, but it would not give you a claim for wrongful termination. In reality, the term “wrongful termination” means a termination that violations a law. (See Can My Employer Fire Me With No Notice Or For No Reason? I Need A Lawyer!). As our employment attorneys have blogged about before, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA“), Age Discrimination in Employment Act (“ADEA“) are federal laws that make it illegal to fire someone because of their race/color, religion, gender, national origin, age, or disability. Ohio has similar law against discrimination at R.C. § 4112.02(A), R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14.
A case recently decided by the U.S. District Court for the Eastern District of Virginia dealt with a novel application of the doctrine of Wrongful Discharge in Violation of Public Policy. As our employment law lawyers have explained in other posts, Ohio recognizes an exception to the at-will employment doctrine when an employer’s termination of an employee endangers a public policy and the termination is not otherwise proscribed by statute.
In order to prevail on a claim of wrongful termination in violation of public policy, in Ohio, an aggrieved employee must establish that: (1) a clear public policy exists and is manifested in Ohio’s or the U.S. Constitution, statute, administrative regulation, or in the common law; (2) terminating an employee under the circumstances that the plaintiff was terminated jeopardize that public policy; (3) the termination was motivated by conduct related to the public policy; and (4) the employer lacked an overriding business justification for the termination. Virginia, like Ohio, recognizes a cause of action for wrongful termination in violation of public policy. In Virginia, a plaintiff making such a claim must show that: (1) she was terminated; (2) the termination violated Virginia public policy; and (3) there is a causal link between the public policy and the termination.
In Ingelson v. Burlington Medical Supplies, Victoria Ingelson, an employee of Burlington Medical Supplies, alleged that she was the target of frequent and unwanted sexual advances at the hands of the company’s owner. According to her complaint, Ingelson repeatedly complained about the harassment, but Burlington did nothing to curb the owner’s behavior and eventually terminated Ingelson in retaliation for speaking out.
Ms. Ingelson brought suit against Burlington alleging claims for: (1) hostile work environment in violation of Title VII; (2) retaliation in violation of Title VII; (3) negligent retention; and (4) wrongful discharge in violation of public policy. Ms. Ingelson based her public policy claim on Virginia statutes outlawing fornication and adultery. Ingelson argued that were she to accede to the sexual advances of her supervisor, she would have been engaging in unlawful activity, specifically fornication and adultery. As such, she argued, her refusal to engage in a tryst with her married supervisor and the resulting retaliatory termination gave rise to a claim of wrongful termination in violation of public policy.
In assessing Ingelson’s claim, the court first looked to the Virginia statute banning fornication. While Virginia still has a law on the books making it a misdemeanor to fornicate, the court found that application of the statute, like the statute at issue in Lawrence v. Texas, violates the Due Process Clause of the Fourteenth Amendment.
Having found that Ingelson could not rely on anti-fornication laws as a basis for her public policy claim, the court then looked at Virginia law and public policy related to adultery and determined that Ingelson could move forward with her public policy claim on that basis:
Plaintiff, however, may make an alternative claim for wrongful discharge based upon her refusal to aid and abet adultery. See Fed. R. Civ. P. 8(d)(2). “Laws that do not expressly state a public policy, but were enacted to protect the property rights, personal freedoms, health, safety, or welfare of the general public, may support a wrongful discharge claim if they further an underlying, established public policy that is violated by the discharge from employment.” Mitchem, 259 Va. at 189 (internal citations omitted). The Fourth Circuit recognized, in 2012, that Virginia’s criminal statute prohibiting adultery provides just such an underlying, established public policy. See VanBuren, 471 F. App’x at 233-34 (citing Mitchem, 259 Va. at 189). In VanBuren, the Fourth Circuit upheld denial of a motion to dismiss a wrongful discharge claim based on public policy because the plaintiff would have violated Virginia’s prohibition against adultery if she had submitted to her employer’s persistent sexual advances.
Similarly, Virginia prohibits aiding and abetting criminal activity. See Va. Code § 18.2-18 (describing how principals in the second degree and accessories before the fact to a felony are punished); Adkins v. Commonwealth, 175 Va. 590, 607 (1940) (noting that, unless otherwise stated by the legislature, failure to codify liability for a criminal accomplice does not mean that an accomplice cannot be found liable, and finding that an unmarried person who marries another, knowing that the latter is already married, may be convicted of aiding and abetting bigamy); Wade v. Commonwealth, 56 Va. App. 689, 696 (Ct. App. 2010) (noting that while Virginia does not have a statute expressly criminalizing aiding and abetting misdemeanors, “it is clear that the General Assembly did not intend to abrogate the common law rule that, in misdemeanor cases, all participants are principals”); see also Spradlin v. Commonwealth, 195 Va. 523, 527 (1954) (“In misdemeanor cases there are no accessories but all participants in the crime are principals . . ., if a statute makes an act criminal, it imposes on all persons who are present purposely giving aid and comfort to the actual wrongdoer criminal responsibility equal to that of the wrongdoer” (citing Foster v. Commonwealth, 179 Va. 96, 100 (1942); Hodge v. City of Winchester, 153 Va. 904, 908 (1929)). Thus, Virginia’s public policy against adultery reasonably encompasses aiding and abetting adultery as well. Therefore, Virginia’s public policy is violated when an employee is discharged for refusal to aid and abet adultery.
While a similar claim in Ohio would likely fail (Ohio has no law banning adultery and the common law has probably advanced beyond barring such acts), the case does serve as a reminder of how a skilled lawyer, like the employment attorneys at The Spitz Law Firm, can creatively use the law to help an aggrieved employee find every possible recourse.
If you believe that you have been discriminated against at work because of your gender, age, race, disability, religion, or national origin, you should Call the Right Attorney as quickly as possible to schedule a free and confidential consultation at (216) 291-4744.
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