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"