In Virginia, plaintiffs’ attorneys frequently attempt to keep employment discrimination and harassment claims in state court.  There are many reasons why plaintiffs frequently prefer to bring their case in state court, even if it means avoiding a Title VII action.  Some of these reasons include the reluctance of Virginia state courts to dismiss cases through the use of summary judgment; the ability of plaintiffs to nonsuit their case (a voluntary dismissal with the ability to re-file the action); and the tight time constraints imposed by many federal courts in Virginia.

As most Virginia attorneys are aware, it is very difficult to convince a Virginia state court to dismiss a plaintiff’s claim through summary judgment.  There are many reasons behind this general reluctance for summary judgment, including certain rules limiting what evidence may be considered by the judge in deciding a summary judgment motion.  These restrictions nearly guaranty that a plaintiff’s case will make it in front of a jury.  This fact alone will often incentivize plaintiff’s to file their case in state court.

In order to file in Virginia state court, a plaintiff must rely upon Virginia statutes or common law claims, instead of federal claims deriving from Title VII.  In the discrimination or harassment context, these claims usually involve assault and battery; defamation; negligent retention; or intentional infliction of emotional distress.

If you are a Virginia employer and you are served with a discrimination or harassment claim from a former employee, do not be surprised if the claim is filed in state court.  Many of the Virginia state claims can still be attacked and a strong demurrer (similar to a motion to dismiss) will often be an employer’s best defense.