Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell and 

Koontz, JJ., and Whiting, Senior Justice 

ANDREW BRADICK 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record No. 962531 JUNE 6, 1997 

GRUMMAN DATA SYSTEMS CORPORATION 

 and NORTHROP GRUMMAN CORPORATION 

 UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT 

 By order entered on January 15, 1997, this Court accepted 

the certification, by the United States Court of Appeals for the 

Fourth Circuit, of the following question of Virginia law: 

 Does the common law of Virginia provide a wrongful 

discharge remedy to an employee of an employer covered 

by the Rehabilitation Act of 1973, 29 U.S.C. § 701 et

seq., where the employee is discharged on account of 

his disability or the employer's perception of his 

disability? 

Background

 The question arises from a civil action brought by Andrew 

Bradick against his former employer, Grumman Data Systems 

Corporation (Grumman Data), in which Bradick alleges that the 

employer wrongfully discharged him from employment on account of 

disability in violation of the common law of Virginia.1

 The relevant facts are not in dispute and are contained 

within the order of certification. Bradick was an employee-atwill of Grumman Data in Virginia from October 15, 1990 until he 

 

 1Bradick's suit was initially filed in the Circuit Court of 

Fairfax County and subsequently removed by the defendants to the 

United States District Court for the Eastern District of 

Virginia. Northrop Grumman Corporation, an initial defendant, 

was dismissed by stipulation of the parties. Following an 

adverse decision in the district court, Bradick has appealed to 

the United States Court of Appeals for the Fourth Circuit. 
was discharged on May 26, 1994. Bradick's job performance was 

satisfactory to his employer. However, while on vacation in 

Mexico in 1993, Bradick contracted a severe case of 

histoplasmosis.2 Because the disease caused Bradick to have 

recurrent attacks of extreme fatigue, Bradick's physician 

recommended that he take a leave of absence from his employment 

with Grumman Data on three occasions. Bradick's discharge 

occurred following the third of these leaves. 

 Bradick asserts in his pleading that he was and is able to 

adequately perform the duties of his former job. Therefore, he 

asserts that his discharge was in violation of public policy 

because it was based on his physical disability or Grumman Data's 

perception that he suffers from a physical disability. 

 Beginning with Bowman v. State Bank of Keysville, 229 Va. 

534, 331 S.E.2d 797 (1985), we have recognized a narrow public 

policy exception to this Commonwealth's employment-at-will 

doctrine, which ordinarily permits either the employer or the 

employee to terminate the employment relationship without 

incurring liability. We have explained that this exception 

applies to discharges which violate public policy. See Lawrence 

Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98-99, 465 S.E.2d 

806, 809 (1996). We also have explained that the cause of action 

arises not from the statute or statutes which express the public 

policy relied on by the employee, but from the narrow exception 

within the common law recognized in Bowman. See Bailey v. Scott-

 

 2Histoplasmosis is a fungal infection of the lungs. 
Gallaher, 253 Va. 121, 125, 480 S.E.2d 502, 504 (1997); Lockhart 

v. Commonwealth Educ. Systems Corp., 247 Va. 98, 105, 439 S.E.2d 

328, 331 (1994). Upon these principles, we have permitted former 

at-will employees to maintain common law actions for wrongful 

discharge under the narrow exception recognized in Bowman where 

the conduct alleged would have violated Virginia's public policy 

against race and gender discrimination as reflected in the 

Virginia Human Rights Act (VHRA), Code § 2.1-715. See Bailey, 

supra (gender); Lockhart, supra (race and gender). 

 We have never before considered whether the narrow exception 

recognized in Bowman permits a cause of action for unlawful 

discharge from at-will employment based upon a disability. 

However, it is not disputed that both the VHRA and the Virginians 

with Disabilities Act (VDA), Code §§ 51.5-1 to 51.5-52, contain 

clear expressions of Virginia's public policy opposing 

discrimination against disabled persons. 

 In the present case, unlike Lockhart and Bailey, in order to 

determine the applicability of the exception recognized in 

Bowman, we must determine whether the common law cause of action 

has been abrogated by the General Assembly when it enacted the 

VDA. The VDA creates a comprehensive administrative procedure to 

combat discrimination on account of disability in employment, 

education, commerce, and civic affairs. Code § 51.5-41, which 

contains the Act's prohibitions against employment 

discrimination, specifically provides in subsection (F) that 

"[t]his section shall not apply to employers covered by the 
federal Rehabilitation Act of 1973."3

 Code § 51.5-46 provides 

for the relief available for violation of the substantive 

provisions of the VDA, and subsection (C) specifically provides 

that "[t]he relief available for violations of this chapter shall 

be limited to the relief set forth in this section." 

 Grumman Data is subject to the federal Rehabilitation Act of 

1973 and, thus, is exempt from the employment discrimination 

provisions of the VDA. The issue presented in this case, then, 

is whether the exclusivity provision of Code § 51.5-46(C) 

abrogates any action employees like Bradick might have under 

Virginia common law for wrongful discharge from at-will 

employment based on disability. We hold that it does not. 

 While it is true that the VDA and the federal Rehabilitative 

Act of 1973 have similar purposes, nothing in the VDA expressly 

makes either the federal Act part of the VDA's statutory scheme 

or the provisions of the one applicable to the other. The 

exemption provision of Code § 51.5-41(F) applies "to employers

covered by the federal Rehabilitation Act of 1973." (Emphasis 

added.) Nothing in this language expressly addresses or 

otherwise implicates the claims an employee in this situation 

might have under the federal or state Acts. Rather, this code 

section expressly exempts certain employers from the application 

of one section of the VDA. The VDA was enacted in derogation of 

the common law and, therefore, it must be strictly applied and 

 

 3The federal statute addresses, inter alia, employment 

discrimination against persons with disabilities by employers 

with federal contracts. 
not "enlarged in [its] operation by construction beyond [its] 

express terms." See C. & O. Railway v. Kinzer, 206 Va. 175, 181, 

142 S.E.2d 514, 518; see also Baumgardner v. Southwestern 

Virginia Mental Health Inst., 247 Va. 486, 489, 442 S.E.2d 400, 

401 (1994). 

 The exclusivity provision of Code § 51.5-46(C) applies to 

"violations of this chapter." Because employers, such as Grumman 

Data in this case, who are covered by the federal Rehabilitative 

Act of 1973 are not subject to the employment discrimination 

provisions of the VDA, pursuant to Code § 51.5-41(F), actions by 

such employers which constitute disability discrimination in 

employment are not "violations of this chapter." Thus, it is 

clear that Code § 51.5-46(C) limits only the relief for claims 

that are brought under the substantive provisions of the VDA, and 

has no application to a claim which might be brought against an 

employer subject to the federal Rehabilitation Act of 1973. 

Moreover, a statute which does not apply to acts of an employer, 

and provides no remedy to an employee if those acts violate 

public policy, cannot be said to be a statutory abrogation of an 

employee's common law cause of action based on those acts. 

 For these reasons, we hold that, based on the public policy 

expressed in the VDA and VHRA at the time of Grumman Data's 

alleged act of discrimination, the common law of Virginia 

provides a wrongful discharge remedy to an employee, such as 

Bradick, of an employer covered by the federal Rehabilitation Act 

of 1973 where the employee is discharged on account of his 

disability or the employer's perception of his disability under 
the narrow exception recognized in Bowman. 

Certified question answered in the affirmative. JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE 

STEPHENSON join, dissenting. 

 I would answer the certified question in the negative. 

 The statement of Virginia's public policy against disability 

discrimination is contained in the Virginians With Disabilities 

Act (VDA), Code §§ 51.5-1 through -52. The General Assembly has 

stated explicitly that the VDA provides the exclusive state 

remedy for employment discrimination based on disability: "The 

relief available for violations of this chapter shall be limited 

to the relief set forth in this section." Code § 51.5-46(C). 

Violations "of this chapter" refers to disability discrimination 

generally. Code § 51.5-41(A) ("No employer shall discriminate in 

employment or promotion practices against an otherwise qualified 

person with a disability solely because of such disability."). 

 The majority argues that the VDA does not apply because the 

employer, a government contractor, was not covered by the VDA. 

Clearly, the VDA does not apply to employers "covered by the 

federal Rehabilitation Act of 1973." Code § 51.5-41(F). But 

this does not save Bradick's claim. 

 The VDA's clear statement that it does not apply to 

employers covered by the federal Act plainly indicates that the 

General Assembly did not intend employees, who could proceed 

against their employers under the federal Act, to have the option 

of proceeding under the VDA, the exclusive state remedy.