Employment – Chief of police isn’t ‘employer’ under VHRA

Where an employee alleged the Chief of Police failed to accommodate his disability, but the chief was not an “employer” under the Virginia Human Rights Act, the suit was dismissed.

Background

Belaal Khan challenges the circuit court’s decision to sustain the demurrer and plea in bar to his complaint against Cynthia McAlister, in her individual capacity, under the Virginia Human Rights Act, or VHRA, alleging unlawful discriminatory conduct in her failure to accommodate Khan’s disability while she was serving as Chief of Police for the Town of Purcellville.

Analysis

The demurrer presents the novel question whether McAlister, in her individual capacity, meets the definition of “employer” under Code § 2.2-3905.1. This court concludes that Code § 2.2-3905.1 classifies the “employer” as any person employing more than five employees. The plain meaning constrains the text to the actual employer, consistent with the General Assembly’s apparent intention to determine employer status based on the workforce size and to exclude certain small employers. Accordingly, McAlister does not independently qualify as an employer under the subsection.

This leaves the derivative “agent” claim. Given the nature of this suit, the textual question here is whether the phrase “agent of such person” authorizes personal suits against individual employees. Considering the text, two reasons foreclose a construction that includes personal liability.

First, applying the structural reading, the “agent” language signifies the employer cannot evade suit by acting through its agents. Moreover, although agents can be sued individually for certain tortious conduct at common law, and although Khan asserts that McAlister’s alleged failure to accommodate his disability constitutes gross negligence, Khan’s complaint expressly states the “case is brought under the [VHRA].”

Significantly, Khan’s claims invoke reasonable disability accommodation requirements, which are purely statutory rights. Thus, Khan’s reliance on a decision, interpreting statutory language created in derogation of the common law, is inapposite. This court is therefore not required to read into the definition de facto employer liability.

Next, surrounding words in the statute reinforce the view that “agent” is not synonymous with “employee” or “manager.” Code § 2.2-3904, enacted one year prior to Code § 2.2-3905.1, directs its prohibitions to certain individual roles, including the owner, lessee, proprietor, manager, superintendent, agent or employee, in contrast with the subsection at issue, which addresses unlawful discriminatory conduct by the “employer.”

Viewed in context, the distinction signals a deliberate choice by the General Assembly to limit individual liability for disability reasonable accommodation claims. This court thus concludes that the “agent” language in Code § 2.2-3905.1 imposes only respondeat superior liability. Because McAlister is neither Khan’s employer nor an agent of the employer in her individual capacity, the circuit court correctly sustained the demurrer.

Affirmed.

Khan v. McAlister, Record No. 0501-25-4, May 5, 2026. CAV (Bernhard). From the Circuit Court of Loudoun County (Fisher). Annette Kay Rubin (Law Office of Annette Rubin, on briefs), for appellant. Laurie L. Kirkland (Ian J. McElhaney; Blankingship & Keith, P.C., on brief), for appellee. VLW 026-7-173. 12 pp.

Full-Text Opinion
VLW 026-7-173