In cases of defamation per se in Virginia, successful plaintiffs can recover “presumed” damages even if they are unable to prove exactly how their reputations were harmed and to what extent. For example, defamatory statements that impute to the plaintiff an unfitness to perform the duties of her job would be considered defamatory per se because it is widely understood and accepted that a serious and false accusation about somebody’s ability to perform one’s job would inevitably cause compensable harm. What many don’t realize, however, is that the defamation-per-se categories presuppose that the underlying statement satisfies the elements of actionable defamation. If a statement doesn’t qualify as defamation, then it won’t qualify as defamation per se, even if it seems to fit into one of the per-se categories. If Dave says about Paul, a chef at an upscale restaurant, “Paul is the worst chef in the United States and I wouldn’t feed his disgusting dishes to my worst enemy’s dog,” the fact that the statement suggests Paul is unfit to perform the duties of his job does not make the statement defamatory per se. This particular statement would not be actionable because it reflects only Dave’s personal opinion. Defamation per se is a specific type of actionable defamation, not a substitute for it.
Let’s take a look at the case of Dr. Wendi H. Anderson v. The School Board of Gloucester County, Virginia. Here’s what happened, according to the allegations of the complaint. Dr. Anderson is a teacher at Page Middle School in Gloucester County. She suffers from a “sensitivity [and] allergy to scents, including perfumes and topicals that contain vanilla, cocoa butter, flora/fruits, musks, patchouli (mint), body sprays, lotions and hand sanitizer.” Exposure to these scents allegedly causes her to experience multiple physical reactions, including “pain in the throat and mouth,” “difficulty breathing,” “coughing,” “cognitive dysfunction,” “diarrhea,” “blurry vision,” and “migraines.” Prior to the 2017-18 school year, Dr. Anderson sent the school principal a proposed note to share with parents detailing her various sensitivities and asking students to refrain from wearing products with certain scents. The principal was not crazy about the idea about sharing this information with students or parents. A number of disputes arose relating to the extent the school was willing to go to accommodate Dr. Anderson’s special condition, and at some point the following statements about Dr. Anderson were allegedly made by the principal and/or the school system’s H.R. director: