On April 11, 2020, Gov. Ralph Northam signed the Virginia Values Act (VVA),
making Virginia the first state in the South to enact comprehensive
protections for the LGBTQ community against discrimination in employment,
housing, public spaces and credit applications. The VVA significantly
broadens the Virginia Human Rights Act’s protections against discrimination
in employment and is expected to dramatically increase the number of state
law discrimination claims filed in Virginia Circuit Courts. Below is a
summary of some of the VVA’s key provisions.
New Definition of Employer:
The VVA substantially expands the scope of employers subject to the
Virginia Human Rights Act’s requirements, which previously applied only to
small employers. The Virginia Human Rights Act currently prohibits age
discrimination by employers with between five and 20 employees and
discrimination based on any other protected characteristic by employers
with between five and 15 employees. In other words, the Virginia Human
Rights Act currently applies only to employers too small to be covered by
federal anti-discrimination statutes.
The VVA essentially eliminates these caps. The VVA will change the
definition of “employer” to anyone with 15 or more employees. Moreover, for
termination claims based on any characteristic other than age, the statute
will apply to employers with more than five employees. For age-related
termination claims, the statute covers employers with between six and 19
employees. Thus, all but the smallest Virginia employers will have to
comply with the statute’s requirements.
This change is significant because of the very limited ability to obtain
summary judgment under Virginia civil procedure. In federal court, many
employers prevail on motions for summary judgment, thus avoiding the risks
of a jury trial. Absent this procedural option in state court, Virginia
Circuit Courts will likely see an influx of employment claims and an
increase in the number of employment trials.
New Protected Characteristics:
The Virginia Human Rights Act currently prohibits employee terminations on
the basis of race, color, religion, national origin, sex, pregnancy,
childbirth or related medical conditions, and age. The VVA adds sexual
orientation, gender identity, veteran status and marital status to the list
of protected characteristics in employment. Virginia now joins the majority
of states that increase the number of recognized protected classes beyond
those recognized by federal law and becomes the first state in the South to
enact comprehensive protections for the LGBTQ community against
discrimination in employment, housing, public spaces and credit
New Adverse Employment Actions:
The Virginia Human Rights Act currently prohibits only unlawful
terminations. The VVA, however, prohibits all discrimination in the terms
and conditions of employment, including, for example, compensation,
promotions and job assignments.
The Virginia Human Rights Act previously limited damages for a
discriminatory termination to 12 months of back pay with interest. It also
prohibited courts from awarding other compensatory or punitive damages and
from ordering the reinstatement of terminated employees. The VVA, however,
provides for unlimited compensatory and punitive damages in addition to
reasonable attorneys’ fees and costs, regardless of the size of the
employer. Virginia’s existing $350,000 cap on punitive damages will still
apply. Additionally, the Virginia Human Rights Act empowers courts to grant
permanent or temporary injunctions and to order “such affirmative action as
may be appropriate,” which likely includes reinstatement. The statute also
allows courts to impose civil fines in actions brought by the attorney
New Enforcement Scheme:
The Virginia Human Rights Act adopts a new enforcement scheme that mirrors
existing federal procedures. An employee may file a complaint with the
Division of Human Rights of the Department of Law within 300 days of an
allegedly unlawful act. The division will conduct an investigation to
determine whether there is reasonable cause to believe that the employer
engaged in unlawful discrimination. If the division determines there is no
reasonable cause, then it will issue the employee a notice of his or her
right to file a civil lawsuit within 90 days of the determination. If the
division finds reasonable cause, then it must try to remedy the unlawful
conduct by informal means, such as conciliation. If the division’s efforts
are unsuccessful, then it must issue a notice of right to sue.
Additionally, an employee can request a notice of right to sue after 180
days have passed since the filing of the complaint or if the division
determines that it will not be able to complete its investigation within
The Virginia Human Rights Act, however, does not require administrative
exhaustion in cases of alleged discriminatory termination because it does
not amend Va. Code § 2.2-3903(C). That section allows a terminated employee
to file a lawsuit directly in general district or circuit court within 300
days of the alleged discriminatory termination.
The VVA is one of several legislative developments in the recently
concluded Virginia General Assembly session affecting Virginia employers.
McGuireWoods will discuss those developments in future alerts.
For further information or questions about the statute, or for any
questions you may have regarding employment laws applicable to Virginia
employers, please contact the authors, your McGuireWoods contact, or a
member of the firm’s
labor and employment group.
Virginia’s regular 2020 legislative session enacted many new laws
protecting employee rights. See McGuireWoods alerts discussing a law
combating independent contractor misclassification, a new “wage theft” law, a
law banning the box for simple marijuana possession, sweeping employment
reforms that include new noncompete restrictions, and a new law that expands the
rights of pregnant workers in the state.