Virginia Adds LGBTQ Protections to Anti-Discrimination Law

April 14, 2020

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 applications

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.

New Remedies: 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 general.

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 180 days.

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.

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