On July 1, 2020, the Virginia Values Act (VVA) will become effective as law and introduce new legal protections designed to make the Commonwealth a more accepting workplace for all members of society. In doing so, the VVA is expected to produce a sweeping overhaul of employment discrimination litigation in Virginia by prohibiting employment discrimination on the basis of sexual orientation, gender identity, and veteran status. These changes, unprecedented thus far in southern states, will significantly impact employers while providing additional protections and remedies to employees.
Who is protected? Substantively, the VVA significantly broadens the existing Virginia Human Rights Act (VHRA) to include additional characteristics that are protected by law, detail specific employment actions that are prohibited, and dictate the size of employers that must comply. In addition to the previously existing protections under the VHRA, the VVA prohibits discrimination on the basis of sexual orientation, gender identity, and veteran status. Gender identity is defined by the new legislation as “the gender-related identity, appearance or other gender-related characteristics of an individual, with or without regard to the individual’s sex at birth.” Sexual orientation is defined as “a person’s actual or perceived heterosexuality, bisexuality, or homosexuality.”
Who must comply? The VVA redefines “employer,” and in doing so, broadens the number of employers that must act in compliance with Virginia’s anti-discrimination laws. Under the current definition of employer, the VHRA only applies to small employers, which requires claimants to bring claims under Federal law (and in Federal Court) if the employer has 15 or more employees (20 or more for age related discrimination).
Under the revised definitions of the VVA, employers with 15 or more employees are now subject to the VVA’s bans against unlawful employment practices, layering the application of state anti-discrimination laws onto a broader group of employers. An “unlawful employment practice” includes failing or refusing to hire, discharging, limiting, segregating, classifying, or otherwise discriminating on the basis of race, color, religion, national origin, sex, pregnancy, childbirth, or related medical conditions, age, marital status, disability, sexual orientation, gender identity, or status as a veteran.
Additionally, for purposes of claims involving unlawful discharge in prohibition of the VVA, employers with 6 or more employees are generally covered. With respect to age-related discriminatory discharge claims, the VVA only applies to employers with at least 6 but fewer than 20 employees. Once an employer has 20 employees, the Federal Age Discrimination in Employment Act would apply.
What does this mean for employees? For employees seeking to bring claims, the new legislation adopts a new enforcement scheme and administrative prerequisite that is very similar to the procedure in place for claims being pursued under Federal anti-discrimination statutes. Under the VVA, Claimants must use an administrative charge process that involves filing a complaint with the Virginia Division of Human Rights of the Department of Law (the “Division”). This procedure includes notice to the employer, an investigation, mediation options, and determinations made by the Division, which may result in either a right to sue letter being issued or further action by the Division depending on whether it determines reasonable cause to believe the alleged discrimination occurred. The latter may include court involvement or “informal methods such as conference, conciliation, and persuasion.” If provided a notice of a right to sue, then private parties may pursue civil action on their own in an “appropriate general district or circuit court jurisdiction.” This means the Virginia state courts are now open forums for litigation of these issues against not only small employers – but larger employers as well. The Attorney General also has authority to initiate civil action on behalf of employees under the new legislation.
The remedies available to employees under the VVA have also expanded. Previous limitations imposed by the VHRA on an employee’s ability to recover damages are eradicated, and the new law permits recovery of compensatory and punitive damages, reasonable attorneys’ fees, and other equitable relief without any caps or limitations. Civil penalties may also be imposed. This is a radical change that ultimately will be tested by the courts.
What does this mean for employers? For employers, this legislation creates a dramatically altered landscape because many larger employers were previously only subjected to and primarily concerned about federal anti-discrimination laws. When sued under the federal laws, employers have protections in the form of caps on compensatory damages and a federal forum with friendlier procedural defenses. Many federal employment discrimination cases are resolved prior to an actual trial on the merits through motions to dismiss or summary judgment proceedings. These defensive strategies will be stymied by this new wave of litigation, as Virginia state courts notoriously do not favor summary judgment. As such, this new legislation will undoubtedly usher in a new rubric of employment discrimination cases being litigated in Virginia state courts, and employees will likely flock to file in state court forums over federal.
With these expansive changes, it is paramount that employers operate within the confines of the law and familiarize themselves and their employees with the new legislation. This legislation is one of several recent changes to Virginia’s employment laws, which we continue to monitor closely. These changes may require a review and revision of current company handbooks and policies concerning equal employment opportunity, anti-discrimination, and other similar policies. OFP’s attorneys are available to assist with these updates and to provide training and support to employers as the VVA and other new laws take effect. For more information, contact the OFP Corporate Law team.