Major Changes Coming to Employment Discrimination Claims in Virginia

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Spilman Thomas & Battle, PLLC

Governor Ralph Northam signed two bills that both go into law on July 1, 2020, and will drastically alter employment discrimination claims in Virginia.

The Virginia Values Act ("VVA") (Senate Bill 868) makes sweeping changes to the Virginia Human Rights Act ("VHRA"), the Virginia counterpart to federal anti-discrimination laws (Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act). Historically, the VHRA only applied to employers who were not covered by federal laws, did not provide employees with a private right of action, and provided for only limited damages. The VVA completely changes the scope and coverage of the VHRA on all of these fronts.

Broader Coverage of Employers in Virginia

The VHRA now will subject employers to the following claims based on their size:
Employer Size
Type of Claims
1-5 employees
Not covered by VHRA
6-14 employees
Only liable for unlawful discharge claims on the basis of race, age, color, religion, national origin, veteran status, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth, and related medical conditions including lactation
15+ employees
Liable for failure to hire, discharge, or discrimination claims with respect to compensation, terms, conditions, or privileges of employment on the basis of race, age, color, religion, national origin, veteran status, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth, and related medical conditions including lactation; and retaliation claims (i) for opposing a practice made an unlawful employment practice; or (ii) because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

While the VHRA states it is the policy of the Commonwealth of Virginia to prohibit discrimination based on a disability, liability for disability-related claims was not included in the Virginia Values Act or the amendments to the VHRA. We believe this was a drafting error and expect the General Assembly will address this in future legislation.

Broader Scope of Covered Claims

The VHRA expanded its protections to prohibit discrimination because of sexual orientation, gender identity, and status as a veteran. Thus, Virginia law now protects the LGBTQ community from discrimination in employment. These expanded protections apply not only to employers but also to places of public accommodation.

The VHRA was separately amended in House Bill 1514 to make it a form of illegal race discrimination to discriminate "because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists." Joining California, New York, and New Jersey, Virginia becomes the first southern state to ban race discrimination based on hair. This law will not prohibit the use of neutral appearance/grooming policies, but will prohibit employers from regulating an employee's hair texture, hair type, or various protective hairstyles.

Filing an Administrative Charge

Persons who believe their employer has engaged in an unlawful discriminatory practice must file a written complaint (similar to a Charge of Discrimination) with the Division of Human Rights of the Department of Law ("Division") before filing suit. The Division will investigate the employee's complaint and will issue a determination as to whether or not there is reasonable cause to believe unlawful discrimination has occurred. As with federal anti-discrimination laws, the VHRA also empowers the Attorney General to intervene in cases when there is reasonable cause to believe alleged unlawful discrimination has occurred.

The Division will provide the parties with notice of the complainant's rights, including the right to commence a civil action and the dates within which the employee has to exercise those rights, i.e., to file a lawsuit in the appropriate general district or circuit court. Except in instances of temporary injunctive relief, an aggrieved employee must first obtain a notice of his right to file a civil action before proceeding to court. Where an employee fails to file a lawsuit within the time periods set forth in the notice issued by the Division, their claims will be dismissed with prejudice.

Additional Damages Permitted

Under the former version of the VHRA, damages were limited to 12 months of back pay plus interest and attorney's fees capped at 25 percent of the back pay award. Now, however, where a court finds unlawful discrimination has occurred, the court may award plaintiff as the prevailing party, compensatory and punitive damages, reasonable attorney's fees, and other injunctive relief, as appropriate. Unlike federal law, which has caps on compensatory damages, the revised VHRA has no cap for compensatory damages.

The Implications for Employers

We expect the number of employment discrimination claims filed under the VHRA (as opposed to under federal law) will dramatically increase for at least three reasons.
  1. In other jurisdictions where we operate that have state anti-discrimination statutes that are more robust/employer-friendly than federal law, i.e., West Virginia, we find employees almost exclusively choose to pursue their remedies under state, as opposed to federal, law.
  2. The VHRA does not contain a cap on compensatory damages whereas federal law does impose such a cap, making the VHRA a more attractive option for aggrieved employees seeking the maximum possible damages.
  3. Summary Judgment - Many employment discrimination claims filed in federal court get resolved before trial during a process known as summary judgment, which is a process where the judge reviews the evidence and determines the case should be dismissed because the employee cannot prove their claims as a matter of law. In Virginia, summary judgment is rarely granted and there are limits on the types of evidence that can be considered in support of summary judgment. While there have been some efforts to expand the scope of summary judgment in Virginia (Click here to read more), employers still do not have the right as a matter of law to support their motions for summary judgment with deposition transcripts or affidavits, both of which are commonly used in federal cases. Since summary judgment will be harder to obtain in Virginia state courts, employees likely will prefer to file claims under state law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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