Virginia Becomes First Southern State to Ban Race Discrimination Based on Hair Texture, Type, and Styles

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First of Many Anticipated Employment Changes in Virginia, Including Expanded Coverage and Remedies for the Virginia Human Right Act and Minimum Wage Increases

On March 4, 2020, Virginia Governor Ralph Northam signed into law House Bill 1514, which amends the Virginia Human Rights Act (“VHRA”) to prohibit discrimination, “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.”  Under the law, which takes effect on July 1, 2020, covered employers may enforce non-discriminatory appearance and grooming policies, but may not use hair texture, hair type, or various protective hairstyles as a proxy for or to facilitate any discriminatory practice, gender discrimination, or racial discrimination.

With the amendment, Virginia becomes the first southern state to ban race discrimination on the basis of hair, but it is not the first U.S. jurisdiction to do so.  California, New York and New Jersey, as well as some cities, have enacted similar laws.  Several other states, including Colorado, Minnesota and Washington, are considering similar legislation.

Currently, the VHRA applies only to employers with more than five but fewer than 15 employees (i.e., between 5-14 employees).  Importantly, however, that limitation will likely soon be a thing of the past.  On March 4, 2020, the Virginia General Assembly passed the Virginia Values Act (“Values Act”), Senate Bill 868. The Values Act, which Gov. Northam is expected to sign, would expand the reach of the VHRA to cover employers with fifteen or more employees.

Of further note, the Values Act would also add prohibitions on discrimination on the basis of sexual orientation or gender identity, and, for the first time, provide for a private right of action for discrimination claims.  It would also permit successful plaintiffs to recover uncapped compensatory and punitive damages, as well as reasonable attorney fees and costs.

In addition, Virginia employers should be prepared for other legislative changes that may have significant impact on their operations — including a gradual increase in the minimum wage to as much as $15 per hour — as summarized in the chart below.  Each bill passed the General Assembly and is expected to be signed into law by Gov. Northam to take effect later this year.

Bill Subject Description Passed by General Assembly?
Senate Bill 7 Wage and Hour Would increase the minimum wage throughout the state for nearly all employers from its current federally mandated level of $7.25/hour to $9.50/hour effective January 1, 2021; to $11/hour effective July 1, 2022; and to $12/hour effective July 1, 2023. Increases to $13.50/hour effective January 1, 2025, and to $15/hour effective January 1, 2026, are subject to reenactment; absent reenactment, increases thereafter would be subject to adjustment by the Commissioner of Labor. Yes
Senate Bill 838 Wage and Hour Would for the first time provide a private right of action for alleged failure to pay wages. Yes
House Bill 337 Wage and Hour Would prohibit discrimination against employees who assert wage violations. Yes
House Bill 622 Wage and Hour Would prohibit discrimination or retaliation against employees who discuss wage information. Yes
Senate Bill 868 Human Rights Act As noted, would prohibit discrimination on the basis of sexual orientation or gender identity, expand the Act to employers with 15 or more employees, and provide for a private right of action. Yes
House Bill 827 Human Rights Act Would amend the Human Rights Act to prohibit unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions. Yes
House Bill 1407 Misclassification of Employees as Independent Contractors Would amend various labor laws to prohibit employers from misclassifying employees as independent contractors, impose escalating statutory fines, and mandate contract debarment for improper misclassification. Yes

A separate bill (Senate Bill 481) that would have required most employers with 15 or more employees to provide paid sick leave passed the House, but the Senate took no action. However, it is likely to come up again in the next session.

We will continue to track these developments.

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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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