Expect More Employment Discrimination Claims Under New Virginia Values Act

On April 11, 2020, Virginia Governor Ralph Northam signed into law the Virginia Values Act. This law likely will fundamentally change how discrimination claims are litigated in Virginia.

The statute broadly expands Virginia’s Human Rights Act to prohibit sexual orientation and gender identity discrimination in housing, public and private employment, public accommodations, and access to credit. It also broadly expands the scope and remedies of the Virginia Human Rights Act for other types of discrimination claims, which inevitably will result in an influx of employment discrimination lawsuits and trials in Virginia state courts. Employers should update their policies now in anticipation of the new law’s July 1, 2020 effective date.

LGBTQ Rights Now Protected
The Virginia Human Rights Act historically prohibited employee terminations on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, and age. The new law adds sexual orientation, gender identity, veteran status and marital status as protected characteristics in employment. Virginia is the first of the southern states to add sexual orientation and gender identity as protected categories in employment.

Most Employers Now Covered
Notably, the new law expands Virginia’s Human Rights Act prohibitions against discrimination to nearly all Virginia employers. The law historically applied only to small employers and limited causes of action to discriminatory discharge. The historical law prohibited:

• discharge based on race, color, religion, national origin, sex, pregnancy, or childbirth or related medical conditions, including lactation, by employers employing more than five but fewer than 15 persons; and
• discharge based on age by employers employing more than five but fewer than 20 persons.

The new law essentially eliminates these caps. It changes the definition of “employer” to anyone with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 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 6 and 19 employees. Thus, nearly all Virginia employers will be required to comply with the new requirements.

Expanded Remedies and Enforcement Procedures
The Virginia Human Rights Act only allowed limited damages, such as a twelve-month back pay damages cap; however, the new statute provides for unlimited compensatory damages (including back pay and front pay) in addition to uncapped attorneys’ fees, costs and punitive damages, regardless of the size of the employer. Notably, the new statute does not adopt Title VII’s damages caps based on employer size.

The Virginia Values Act also repeals the enforcement scheme in Va. Code § 2.2-3903(C) and largely tracks existing federal procedures under Title VII. An employee may file a complaint with the Virginia Division of Human Rights within 300 days of an allegedly unlawful act, which triggers an investigation. 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. As with the federal construct, an employee may 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.

Reasonable Accommodations for Pregnant Employees
The Virginia Human Rights Act also has been amended (HB 827) to require employers to provide reasonable accommodations for pregnant employees. It requires employers to engage in an interactive process to determine whether reasonable accommodation is possible for limitations related to pregnancy, childbirth, or related medical conditions. Employers are specifically prohibited from requiring an employee to take leave if another reasonable accommodation can be provided.

The statute defines “reasonable accommodations” to include more frequent or longer bathroom breaks, breaks to express breast milk, access to a private location other than a bathroom for the expression of breast milk, acquisition or modification of equipment or access to or modification of employee seating, a temporary transfer to a less strenuous or hazardous position, assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and leave to recover from childbirth.

Notably, an employer must post in a conspicuous place and include in their employee handbook information concerning the prohibition against unlawful discrimination and an employee’s rights to reasonable accommodation for limitations related to pregnancy, childbirth, or related medical conditions. This information must also be provided to new employees and any employee within 10 days of the employee notifying the employer that she is pregnant.

Bottom Line Impact for Employers
Employment law practitioners know it is extremely difficult to obtain summary judgment in Virginia because litigants generally cannot submit deposition testimony or affidavits to support motions for summary judgment. Historically, employees in Virginia brought discrimination claims in federal court because they did not have an effective private cause of action in state court. Many of these lawsuits filed in federal court were dismissed at the summary judgment stage. The expansion of state law rights will result in a shift in favor of employees, with many more employment discrimination claims and trials occurring in state court. Moreover, the new law theoretically allows almost limitless damages for prevailing plaintiffs, although Virginia’s statutory $350,000 punitive damages cap presumably still applies.

If you have any questions related to the Virginia Values Act, please contact your local Quarles & Brady attorney, or:

• Sarah Belger: (202) 372-9511 / sarah.belger@quarles.com
• Hans Riede: (202) 372-9529 / hans.riede@quarles.com