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

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.  CaliforniaNew York and New Jersey, as well as some cities, have enacted similar laws.  Several other states, including ColoradoMinnesota 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.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 70
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About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing
Member

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

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Brian Steinbach, Labor Attorney, Epstein Law Firm
Senior Attorney

BRIAN STEINBACH is a Senior Attorney in the Labor and Employment practice, in the firm's Washington, DC, office.

Mr. Steinbach's experience includes:

  • Advising clients on and litigating employment, labor, disabilities, non-compete, confidentiality, benefits, wage and hour, and general litigation matters before the courts, arbitrators, and administrative agencies at the federal and state level

  • Representing and advising clients in Sarbanes-Oxley and other...

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