October 21, 2020

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Virginia Passes Significant Changes to State Employment Discrimination Law

On April 11, 2020, Virginia Governor Ralph Northam signed the Virginia Values Act (“Act”), which significantly strengthens the Virginia Human Rights Act’s prohibition on employment discrimination.  Some of the major changes include:

  • Greatly expanding the class of employers who can be sued under state law;

  • Removing limitations on the relief employees may obtain; and

  • Adding sexual orientation, gender identity, and status as a veteran as new protected classes.

These changes show that Virginia’s new Democratic majority is not hesitant to flex its muscles in the area of employment law, and could herald additional changes that may further erode Virginia’s relatively pro-employer legal climate.

The most important change is the Act’s dramatic expansion of employees’ rights to seek relief for employment discrimination under the Virginia Human Rights Act.  Prior to the Act, Virginia Code § 2.2-3903 limited employees to bringing claims against employers who employed five to fifteen employees, or five to twenty employees for claims of age discrimination.  These size limitations meant that employees could only bring a claim under the Virginia Human Rights Act if their employer was too small to be covered by the federal employment discrimination statutes.  Employees whose employers were large enough to be covered by the federal statutes could only bring a federal claim.  The remedies available to employees under the Virginia Human Rights Act were also limited.  Employees were limited to recovering twelve months of back pay in most circumstances, and could not recover punitive damages or obtain reinstatement to their former position.  Attorney’s fee awards were capped at 25% of the employee’s recovery. 

The Act repeals all of Section 2.2-3903’s limitations.  Now, employees may bring state law employment discrimination claims against any employer with more than fifteen employees.  If the employee claims unlawful discharge, that threshold is reduced to five.  Employees can now recover compensatory and punitive damages, as well as attorney’s fees, with no cap on recovery.  Virginia employees now have a state law employment discrimination claim that is more generous than the federal Title VII (which caps compensatory and punitive damages, but not back pay, at up to $300,000).  Virginia employees bringing claims under the new state law may also now be able in some cases to avoid federal court jurisdiction and thereby escape the “rocket docket” in the Eastern District of Virginia, which is regarded by some as pro-employer.

The Act also broadens the Virginia Human Rights Act by adding “sexual orientation,” “gender identity,” and “status as a veteran” as new protected classes.  “Sexual orientation” is defined as “a person’s actual or perceived heterosexuality, bisexuality, or homosexuality,” which apparently incorporates an Americans with Disabilities Act-type “regarded as” analysis.  Notably, courts hold that such “regarded as” claims are not cognizable under Title VII.  “Gender identity” is defined as “the gender-related identity, appearance, or other gender-related characteristics of an individual with, or without regard to the individual’s designated sex at birth.”

The Act’s dramatic expansion of the Virginia Human Rights Act may be a signal that Virginia’s Democratic majority intends to enact additional employment protections akin to those in neighboring Maryland and Washington, D.C.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 108

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About this Author

Conne Bertram Government Contract Lawyer Polsinelli Law Firm
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Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive...

202.777.8921
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Tony Torain is committed to providing reliable counsel to strategically solve client matters and address their litigation needs. He represents companies in connection with all types of employment and labor disputes, including wrongful discharge and claims based upon:

  • The National Labor Relations Act
  • Title VII of the Civil Rights Act
  • The Americans with Disabilities Act
  • The Age Discrimination in Employment Act
  • The Family and Medical Leave Act
  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act
  • The McNamara-O'Hara Service Contract Act

Tony’s experience includes regularly representing clients in arbitrations, unfair labor practice proceedings, strikes, union election campaigns, collective bargaining negotiations and strategic labor relations planning matters. In addition, Tony advises employers on employee separations and terminations, employee discipline, wage payment issues, compliance with federal and state statutes and regulations relating to the workplace, union avoidance strategies, strikes and how to effectively manage unionized workforces.

Tony also assists employers with the implementation and maintenance of effective affirmative action programs and representing government contractors before the Office of Federal Contract Compliance Programs (OFCCP).

202.626.8378
Jack Blum Polsinelli Employment Attorney
Associate

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all...

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