Virginia Passes Sweeping Changes to Employment Discrimination Laws

With Virginia’s recent enactment of several new laws, employers should prepare for a broader range of discrimination and retaliation claims in the commonwealth, including through private rights of action that will newly enable most employees to file lawsuits in court.

The Commonwealth of Virginia recently enacted a comprehensive overhaul of its antidiscrimination laws, including by expanding prohibitions on discrimination in employment and broadening the state’s antiretaliation protections. The new laws have mostly grabbed headlines for extending antidiscrimination protections to additional protected classes, including those in the LGBTQ community, but the legislation also greatly expands the ability of individual employees to bring private discrimination actions under Virginia law. Thus, while most Virginia employers have historically faced only federal employment discrimination claims—which can be defended against in federal court—employees can now sue directly in Virginia’s circuit courts, and under a broader set of laws.

Current Scope of the Virginia Human Rights Act

As currently enacted, the Virginia Human Rights Act (VHRA) prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, and disability.

But the VHRA does not allow most employees to sue their employers directly to vindicate these rights. Instead, the statute provides for a private right of action only against employers that have between five and 15 employees, leaving other employees to pursue enforcement under federal law. Given the size of most employers in the commonwealth, the employer-size limitations frequently render the VHRA inconsequential in terms of private litigation.

Expanded Antidiscrimination Protections

Governor Ralph Northam signed the Virginia Values Act, SB 868, (the Act) into law on April 11, 2020. The Act, which takes effect on July 1, 2020, expands the VHRA’s coverage to prohibit discrimination based on sexual orientation, gender identity, and veteran status. In enacting this legislation, Virginia became the first Southern state to extend antidiscrimination protections to the LGBTQ community. Delegate Mark Sickles, who sponsored the Act in Virginia’s House of Delegates, called it “the most comprehensive civil rights bill in Virginia’s history.”

Beyond the Virginia Values Act, Governor Northam signed into law several bills expanding causes of action for unlawful discrimination related to pregnancy, childbirth, or related medical conditions (HB 827; SB 712), as well as a partially overlapping bill establishing sexual orientation and gender identity as protected categories in employment, public contracting, and apprenticeship programs (HB 1049).

The law prohibiting pregnancy discrimination creates an immediate private right of action—allowing employees to file directly in state court without having to first file an administrative complaint and receive a right-to-sue notice.

In addition, employers will need to take affirmative steps to comply with the law, including:

• Providing reasonable accommodations for known limitations of a person related to pregnancy, childbirth, or related medical conditions, including accommodations for lactation, unless it imposes an undue hardship on the employer
• Posting and providing employee handbook information on employee rights under the law

New Cause of Action for Retaliation

In addition to signing various legislation expanding antidiscrimination protections, Governor Northam also signed House Bill 798, which creates a new cause of action protecting employees from retaliation for reporting suspected violations of federal and state law. Although Virginia has long had a cause of action for wrongful discharge violation of public policy (known as “Bowman” claims), those claims have been construed narrowly by the courts and only applied in limited circumstances of termination.

The new law expands the reach and scope of retaliation claims substantially, as it:

• Prohibits not just discharge, but also employer discipline, threats, discrimination, or penalties against an employee for engaging in protected acts
• Expands protected activity to include reporting a violation of any federal or state law or regulation to a supervisor, governmental body, or law-enforcement official[1]
• Includes additional protections for employees who refuse to engage in criminal acts, refusing employer orders to violate federal or state law or regulation
• Protects employee testimony before, or providing information to, any governmental body or law enforcement official
• Allows for a civil action filed within one year of the alleged retaliatory action

Because of the broad prohibition against retaliatory action against employees who report a violation of any state law, this new law will have the effect of creating a cause of action of retaliation for protected activity under the VHRA. Furthermore, this new law does not require any administrative exhaustion with the Virginia Office of Attorney General’s Division of Human Rights (DHR), meaning that employees will be able to file retaliation claims directly in court.

Expanded Enforcement of the Virginia Human Rights Act

Virginia’s substantive expansion of antidiscrimination and antiretaliation coverage is significant in its own right. But perhaps even more consequential for Virginia employers are the new procedural enforcement mechanisms under the Virginia Values Act—the new VHRA will have a much sharper bite than its predecessor.

Greater Liability for Employers

The Virginia Values Act grafts a new and robust enforcement scheme onto the VHRA, resulting in most employers now facing the prospect of private suit under state law, along with the potential for individual liability for agents of employers. Some of the most noteworthy changes slated to take effect later this year include the following:

• The Act creates a private right of action for claims of discrimination against any employer with more than 15 employees
• The Act creates a private right of action for claims of discriminatory discharge against any employer with more than five employees in most cases
• The Act retains the limit on employer size for age discrimination under the VHRA, meaning that an employee claiming discriminatory discharge because of age may only bring a claim against an employer with more than five but fewer than 20 employees (the rationale behind the distinction is not clear from the legislation)
• The Act appears to open the door to individual liability for discrimination by expanding the definition of employer to include “agents” of employers
• The Act prohibits an employer’s use of any protected category as a motivating factor for any employment practice
• The Act empowers the Attorney General of Virginia to bring a pattern-or-practice claim against employers
• The Act provides for an uncapped award of compensatory and punitive damages, reasonable attorneys’ fees and costs, and injunctive relief—repealing the VHRA’s strict limits on damages, equitable relief, and attorneys’ fees

Administrative Process

The Virginia Values Act also establishes a detailed process for pursuing a claim of discrimination under state law. Much like the procedures governing claims of discrimination before the Equal Employment Opportunity Commission under federal law, employees will first have to pursue their VHRA discrimination claim before the DHR prior to filing in court.

The main procedures for pursuing a charge of unlawful discrimination under the VHRA include:

• Employees must exhaust their administrative remedies by filing a charge of discrimination with DHR before filing suit
• The governing deadline for complaints to be filed with DHR is 180 days from the alleged discriminatory event, a requirement that remains unaltered by the new Act
• Upon the receipt of a charge of discrimination, DHR will conduct an investigation and prepare a report stating whether there is reasonable cause to believe unlawful discrimination occurred
• If DHR finds reasonable cause, DHR will try to conciliate the dispute
• DHR can still pursue claims directly against employers on behalf of employees
• Upon written request from the employee, DHR must issue a notice of right to file a civil action after 180 days have passed from the date the charge is filed
• The Act provides that, upon issuance of a right-to-sue notice, DHR must advise the employee that “the charge of unlawful discrimination will be dismissed with prejudice and with no right to further proceed if a written complaint is not timely filed with the appropriate general district or circuit court.” But the Act does not specify a deadline that would render such a filing “timely.” We expect that additional guidance from DHR on this point will be forthcoming.

Recommendations for Employers

Virginia’s recent changes—both in substance and procedure—show that Virginia is joining the District of Columbia and Maryland in enacting more expansive antidiscrimination and antiretaliation laws. The recent laws have overlapping (and sometimes conflicting) statutory amendments, which will require more guidance from DHR and eventually precedent from Virginia’s state and federal courts. Morgan Lewis will continue to monitor these laws for further developments on their implementation before their effective date of July 1, 2020.

In the meantime, Virginia employers should begin to prepare for these new laws by considering some or all of the following steps:

• Review, create, and/or modify their existing antidiscrimination, antiretaliation policies, and pregnancy- and lactation-accommodation policies.
• Update and conduct training on all equal employment opportunity laws, including the new protected categories of sexual orientation, gender identity, and veteran status
• Revisit internal reporting and investigation procedures for when employers receive complaints of VHRA violations, as well as alleged violations of other laws
• Educate human resource personnel and EEO representative to prepare them for addressing administrative charges before DHR, including investigations and position statements
• Be prepared to litigate claims of discrimination and retaliation before Virginia circuit courts, including defending claims that may name individual supervisors or managers

CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Lincoln Bisbee
Jocelyn Cuttino