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.
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.
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:
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:
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.
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.
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 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:
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:
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:
 The law includes some limitations, however, in that it does not authorize employees to disclose data otherwise protected by law or legal privilege, or allow an employee to make disclosures that are knowingly false or in reckless disregard of the truth.