The Virginia Values Act Rewrites Virginia Employment Discrimination Law

Governor Northam and the recently elected Democratic majority in the Virginia legislature have teamed up to dramatically alter the legal landscape in the Commonwealth for LGBTQ+ individuals who are the victims of discrimination in public or private employment or public accommodations. Meanwhile, Virginians continue to await a decision by the U.S. Supreme Court that is expected to determine whether LGBTQ+ employees enjoy protection from discrimination in employment under Title VII of the 1964 Civil Rights Act. In what is known as the Virginia Values Act, Virginia has become the first state in the South to recognize such rights for LGBTQ+ citizens.

Importantly, for Virginia employers this Act, which will go into effect July 1, 2020, goes far beyond the expansion of workplace rights to LGBTQ+ individuals. Among other important changes, the Act adds other protected classes of individuals entitled to workplace protection, expands the rights protecting all classes of workers covered under Virginia law to all employers with more than five or more employees, and eliminates existing dollar limitations on the recovery of damages for employment discrimination relating to the protected classifications.

Before the enactment of this law, only Virginia employers with six to 14 employees who discriminated against employees based on race, color, religion, national origin, sex, pregnancy, childbirth or other related medical conditions, including lactation, were subject to being sued under the Virginia Human Rights Act ("The VHRA"). This Act provided for an initial administrative complaint process followed by court action if the administrative process proved unsuccessful in resolving the dispute. The VHRA also had certain limited remedies. Historically, this meant that employees who worked for employers with 15 or more employees could look only to federal laws, such as Title VII, for a remedy for employment discrimination.

With the enactment of the Virginia Values Act, all Virginia employers with more than five employees will be subject to employment discrimination litigation under the VHRA based on all existing classifications and additional classifications involving individuals based on their age, marital status, veteran status, sexual orientation and gender identity. This means employees in workplaces with 15 or more employees might have claims under both state and federal law. Further, unlike Title VII employment discrimination remedies that have certain damage limitations, the Virginia act has no monetary limitations and permits the award of punitive damages without any limitation and attorney's fees. This disparity between state and federal law could lead to a reversal of the current procedures in Virginia employment litigation where most discrimination lawsuits are filed in a federal court to a scenario where many more actions will go forward in state court under Virginia laws. The new Virginia laws continue to require that administrative remedies need to be exhausted first, which is similar to the remedies for federal lawsuits that require the filing of a charge of discrimination with the EEOC. Virginia will handle such required initial administrative filings through the Department of Law, which will investigate and attempt to resolve such claims before issuing a notice of right to sue similar to the federal procedure.

More than 20 states currently provide protection in employment to LGBTQ+ citizens. While Virginia's new law may be getting national attention because states in the South have not been in the forefront in this area, the Virginia Values Act may prove to be a watershed law for the Commonwealth and significantly alter the way employment discrimination litigation is carried out in Virginia. Time will tell.