Prepare for an Increase in Virginia Discrimination Claims due to the Virginia Values Act
In addition to dealing with all of the rules and regulations surrounding the response to the COVID-19 pandemic, Virginia employers also need to be aware of the new laws that go into effect on July 1, 2020.
Through one of these newly enacted laws, the Virginia Values Act (Values Act), Virginia has dramatically expanded its employee protections. Starting this summer, Virginia will undergo a drastic expansion of employee rights that will undoubtedly lead to a flurry of employee claims for the unwary employer.
Anti-discrimination Protections on the Basis of Sexual Orientation and Gender Identity
The Values Act extended existing state non-discrimination protections in public and private employment, housing, public accommodations, and access to credit, to Virginia workers based on sexual orientation and gender identity.
Virginia is the first state in the South to enact these types of comprehensive protections for the LGBTQ community against discrimination. Under the Values Act, workers with these newly protected characteristics have been afforded greater protections than are provided by Title VII of the Civil Rights Act (although there are cases involving these rights and employment discrimination currently before the Supreme Court).
Nearly All Employers are Now Covered
Under the Values Act, Virginia employers with 15 or more employees are now prohibited from failing or refusing to hire, or otherwise discriminating against any individual regarding their compensation, terms, conditions, or privileges of employment because of their race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, status as a veteran, or national origin.
Additionally, Virginia employers with five or more employees are now prohibited from unlawfully discharging employees on any of those protected bases (age claims under the new law only apply for employers with more than five but fewer than 20 employees).
Limitations on Damages have been Removed
Most important for employers, the Values Act removed restrictions on private rights of action that individuals may bring against employers and their available damages.
Now, under the Values Act, any eligible person discriminated against may bring any claim of employment discrimination. Previously, individuals could only bring a private cause of action for unlawful discharge by employers with more than five but fewer than 15 persons (or more than five but fewer than 20 persons for unlawful discharge on the basis of “age”).
Also under the Values Act, persons discriminated against no longer have limitations on their available remedies, doing away with the 25% attorneys’ fees and 12-month backpay ceilings. Furthermore, persons who have been discriminated against may now also recover punitive damages and reinstatement of their position.
Given the expansive reach of the Values Act, Virginia employers can expect more discrimination claims to be filed in state courts as opposed to federal courts under Title VII because in Virginia state courts employers are much less likely to be able to cutoff recovery at an early stage through summary judgment. If employers have to litigate discrimination claims all the way though a full trial, it will likely make lawsuits much more expensive for employers, even if they are ultimately successful in defending their actions.
Nearly every Virginia employer will be affected by the Values Act, and therefore should review and update their policies and practices now to be prepared for the Values Act’s July 1, 2020 effective date.
Josh Schmand is a litigation and employment attorney who works on complex business, corporate, and commercial disputes, as well as employment matters, advising clients on the risks and benefits of litigation, preparing for trial when needed, and serving as a determined advocate. For more information, contact Josh at firstname.lastname@example.org or (301) 347-1273.