Virginia Discrimination Lawyers' Guide to Virginia Anti-Discrimination Law

Virginia Values Act

On April 11, 2020, Governor Northam signed the Virginia Values Act (SB 868), monumental anti-discrimination legislation that makes Virginia the first state in the South to enact comprehensive protections for the LGBTQ community. In particular, Senate Bill 868 1) prohibits discrimination in public accommodations on the basis of sexual orientation, gender identity, or status as a veteran; 2) prohibits discrimination in credit on the basis of sexual orientation, gender identity, pregnancy, childbirth, or related medical conditions, disability, and veteran status; and 3) prohibits discrimination in housing based on sexual orientation, gender identity, and status as a veteran. The Virginia Values Act will become effective on July 1, 2020.

In a press release, Governor Northam stated, “This legislation sends a strong, clear message—Virginia is a place where all people are welcome to live, work, visit, and raise a family. We are building an inclusive Commonwealth where there is opportunity for everyone, and everyone is treated fairly. No longer will LGBTQ Virginians have to fear being fired, evicted, or denied service in public places because of who they are.”

The Virginia Values Act amends the Virginia Human Rights Act (VA HRA), Va. Code §§ 2.2-3900 et seq., by barring discrimination on the basis of sexual orientation or gender identity and creating a private cause of action for employment discrimination. The amended VA HRA authorizes a victim of discrimination to bring a civil action in district or circuit court after receiving a notice of right to file a civil action from the Division of Human Rights of the Department of Law. Remedies include uncapped compensatory and punitive damages.

Kudos to the Virginia Values Coalition, Equality Virginia, Speaker of the House Eileen Filler-Corn, Senator Adam Ebbin, Delegate Mark Sickles, and all the advocates who fought hard to enact this important legislation.

What law in Virginia bars employment discrimination?

The VA HRA as amended by SB 868, prohibits private sector employers with more than five employees from unlawfully terminating workers based on their race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, or pregnancy, childbirth, or related medical conditions. The Act’s prohibition on unlawful termination based on age covers only employers that have more than five and fewer than 20 employees (the federal Age Discrimination in Employment Act covers employers with 20 or more employees). The Act prohibits private-sector employers with 15 or more employees not only from wrongful termination, but also from taking any unlawful discriminatory employment action, including failure to hire or otherwise discriminating with respect to compensation or the terms and conditions of employment.

SB 868 also codifies the prohibitions on discrimination in employment for state and local government employees.

How does the amended Virginia anti-discrimination law define gender identity and sexual orientation?

The enacted SB 868 defines gender identity 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.”

It defines sexual orientation as “a person’s actual or perceived heterosexuality, bisexuality, or homosexuality.”

What damages or remedies are available for victims of discrimination in Virginia?

A court or jury may award a prevailing discrimination plaintiff compensatory and punitive damages and reasonable attorneys’ fees and costs. A court may also grant other equitable relief, such as a permanent or temporary injunction or a temporary restraining or other order, including one enjoining the defendant from engaging in further discriminatory practices.

What is the burden to prevail in a Virginia Human Rights Act discrimination case?

To prevail in a VA HRA employment case, plaintiffs must prove only that their protected characteristic was a motivating factor for any employment practice. This means that a plaintiff can prevail even if other factors also motivated the practice.

How do I bring a discrimination claim in Virginia?

A victim of discrimination in Virginia should file a written complaint with the Division of Human Rights of the Department of Law. The Division of Human Rights will then issue a charge of discrimination to the offending party and inform all parties of the employee’s rights and the timeline for exercising those rights. The parties may then agree to go to mediation without waiving any rights.

After issuing a charge of discrimination, the Division of Human Rights will conduct an investigation into the complaint to determine whether there is reason to believe that discrimination occurred, and the Division will issue a report on its findings.

If the Division concludes that there is no reasonable cause to believe that the alleged unlawful discrimination has been committed, then it will dismiss the charge and issue the employee a notice of right to commence a civil action. If the Division concludes that there is reason to believe discrimination occurred, it will attempt to remedy the discrimination through informal methods and discussions with the offending party. If and when the Division determines that informal methods will not suffice to eliminate the discrimination, it will close the case and give the employee a notice of right to commence a civil action.

At any time after the Division issues the charge of discrimination, the complaining party may petition a court with jurisdiction for temporary, equitable relief including for a restraining order or injunction if the circumstances are such that continuing discrimination during the course of the investigation will cause irreparable injury.

An employee may also submit a written request for notice of right to commence civil action, and the Division will issue that notice after either 180 days have passed since the complaint was filed or the Division has determined it will not complete its investigation within 180 days.

After receiving a notice of right to commence civil action from the Division, an employee may file a civil action in a court with jurisdiction over the defending party.