Articles

The Values Act Adds Teeth to the Virginia Human Rights Act

Date: July 13, 2020
Effective July 1, 2020, the Virginia Values Act amends and drastically rewrites the Virginia Human Rights Act (“VHRA”), adding substantial teeth to the statute.  Among its key provisions, the Virginia Values Act expands the definition of covered employers, expands the causes of action available to aggrieved employees, increases the classes of employees who are protected, and expands the remedies available to employees who sue.  With the substantial changes, it is anticipated that employers will see a flood of new litigation under the VHRA.

•    Expanded employer coverage. Prior to the amendments, the VHRA covered only small employers with 6-14 employees.  As amended, the VHRA now covers all private employers with 15 or more employees (smaller employers with at least 6 employees remain covered for claims of discriminatory discharge).  Removing the employee limit means that all violations of federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) now also likely violate the VHRA. 

•    Expanded cause of action. The VHRA was previously limited to claims of discriminatory discharge. The Amendment expands the right of action to include all forms of discrimination and retaliation, including federal discrimination laws such as Title VII, the ADA, and the ADEA.  

•    Expanded protected classes.  In addition to the classes of race, color, religion, national origin, sex, pregnancy, childbirth or other related medical conditions, including lactation, the VHRA now also protects sexual orientation, gender identity, and veteran status. 

•    Expanded remedies. The VHRA previously authorized only limited back pay and attorneys’ fee awards to prevailing plaintiffs. The amended VHRA repealed those limits, effectively authorizing unlimited compensatory damages, punitive damages, attorneys’ fees, costs, and injunctive relief.  However, Virginia’s general cap limiting punitive damages to $350,000 will create a cap in VHRA cases.

The VHRA previously applied only to small employers, requiring employees of larger employers to bring discrimination claims only under the federal anti-discrimination laws and in federal courts.  In federal court, employers regularly seek pretrial dismissal of the claims on summary judgment.  Amended to apply to larger employers, employees may now sue under the VHRA in Virginia’s state courts, where employers are less likely to obtain summary judgment, because, unlike in federal court, the employer cannot use the employee’s deposition testimony to support a motion for summary judgment.  Additionally, under the new VHRA, Virginia’s Attorney General may also commence a civil action against the employer.  

Employers should review and revise their handbooks to incorporate the new protected classes of sexual orientation, gender identity, and veteran status into their policies. Employers should also train their managers and employees regarding the new protected classes applicable in Virginia.  

 For assistance with amended employer policies or more information on the Virginia Values Act, contact Betsy Davis, Robert Drewry or any member of our Labor and Employment team.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.