Sexual orientation, gender identity, and veteran status were added to the list of protected classifications in Virginia

Wednesday, June 17, 2020

*Part One of a Four-Part Series: Click Here for Full Series**

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq. Vanderpool, Frostick & Nishanian, P.C.

While businesses have been focused on dealing with the Covid-19 pandemic, working remotely, educating kids, and figuring out how to return to work safely, new laws will go into effect starting on July 1, 2020 that you need to know about. These laws will significantly impact Virginia employers.

Amendments to the Virginia Human Rights Act

The General Assembly passed the Virginia Values Act and other amendments that significantly amended the Virginia Human Rights Act (“VHRA” or “Act”). Generally, it

  1. added additional protected classifications;
  2. further clarified and expanded types of prohibited discrimination
  3. included the requirement that employers provide reasonable accommodations for pregnant workers
  4. expanded the definition of “employer” thus expanding the scope of employers subject to the newly revised Act; and
  5. provided new remedies. Now, almost all Virginia employers (except those with five or less employees) will be subject to the Act, which significantly increases the number of businesses covered by the Act as well as their liability associated with employment discrimination claims.

Additional Protected Classifications and Clarification/Expansion of Types of Discrimination

Sexual orientation, gender identity, and veteran status were added to the list of protected classifications under VHRA. Discrimination based on race was defined to now specifically include discrimination based on traits historically associated with race, including hair texture, hair types, and protective hairstyles such as braids, locks, and twists.

Amendments Related to Pregnancy and Childbirth

While VHRA already prohibits discrimination on the basis of pregnancy and childbirth or related medical conditions, it now specifically states childbirth and related medical conditions includes “lactation.”  Employers are also required to provide reasonable accommodations related to pregnancy, childbirth or other medical conditions including lactation, unless the accommodation would impose an undue hardship on the employer. Employers are also prohibited from taking adverse actions against an employee for requesting such accommodations.

The Act requires employers to provide notice to their employees of these rights by posting information in a conspicuous location and also including it in their employee handbooks. In addition, employers must also provide such information to new employees upon commencement of their employment, and within 10 days of an employee providing notice to the employer that she is pregnant.

Summary of Protected Classifications Under Amended VHRA

Accordingly, pursuant to VHRA as of July 1, 2020, it will be unlawful for an employer to discriminate against an employee because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, disability, or status as a veteran.

Expansion to Cover Almost All Employers

Prior to July 1, 2020, VHRA only applied to a very small group of employers that were too small to be covered by federal anti-discrimination laws. Essentially, it only applied to employers with between six and fourteen employees and the law made only it unlawful to terminate employment based on unlawful discrimination.

The new amendments significantly overhaul the VHRA. The amended VHRA defines “employer” to include every business with fifteen or more employees. Therefore, for employers with fifteen or more employees, they are now subject to the VHRA for discrimination in the employment relationship for such things as compensation, promotions, and job assignments.  In addition, the Act will apply to all employers with more than five employees for claims that an employee was unlawfully terminated due to prohibited discrimination (other than based on age).  For age-related termination claims, the Act covers employers with between six and nineteen employees.

Expansion of Remedies

Under the existing VHRA, the remedies for unlawful termination based on prohibited discrimination are limited to twelve months of back pay and recovery of attorneys’ fees of no more than 25% of the backpay award.  The overhauled VHRA no longer has any cap or limit on the type or amount of damages which can be recovered.  Unlike federal anti-discrimination statutes (which caps recoverable compensatory and punitive damages based on an employer’s size), there is no limit on the amount of compensatory damages that an employee who prevails on their claims will be able to recover – regardless of employer’s size. Punitive damages are already capped in Virginia at $350,000.  The new Act also provides that a successful claimant may recover attorneys’ fees.

Public Employers

The new laws also prohibits public employers such as the state and localities, from discriminating against an individual on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, sexual orientation, gender identity, or status as a veteran.

Employers May Not Prohibit Employees from Sharing Wage Information

A new law in Virginia provides that employers may not discharge or take a retaliatory action against employees because they:

  1. Discussed or disclosed information to another employee about their own wages and compensation, or wages of others.
  2. Filed a complaint alleging a violation of this Code with Virginia Department of Labor and Industry.

If employers have a policy prohibiting employees from discussing their wages with others, they should remove or revise this policy so that it complies with updated Virginia law.

However, employers may still prohibit employees from disclosing wage information if that employee has access to employee or applicant data as part of their essential job functions. Therefore, employers can still have a policy prohibiting HR or payroll employees from discussing employee information discovered through their job. However, employers cannot prevent these employees from disclosing this information if it is provided in response to a formal complaint, investigation, or consistent with a legal duty to furnish information.

Employers who violate this statute will be subject to a civil penalty of $100 per violation.

For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with this new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us at 703-369-4738