On April 11, 2020, Governor Northam signed into law the Virginia Values Act (the “Act”) making Virginia the first southern state to enact legislation protecting LGBTQ workers by prohibiting sexual orientation or gender identify discrimination. Given the ongoing pandemic, however, employers may have overlooked the fact that the Act also greatly expands the overall reach of Virginia’s Human Rights Act (“VHRA”).
Crucially, the Act incentivizes employees/plaintiffs to file discrimination lawsuits in Virginia state courts as opposed to federal courts. As explained below, the cause of action under Virginia law allows for a greater potential recovery to both employees and their attorneys.
What types of unlawful discrimination does the Act prohibit?
The VHRA will now prohibit unlawful discrimination against an employee on the basis of his or her race, color, religion, national origin, sex, sexual orientation, gender identity, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran. Furthermore, while the VHRA currently only applies if an employee’s employment is unlawfully terminated, the VHRA will now prohibit general workplace discrimination claims relating to things such as discipline and compensation.
What sized employers are covered by the Act?
Prior to the Act, the VHRA applied only to small employers (generally only those with 6 to 14 employees) not covered by federal employment protection statutes. Now, because of the Act, the VHRA will apply to nearly any Virginia employers.
Are there caps on the amount of damages an employee can recover?
No, the Act has no cap on recovery. This is a dramatic change under the previous, more narrow version of the VHRA, which at present caps damages at 12 months of back pay with no opportunity to recover punitive damages.
Without a recovery cap, employees will likely choose to file in a Virginia state court to avoid the following caps on compensatory and punitive damages in Title VII cases:
• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.
Clearly, the Act will not only incentivize plaintiffs to file in state (as opposed to federal) court, but also likely increase the exposure value of such cases.
Is there a cap on attorneys’ fees?
No, the Act eliminates the existing attorneys’ fees cap.
Is dismissal of cases in state court more or less likely than federal court cases?
Unlike in federal court, obtaining summary judgment (i.e., dismissal of a case via a motion prior to trial) is very rare. Thus, it is less likely that cases brought in state court will be dismissed before proceeding to trial.
What should Virginia employers be doing?
It’s not hard to imagine that in light of the Act, state courts will become the preferred venue for employment discrimination claims. Thus, at the very least, all employers with more than five employees should review and, where needed, update their written anti-discrimination policies. Employers should also develop and conduct training to educate their workforces on the Act’s scope of coverage as well as consider manager-specific training on coaching and disciplining their workforce.
—– If you have further questions or concerns please contact: