Will Virginia Become a Hotbed for Employment Litigation?

Date: November 05, 2020

Legislation known as the Virginia Values Act, which passed the General Assembly and was signed by Governor, provided new protections in employment for the LGBTQ community since July 1, 2020.

While many employers already had those protections in place through their anti-discrimination policies, Virginia businesses are impacted by the significant expansions and protections under the new law which could make Virginia state courts a hotbed for employment litigation.

All companies who employ more than 15 or more workers are already governed federal laws designed to ensure employees enjoy a workplace free from discrimination and harassment. The Equal Employment Opportunity Commission enforces those rights.

Virginia’s employment law previously was designed for smaller companies who employed 6 to 14 workers. The law limited the right to sue and provided damage caps for employment discrimination.  However, the new law Virginia Values Act repealed the previous state law and created new and expanded private causes of action in state court for employment disputes.

The law established an unlimited private cause of action in Virginia courts against all businesses who employ more than 15 workers and who are alleged to have discriminated on the basis of “race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation.”

A private cause of action also exists for employees who work for a company of more than five employees who claim to have been wrongfully discharged in violation of one of the protections. In the case of discrimination for someone age 40 years and older, the law protects only those employees who work for a company that employs between six and 19 workers.

The law creates a new division of human rights within the Office of Attorney General that accepts and investigate complaints. The attorney general can bring a cause of action or issue a “right to sue” permitting individuals to bring private causes of action in state court.

Unlike in federal court where meritless claims are dismissed on summary judgment, that’s not the case in state courts where summary judgment is generally not a procedural option. Under the new law, cases are more likely to be tried by a jury in circuit court.

If the employer prevails, they are not entitled to attorney fees, but the prevailing employees are entitled to attorney fees. The law provides for punitive damages and compensatory damages with no cap, which differs from the same in federal court where caps exist depending on the company’s size.

With these legal risks, it has never been more critical for employers to get their house in order with effective policies to prevent harassment and discrimination and to train managers and employees (including using interactive live virtual training) on their obligations to treat others in a non-discriminatory manner.

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