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New Protections against Workplace Discrimination Based on Sexual Orientation, Gender Identity, and Pregnancy Now in Effect in Virginia

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R. Douglas Taylor, Jr.
July 21, 2020

In April 2020, Virginia Governor Ralph Northam signed into law nearly two dozen bills passed by the Virginia General Assembly that provide significant new rights for Virginia employees, including legislation that expanded the scope of the ban on workplace discrimination, as discussed below, which became effective on July 1, 2020. 

We have published additional updates on other new Virginia employment laws that combat wage theft, prohibit non-compete covenants for low-wage workers, and provide enhanced employee whistleblower protections against retaliation for reporting suspected violations of state law or cooperating with law enforcement. You can find those updates here.

We have also published summaries of the other new Virginia employment laws, which essentially redefine the workplace for both Virginia employers and employees.  You can find those updates here.

With the signing of House Bill 1049 and Senate Bill 868, -- known together as the Virginia Values Act --  Virginia became the first Southern state to provide legal protections for lesbian, gay, bisexual and transgender workers. The new law significantly expands the protections against employment discrimination that were already in place for workers under the Virginia Human Rights Act, Va. Code § 2.2-3900 (VHRA), to include “sexual orientation” and “gender identity.” The VHRA already prohibited employment discrimination “on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability . . .”

Under a separate bill signed into law by Governor Northam last month, "[g]ender identity" means the “gender-related identity, appearance, or other gender-related characteristics of an individual, without regard to the individual's designated sex at birth.” "Sexual orientation" was defined as “a person's actual or perceived heterosexuality, bisexuality, or homosexuality.” 

Importantly, the Virginia Values Act includes some technical amendments to existing Virginia law that, even if not directly related to the bill’s primary purpose of expanding workplace discrimination protections, dramatically expand the private right of action available to employees claiming such discrimination. Until now, the VHRA had been applicable only to employers with at least 5, but fewer than 15, employees (for age discrimination only, up to 20 employees). At the 15-employee level, federal antidiscrimination laws, including Title VII of the Civil Rights Act of 1964, become applicable. Now the VHRA’s coverage is expanded to prohibit employers with 15 or more employees from unlawful employment practices on the basis identified in the previous paragraph. The new law does not expand coverage age discrimination, which is still limited to employers with fewer than 20 employees. 

An expected consequence for Virginia employers of the expanded applicability of employment discrimination restrictions to include all employers with more than 5 employees, will be an increase in the number of discrimination lawsuits filed against them in Virginia state courts. There, cases are more likely to go to a jury because of procedural rules that limit the ability of courts to dismiss cases on summary judgment. Potential damages are extensive under the VHRA, including compensatory damages, which, unlike federal law, are uncapped, punitive damages of up to $350,000, and other potential damages for back pay, front pay, and for emotional distress.

In addition to the expansive protections above, House Bill 827 and Senate Bill 712, further amended the VHRA to provide workers with protections from discrimination in employment on the basis of pregnancy, childbirth or related medical conditions, and lactation. The new law further requires employers to provide reasonable accommodations for pregnancy and childbirth and creates a private right of action for employees to claim workplace pregnancy discrimination.

Finally, note that employers are required to post in a conspicuous location, and include in any employee handbook, information concerning the prohibition on discrimination based on pregnancy, child birth, or related medical conditions, and the employee’s rights to reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions. Employers also must provide this information to new employees upon commencement of their employment, and within ten days to any employee who provides notice that she is pregnant.

Additional Questions About the New Laws

We will be providing additional updates regarding the new Virginia employment laws.  If you have questions about, or need assistance with, the new laws, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.