The amendments also provide many more employees a path to bring discrimination claims in Virginia state court (instead of federal court), where it is much more difficult for an employer to defeat a discrimination claim without going to trial.
Here is a list of the amendments you should be familiar with.
- Broader employer coverage.
Prior to the amendments, the VHRA covered only certain small employers not covered by the federal anti-discrimination laws.
As amended, the VHRA now covers all private employers with 15 or more This change effectively means that all violations of federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 now violate the VHRA, as well. Smaller employers with at least 6 employees remain covered for claims of discriminatory discharge.
- Expanded protected classes.
In addition to covering longstanding protected classes of race; color; religion; national origin; sex; and pregnancy, childbirth, or related medical conditions, the VHRA now covers sexual orientation, gender identity, and veteran status. In addition, race discrimination is now defined to include traits historically associated with race, including “hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”
- New claims procedure.
Similar to Title VII of the Civil Rights Act, before bringing a VHRA claim in court, employees must exhaust their administrative remedies by first filing an administrative charge either with the Virginia Division of Human Rights (VDHR), or the U.S. Equal Employment Opportunity Commission (EEOC), which is cross-filed with VHDR. VHDR or the EEOC will investigate and, at the conclusion of the investigation, typically will issue a “right to sue” letter, which will give the employee the right to bring a lawsuit in state court.
- Expanded remedies.
The VHRA previously authorized only limited back pay and attorneys’ fee awards to prevailing plaintiffs. The amended VHRA, however, authorizes unlimited compensatory damages, punitive damages, attorneys’ fees, costs, and injunctive relief. (Note, however, that Virginia has a separate statutory cap of $350,000 on punitive damages which likely still applies apply.)
- More claims could go to trial.
Because the VHRA previously applied only to smaller employers, employees of larger employers could bring discrimination claims only under the federal anti-discrimination laws. These claims were normally litigated in federal court, where employers often move for summary judgment in an effort to defeat the claims without going to trial. Now that the VHRA applies to larger employers, such employees may sue in state court (unless the employer has grounds to remove the claim to federal court). In Virginia courts, it is difficult to obtain summary judgment, because (unlike in federal court) the employer cannot use the employee’s deposition testimony against the employee on a motion for summary judgment. The upshot is that more discrimination claims in Virginia could now go to trial, which may substantially increase the cost and disruption of defending against the claims.
- Accommodations for pregnancy, childbirth, lactation.
Employers of 5 or more employees must provide reasonable accommodations (absent undue hardship) to applicants and employees due to pregnancy, childbirth, and related medical conditions, including lactation. The new law provides examples of accommodations that should be considered, such as more frequent or longer breaks. Employees who claim they were not accommodated or that they were discriminated against due to pregnancy, childbirth, or related medical conditions may sue in court without the normal requirement of administrative exhaustion.
Take note: Employers must post information regarding these rights in a conspicuous location in the workplace; include the information in employee handbooks; and provide the information to new employees, to an employee 10 days after she informs the employer she is pregnant, and to current employees by October 29, 2020.
For easy access, a copy of both the revised Virginia Human Rights Act and the new Pregnancy Accommodations required notices are included in the Virginia and Federal labor law poster, along with other recent updates based on new rulings for the state of Virginia, and can be purchased by simply going to https://www.compliancepostersofamerica.com.