On April 11, 2020, Virginia Governor Ralph Northam signed into law the Virginia Values Act. While the law has been heralded for making Virginia the first Southern state to enact comprehensive protections for LGBTQ persons, the law also amends the Virginia Human Rights Act (“VHRA”) to create a new private right of action for employment discrimination against employers of 15 or more employees (employers of more than five persons may be sued if the claim is discriminatory discharge). Perhaps most significantly, unlike federal law which places limits on how much an employee can recover in a discrimination suit, the new Virginia law does not limit the amount of compensatory and punitive damages that a court or jury may award.
The Virginia Human Rights Act, Va. Code. §§2.2-3900 et. seq., bars discrimination in private employment based on race, color, religion, sex, sexual orientation, gender identity, marital status, age, veteran status, national origin, or pregnancy (including childbirth and related medical conditions). In another amendment to the VHRA signed by Governor Northam on March 4, 2020, the phrases “because of race” or “on the basis of race” were defined to include discrimination because of “traits historically associated with race, including hair texture, hair type, and protective hair styles such as braids, locks and twists.”
Prior to filing suit under the VHRA, an employee must first file a charge of discrimination with the Division of Human Rights of the Department of Law. The Division will send a copy of the charge to the employer and then commence an investigation to determine if there is reasonable cause to believe that discrimination has occurred. If the Division finds reasonable cause, it will attempt to conciliate the matter. If conciliation fails, or if no reasonable cause is found, the employee will be given a “notice of his right to commence a civil action.” Additionally, an employee may request the notice of right to commence suit at any time after 180 days have passed since the complaint was filed. An employee may not file suit in court unless he or she has first obtained a notice of right to commence civil action.
Going forward, we should expect to see most discrimination claims in Virginia brought in state court instead of federal court. While the maximum recovery for punitive and compensatory damages under Title VII of the Civil Rights Act is limited to $300,000, the only cap on damages under the Virginia Human Rights Act is the $350,000 ceiling on punitive damages imposed by Virginia Code §8.01-38.1. Therefore, an employee who brings a claim of discrimination under Title VII instead of the Virginia Human Rights Act would be forgoing a chance to recover substantially greater damages under the state law.
The new state law cause of action for discrimination will also present challenges to employers because of the difficulty in obtaining summary judgment in state court. Va. Code §8.01-420 prohibits the use of discovery depositions in support of a motion for summary judgment without the agreement of the parties (except in cases where all parties are business entities and the amount in controversy is $50,000 or more). As a result, it will be very difficult to get a Virginia state court to dismiss a discrimination claim prior to trial.
The enactment of the Virginia Values Act marks the dawning of a new era for employment attorneys, employers and employees in the Commonwealth. While Virginia has long been viewed as the most “employer-friendly” jurisdiction in the mid-Atlantic from an employment law perspective, it now offers employees some of the most robust remedies for discrimination in the nation.
The new law takes effect on July 1, 2020.