The 2020 Virginia General Assembly session ushered in a new era for labor and employment law in the Commonwealth.
On April 11, 2020, Governor Northam signed the Virginia Values Act (S.B. 868) into law, creating protections for LGBT residents in public accommodations, housing, credit applications, and employment by expanding the Virginia Human Rights Act (VHRA). This historic passage makes Virginia the first state in the South to enact such protections.
New Workplace LGBT Protections
The VHRA prohibits discrimination against certain classes of employees for employers with more than five but fewer than 15 employees. The Virginia Values Act expands the list of those protected classes to include sexual orientation and gender identity. The new law also changes how cases against employers may be brought.
Governor Northam signed this law alongside one that allows localities to enact their own ordinances relating to gender identity and sexual orientation discrimination. He also repealed the state law contradicting the 2015 Supreme Court ruling legalizing same-sex marriages and civil unions.
Important: Increased Litigation Risks and Costs
Adding new protected classes provides more opportunities for employees to sue employers for discrimination, but this is not the only litigation concern for employers.
The chart below compares the new law’s changes to the previous law.
|Old Law||New Law|
|When Plaintiff Can File Suit||After being terminated||Prior to Termination|
|Cap on Damages||12 months of back pay and
25% attorney’s fees
Notably, the new law allows plaintiffs to file suit while they are still employed and it removes the cap on damages a plaintiff can recover, which are significant changes. However, prior to filing suit in a Virginia state court, an aggrieved individual must file a complaint with the Division of Human Rights of the Department of Law, participate in an administrative process, and receive a notice of his right to commence a civil action.
Currently, most employment discrimination claims head straight to federal court. Since the VHRA is a state law, state courts will begin hearing more workplace discrimination suits. Obtaining summary judgment in Virginia state courts is notoriously difficult, which will undoubtedly increase the litigation costs associated with defending discrimination suits.
This law becomes effective on July 1, 2020.
If your employee handbooks do not already include sexual orientation and gender identity as protected classes, edit them to reflect this change. We also recommend training your workforce on harassment, diversity, inclusion, and implicit bias.
Contact the Labor & Employment team with any questions you may have about training or updating your policies to comply with this new law.