Effective July 1, it will be illegal for Virginia employers to discriminate on the basis of sexual orientation, gender identity, and veteran status, making Virginia the first Southern state to enact anti-discrimination protections for LGBTQ+ workers. Morgan Lewis attorneys say the anticipated increase in state court litigation may be particularly impactful because of severe procedural limitations on Virginia’s summary-judgment process and predict other states may follow.

 

The Commonwealth of Virginia recently enacted an expansive overhaul of its anti-discrimination laws. This has rightly grabbed headlines for adding new protected classes to the existing prohibitions on employment discrimination, including for those in the LGBTQ+ community, but the changes also significantly expand the reach of the Virginia Human Rights Act by allowing most individual employees to file private discrimination lawsuits under Virginia law for the first time.

Virginia’s recent actions will have a major impact on the litigation of discrimination claims in the Commonwealth, and may preview a coming tide of similar legislation in other states.

The Virginia Human Rights Act

As currently enacted, the Virginia Human Rights Act (VHRA) prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, and disability. But the VHRA does not allow most employees to vindicate these rights in court.

Instead, the statute provides for a private right of action only against employers with between five and 15 employees, leaving most employees to pursue discrimination claims under federal law. Even for the limited group of employees who can file suit under the existing VHRA, the statute limits recovery to 12 months of back pay, plus attorneys’ fees capped at 25% of the back pay award.

When the VHRA’s amendments take effect on July 1, these parameters will shift substantially.

First, adding to the existing protected classes under the statute, it will now be illegal for Virginia employers to discriminate on the basis of sexual orientation, gender identity, and veteran status. This amendment, as widely reported, makes Virginia the first Southern state to enact anti-discrimination protections for LGBTQ workers.

Second, the VHRA now provides virtually all Virginia employees with a private right of action. More specifically, all employers with more than five employees will be susceptible to individual lawsuits for discriminatory discharge, and employers with more than 15 employees can be sued for other alleged acts of employment discrimination (short of discharge).

Third, the amended VHRA eliminates the prior caps on damages and recovery. Prevailing employees can now recover “compensatory and punitive damages,” plus “reasonable attorney fees and costs,” without any cap.

 

 

Source: BLOOMBERG LAW

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