A series of state laws were signed in April by Gov. Ralph Northam that will forever impact Virginia businesses, leaving many to question whether the state will now be a forum for extensive employment litigation.
One of these laws, known as the Virginia Values Act, which takes effect July 1, was touted by the governor as providing new and needed protections in employment for the LGBTQ community.
Most employers already had those protections in place through their policies protecting lesbian, gay, bisexual, transgender and questioning people from employment discrimination.
But Virginia businesses will be more impacted by the significant expansions and protections under the new law that will make Virginia state courts a hotbed for employment litigation.
All companies who employ more than 15 or more workers already are governed by a multitude of federal civil rights laws designed to ensure that employees enjoy a workplace free from discrimination and harassment. The Equal Employment Opportunity Commission enforces those rights.
Virginia’s employment law previously was designed for smaller companies who employed 6 to 14 workers. The law limited the right to sue and provided damage caps for employment discrimination.
However, the new law Virginia Values Act repealed the previous state law and created a new and expanded private causes of action in state court for employment disputes.
The law establishes an unlimited private cause of action in Virginia courts against all businesses who employ more than 15 workers and who are alleged to have discriminated on the basis of "race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation.”
A private cause of action also exists for employees who work for a company of more than five employees who claim to have been wrongfully discharged in violation of one of the protections.
For purpose of discrimination for someone age 40 years and older, the law protects only those employees who work for a company that employs between six and 19 workers.
While the Virginia Values Act legislation was being touted as protecting LGBTQ rights, many didn’t realize the far-reaching impact that the new provisions will have on Virginia employers.
Companies in Virginia will need to buckle up for an expensive ride of new litigation that is sure to come from the new law.
The law creates a new division of human rights within the Office of Attorney General who will accept and investigate complaints. The attorney general can bring a cause of action or issue a “right to sue” permitting individuals to bring private causes of action in state court.
Unlike in federal court where meritless claims are dismissed on summary judgment, that's not the case in state courts where summary judgment is generally not a procedural option. Under the new law, cases are more likely to be tried by a jury in circuit court.
If the employer prevails, it is not entitled to attorney fees, but the prevailing employees are entitled to attorney fees.
The law provides for punitive damages and compensatory damages with no cap, which differs from the same in federal court where caps exist depending on the company’s size.
With these legal risks looming, it has never been more critical for employers to get their house in order with effective policies to prevent harassment and discrimination and to train managers and employees (including using interactive live virtual training) on their obligations to treat others in a non-discriminatory manner.