What is the Virginia Human Rights Act?

The dynamic business world requires employers to adapt to legislative changes impacting operations, employee relations, and general business practices. A key piece of legislation affecting the business landscape in Virginia is the Virginia Human Rights Act. But what exactly is this Act?

The Virginia Human Rights Act, laid out in Chapter 39 of the Virginia Code, makes it unlawful for employers or labor organizations to discriminate against individuals based on various protected characteristics, including sex, age, and race.

Recent changes to the Virginia Human Rights Act (VHRA) expanded employer coverage. Today, the VHRA covers employers with 6 or more employees. If you have 5 or fewer employees, then you are not subject to the VHRA, but you may be subject to other laws, such as other local laws or regulations or federal laws.

The Lipp Law Firm, PC, sheds light on the changes to the VHRA and the consequences if an employee files a charge against their employer.

Who enforces the Virginia Human Rights Act?

The Office of Civil Rights, part of the Office of the Attorney General, is primarily responsible for enforcing the Virginia Human Rights Act (VHRA). They investigate complaints of alleged employment discrimination for employers covered by the VHRA.

The enforcement of the Virginia Human Rights Act is a systematic process designed to ensure the fair treatment of all Virginia employees working for Virginia employers covered by the VHRA:

• The first step is to file a complaint with the Office of Civil Rights of the Office of Law (OCR), Office of the Attorney General. This must be done within 180 days of recognizing the alleged discriminatory action.
• The Division then investigates the complaint. This is an impartial process to determine whether there has been a violation of the Act.
• If a violation is found, the Division will work toward a resolution, which may involve negotiation, mediation, or legal action.

By filing a complaint with OCR first, individuals preserve their right to take the issue to court if a satisfactory resolution is not achieved. This process ensures that all potential violations of the Virginia Human Rights Act are thoroughly examined and that the rights of all Virginians are upheld.

Bypassing state-level process

If an employee feels discriminated against, they can file a complaint with the OCR or, alternatively, with the federal Equal Employment Opportunity Commission (EEOC). For the EEOC process, the following procedures apply:

• If the individual decides to pursue the federal route, they must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
• The EEOC serves the charge on the employer, and the employer has the opportunity to respond to the charge in a position statement.
• If both parties agree, the EEOC can mediate the dispute.
• After the employer’s position statement has been filed, the employee has the opportunity to file a response.
• While these steps are ongoing, the EEOC conducts its investigation into the charge of discrimination. The EEOC has the power to speak with witnesses, conduct site visits, and request information from the parties.
• After 180 days, the employee can request a “Notice of Right to Sue” letter from the EEOC. This Notice of Right to Sue allows the employee to file a lawsuit against the employer within 90 days.
• Certain types of cases do not require a Notice of Right to Sue before going to court. These are age discrimination cases under the Age Discrimination in Employment Act (ADEA), and claims under the Equal Pay Act (EPA). ADEA lawsuits can be filed 60 days after the charge is filed with the EEOC, and EPA lawsuits can be filed without going through the EEOC process, provided that the lawsuit is filed within 2 years from the wrongful actions.
• In some egregious cases, the EEOC can file the lawsuit against the employer itself in Court, but this is very rare.

Experienced employment lawyers at The Lipp Law Firm, PC, can guide you through these processes and help you determine the best action based on your situation.

What are the protected categories in Virginia?

The VHRA includes several protected employment classes: color, race, sex, religion, national origin, pregnancy, childbirth, or related medical conditions, age (if the employee is 40 years or older), marital status, gender identity, sexual orientation, military status, and disability.

Aside from employment, these protected categories apply to other areas, including housing, public accommodations, and credit. Additionally, recent amendments to the VHRA have strengthened these protections, particularly for sexual orientation and gender identity.

Which Virginia employers are subject to the anti-discrimination laws?

The federal anti-discrimination laws apply to employers in Virginia with 15 or more employees. However, there are some exceptions:

• Age discrimination: The Age Discrimination in Employment Act (ADEA), which prohibits age discrimination, applies to employers with 20 or more employees.
• Citizenship status discrimination: The Immigration Reform and Control Act (IRCA), which prohibits discrimination based on citizenship status, applies to employers with four or more employees.
• Equal pay: The Equal Pay Act (EPA), which requires that men and women be given equal pay for equal work, applies to all employers, regardless of their size.

The Virginia Values Act, enacted in 2020, expands the protections of the VHRA. It generally applies to employers with 15 or more employees and prohibits discrimination in any aspect of employment.

But for termination claims based on other characteristics aside from age, the law applies to any employer with 6 or more employees, or one or more domestic workers. Finally, for termination claims on age, the statute covers employers with 6-19 employees.

What are reasonable accommodations under the Virginia Human Rights Act?

Under the Virginia Human Rights Act, a reasonable accommodation is a modification or adjustment to a job, work process, or work environment that allows a qualified individual with a disability, or an employee affected by pregnancy or childbirth, to perform essential job functions without creating undue hardship for the employer.

Delving deeper, “reasonable accommodations” might include:

• Altering work hours to facilitate medical appointments or treatment.
• Modifying equipment or providing assistive devices.
• Adapting workspaces to be more accessible.
• Restructuring job responsibilities or offering part-time work schedules.
• Granting leave during a period of disability or after childbirth.

However, an accommodation may not be considered reasonable if it imposes an “undue hardship” on the employer. This could be a significant difficulty or expense, considering factors like the employer’s size, financial resources, and the nature of the business.

Furthermore, an accommodation that the employee also uses outside of work, such as a personal assistive device, may not be the responsibility of the employer to provide.

It’s important to understand that determining a “reasonable accommodation” is often a case-by-case process involving a dialogue between the employer and employee to find an effective solution that respects the individual’s rights while maintaining business operations. Consult The Lipp Law Firm, PC legal team for the most accurate and updated information.

What are reasonable accommodations under VHRA for pregnancy?

Under the Virginia Human Rights Act (VHRA), reasonable accommodations for pregnancy can include flexible work hours, modified duties, additional breaks, and access to private non-bathroom spaces for expressing breast milk.

To further understand these accommodations:

• Modified work schedule: An employee may need to adjust their work hours or have more flexible scheduling to accommodate prenatal appointments or conditions like morning sickness.
• Light duty or job restructuring: If an employee’s job involves strenuous activity that could be harmful during pregnancy or postpartum recovery, the employer might need to reassign her to a lighter duty role or restructure her job duties.
• More frequent or longer break periods: Pregnant employees may require additional breaks for rest or to maintain proper hydration and nutrition.
• Provision of private non-bathroom space for expressing breast milk: Employers must provide a location other than a bathroom for lactating employees to express breast milk.
  Note: that this requirement is also in the Affordable Care Act (ACA), which applies to employers with 50+ employees.
• Temporary transfer to a less hazardous or less strenuous position: If the employee’s current job poses potential risks to her health or the health of her unborn child, a temporary transfer may be an appropriate accommodation.
• Leave: An employee may require time off due to a pregnancy-related condition, childbirth, or recovery.

Can I file workplace discrimination in Virginia directly with the courts?

Typically not. An employee alleging the employer’s failure to accommodate based on pregnancy, childbirth, or related medical conditions can go directly to a state court with jurisdiction. They must do this within 2 years of the alleged failure to accommodate.

For other types of claims under the VHRA, the typical process is to first file a complaint with the Office of Civil Rights (OCR), the Equal Employment Opportunity Commission, or a local human rights commission.

Certain counties or cities in Virginia have human rights or anti-discrimination ordinances that provide additional protections beyond those provided by state and federal law.

Fairfax County, for example, has its own Human Rights Ordinance that prohibits discrimination by employers with four or more employees. Individuals who believe they’ve experienced discrimination in Fairfax County can file a complaint with the Fairfax County Office of Human Rights and Equity Programs.

What damages are available for a successful discriminatory discharge claim under the VHRA?

Under the VHRA, if an employee successfully proves a claim of discriminatory discharge, they may be entitled to several types of damages, including back pay, front pay (the projected loss of future earnings resulting from the discriminatory act), attorneys’ fees and costs, compensatory damages, punitive damages, reinstatement, and equitable relief like temporary or permanent restraining orders.

Although the VHRA amendment doesn’t specify the cap on these damages, Virginia law caps punitive damages at $350,000.

Hire experienced attorneys – The Lipp Law Firm, PC

If you are a small or medium-sized business owner with Virginia employees, it’s important to know what laws you are subject to and how an experienced employment lawyer for employers can help you, especially before you decide to fire an employee that falls within a protected class.

To stay legally compliant and avoid court, contact Lipp Law at (703) 896-7704 to protect your small or medium-sized Virginia business.