Becoming effective in July of 2020, the Virginia Human Rights act drastically changed employment law in Virginia. Prior to the law in 2020, the Human Rights Act contained a very limited private right of action against employment discrimination. The previous law allowed for an employer to bring a cause of action against an employer for unlawful discharge on the basis of race, color, religion, national origin, sex, pregnancy, or childbirth or related medical conditions. This law applied only to businesses with more than 5 but fewer than 15 employees. The law limited the employee’s recovery to one year of backpay plus interest plus attorney’s fees capped at 25% of the backpay award.

The 2020 legislative session brought about massive changes for the Human Rights Act. The revamped Human Rights Act became applicable to all employers with 15 or more employees. The Act also expanded the scope of prohibited actions, protected classes, and the remedies available to employees. The Act specifically prevents covered employers from the following acts:

• Failing or refusing to hire or otherwise discriminating against an employee or applicant;
• Limiting, segregating, or classifying applicants or employees that would deprive them of opportunities or otherwise adversely affect them;
• Use a protected class as a motivating factor in an employment practice, even if other factors also motivate the practice;
• Publishing advertisements that are discriminatory or that suggest a preference or limitation based on a protected class

Protected classes were expanded to include race, color, religion, national origin, sex, pregnancy, childbirth or other related medical conditions, including lactation, sexual orientation, gender identity, and veteran status. It is important to note that the protected class of race is expanded to include hairstyle, which means that an employer may not take an adverse action against an employee on the basis of their hairstyle if that hairstyle is a trait that is historically associate with race (braids, locks, twists, etc.). Remedies include unlimited compensatory damages, punitive damages (capped at $350,000), attorneys’ fees, costs, and injunctive relief.

As of July 1, 2021, the Virginia Human Rights Act was expanded yet again to provide additional protections to employees. Specifically, the Act now functions to prohibit discrimination on the basis of disabilities. Employers are now required to make reasonable accommodations to known physical and mental disabilities for an otherwise qualified person with a disability. Employers CANNOT take adverse actions against an employee who requests reasonable accommodations, nor can they deny an employment opportunity to employees because of their need for a reasonable accommodation.

What should employers do?

1. Update and revise your employee handbooks.
2. Distribute updated and revised information regarding these protections.
3. Train your managers and decision makers on the updated legislation.

If you have questions about this article, please contact Sean Mackin (smackin@setlifflaw.com) at 803-377-1268 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.