04/15/2020 by Vandeventer Black LLP
On April 11, 2020, Governor Northam signed into law the Virginia Values Act, which goes into effect on July 1, 2020. The Virginia Values Act provides comprehensive protection against discrimination for LGBTQ+ persons and other designated persons.
The Virginia Values Act amends both the Virginia Human Rights Act and the Virginia Fair Housing Act by expanding the list of protected classes under each respective law. The current laws prohibit discrimination based on race, color, national origin, sex, pregnancy, childbirth or other related conditions (including lactation), age (over 40), marital status, or disability. The Virginia Values Act adds the additional classes of sexual orientation, gender identity, or veteran status (collectively the “Protected Classes”). In the Virginia Values Act, “sexual orientation” is defined as a person’s actual or perceived heterosexuality, bisexuality, or homosexuality. Likewise, this new Act defines “gender identity” as appearance or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.
The terms of the Act will affect both state and private employers. It prohibits state agencies, institutions, boards, commissions, and councils from taking any adverse employment action against a member of one of the Protected Classes. The Act affects private employers by amending the Virginia Human Rights Act. Previously, the Virginia Human Rights Act only applied to employers with a minimum of 5 and a maximum of 15 employees. The Virginia Values Act amends that provision by defining “employer” as a business that employs more than 15 employees. If, however, the prohibited action is an unlawful discharge, then a business employing over 5 employees will be a covered employer (except for unlawful discharge for age, which has a minimum of 5 and a maximum of 20 employee requirement).
Further, the Virginia Values Act prohibits covered employers, employment agencies, and labor organizations from excluding a person or taking an adverse employment action against a person for being a part of a Protected Class. This applies both to current employees and applicants for employment. Additionally, the Virginia Values Act prohibits employers from using any of the Protected Classes as a motivating factor for an employment practice, even if other factors contribute or also apply to the motivation.
The Act, however, does not prohibit employers from making decisions based on sex, religion, or age if the decision is a bona fide occupational qualification reasonably necessary for the employer’s normal operations. Additionally, the Act does not prohibit an employer from making promotions based on a bona fide seniority system or requiring proof of citizenship for employment.
Along with those employment protections, the Act also protects persons in the Protected Classes from discrimination in places providing public accommodation. Once the law goes into effect, it shall be unlawful for any place or business offering or holding out to the general public to discriminate based on sexual orientation, gender identity, or any of the other Protected Classes. However, private clubs and places of accommodation owned by or operated on behalf of any religious corporation, association, or society are exempt from this provision.
The Virginia Values Act also includes housing protections for those in Protected Classes by amending the Virginia Fair Housing law to include sexual orientation and gender identity as Protected Classes against housing related discrimination. The new Act also changes terminology, changing as a Protected Class reference the term “handicap” to “disability.” With these changes, it will be unlawful to discriminate based on those additional Protected Classes when renting or selling property, including residential real estate transactions. Further, the Act voids any restrictive covenants in real estate agreements affecting any of the Protected Classes and prohibits any such covenant in the future.
Lastly, the Act provides significant monetary relief associated with the enforcement of its changes, including authorizing compensatory damages, punitive damages, attorney’s fees, and court costs to a person harmed in violation of the Act. These new laws are sweeping anti-discrimination protects placing Virginia in the forefront of LGBTQ protection, with comprehensive protections the violation of which can lead to severe and expensive consequences. The lawyers at Vandeventer Black LLP are available to assist regarding these new and any other anti-discrimination laws in Virginia. For additional information, please contact the authoring attorney.