By: Mengxin Cui

Summary

The Virginia Human Rights Act (Title 2.2, Chapter 39 of the Virginia Code) protects employees against employment-based discrimination on the basis of certain characteristics, such as race, national origin, and pregnancy. This article examines the applicability of the Act for employers and provides an outline to avoid liability.

Scope of the Virginia Human Rights Act

The Virginia Human Rights Act protects employees from discrimination based on their race, color, religion, national origin, sex, pregnancy, age, marital status, disability, or childbirth and related conditions like lactation. Unlawful discrimination occurs under the Virginia Human Rights Act when an employer does not hire or promote an employee or makes a meaningful change in the terms and conditions of their employment, and this decision is based on a characteristic that is protected by the Act.

The Act only applies to certain employers. Specifically, if you are an employer who has between six and 14 employees, you cannot discharge any employee based on any of the above factors, although age-based discrimination applies to slightly larger companies too. Employers with six to 20 employees cannot discharge employees because of age if the employee is 40 years of age or older.

Virginia companies with 15 or more employees must comply with federal employment discrimination laws, and they are not bound by the Virginia Human Rights Act.

legal Actions Brought By Employees

Employees may bring a legal action within 300 days from the date of the discriminatory event in a general district or local circuit court with jurisdiction.

Otherwise, an employee can first file a complaint with the Division of Human Rights of the Department of Law or a similar agency or commission within 300 days of the event. If they receive a court decision, they have 90 days from the date of that decision to file a claim with their local general district or circuit court.

Extent of Employer Liability

The court may award up to 12 months' back pay with interest (at the judgment rate in § 6.2-302). However, if the court finds that either party engaged in tactics to delay the complaint’s resolution, it may either (i) reduce the amount of the award or (ii) grant back pay though the date of judgment, with no 12-month limitation.

Tips for Employers to Avoid Liability for Discrimination

1. Employee Policies: Ensure that your employee policies are updated to reflect current regulations and rules. Make a conscious and consistent effort to enforce your policies and spread awareness about discrimination amongst employees.
2. Training: Train your new and longer-term employees regularly. Help them understand the company’s policies and acceptable standards of conduct.
3. Investigation: If any complaints are filed, conduct a prompt, thorough, and impartial investigation. Consider hiring a third-party investigator for an external review of the situation. Take prompt and appropriate corrective action when a violation occurs.
4. Confidentiality: Inform the complainant that the situation will be handled with utmost confidentiality to the extent possible.

Stay Updated

For more information on employer liability for discrimination, to subscribe to our newsletter, and/or to schedule a consultation with our team, please email us at info@chugh.com. We encourage you to forward our alerts to your contacts who might benefit from them.