Huge Day for Employee Rights in Virginia

By John C. Cook and Broderick C. Dunn

Saturday April 11 was a great day for employee rights in Virginia as Governor Northam signed the SB 868, the Virginia Values Act, into law.

The Virginia Values Act not only prohibits discrimination on the basis of sexual orientation and sexual identity in employment and public accommodations, it also creates a state court cause of action for discrimination on those bases along with the previously-identified prohibited characteristics of race, gender, national origin, age, religion, and disability. Such a state court action in some ways will mirror the current federal actions under the Civil Rights Act of 1964.

A complainant must first file an administrative charge with a new state agency and receive a right to sue letter before filing in court. Importantly, however, cases in court are not subject to a cap on damages, as is the case in federal claims. Bringing such cases in state court gives plaintiff employees the added benefit of avoiding the summary judgment proceedings that are so common in U.S. District Court, where many plaintiffs’ cases are lost. Prevailing plaintiffs in state court under the Virginia Values Act may also be awarded their attorneys fees.

In addition, the law covers some employers not currently covered by federal law. All employers with 15 or more employees are subject to the law. But wrongful discharge claims may be brought against employers with five or more employees. Age discrimination cases alleging wrongful discharge are limited to employers between 5 and 20 employees.

This ground-breaking law will significantly change the legal landscape in Virginia employment law. Look for a significant number of cases to be filed in state court. Also look for employers to settle significant numbers of cases, since they will no longer be able to rely on the employer-friendly summary judgment procedure that has stymied Virginia plaintiffs in federal court for decades. Also look for some interesting verdict amounts as the federal caps, in place since 1991, do not apply.

John C. Cook and Broderick C. Dunn are partners in the Fairfax firm of Cook Craig & Francuzenko, PLLC. Their practice includes the representation of executives, employees, and small businesses in employment law matters and civil litigation.

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