Virginia Values Act: What Not To Do for Virginia Employers

On July 1, 2020, the Virginia Values Act became effective across the Commonwealth and employee-employer relations in the Old Dominion will likely never be the same. We have produced two videos that summarize the provisions, here and here. 

This blog is more granular.  If you’re an employer in Virginia, this is your new list of prohibited acts. 

First, some background… Overall, the Act dramatically alters Virginia law. It prohibits discrimination by businesses that accommodate the general public.   It significantly increases the consequences of misclassifying employees as independent contractors and it affects government programs, labor unions, and employment agencies. Today’s blog, however, focuses on the section of the Act that changes the balance of power between private sector employees and employers.  

          

If Your Business Has More Than Five Employees, Keep Reading. The Virginia Values Act Applies.

The Act creates a new division in the Office of the Attorney General (OAG) whose mission is enforcing the Act and hearing grievances filed by employees.   

A grievance qualifies for a hearing if the employer violated the Virginia Values Act in any of these scenarios: 

1. Formal disciplinary actions (suspensions, demotions, transfers and assignments, and firing).

2. The application of written personnel policies, procedures, rules and regulations, if the employee can show that the employer misapplied or unfairly applied company policy. 

3. Discrimination on the basis of race, color, religion, political affiliation, age, disability, national origin, sex, pregnancy, childbirth or related medical conditions, marital status, sexual orientation, gender identity, or veteran status.  For easy shorthand, we’ll call these categories “Protected Groups.” 

4. Arbitrary or capricious performance evaluations.

5. Retaliation because an employee:

• • Used or participated in the grievance procedure.  Note: this limitation also protects applicants for employment
  • Complied with any law of the United States or of the Commonwealth
  • Reported any violation of such law to a governmental authority
  • Sought any change in law before the Congress of the United States or the General Assembly
  • Reported an incidence of fraud, abuse, or gross mismanagement
  • Exercised any right otherwise protected by law.

If denied a grievance hearing, the employee or applicant may appeal the denial. 

Number 3 is a doozy.  Let’s break it down.  First, some definitions:   

• Discrimination “because of sex or gender” or “on the basis of sex or gender” includes discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions (including lactation).  Employers must treat women affected by pregnancy, childbirth, or related medical conditions the same as employees not affected but similar in their abilities or disabilities.
• “Gender identity” means the gender-related identity, appearance, or other gender-related characteristics of an individual, regardless of that person’s sex at birth.
• “Sexual orientation” covers a person’s actual heterosexuality, bisexuality, or homosexuality and also how other people perceive that person’s orientation.
• The ban on “Age” discrimination applies to discrimination because someone is 40 or older.

The Following Acts By Employers Are Illegal

If you have fifteen or more employees and you: 

• Fail or refuse to hire someone because that person is in a Protected Group.  
• Discriminate against an employee in compensation, terms, conditions, or privileges of employment because that person is in a Protected Group. Note: So long as differences among employees don’t arise from an intention to discriminate based on an employee’s membership in a Protected Group, you can discriminate based on:  
  • A bona fide seniority or merit system. 
  • A system that aligns earnings to quantity or quality of production. 
  • Work performed in different locations.  
• Limit, segregate, or classify employees or applicants in any way that would:  
  • Tend to deprive an individual of employment opportunities because that person is in a Protected Group or 
  • Otherwise adversely affect a person’s status as an employee because that person is in a Protected Group. 
• Discriminate against an individual from a Protected Group in any apprenticeship or training program. 
• Adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests based on Protected Group categories. 
• Use any of the Protected Group categories as a motivating factor for any employment practice, even if other factors also motivate your decision. (Holy smokes, really?!  How will this roll out in litigation?)

If you have more than five employees and you fire an employee because that person is in a Protected Group.

If you have 20 or more employees and you fire an employee because of age. 

If you control an apprenticeship or training program and you publish a notice or ad about employment in or admission to the apprenticeship or training that indicates any preference, limitation, specification or discrimination based on an applicant’s membership in a Protected Group UNLESS an individual’s religion, sex, age, or national origin is a bona fide occupational qualification for employment or admission to the apprenticeship/ training program.   

Seven Exceptions To The Virginia Values Act

1. Employers may hire an employee or admit an individual to an apprenticeship/ training program on the basis of that person’s religion, sex, or age if those qualities are a bona fide occupational qualification reasonably necessary to the employer’s normal operations.   

2. Schools and colleges may discriminate on the basis of religion if a particular religion is:  

• • At least a substantial part of the employer’s ownership, support, control, or management; or 
  • The school’s curriculum is directed toward the promotion of a particular religion. 

3. Religious corporations, associations, or societies are exempt from the Act. 

4. Employers can use professionally developed ability tests so long as the test, its administration, and any action based on the test results is not designed, intended, or used to discriminate based on membership in a Protected Group. 

5.Employers can provide reasonable accommodations for pregnancy, childbirth, or related medical conditions (including lactation) if the employee asks for accommodations. 

6. Conditioning employment on citizenship if the employer is required to do so because of national security or any security program based on federal law or a president’s executive order. 

7. Employers are not required to give preferential treatment to employees, apprentices, or trainees who are members of a Protected Group because the employer has an existing imbalance, among all its employees, with respect to the total number or percent of people from a Protected Group in comparison to the total number or percent of such Protected Group individuals in any community. 

While Virginia’s Office of the Attorney General has jurisdiction to enforce the Virginia Values Act and levy fines against employers who violate it, applicants or employees may also file suit in Virginia courts.  This is a significant change.  Before the Act, plaintiffs pursuing employment claims in Virginia were usually limited to defendant-friendly federal courts.  No longer.  Virginia courts have jurisdiction over these claims and can award compensatory and punitive damages, and attorneys’ fees and costs.  

Given the broad wording of the Act and the new ability to pursue claims in plaintiff-friendly state courts, we expect to see more employment law litigation in Virginia. 

Employers in Virginia need to be sure their practices are buttoned up and in compliance with the new law.  You need to understand the Act and adapt your practices accordingly – including training your lower-level supervisors and front-line people on its mandates.  It is not unusual for a mid- or low-level manager to create liability for a company because the manager’s behavior didn’t comply with law. 

Contact Dunlap Law

If you need help understanding these new laws and complying with the Virginia Values Act, then please get in touch.

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