Virginia Poised to be First in the South to Enact LGBTQ Protections

By:  Jayna Genti

While the Supreme Court is still considering whether Title VII of the 1964 Civil Rights Act applies to lesbian, gay, bisexual, and transgender employees across the nation, the Virginia legislature has moved forward to provide legal protections under state law for this group of Virginians.

By doing so, Virginia will become the first state in the South to enact comprehensive anti-discrimination legislation protecting LGBTQ individuals.  The Virginia Values Act would prohibit discrimination on the basis of sexual orientation and gender identity in housing, employment, credit transactions, and public accommodations.  The legislation also prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran – some of which already find protection under existing state law.

Who is Affected by the New Law?

The Act affects private employers with six or more employees.  All state and local government employees and school board employees also will be covered under the law.  In addition to prohibiting LGBTQ discrimination, the Act will allow individuals to pursue lawsuits over alleged discrimination.  Those entities “engaged in a pattern or practice of resistance” to the rights guaranteed by the new law also will be subject to suit by the Virginia attorney general’s office.

Importantly, the Virginia Values Act amends the state’s Human Rights Act to allow suits for unlawful discrimination in public accommodations, such as movie theaters, hotels and motels, and other commercial establishments open to the public.  Under current law, there is no cause of action for discrimination in public accommodations.

When the Law Will Take Effect

The Act has strong bipartisan support, and is expected to make it through both the House of Delegates and the Senate before the current regular legislative session adjourns on March 7, 2020.  Governor Ralph Northam has publicly supported the legislation: “It’s past time we protected LGBTQ Virginians from discrimination under the law. This bill will make us stronger and more inclusive of all — I’m proud to support it.”  Thus, Governor Northam is expected to sign the Virginia Values Act within a week after being presented to him.  The new law will take effect July 1, 2020.

Significance of the New Law

Advocates have praised the passage of what they called urgently needed landmark human rights legislation.  “It’s important to know that discrimination is still happening in Virginia. It is time to drive it out,” bill sponsor Senator Adam Ebbin said at a press conference.

Some of Virginia’s largest employers, including Capital One, Dominion Energy and Verizon, also have backed the legislation.  “Passing a comprehensive nondiscrimination law isn’t just the right thing to do – it’s crucial to the state economy,” those companies and more than two dozen others wrote in a letter to legislative leaders. “Because many LGBTQ and non-LGBTQ workers prefer to live and work in communities with nondiscrimination protections,” the companies said, “such a law will give Virginia’s employers tangible advantages in recruitment and retention.”

Opponents have raised concerns about the legislation’s potential impacts on religious freedom.  GOP Senator Jill Vogel, however, said she thought provisions of the Act sufficiently addressed concerns about religious liberty and that she was proud to vote for it.  “I can assure you that if we embrace equality and protect everybody equally under the law, we will be a better community,” Ms. Vogel said as she voiced her support on the floor of the Virginia Senate.

Steps for Compliance

At this point, there are two steps that you can take to be prepared for the new legal protections for LGBTQ employees.  First, review your non-discrimination policies to see whether they state that discrimination on the basis of a person’s LGBTQ status is strictly prohibited.  If you are a federal contractor, you already may have such a policy in place as part of your contract obligations.  If not, it probably is wise to consult with experienced employment counsel to assist you in drafting a policy that complies with the new Virginia law.

Second, conduct training sessions for your supervisors and managers to alert them to their legal obligations to ensure that no adverse action is taken against an employee on the basis of that individual’s LGBTQ status and that the work environment is free of jokes, comments, or other actions that could constitute harassment against LGBTQ workers.  Remember, come July 1st, harassment on the basis of LGBTQ status will be just as illegal under state law as sex or racial harassment.  To underscore the seriousness of the issue, you may want to have your employment attorney conduct the training with you.

It always is best to be prepared well ahead of time for any change in the law, and this especially is true when dealing with this fast evolving area of legal rights for LGBTQ individuals.