Virginia to Become First Southern State to Ban LGBT Discrimination

RICHMOND, Va. (CN) – For members of the LGBTQ community who face discrimination in Virginia, state remedies are limited if not entirely nonexistent.

“You’re out of luck,” state Delegate Mark Levine, D-Alexandria, said in a phone interview. “They could discriminate all they want.”

But new legislation, set for a final vote in the Senate Thursday, is about to change all of that.

The Virginia Values Act adds sexual orientation and gender identity to the list of protected classes in the state’s public and private employment, housing and public accommodations laws. It also creates entirely new, state-level mechanisms to address these complaints.

“Private acts of discrimination can subordinate individuals and groups of people, impairing their dignity,” said J.H. Verkerke, the T. Munford Boyd professor of law at the University of Virginia, explaining the importance of civil rights laws established in the 1960s following centuries of racism and discrimination against a host of individuals. “If you have a society with a lot of discrimination, you create a caste system with some better off and some diminished and that’s not a good thing.”

But decades later, and as minority groups have gained power and influence, some individuals – most recently LGBTQ people – have been left out. Federal law, namely Title VII of the Civil Rights Act, creates federal protections, though adjustments have been made to address growing needs. Protections for people with disabilities, for example, weren’t added until 1990.

And while Congress has failed to add LGBTQ people to the list, the Civil Rights Act does allow states to expand who they protect and under what conditions.

With the passage of the Virginia Values Act, the state will become the 23rd to add sexual minorities – but will also do much more than that.

The bill creates a state-level cause of action for discrimination complaints for businesses with between six and 14 employees, as well as those with more than 15. Federal law only protects those who work for employers with more than 15 workers, so Virginians were left without recourse if they were mistreated. Now they’ll be able to choose either state or federal courts, and with state courts often working faster and easier to navigate, it should benefit employees who face discrimination.

Additionally, the bill expands the terms under which the claims can be filed. Currently being fired is covered at the state level, while federal law covers complaints ranging from failure to promote to workplace harassment and other levers, such as forcing a woman to pump breast milk in a bathroom.

After the passage of the Virginia Values Act, state remedies will include those available in federal claims.

“These kinds of accommodations are critical to people and their jobs and firing was a tiny component of discrimination claims,” said Levine, who helped author the House version of the bill. “It gives you that flexibility, based on speed of court and rules of evidence; you’ll hire a lawyer and the lawyer will decide the best route to go.”

Sarah Warbelow, legal director with the national LGBTQ advocacy group the Human Rights Campaign, advocated for adding LGBTQ people to the list of classes. Also glad to see the creation of state-level remedies, Warbelow said robust versions of such mechanisms are now lacking in only three other states – North Carolina, Georgia and Mississippi.

“It’s a big deal for Virginia, but not for the vast majority of the country,” she said, noting how far behind these four states are. And if you’re wondering why the states lacking this mechanism all lie in the south, Warbelow has a theory on that too.

“It's residual from racist laws,” she said.

Verkerke, who has been teaching employment law in Virginia since the early 1990s, noted the political ideology plays a role as well.

“If you were pro-business Republican and didn’t want your business constituents to have to deal with claims under multiple jurisdictions, you might oppose it,” he said, pointing to rules from the state Supreme Court and inaction from the long Republican-controlled General Assembly which have pushed workplace complaints toward federal courts.

But the new law has its detractors. The addition of LGBTQ protections has irked religious groups like the Richmond-based Family Foundation. Its president Victoria Cobb said in a statement that legislators were “poised to use the full force of government to compel Virginians to conform to a view of sexuality and gender, not just on people of faith working in our government, but on the entire private sector.”

While she’s correct about state employees, like teachers and other public-sector workers, as well as private businesses being covered under the law, it does carve out exceptions for places owned or operated by religious corporations, associations or societies and private clubs not open to the public.

Over on the financial side, Hans Bader with the right-leaning website CNSNews said passage of the law and its empowering of employees in fights against employers will devastate the state’s history as one of the best in the country for business.

He argued the state won the 2018 bid for a new Amazon office complex in the state’s northern region because of its otherwise laissez-faire business attitude.

“Maybe it did back then,” he wrote. “But if the [Virginia Values Act] is enacted, that will no longer be the case.”

But Verkerke thinks fears of negative economic impacts from the law are overblown.

“Many large and small employers now see anti-discrimination policies as a competitive advantage and they don’t want to locate in a jurisdiction that rejects their values,” he said. “They see the legal climate in a state as an important element of their recruitment strategy.”

Verkerke also pointed to the pushback North Carolina experienced after legislators passed a bathroom bill which targeted transgender people in 2016.

“Conflicts between major corporations and the North Carolina government show just how far out of date the conventional story about business location has become,” he said.

But even Levine, who submitted a more progressive version of bill but later had his version rolled in and tweaked with a bill from state Delegate Mark Sickles, D-Fairfax, to create a less progressive version of the law, said he’s not completely thrilled by the final version.

He hopes they’ll be able to offer more protections to Virginia’s workers, citizens and residents in future sessions.

“We’re going from 5 out of 100 people protected to 90 out of 100,” he said. “But I want 100 out of 100.”

While the state Senate version was already reconciled in the House and received its final vote during Wednesday’s session, the House version awaited a Senate committee vote Wednesday afternoon, but is expected to pass through on Thursday.

Gov. Ralph Northam, who campaigned on expanding workplace protections, is expected to sign the law when it arrives at his desk.

Follow @@BradKutner

Categories / Civil Rights, Employment, Government, Law, Regional

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Virginia to Become First Southern State to Ban LGBT Discrimination

Subscribe to Closing Arguments

Additional Reads