Commentary

Virginia’s Newest Discrimination Law and Employers

In February, Virginia became the first Southern state, and the 21st state overall, to pass a ban on LGBTQ discrimination.  Currently, this bill is on Governor Ralph Northram’s desk, awaiting signature.  The governor has expressed support for the law and is expected to sign it.  The LGBTQ protection bill is a sharp reversal from where the Commonwealth was in 2017.  That year, then-Delegate Bob Marshall introduced a bill that prohibited transgender people from using the restroom that most closely aligned with their gender identity.  He brought this bill despite the estimated $3.76 billion in revenue a similar bill cost neighboring North Carolina.

Ironically, it was Delegate Marshall’s defeat in 2017 to the first ever transgender state lawmaker in U.S. History, Danica Roem, that started a movement within Virginia making the LGBTQ protections bill possible.  In 2017, Roem, along with a number of other Democrats rode a blue wave that literally left control of the House of Delegates down to drawing a name out of a bowl.  Democrats built on these gains in 2019 to do something they had not done since 1994: take full control of the Commonwealth’s government.

The LGBTQ protections bill was one of the signature achievements of the 2020 legislative session.  It was backed by some of Virginia’s biggest employers: Capital One, Dominion Energy, and Verizon.  This new law makes it unlawful to discriminate against someone on the basis of sexual orientation or gender identity in the areas of housing, employment, public spaces, and credit transactions.

For employers of 15 or more employees, this means that they cannot refuse to hire, fire, refuse to promote, or demote someone because they identify as a member of the LGBTQ community.  It also means that an employer can be held liable for a hostile work environment based on an employee’s sexual orientation or gender identity.  Employees who identify as LGBTQ are also protected from retaliation.  This means an employer cannot take adverse employment action against an employee based on something like a complaint of sexual orientation or gender expression-based harassment.  Lastly, this law protects all employees from discrimination and adverse employment actions for seeking to uphold these protections.  For example, an employer may not fire a straight employee for reporting of retaliation against an LGBTQ employee.

In short, Virginia’s new LGBTQ protections should theoretically click right into place alongside protections previously afforded by state and federal law, such as race, gender, national origin, and religion.  At ThompsonMcMullan, however, we know that changes to discrimination laws necessitate a review of employment policies to ensure compliance.  We have assisted countless employers navigate the tricky field of discrimination policy and practice, and we would be happy to assist in reviewing and revising those policies to ensure full compliance.