As of July 1, 2020, the Virginia Values Act (VVA) takes effect, but exactly how does this new law protect the LGBTQ+ community? The VVA is a law that expands the Virginia Human Rights Act of 1998 to cover sexual orientation and gender identity from discrimination in public and private employment, housing, credit, and public accommodations. Virginia became the first southern state to adopt and codify protections for sexual orientation and gender identity. Here’s what is does:
Employment:
The VVA prohibits discrimination based on sexual orientation and gender identity in employment, employment agencies, and labor unions but the prohibition is nuanced. An employer is defined as employing 15 or more people for each working calendar day in each of 20 or more calendar weeks in the previous or current year. If the discrimination is regarding discharge from employment, the employer is defined as one who has five (5) or more employees. Federal law and the 2020 Supreme Court case of Bostock v. Clayton, prohibiting discrimination based on sexual orientation and gender identity under sex-based discrimination, only applies to employers with more than 15 employees.
Employers cannot fail to or refuse to hire, fire, or otherwise discriminate against someone based on their sexual orientation or gender identity. They cannot limit or classify employees and applicants in any way that would deprive the employee or applicant of employment opportunities or adversely impact their status as an employee.
Employment agencies cannot fail to or refuse to refer a person for employment, otherwise discriminate against any individual based on their sexual orientation or gender identity. They also cannot classify or refer for employment based on sexual orientation or gender identity.
Labor unions cannot exclude or expel someone from membership or otherwise discriminate against someone for their sexual orientation or gender identity.
It is important to remember that the VVA applies to public and private employment but also carves out exemptions for religious institutions, associations, religious educational institutions, and religious societies.
Public Accommodations:
Public accommodation applies to all places or businesses are open to the public or offer to the general public goods, services, privileges, facilities, advantages, or accommodations. This means that it is illegal for any person, owner, lessee, proprietor, manager, superintendent, agent, or employee to refuse or deny or attempt to refuse or deny any of the services or privileges of public accommodation because of a person’s sexual orientation or gender identity. In other words, if a business or organization is open to the public, they are open to everyone and must not discriminate against someone based on sexual orientation or gender identity.
This relates to the Masterpiece Cakeshop case from the Supreme Court. In Masterpiece, the Colorado commission was not neutral in regard to its decision. The Supreme Court did not address whether a private business which is open to the public could discriminate against someone based on sexual orientation or gender identity. Now in Virginia, if you are a private business open to the public, you cannot refuse service or goods to someone based upon that individual’s sexual orientation or gender identity.
I suspect we will see religious business owners fight to be able to discriminate based on sexual orientation and gender identity, but right now the law is clear. No discrimination in public accommodations in Virginia.
These prohibitions do not apply to private clubs, a place owned or operated on the behalf of a religious corporation, association, or society that is not open to the public. It also does not apply to places, such as bars, that prohibit entrance to those under the age of 21.
Housing:
The VVA updates the Virginia Fair Housing Law by extending protections for sexual orientation and gender identity in housing. This includes rentals and sales, negotiations, terms, conditions, or the provisions of services or facilities. Restrictive covenants that purport to restrict occupancy or ownership based on sexual orientation or gender identity are also prohibited.
There are many exemptions from the Virginia Fair Housing Law. It does not apply to:
- Sales or rentals of single-family dwellings that are owned by an individual who does not own more than three single family homes at one time and the individual owner cannot use realtor services to rent or sell the dwelling.
- Rental or sales of rooms or dwelling units in dwelling where the owner maintains and occupies a living quarter.
- Rentals, occupancy, and sales by religious organizations, societies or associations.
Credit:
Lenders cannot discriminate against an individual in credit lending based on an applicant’s sexual orientation or gender identity. This applies to any aspect of a credit transaction.
The VVA is a groundbreaking piece of legislation that finally bestows protections on the LGBTQ community. There will be some pushback on public accommodations and employment by private employers but the law on its face is neutral and allows for exemptions of religious organizations, not privately held businesses owned by a religious person. I hope these protections are ultimately safeguarded by the legislature and courts.
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Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC and Board Member of HRBOR who specializes in estate planning and administration, business law, and contracts. Ms. Anderson represents clients throughout Hampton Roads and can be reached at Rachel@chesapeakelegalgroup.com or 757-410-7943.
