Virginia ( VA ) Employment Discrimination Law in the Workplace

August 25th, 2006 Posted by Karen

As I trudge through the various states’ employment discrimination laws in the workplace, I have found a wide variety of laws. Some states broaden the scope of federal statutes enough that it boggles the mind while others give employees no more protection than that of the federal employment discrimination in the workplace. Virginia falls in between the two extremes.

Virginia’s employment discrimination laws in the workplace make it illegal to discriminate on the basis of age, ancestry, association with disabled individuals, childbirth or related medical conditions, color, disability (physical or mental), marital status, national origin, pregnancy, race, religion, or sex.

Smaller businesses are also held accountable under Virginia’s employment discrimination laws in the workplace. This includes businesses with six or more employees.

Claims in Virginia can be filed with one of two agencies: the state agency, the Virginia Council on Human Rights (VCHR), or the federal agency, the Equal Employment Opportunity Commission (EEOC). These agencies will work together to resolve you claim as long as you file in one agency and request that your claim be cross-filed with the other. The VCHR can be contacted at (804) 225-2292 and the EEOC can be contacted at one of three offices:

  • Norfolk
    Phone: 757-441-3470
    TTY: 757-441-3578
  • Richmond
    Phone: 804-278-4651
    TTY: 804-278-4654
  • Washington D.C.
    Phone: 202-275-7377
    TTY: 202-275-7518

Claims through the VCHR must be filed within 180 days of the date of the discriminatory act while you have 300 days of this act to file with the EEOC. Because of the difference in deadlines it is best to first file through the VCHR and then have them cross-file your claim with the EEOC. File early to avoid delays due to legalities in the filing process as these delays can push your past the deadline. Retaining an attorney is a big help, but is not required.

If your claim is not resolved by these agencies, you may need to pursue it in court. In both state and federal cases, you must first file with the appropriate agency and receive a release from that agency. The EEOC will release your claim by giving you one of two documents: “Dismissal and Notice of Rights,” or “Right to Sue.” A claim filed in federal court must be filed within 90 days of receiving either of the above documents. Lawsuits filed in Virginia’s state court system have a 180 day time limit from the date that the discriminatory act occurred.

None of Virginia’s employment discrimination in the workplace laws really stand out when compared to those of other states, but this state still provides a wider range of coverage than the federal government does. That, combined with the state-supported agency to investigate and resolve claims gives acceptable protection for employees.

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Posted in Discrimination, Employment Laws, Hostile Environment, Virginia

  1. Posted by: vanessa mcclanhan

    I found out 2-3 months ago that I’m a diabetic and I was working and had misssed alot of work. My store manager told me she was going to give me 3 options. She said I could either quit work or she was going to fire me or I could get over my diabetes. She said everyone had diabetes. Is there anything i can do about this? M

  2. Posted by: Amelia

    Hi Vanessa! This store manager sounds like an idiot. While millions of Americans have diabetes, obviously not everyone does.

    Usually after an employee is diagnosed as diabetic, there is a period of adjustment while they learn to control their blood sugar. We are going to assume that you have missed work due to those issues, or to doctor’s appointments. Ideally, you would have addressed the issue at the time, rather than just calling in sick until the manager was ready to fire you.

    Under FMLA, the Family and Medical Leave Act, employees qualify for up to 12 weeks of unpaid leave or a serious health condition. Uncontrolled diabetes may well qualify. An employee on FMLA cannot be fired for taking the time off, even if she is absent sporadically. The employee’s doctor must complete papers certifying that she has a serious health condition. Ideally, this would have been done within 2 days of your previous absences. But you can request FMLA now, to cover any future absences. FMLA applies only to employers with 50 workers within 75 miles.

    You may be entitled to a reasonable accommodation under ADA, the Americans with Disabilities Act, depending upon your physical limitations due to diabetes. This is handled by the EEOC at http://www.eeoc.gov.

    Under ADA, it is also illegal for an employer to discriminate against a worker who has a disability, or is perceived as having a disability. The employer’s statement, that you need to “get over” diabetes in order to remain employed, certainly suggests that she is engaging in that type of discrimination. Again, the EEOC handles this type of complaint.

    For a more complete answer, post your question on our sister site at http://www.laborlawtalk.com. HTH, and thanks for reading the blogs!~ Amelia

  3. Posted by: jason

    what if an employee cant speak english and cant perform task as needed.employees is causing issues with others,is this something related and can this employee be evaluated ?

  4. Posted by: Amelia

    Hi Jason! This may be a case of discrimination — against the Spanish-speaking employee. An employee who is otherwise doing a good job cannot be terminated simply because he or she speaks poor English, in most cases. Millions of employees nationwide speak little or no English, and their employers manage to communicate with them anyway. (The U.S. has no official language, so the Spanish-speaking employee is just as “right” as the English-speaking one.) If the Spanish-speaking employee is not performing his or her tasks as needed (even if it is because they don’t understand what they are being asked to do) that is a different issue. Every employee can and should be evaluated on a regular basis. “Evaluated” simply means having the employees performance measured, formally or informally. If the employee’s performance does not measure up, he or she should be disciplined.
    If the other employees are giving this worker a hard time because of the language difference, that is probably illegal discrimination and the employer must stop it. However, if problems are arising because the Spanish-speaking worker is not performing required tasks, that is a performance issue and the employer should address it. HTH, and thanks for reading the blogs!~ Amelia

  5. Posted by: amy

    I have worked for a particular community’s security company for over 4 years.. this past May the companies changed but i was able to keep my job. Since may 1 i have been “boat patrol” and well the first female that the community has ever seen on the boat. all of a sudden today July 1 the association does not want me on the boat because i am not “physically fit” but i do my job very well…. infact i have written more tickets since may 1 than the any of the guys have written for the whole summer in previous years….. what can i do?

  6. Posted by: Amelia

    Hi amy! This sure sounds like employment discrimination based on sex to us! You should file complaints with the Virginia Human Rights Council at http://www.chr.virginia.gov/ and the federal EEOC at http://www.eeoc.gov. Do it ASAP. They will investigate the complaints (free) and if they find cause, they will fill a discrimination suit on your behalf — also free. Our best guess is that it will never come to that. As soon as the association learns of the investigation, you will be back on the boat. HTH, and thanks for reading the blogs!~ Amelia

  7. Posted by: Jeff Schrembs,

    Great articles!
    Thanks for the info and keep up the good work

  8. Posted by: Amelia

    Thanks Jeff!~ Amelia

  9. Posted by: Chris

    I work for a local gov. and in January I was placed in a different position because of a standard that our office adopted in 1998. The problem is I am the only person that they have used this standard on. I greaved the action and in May the city upheld the action. We have counted a dozen or more people that this standard should have been used on, but never was. Do I have any action in this case??

  10. Posted by: Amelia

    Hi Chris! That depends. If you were singled out under this policy due to your race, color, national ancestry, religion, sex, pregnancy, age (between 40 and 70) or disabiity, then the employer may be guilty of illegal discrimination. You should contact the state department of Labor or the EEOC. However, if the employer is targeting you for some other reason (like job performance) then this is not illegal discrimination. HTH, and thanks for reading the blogs!~ Amelia

  11. Posted by: mike galasso

    hi my name is mike and i am in a case were i had a accident were something got in my eye at work and i was taken to the doctor and did not have id worked with that problem then at this time i have to be somewhere so i tell them i have to go can we do this another time so we leave then they take me to head office for drug test at this time i am late for my thing so i try to take test cant try more then they say they are going to call me a cab for a ride home so i try to take test till the cab arrives cant so leave willing to solve problem next day now no job do i have any kinda case were i can try to get my job back also more to this long story please help thank you

    mike g

  12. Posted by: Amelia

    Hi Mike! Do you have any case for what??
    We don’t know what you “had to do” that day, but if you have a workplace injury, you’re going to have to cancel your other plans…just like if you had a heart attack or were seriously injured in a car wreck, you would have to cancel your other plans. If you were supposed to go to a wedding, you would have to cancel it (or be late) even if it was your own wedding.
    Employers have the right to require that an injured employee take a drug test. Drug or alcohol use is a factor in most workplace injuries and deaths, according to OSHA. The fact that you left without taking the drug test would cause most employers to conclude that you were high when the accident occurred. Taking the drug test the next day — after you sobered up — is not the same thing.
    In most states the employer has the right to fire an employee who refuses a drug test after a workplace accident. This is discrimination, but it is perfectly legal to discriminate against employees who use drugs or alcohol at work. If you have additional questions or details feel free to post them. Sorry we cannot be more helpful, and thanks for reading the blogs!~ Amelia

  13. Posted by: Britten

    I just went on a job interview at a car dealership today. The “interview” lasted maybe 5-10 minutes, and began with the gentleman interviewing me asking whether I had children. When I said no, he said that was good because mothers with children generally don’t last in car sales. He then went on to say that my posture was wrong, that I would need to be much more aggressive (though he knew literally nothing about me and was reading my application as he spoke), that I would need to make sure my wardrobe was professional and correct, that high heels would not cut it (I was wearing very sensible flat shoes, and I informed him that, having been a waitress for two years, I knew how important shoes were), and that I would be competing with a lot of men who could get to customers faster than I could.
    Needless to say, I was insulted, but I tried not to show it. I assured him that I was interested in the job, and felt myself equal to the task of learning all I would need to learn. He told me he would get a couple of the other guys to come and talk to me, and then they would let me know.
    I waited for at least 25 minutes, and finally asked the receptionist what was going on. She checked, and another man came over and handed me the business card of my original contact for the job (whom I had been expecting to meet today). He said that they had reviewed my application, to call my contact tomorrow, and that was it.
    What should I do?

  14. Posted by: Amelia

    Hi Britten! Um…call the contact tomorrow? If you want the job.
    The question about having children is unlawful sex discrimination, and you should file a complaint with the EEOC at http://www.eeoc.gov. If the employer is doing this to you, they are no doubt doing it to many other women as well. (Last year, a major chain of auto dealerships in Texas paid several million dollars for sex discrimination in hiring.)
    As far as being told someone else would speak with you, and then that person not showing up…that’s probably par for the course. It may have been a miscommunication between the two hiring managers, or the second manager may have been unimpressed with your resume. Either way, your best bet is to follow directions and call tomorrow.
    We know that jobs are hard to find right now, but this sounds like a really, really sexist place to work. HTH, and thanks for reading the blogs!~ Amelia

  15. Posted by: Tammy

    I approached my employer a few months ago and informed them of my disability, which is I am an addict in recovery and my doctor recommended that I not work graveyard shift as it could hinder my recovery. I also requested to have Thursday evenings off so that I could attend relapse prevention meetings. I was denied my doctors request not to work graveyards, and have since been harrassed by both the manager and assistant manager. I have been targeted and closely watched. The assistant manager has cussed at me and the manager has looked for any reason to write me up. Today I was suspended for something everyone does. The District Manager would not let me explain myself and told me to sit there, shut up and listen then, I could go. I was also told that my crediblity was not very good. And I would be suspended, possibly terminated, pending an investigation.

  16. Posted by: Amelia

    Hi Tammy! The conduct you describe may very well be illegal discrimination against an employee with a disability, if the manager and assistant manager do not treat other employees this way. Drug addiction is a disability under ADA, the Americans with Disabilities Act, and the employer must grant reasonable accommodations to an employee who is able to complete the primary duties of his or her job, with those accommodations. However, the ADA doesn’t cover you if you are using drugs at work, or currently using illegal drugs. (We will assume that you are not.)

    Taking Thursdays off for treatment would be a reasonable accommodation under ADA. Working a different shift might be a reasonable accommodation, depending upon the job.

    It sounds like the employer is using the information about your disability to illegally discriminate against you. You should file a complaint of employment discrimination with the EEOC at http://www.eeoc.gov. They will investigate the complaint and if they find it is supported by evidence, they will sue the company for you. (Usually, it never comes to that — the company corrects the problem on their own.)

    If the employer has an HR department or corporate office, you may want to tactfully (!) let them know that you have spoken with the EEOC. Many times, store managers and even District Managers are not aware that recovering drug users are disabled under the ADA. Once you disclose private medical information related to ADA to an employer, they cannot use that information in employment decisions.

    We will say that the District Manager is probably right. Once the employer has decided to write you up, there is little benefit in arguing. This is not a joint decision. The employer writes you up, and you listen.

    However, if this write-up was for an action that many employees take, then you have a strong case. Contact the EEOC as soon as possible and follow their advice.

    But here’s a final piece of advice: in your situation, it is not wise to volunteer too much information. If you can, avoid telling the employer that you are a former drug user — simply tell them you have a disability that requires treatment. If your company has an HR department, have discussions with them, not your immediate supervisor. By law, the HR person cannot share this information with your supervisor or District Manager. Given the social stigma attached to drug use, that is probably the wisest course of action. Kudos to you for getting sober, and feel free to post any additional questions you might have!~ Amelia

  17. Posted by: Melinda

    My manager and I were friends before I started to work for the company. We had a falling out, outside of work, and now she is making my life a living hell at work. I was out sick with the swine flu last week and her son is in my son’s class. I asked her repeatedly, after talking to my doctor, to come back to work. She stated that the doctors note stated I was excused thru Friday so I wasn’t allowed to come back to work till Saturday. I talked with my doctor on Wednesday and he stated that I hadn’t had a fever since the Saturday before so I could go back if I felt better. I did feel fine so I talked to my boss and she still said no. I then went on a field trip with my son on Thursday and you can guess that she found out because our son’s are in the same class. She went to the teacher and told her that I had swine flu all week and went off on her. Now my question is, she never would of known that I had swine flu if I didn’t work for her and she wasn’t my boss. Is she allowed to state facts that she knows based on my employment? She never should of done this. I had already written a note to the teacher stating I had the flu and I also called and notified the school. This was not her right to say. Please advise

  18. Posted by: Amelia

    Hi Melinda! Yup, you’re right, this is a mess. This is one reason we never suggest blending personal and professional relationships — when one falls apart, they all fall apart.
    Nevertheless, we find your manager’s actions reasonable. Many, many employers and parents are rightfully concerned about the swine flu pandemic. This is a serious condition that can cause death in some children. Many schools have had to shut down entirely for 5 days, due to very high absentee rates. The CDC says that swine flu may be contagious for a day or two after the patient has a fever. Your manager was right to have you remain at home until you had a doctor’s permission to return. Doing anything else would be irresponsible and endanger the health of the other employees. If you were truly better, you should have obtained a letter from your doctor releasing you to return to work on Wednesday or Thursday. If your doctor has given you a written release to return to work, the employer cannot refuse. In your case, your doctor had not released you to return to work until Friday.

    You may be surprised to learn that there is no law that requires an employer to keep employee’s information confidential. This applies even to medical information in most cases, when the employee freely volunteers the information. (If the information came up during a discussion of a disability or healthcare benefits, then ADA or HIPAA would require that the info remain confidential.)

    Let’s look at it this way. As a concerned parent, if your child was exposed to someone with H1N1 flu, wouldn’t you want to know? Wouldn’t you want the school to know? Of course you would. It sounds to us like your manager was acting as any concerned parent would to prevent the spread of a very serious disease. HTH, and thanks for reading the blogs!~ Amelia

  19. Posted by: B. W.

    I actually work for an attorney and wanted to know your opinion of what is happening to me at work. I am the only male in the office that is not an attorney or management. I am constantly being treated differently than everyone else. Keep in mind that I am not a cry baby or nit picking. The first incident was when I put in for vacation. My supervisor cancelled my week and only gave me two days because he decided to take his vacation. I had already made plans and paid out money. He lied to me and told me his wife had a family reunion which he later admitted was not true. The same year I was hospitalized and called to tell him I had a potentially life threatening illness. He blew up screaming on the phone that my doctor was stupid and I needed to come to work. My dad had heart bypass surgery at 630 one morning and of course I was present. My supervisor called me 3 times before 1130 telling me I needed to get to work again yelling. In fact he yells everytime I have a doctors appt. or am sick. The women in the office take their “mental health” days and he knows they arent sick and does nothing about it. Lately, he changed his own policies of taking cases but did not tell me and sent me a very threatening and degrading email. This was not the first and Im sure not the last degrading email. For a while I had a hard time getting paid because he said that “your the last on the list”. I feel I could be fired anyday and just wondering your opinion if this is anything that should be pursued or just leave alone. Thanks you for your time.

  20. Posted by: Amelia

    Hi B.W. There are two issues here – wages and discrimination.
    Every employee is entitled to payment on payday for all hours worked. (If you are an independent contractor, that’s a different issue.) If you have this problem again, immediately file a wage complaint with the U.S. Department of Labor or the Virginia Department of Labor & Industry. That’s the simple problem.

    The discrimination issue is more complex. Your boss sounds like a jerk. Unfortunately, screaming at employees, calling to tell them they must come to work and sending demeaning emails are 100% legal in the U.S. However, if he treats you differently than female employees in very similar situations, that is probably discrimination based on sex. Virginia prohibits discrimination based on race, color, religion, sex, etc – but not on sexual orientation.

    This may well be illegal discrimination based on sex, but it’s subtle enough that it’s going to be hard to prove. For example, if a female co-worker with the same job as you requested vacation the same week you did, and the employer approved her vacation but denied yours, that might be illegal discrimination.

    However, if the employer is taking these actions for a reason other than sex, his conduct is probably lawful. For example, the employer could lawfully discriminate against you based on poor job performance — or what he perceives as poor job performance.

    If you want to pursue this, you need to keep meticulous records of instances where you are treated differently from a female employee in very similar circumstances. These records should include date, time, event and any witnesses. Once you have a number of such instances, file a complaint of sex discrimination with the Virginia Human Rights Council.

    Even if you decide not to file a complaint, you need to be looking for a better job. This employer clearly doesn’t like you, and his behavior is not going to improve. HTH and thanks for reading the blogs!~ Amelia

  21. Posted by: B. W.

    Thanks for the follow up. Believe you me I have been looking for a better job after 2 months of being there. The place pays great when I get it. I might have given off a wrong impression also. I am an Investigator who works at an attorneys office with para legals. I am as straight as an arrow married with two beautiful girls. This guy doesnt like me because I actually perform the job better than he and I am a retired cop who he now gets to push around. He is not an attorney but simply the “senior investigator” with no other background. Anyway, thanks for your time and take care!

  22. Posted by: Amelia

    Hi again B.W.! No, you didn’t set off our “gaydar” by accident! We just wanted to touch all the bases. And we agree with your assessment — this supervisor feels threatened by you, which is why he treats you worse than the female employees. In a situation like this, it is sometimes possible to “outlast” your supervisor, especially if his job performance is less than stellar. It might be useful for you to discretely develop a good working relationship with the attorneys, in case they decide to make some changes. And it would never hurt to let HR or an attorney know what’s going on, if you have a chance to do so tactfully.
    Since being paid is still a problem, we definitely suggest that you file a complaint the next time it happens. The employer is going to have a very poor opinion of any supervisor who puts them in violaiton of the minimum wage laws. HTH, and thanks for reading the blogs!~ Amelia

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