Source: Workplace Fairness
Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion. Each state has passed laws and rules to protect your workplace rights: this page covers Virginia employment discrimination. The purpose of the Virginia Human Rights Act is to protect workers in Virginia from unlawful discrimination in employment. Read below to learn more about Virginia employment law and how the law protects you.
1. What kinds of discrimination are against state law in Virginia?
The Virginia Human Rights Act makes it illegal for an employer to discriminate on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability (physical or mental).
2. How do I file a discrimination claim in Virginia?
A discrimination claim can be filed either with the state administrative agency, the Virginia Division of Human Rights (DHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
The Virginia anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 6 and 14 employees, you should file with the DHR, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency.
To file a claim with the DHR, contact its office below. More information about filing a claim with the DHR can be found at the DHR website.
Division of Human Rights
202 North Ninth Street
Richmond, VA 23219
Phone: (804) 225-2292
To file a claim with the EEOC, contact your closest local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC Filing a Claim page.
Norfolk Area Office
Federal Building, Suite 739
200 Granby Street
Norfolk, VA 23510
Richmond Area Office
400 N. Eight Street
Richmond, VA 23230
Washington Field Office
131 M St., NE
Fourth Floor Suite 4NWO2F
Washington, D.C. 20005
EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online. This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period. Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge. All of the EEOC offices now use the Digital Charge System. If you file on or after September 2, 2016, the Online Charge Status System is available for use. The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.
3. What are my time deadlines?
Do not delay in contacting the DHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the DHR (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.
You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Virginia have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government website for further information.
4. What happens after I file a charge with the EEOC?
When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:
- Ask both you and the employer to take part in a mediation program
- Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
- Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction
If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents. Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”
How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).
5. How can I or my attorney pursue a claim in court in Virginia?
If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the DHR or EEOC and you may want to continue to pursue the matter, you will need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the DHR.
Because Virginia’s state anti-discrimination statute does not permit the compensatory (emotional pain and suffering) and punitive damages (intended to punish the employer) that are allowed under federal law, and severely limits attorneys fees and back pay awards, many Virginia attorneys choose to file employment discrimination cases in federal court using federal law. A case filed in state court using federal law may be subject to removal, which means that a defendant employer requests to move the case to federal court because it involves a federal statute, such as Title VII or the ADEA.
Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based upon your federal claim. A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.) A lawsuit based on your state claim must be filed within 180 days from the date you believe you were discriminated against. An investigation by the DHR does not delay this deadline. These deadlines are called the “statute of limitations”. Please be aware, however, that you may have other claims arising out of your employment relationship which have shorter statutes of limitations.
If you have received one of these agency dismissal notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire