July 6, 2020
Expanded Anti-Discrimination and Accommodation Rights for Pregnancy and Pregnancy-Related Conditions
By Samuel N. Klewans, Esq. and Michael W. Skerritt, Esq.
The newly enacted Virginia Values Act (“VVA”), which went into effect on July 1, 2020, expands existing prohibitions on terminating employees on the basis of pregnancy and “childbirth or related medical conditions” by creating a private cause of action for discrimination related to these conditions and requiring employers to provide reasonable accommodations for protected employees. The VVA applies to all employers with five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
The VVA grants employees an independent right to sue their employers in state court for discrimination or failure to reasonably accommodate their pregnancy or pregnancy-related conditions. The VVA defines “reasonable accommodations” as including:
- Frequent or longer bathroom breaks,
- Breaks to express breast milk and access to a private location other than a bathroom for the expression of breast milk,
- Acquisition or modification of equipment or access to or modification of employee seating,
- A temporary transfer to a less strenuous or hazardous position,
- Assistance with manual labor,
- Job restructuring,
- A modified work schedule,
- Light duty assignments, and
- Unpaid leave to recover from childbirth.
Virginia Values Act: Statute of Limitations
The statute of limitations for filing a lawsuit under the VVA is two years from the date of the alleged violation. If the employee files a charge with the appropriate agency within two years, the employee can file a lawsuit within ninety days from the final disposition of the charge. Relief may include up to one full year of back pay, compensatory damages, attorney’s fees, and injunctive relief.
The VVA provides a way for an employer to defend a discrimination claim if it can show that an accommodation would create an undue hardship for the employer. This is similar to what is found in federal employment discrimination regulations. There are three primary factors that can determine whether an accommodation would create an “undue hardship” for the employer: (i) the size of the employer; (ii) the nature and cost of the accommodations requested; and (iii) the nature of the employer’s operation. Naturally, this piece of the VVA could prove to be particularly contentious for future litigation.
Informing Your Employees of the Virginia Values Act
All covered employers must inform employees about the reasonable accommodations and anti-discrimination aspects of the new law by displaying a poster in a workplace area visible to all employees and adding the information to any existing employee handbook. The same information must be provided to any new employees during their on-boarding process and to any current employee within ten days after receiving notice of such employee’s pregnancy.
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