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What Damages or Remedies Can a Virginia Employee Recover in a Discrimination Lawsuit?


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Discrimination Remedies in Virginia

Under the Virginia Human Rights Act (VA HRA) as amended by the Virginia Values Act (SB 868), a prevailing employee in a discrimination case under state law may recover significant damages.  A prevailing plaintiff may receive uncapped backpay damages, as well as uncapped compensatory and punitive damages and reasonable attorneys’ fees and costs. The VA HRA as amended does not specify a cap on any of these damages, but Virginia law generally caps punitive damages at $350,000. See Va. Code § 8.01-38.1. The recent amendments to the VA HRA could result in substantial awards to employment discrimination plaintiffs in cases brought in state court.

A court or jury may also award an employee other equitable relief under the VA HRA. This could include a temporary or permanent injunction, restraining order, or other order, including an order enjoining the defendant from continuing to engage in a discriminatory practice, or an order requiring other action by the defendant.

The Virginia Supreme Court has upheld substantial damages awards for employment plaintiffs under different theories of recovery. For example, in Sea-Land Service, Inc. v. O’Neal, the court upheld an award of $125,000 for the plaintiff in a breach of contract and fraudulent inducement employment claim. 297 S.E.2d 647 (Va. 1982). The award included front pay in the amount the plaintiff would have earned if she had remained employed for the defendant as well as compensatory damages covering damages caused by embarrassment or humiliation that resulted from her loss of employment.

Before filing under Virginia state law or federal law, almost all plaintiffs must file with the Virginia Division of Human Rights (DHR) or federal Equal Employment Opportunity Commission (EEOC). A Virginia employee need only file with one of the two agencies, as the agencies work together to remedy discrimination in the state. The agency with which an employee files will attempt to remedy discrimination informally if it finds there is reason to believe discrimination occurred. If informal methods are unsuccessful, a plaintiff may file in court.

Under Title VII of the Civil Rights Act of 1964, courts may award prevailing plaintiffs up to $300,000 in compensatory and punitive damages, with the amount lower for employers with 500 or fewer employees. 42 U.S.C. § 1981a(b)(3). Backpay is not included Title VII’s cap for compensatory or punitive damages, as backpay is considered equitable relief, while compensatory or punitive damages are considered legal relief. See id. at (b)(2).

The Fourth Circuit has upheld high damage awards under Title VII, including $200,000 in compensatory emotional distress damages where the plaintiff was severely harassed and suffered from anxiety, depression, and physical effects as a result. Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).

Under both the VA HRA and Title VII, the definitions are the same: backpay provides the plaintiff with the money and fringe benefits they were denied because of the unlawful discrimination; compensatory damages cover out-of-pocket expenses caused by discrimination, including job search, medical, and mental anguish costs; and punitive damages are meant to punish the employer so that the employer and others do not engage in such discrimination in the future. Note: the terms backpay and front pay are often used interchangeably in employment cases – both comprise the lost wages incurred as a result of unlawful discrimination. Whether called back pay or front pay, these lost wages are not considered compensatory damages and are not subject to Title VII’s cap. See Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843 (2001).

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.

Katherine Krems represents employees in discrimination, sexual harassment, and whistleblower retaliation cases. She is focused on finding creative solutions and maximizing her clients’ recoveries. Prior to law school, she worked on policy reforms in Congress to strengthen the rights of workers, women, and marginalized groups.