LGBT Workplace Rights in Virginia
Can I be fired for being LGBT in Virginia?
If you are a public employee or state contractor or subcontractor, then no. Otherwise, yes. Virginia prohibits employment discrimination based on sexual orientation or gender identity only in public employment, via executive orders signed by Governor Terry McAuliffe.
That said, this area of the law is in flux, so the scope of the Virginia Human Rights Act (VHRA) is not free of debate. The VHRA makes it “the policy of the Commonwealth to”:
Safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation, including educational institutions and in real estate transactions; in employment; preserve the public safety, health and general welfare; and further the interests, rights and privileges of individuals within the Commonwealth . . . .
(Va. Code Ann. § 2.2-3900(B).) Virginia Attorney General Mark R. Herring issued an advisory opinion on May 10, 2016, stating that the VHRA’s bar on discrimination based on “sex,” at least under some circumstances, covers sexual orientation and gender identity and expression. Mr. Herring determined this because (1) the VHRA explicitly intends to cover all discriminatory conduct prohibited by federal statutes or regulations, and the clear trend among federal courts and the EEOC has been toward interpreting “because of sex” to cover sexual orientation and gender identity and expression, particularly in cases involves sex-stereotyping or less favorable treatment of someone because of that person’s sex; and (2) the Virginia General Assembly, in passing the VHRA, stated that the Act “shall be construed liberally for the accomplishment of its policies.”
In light of those two considerations, Mr. Herring concluded that courts would most likely find that discrimination against gay, lesbian, or transgender individuals is prohibited by the VHRA insofar as it is based on sex-stereotyping or on treating those individuals less favorably because of their sex.
Given the growing consensus among federal courts that “because of sex,” in many circumstances, covers sexual orientation and gender identity and expression, Mr. Herring continued, courts may soon conclude that gender-identity and sexual-orientation discrimination are per se sex discrimination. This has not yet happened.
Do any Virginia municipalities have LGBT-inclusive employment-nondiscrimination ordinances?
Yes: Alexandria and Arlington County prohibit employment discrimination based on sexual orientation. (Alexandria, Va., Code of Ordinances tit. 12, ch. 4, § 12-4-5; Arlington, Va., County Code ch. 31, § 31-3(B).)
What should I do if I believe that my state-government employer has discriminated against me based on my sexual orientation or gender identity?
You may file a complaint with Virginia’s Office of Equal Employment Services within 180 days of the final discriminatory act.