by Hans Bader
The Virginia legislature is moving toward passage of bills that could make state employment law far more hostile to employers. But the content of the legislation was hidden from voters for a critical period while it was working its way through the General Assembly. The amended text of the bills was not posted until long after it was approved by key committees.
A subcommittee of the House of Delegates approved Friday a bill dealing with sexual harassment in small businesses. It did so on a party-line 5-to-2 vote, which suggests that they bill has a good chance of passing into law. A lawyer, Liam Bissainthe, had argued that the bill, HB 1418, would change the definition of sexual harassment used in lawsuits in in a way that would allow employers to be sued over a single offensive comment, potentially raising First Amendment issues.
To see whether that argument held up, it would have been helpful to read the current version of the bill. But it was not available online to the public yesterday. The committee approved a “substitute” bill for the original. But that substitute had not been posted on the legislature’s web site. Instead, when I clicked on the link to the bill’s current text, I got the message (seen above) that the posting was “in progress.”
Update: The substitute was posted Monday morning. SDH
The legislative website also failed to provide the current text of another significant bill, the Senate version of the Virginia Values Act. A key state senate committee approved that bill (SB 868) two days ago after approving a “substitute” for its original text. A key House committee also has approved the bill (as HB 1663).
As introduced, the VVA would revolutionize Virginia discrimination law, turning what once was a pro-business state into an anti-business state in key areas of employment law. The media has reported only on the fact that the VVA will add “sexual orientation” and “gender identity” to state discrimination laws.
But the bill — or at least the publicly available versions of the VVA, including the version actually adopted by the House committee — would do much more than that. As Walter Olson, the openly-gay author of the world’s oldest law blog, notes, the “‘Virginia Values Act,’ sometimes described as merely adding LGBT status to other protected categories, would in fact greatly expand employment law in various unrelated pro-plaintiff ways.”
Publicly available versions of the VVA provide for unlimited punitive and compensatory damage awards against companies that lose any type of discrimination lawsuit. The legislature minimized or hid the cost to taxpayers of the Virginia Values Act. The Impact Statement accompanying the introduced bill described its “Fiscal Impact Estimates” as “None” and said the VVA “presents no fiscal impact to Executive branch agencies.” The Senate version, SB 868, claimed it had no cost at all.
That was breathtakingly dishonest. The bill would impose costs on the state of Virginia by greatly expanding the administrative grievance process for discrimination claims and expanding state employees’ ability to sue — both of which could cost the state.
Nevertheless, the bill appears to be heading to the floor of the Senate rather than being referred to the Senate Finance Committee, where bills with significant costs to the state ought to be referred. The Senate may vote on it even before its text, as amended, becomes available to the public.
