“Virginia Values Act” Devalues Virginia

by Hans Bader

The so-called “Virginia Values Act” has been approved by key committees of the Virginia legislature, aided by blatantly inaccurate claims. The VVA will revolutionize Virginia discrimination law, turning what once was a pro-business state into an anti-business state in key areas of employment, housing, and public accommodations law. The media is not reporting this. It has reported only on the fact that the VVA will add “sexual orientation” and “gender identity” to state discrimination laws.

But the legislation changes Virginia’s discrimination law as a whole, for discrimination cases of all kinds — not just discrimination against gay and transgender people. For example, it provides for unlimited punitive and compensatory damage awards against companies that lose any type of discrimination lawsuit. It also expands state employees’ ability to sue the state of Virginia for money, which will come at a cost to taxpayers.

Yet, the Senate bill containing the Virginia Values Act, SB 868, claimed it has no cost. That’s blatantly false. The bill’s Impact statement describes its “Fiscal Impact” as “None” and says the VVA “presents no fiscal impact to Executive branch agencies.”

That is nonsense. The lawsuits authorized by the VVA are very costly. The VVA requires the state to pay more damages for discrimination, and makes it liable for more types of discrimination. That obviously costs money. A discrimination lawsuit by a single employee can easily cost a government employer hundreds of thousands of dollars, simply for emotional distress, even when punitive damages are not available. Class action discrimination lawsuits cost the government many millions.

The VVA also directly imposes costs on the state of Virginia by greatly expanding the administrative grievance process for discrimination claims.

The VVA passed the Virginia Senate Committee on General Laws by a 12-to-0 vote, with two Republicans abstaining, on January 29. And the House version of the bill, HB 1663, passed the House Committee on General Laws by a 15-to-6 vote on January 28, with all Democrats voting in favor. These lopsided votes suggest it will likely pass the legislature as a whole.

The VVA creates a disturbing conflict of interest. It empowers the state Attorney General to sue not just private employers, but also public employers — including the state itself — for discrimination. But it is the Attorney General’s job to represent state agencies, not to sue them.

The lopsided votes in favor of the VVA are surprising given that it contains provisions that have been rejected in other states not just by conservatives, but even by liberals. For example, Washington State is a liberal bastion where Democrats control all three branches of the government. Yet Washington law, unlike the VVA, does not impose punitive damages in discrimination cases, only compensatory damages. (Punitive damages can be 70 times the size of a compensatory damage award).

Amazon chose to locate new facilities in Virginia rather than Washington State in 2018, apparently based on the assumption that Virginia had a better business climate than Washington. Maybe it did back then. But if the VVA is enacted, that will no longer be the case.

Indeed, the VVA is at least as anti-business as the discrimination statutes of anti-business states that other companies in Virginia fled from, such as California. Like California law, the VVA awards unlimited punitive and compensatory damages against employers. But it is more hostile to employers than California law because, in lawsuits brought by the Attorney General, it subjects employers to civil penalties as well.

The VVA is also more anti-business than California law in the way it awards attorney fees. Under the VVA, the court can only “award a prevailing plaintiff reasonable attorney fees and costs.” Not a prevailing defendant — like a business that was found not guilty by a jury. So if the plaintiff brings a totally groundless lawsuit, and forces an innocent business to spend $250,000 defending itself, the business is not reimbursed a penny for its legal expenses under the VVA.

By contrast, in California, the employer can be awarded its legal expenses if it shows the lawsuit was groundless. That’s because California’s Fair Employment and Housing Act provides that an employer is entitled to be compensated for its legal bills if “the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (That is the same standard used by the U.S. Supreme Court in federal civil-rights cases).

The VVA lacks even these minimal protections against groundless lawsuits brought to extort money from employers.

Hans Bader is an attorney living in Northern Virginia. This post was originally published in Liberty Unyielding.

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15 responses to ““Virginia Values Act” Devalues Virginia

  1. This bill strikes me as the beginnings of a activist government sanctioned police state, whether it be fascist or leftist.

  2. Respectfully, I submit that this is overblown. For too long folks have declared that anything that helps consumers/workers automatically harms business/investment. We need to be looking for win-win for consumers/workers/businesses/investors. We’ve got to stop trying to let one entity win all. There are changes needed on many fronts if we are to level the playing field. It’s currently stacked against consumers/workers in the name of business/investment. There are ways to get win-win instead of winner take all. Sadly, when business loses, the howl goes up that we are giving up our most friendly to business status and we are going to become somewhere the majority hate, like California. Please seek win-win! That’s how Virginia can truly be No. 1.

  3. No question they are downplaying the fiscal impact of expanding claims against the state and the state’s employee grievance process. Phrases like “punitive damages” and “cause of action” and “attorney fees” are showing up in so many proposals one’s head spins. The advocates are not looking for balance or “win win.” This is the fastest and deepest rewrite of employment law imaginable. Big rich companies can handle it, but not the smaller ones. Read this bill and a few others. Not overblown when you step back and see it all.

    • “This is the fastest and deepest rewrite of employment law imaginable. Big rich companies can handle it, but not the smaller ones. Read this bill and a few others. Not overblown.”

      Yes, Steve, I agree in spades.

      In the early 1930s, FDR, had the acute discernment to call Douglas MacArthur and Huey Long the two most dangerous men in American. So, for example, FDR spent the rest of his life keeping MacArthur out of the country, as did Truman, until forced to bring ego driven fool back home, so he wouldn’t nuke the Chinese over the Korean war.

      Best I can discern Virginia’s Attorney General Mark Herring is, in hands, down the most dangerous man in Virginia today and in its future. I suspect his hands are all over these bills in question, and their punitive damages provisions that are so dangerous if only because their mere existence as law would surely cast a deep chill over free speech in Virginia, and citizens free choice in running their own business in Virginia, not to mention their running their own life in Virginia.

  4. “It also expands state employees’ ability to sue the state of Virginia for money, which will come at a cost to taxpayers.” “It empowers the state Attorney General to sue not just private employers, but also public employers — including the state itself — for discrimination.”
    Part of the blue state model is to unionize public employees, turn them into foot soldiers of the Democratic party and use union dues to fund Democratic campaigns. Elected Democrats then sit on the other side of the bargaining table from state employees and give them large raises and impossible-to- fund retirement packages. The states then court bankruptcy every year and raise taxes every year in vain attempts to avoid it. This is but one of several General Assembly bills heading down that path. Perhaps Steve Haner can list them. Welcome to Virginia’s Illinois model of governance and finance.

    • My thought was the format the list about the time of crossover, when the final versions are clearer….but it needs doing. Minimum wage, workers comp, job (mis)classification, protected classes and new causes of action. It will be a long list. Monday we learn the fate of Right to Work and Fair Share.

  5. I wonder what the fiscal impact will be on the billable hours for lawyers? This is a gold strike for the litigation business.

    • johnrandolphofroanoke makes an important point, namely:

      These punitive damage statutes being passed in Virginia are by the design of their makers self-funded weapons that when executed by government officials or plaintiffs by paid for by taxpayers or defendants.

      This legal system creates a built in virulent cadre of faux informers or snitches who come armed with a highly paid army of enforcers, lawyers and government officials who are empowered to make often highly subjective judgements on the thoughts, values and behaviors of other citizens deemed contrary to the every changing cant and ideology of the enforcers.

      This creates a fifth column of private activists aligned with government officials reporting on other citizens, aided by lawyers armed to undertake cases at the victims and/or taxpayer expense, chasing money awards for non-existent damage (punitive awards).

      This is a system akin to what’s found in a police state. And also on many college campuses today. Hence citizens are pitted against citizens per leviathan state enforced cultural warfare, mind and behavior control.

      This system is designed and built to spread the leftist doctrines of social justice taught in our elite universities out into all the nooks and crannies of society, most particularly targeting political opponents, or those perceived to simply be competing power centers , or those still free of the yoke of the state or its dominate culture. So it’s also the primary tool by which state leaders are enabled “legally” to intimidate and control their citizens, punishing them crimes created via ever expanding lists of behaviors deemed against contrary to ever changing and expanding “values” of those holding levers of power, all contrived into crimes and misbehavior that are in fact weapons of political and social oppression and control.

  6. Well that sounds like an objective non-partisan view! 😉

    I’m with vaconsumeradvocate. Both businesses AND workers should be treated fairly and if that is done it’s a win-win.

    It concerns me a little if some of the legal aspects are tilted too much to workers and if so, that should be pulled back a bit,

    And let me also point out that apparently E-Verify is not being followed by all employers and why is that?

  7. https://www.vpap.org/money/donors-industry-totals/9/?recip_type=all&year=2018

    Not exactly small donors, although VPAP does not break it down by plaintiff’s vs. defense bar….and of course both get rich off litigation!

  8. So many problems here. What is wrong with workers’ rights?. In Washington state, can’t see how that has hurt microsoft, amazon or other firms that make it an economic dynamo

    • An ever expanding set of ever growing rights enforceable by the state with punitive damages is a sure disguise of state tyranny.

      Such unrestrained rights are an oxymora, weaponizing identity warfare by state action, a variant of events in the spring and summer of 2017 in Charlottesville, Virginia.

  9. Great analysis of the subtleties of VVA. Yes, this legislation once enacted with complainants and attorneys chomping at the bit seeing a potential gravy train will likely mean a much more onerous and scary experience for business in Va. Large businesses will probably be armed with expensive insurance, but small business people would likely not be able to afford it, making it less likely they’d try in the first.

  10. “It also expands state employees’ ability to sue the state of Virginia for money, which will come at a cost to taxpayers.”
    Define. The commonwealth currently says that it will claim sovereign immunity against any disability/disabled lawsuit brought by its state employees. For a govt. that the Gov. claims is rife with all sorts of discrimination, talk about massive discrimination.

  11. Pingback: Virginia Law Banishes Conscience from Public Square - Juicy Ecumenism

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