Virginia — Workplace Discrimination

The Virginia Human Rights Act prohibits employment discrimination because of race, color, religion, ethnic or national origin, sex, pregnancy, childbirth or related medical conditions, age (40 years or older), marital status, sexual orientation, gender identity, disability, or military status. The statute defines "because of race" to include traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.

Source: Va. Code § 2.2-3900 and Va. Code § 2.2-3901

Employer-size coverage under the VHRA: Statutory threshold change effective July 1, 2026

Current threshold (prior to July 1, 2026):

• The Virginia Human Rights Act (VHRA) defines an "employer" as any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. Employers with fewer than 15 employees are not generally covered, except for specific carve-outs (such as domestic workers and certain claims). See Va. Code § 2.2-3905 (pre-2026 text).

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Change effective July 1, 2026:

• The employer-size threshold for VHRA coverage is materially lowered, pursuant to 2026 Va. Acts ch. 950 (SB 637).
• Beginning July 1, 2026, "employer" under the VHRA means any person employing five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.
• In addition, any person employing one or more domestic workers is now covered as an employer, regardless of overall employee count.
• This change was enacted to expand the reach of the VHRA and harmonize the definition of employer across protected classes and claim types. Prior distinctions (including different rules for age-based discharge) are removed, and all discrimination claims now use the lowered five-employee threshold from July 1, 2026, forward.

Summary of thresholds:

• Prior to July 1, 2026: Most claims = 15+ employees; select exceptions for domestic workers.
• On or after July 1, 2026: All claims = 5+ employees, or any employer of one or more domestic workers.

Practitioners should apply the threshold in effect at the time of the alleged discrimination. All covered claims arising on or after July 1, 2026, are governed by the new, expanded definition.

Source: Va. Code § 2.2-3905 (current and as amended by 2026 Va. Acts ch. 950 (SB 637))

Employees who prevail in a discrimination claim under the Virginia Human Rights Act (VHRA) are eligible for a range of remedies, including compensatory and punitive damages, attorney's fees, and injunctive or other equitable relief. As of July 1, 2026, a significant procedural change takes effect under HB 925 (2026 Va. Acts ch. 1119): the statute of limitations for filing a complaint with the Office of Civil Rights and pursuing remedies under the VHRA is extended from 300 days to two years from the date of the alleged discriminatory act.

Compensatory and punitive damages: Compensatory damages are awarded to make the claimant whole for losses resulting from discrimination. Punitive damages, designed to deter egregious conduct, are subject to Virginia's general $350,000 statutory cap on punitive awards in civil actions, which includes VHRA claims. There is no statutory cap on compensatory damages in VHRA cases as of July 2026.

Attorney's fees and costs: Prevailing parties may recover reasonable attorney fees and costs, which enhances access to legal counsel for VHRA claimants.

Injunctive and equitable relief: Courts can order employers to cease unlawful practices and implement affirmative action or corrective measures, including reinstatement, policy changes, or similar remedies.

Enforcement by Attorney General: The Attorney General may intervene in matters of public importance and seek the same suite of remedies: compensatory and punitive damages (within statutory limits), attorney's fees, and injunctive relief.

Procedural deadline change effective July 1, 2026: A complaint alleging unlawful workplace discrimination must now be filed within two years of the discriminatory act, up from the previous 300-day period. This expanded deadline applies to all claims arising on or after July 1, 2026. This directly impacts access to the remedies described above, as a complaint filed outside this period is barred from pursuing relief under the VHRA.

Summary:

• Available relief: compensatory damages (no cap), punitive damages (subject to $350,000 cap), attorney's fees, and equitable relief.
• As of July 1, 2026: Filing deadline extended to two years for all claims.
• The underlying remedies remain unchanged, but access is expanded via the new limitations period.

Source: Va. Code § 2.2-3908; Va. Code § 2.2-3906; Va. Code § 8.01-38.1; 2026 Va. Acts ch. 1119 (HB 925)

Under the Virginia Human Rights Act (VHRA), a private employee alleging unlawful workplace discrimination must first file a complaint ("charge of unlawful discrimination") with the Office of Civil Rights (Office) within the Office of the Attorney General. Filing with the Office remains a mandatory administrative prerequisite to pursuing a private civil action in court. The procedures and timelines for filing were significantly modified by amendments effective in 2026.

2026 amendment — extended filing timeline: Effective in 2026, the deadline to file a complaint with the Office is now two years from the date of the alleged discriminatory act, substantially lengthening the prior 300-day period. This change appears in the statutory amendments via 2026 Va. Acts ch. 382 (HB 925) and ch. 388 (SB 637), both incorporated into Va. Code § 2.2-3908. The law now states:

• "Any individual claiming to be aggrieved by an unlawful discriminatory practice under this chapter shall file a complaint in writing under oath or affirmation with the Office of Civil Rights of the Department of Law within two years after the occurrence of the alleged discriminatory practice." (Va. Code § 2.2-3908)

When you may file a civil action:

• A civil lawsuit may not begin until either (a) the Office issues a notice of right to file a civil action, or (b) 180 days pass from the filing of the administrative complaint and no such notice has issued, at which point the complainant may treat the 180-day lapse itself as a right-to-sue notice. (Va. Code § 2.2-3908)
• After notice (or constructive notice after 180 days), the individual has 90 days to file a claim in court.

Administrative regulation confirms 90-day window: Regulations (1VAC45-20-98, unchanged since 2024) confirm the 90-day time frame for filing a civil action following receipt or issuance of notice from the Office.

Summary:

• Complaint must be filed with the Office, under oath, within two years of the discriminatory act.
• After administrative filing, one must wait for Office notice or for 180 days to pass; after either, suit must be filed within 90 days.
• The two-year administrative filing period applies to complaints arising after the effective date of the 2026 amendments.

Source: Va. Code § 2.2-3908 (2026 amendment) Source: 1VAC45-20-98

The Virginia Human Rights Act (VHRA) includes several statutory exceptions to its general ban on workplace discrimination. These exceptions are narrowly drawn and codified at Va. Code § 2.2-3905, most recently amended in 2020.

Bona fide occupational qualification (BFOQ) — § 2.2-3905(C): An employer may make employment decisions based on religion, sex, or age if one of those characteristics is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that employer. The BFOQ defense does not extend to discrimination based on race or color. The law’s text: “It shall not be an unlawful discriminatory practice for an employer to hire and employ employees, or for an employment agency… on the basis of religion, sex, or age where religion, sex, or age is a bona fide occupational qualification reasonably necessary to the normal operation of that particular employer, employment agency, labor organization, or apprenticeship committee.”

Religious organization exemption — § 2.2-3905(E): The VHRA does not prohibit a religious corporation, association, educational institution, or society from limiting employment or giving preference in employment to individuals of a particular religion to perform work connected with their religious activities. This exemption applies to roles directly tied to the religious mission or operation of the organization named above.

Educational institutions affiliated with religion — § 2.2-3905(D): If an elementary or secondary school or institution of higher education is substantially owned, supported, controlled, or managed by a religious organization, or its curriculum is directed toward propagating a religion, that institution may employ individuals of that religion (or require religious adherence) for roles related to religious instruction or activities.

Each of these exceptions is grounded directly in statutory text. For precise application, the full language of Va. Code § 2.2-3905—especially subsections (C), (D), and (E)—should be reviewed for practitioner details.

Source: Va. Code § 2.2-3905

Overview of the Burden of Proof and Causation Standard

The Virginia Human Rights Act (VHRA) sets its causation standard for employment discrimination claims in Va. Code § 2.2-3905(B)(6). The statute provides: "an unlawful discriminatory practice is established when the complaining party demonstrates that a protected characteristic was a motivating factor for any employment practice, even though other factors also motivated the practice.” This is commonly called the “motivating factor” test and requires a plaintiff to show that their protected trait was one motivating factor for the employer’s action—not necessarily the only one.

Does the 'motivating factor' standard apply to all VHRA discrimination claims?

Based on the statutory language, § 2.2-3905(B) sets out the elements (including the motivating-factor requirement) for claims of discrimination relating to "hiring, discharge, compensation, terms, conditions, or privileges of employment." There is no explicit language in the statute excluding any protected class listed in the Act from this test, and there is no provision that substitutes a different causation standard for particular classes. There is also no appellate case law as of June 2026 clarifying or limiting the scope of this standard under the current Act. Thus, according to the plain text, the 'motivating factor' applies to all protected classes and employment practices covered by § 2.2-3905(B), unless a specific exception is later recognized by courts or the General Assembly.

Comparison to the McDonnell Douglas and Title VII frameworks

The VHRA statute itself does not codify the burden-shifting order or evidentiary rules found in federal law, such as the framework from McDonnell Douglas v. Green, 411 U.S. 792 (1973). Virginia courts often reference federal employment discrimination precedents for interpretive guidance, but there is, to date, no Virginia appellate decision mandating the use of the McDonnell Douglas framework for VHRA claims following the 2020 amendments. The “motivating factor” standard embedded in the statute governs the substantive causation test in court. The use of federal evidentiary orderings (like McDonnell Douglas for circumstantial evidence) may inform practice, but they are not required by the VHRA’s statutory text. The statute is silent as to evidentiary frameworks.

Summary:

• The “motivating factor” standard under Va. Code § 2.2-3905(B)(6) is the statutory test for liability in VHRA-covered discrimination claims.
• Nothing in the statute excludes particular classes or claims; there is no appellate authority that has held otherwise as of June 2026.
• The VHRA does not codify the McDonnell Douglas or federal burden-shifting frameworks, and its application is not explicit in the statute—Virginia courts may look to federal case law, but this is a matter of interpretive practice, not binding statutory law.

Source: Va. Code § 2.2-3905(B)(6)