Sexual Orientation Discrimination Laws in Virginia

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits employment discrimination based on sex in private employers, government agencies, and labor unions with 15 or more employees. The landmark 2020 Supreme Court decision in Bostock v. Clayton County, 140 S. Ct. 1731, established that discrimination based on sexual orientation constitutes sex discrimination under Title VII. This applies nationwide, including in Virginia.

Title VII covers hiring, firing, compensation, job training, promotion, discipline, and all other terms and conditions of employment. The Equal Employment Opportunity Commission (EEOC) enforces Title VII complaints. Employers covered include private businesses, state and local government employers, and educational institutions with 15+ employees. Federal employees are covered under a parallel statute, 42 U.S.C. § 2000e-16.

Federal remedies for sexual orientation discrimination include back pay, front pay, reinstatement, compensatory damages for emotional distress and harm to reputation, punitive damages (up to $300,000 depending on employer size), and attorney fees and costs. The EEOC investigates charges and may bring civil actions directly. Employees may also file private lawsuits after receiving a right-to-sue letter from the EEOC.

Virginia state law does not provide independent statutory protection against sexual orientation discrimination in private employment. Virginia has no equivalent to Title VII and has not enacted a state public accommodations law that includes sexual orientation protections for employment. The Virginia Code does not prohibit discrimination based on sexual orientation in hiring, promotion, discipline, compensation, or termination decisions by private employers of any size.

This means Virginia employees depend entirely on federal Title VII protections. Virginia state courts have not recognized a common law cause of action for sexual orientation discrimination outside the federal framework. Some Virginia municipalities and counties (including Arlington County and the City of Arlington) have enacted local civil rights ordinances that prohibit sexual orientation discrimination in private employment within their jurisdictions, but these are municipal-level protections, not statewide.

For state government employees, Virginia Executive Order 29 prohibits discrimination based on sexual orientation in hiring and promotion for state employees, but this applies only to the state executive branch workforce, not private employers or local governments. Virginia has no state agency equivalent to the California Department of Fair Employment and Housing that independently enforces employment discrimination laws at the state level for sexual orientation claims.

Virginia employees must file sexual orientation discrimination claims under federal Title VII through the EEOC, not through a state fair employment agency. Virginia is a non-deferral state, meaning the EEOC processes charges directly without dual-filing through a state agency. Employers in Virginia are covered only if they meet the 15-employee federal threshold—Virginia imposes no additional or lower thresholds. The remedies available are those provided under Title VII, not state law.

Title VII does not apply to employers with fewer than 15 employees, meaning small businesses in Virginia are not covered by federal sexual orientation protections and Virginia state law provides no substitute. Religious organizations and certain religious schools are exempt from Title VII coverage under the ministerial exception and religious exemption, even if they have 15+ employees. Independent contractors are not protected under Title VII; only employees with an employer-employee relationship are covered.

At-will employment is the default in Virginia, meaning employers can terminate employees for any lawful reason, including sexual orientation, where Title VII does not apply (e.g., fewer than 15 employees). However, termination cannot be based on an unlawful discriminatory reason where Title VII does apply. Virginia Code § 40.1-49.1 establishes at-will employment as the default rule, subject to exceptions for illegal discrimination and public policy violations.

Virgin Islands and certain federal contract positions may have different rules. Conduct unrelated to sexual orientation status but attributed to a stereotypical expectation based on sexual orientation (e.g., dress code violations, behavioral expectations) may constitute discrimination if the employer applies the standard differently to LGBTQ+ employees. However, employers can enforce uniform neutral policies applied equally to all employees regardless of sexual orientation. Harassment based on sexual orientation is considered a form of sex discrimination under Title VII and is actionable if severe or pervasive.

Step 1: Document the discriminatory act or pattern immediately. Keep records of dates, times, locations, what was said or done, witnesses present, and any written communications (emails, texts, performance reviews). Save all documentation to a secure personal location outside your work email or devices. Document any adverse employment actions that followed (termination, demotion, denial of promotion, reduced hours, unfavorable assignments). Take screenshots of messages and save copies of documents before you lose access.

Step 2: Report the discrimination to your employer's HR department or management if safe to do so. Provide a written complaint (email is acceptable) describing the discrimination clearly, including dates and specific conduct. Keep a copy of your complaint and any response. This internal process creates a record and may trigger the employer's investigation, though it is not required before filing with the EEOC. Many employers have anti-discrimination policies and investigation procedures; following internal procedures may strengthen your case but is not mandatory.

Step 3: File a charge with the Equal Employment Opportunity Commission (EEOC). Virginia is a non-deferral state, so file directly with the federal EEOC, not a state agency. Go to www.eeoc.gov or file in person at the nearest EEOC office (Richmond field office: 804-771-2691). You have 180 days from the discriminatory act to file. Complete the intake questionnaire and provide your contact information, employer name, location, description of what happened, dates, and names of witnesses. Charges can be filed online, by mail, or in person. Include any evidence you have (emails, text messages, performance reviews, witness names).

Step 4: The EEOC investigates your charge. You will receive written notification that your charge has been accepted. The EEOC will send a copy of your charge to your employer. During investigation (typically 60-180 days), the EEOC may request additional information, interview you, contact witnesses, and request documents from your employer. You have the right to respond to the employer's response. Do not discuss the investigation with co-workers or on social media. Expect the EEOC to contact you via phone or mail with updates.

Step 5: After investigation, the EEOC will issue a determination. If probable cause is found, you may request mediation or the EEOC may attempt conciliation with the employer. If no probable cause is found or if conciliation fails, the EEOC will issue a right-to-sue letter allowing you to file a private lawsuit in federal court within 90 days. Consult an employment law attorney who handles Title VII cases. An attorney can evaluate whether settlement is advisable, represent you in mediation, or file a lawsuit. Many employment attorneys work on contingency (no upfront cost; they take a percentage of the award or settlement).