TITLE 1. ADMINISTRATION
Title of Regulation: 1VAC45-20. Regulations Regarding
the Virginia Human Rights Act (adding 1VAC45-20-10 through 1VAC45-20-130).
Statutory Authority: § 2.2-520 of the Code of Virginia.
Public Hearing Information: No public hearings are
Public Comment Deadline: April 19, 2017.
Effective Date: May 5, 2017.
Agency Contact: Paul Kugelman, Assistant Attorney
General and Regulatory Coordinator, Department of Law, 202 North 9th Street,
Richmond, VA 23219, telephone (804) 786-6576, or email
Basis: Subdivision B 2 of § 2.2-520 of the Code of
Virginia states that it is the Department of Law's Division of Human Rights
duty to, among other things, adopt and amend regulations concerning the
Virginia Human Rights Act pursuant to the Virginia Administrative Process Act
(APA) (§ 2.2-4000 et seq. of the Code of Virginia). While these
amendments, in substantial part, consist of technical amendments reflecting the
Department of Law's adopting these regulations to reflect a statutory change in
Virginia law, which are exempted from the APA under § 2.2-4006 A 4 a of the
Code of Virginia, the Division of Human Rights is now permitted 30 working days
from the receipt of a complaint to request information and the respondent is
now permitted 21 working days. As these changes are expected to be
noncontroversial, they are submitted under the fast-track rulemaking process provided
for in § 2.2-4012.1 of the Code of Virginia.
Purpose: To further the policy of the Commonwealth to
ensure that all Virginians are provided access to employment, places of public
employment, including educational institutions, and in real estate transactions
free from illegal discrimination, the Division of Human Rights adopts and
promulgates these regulations to serve as the division's regulations with
regard to continuing the operations of the former Virginia Human Rights
Council. After this fast-track rulemaking action is effective, the division
intends to begin a general regulatory review process to consider and make
necessary substantive changes to the division's regulations.
Rationale for Using Fast-Track Rulemaking Process: The
promulgation of this regulation should be noncontroversial because the division
is, in substantial part, adopting the regulations of its predecessor, the
Virginia Human Rights Council, with technical changes reflecting the division
assuming administrative and enforcement authority of the Virginia Human Rights
Act and the substantive changes only expand deadlines.
Substance: As previously noted, the vast majority of the
amendments are technical in nature either reflecting the Department of Law's
Division of Human Rights adoption of the former Human Rights Council's
regulations or providing clarifying language. Changes in substance are in
1VAC45-20-80 A, which now allows the division 30 working days from the date of
the filing of the complaint to request information from the respondent and
allows the respondent 21 working days to respond to the division's request.
Issues: The primary advantage of the division's
regulations is that the Virginia Administrative Code will be updated to
accurately reflect that the operations of the former Virginia Human Rights
Council have been transferred to the division. There are no disadvantages of
this action to the public or to the agency.
The Department of Planning and Budget's Economic Impact
Summary of the Proposed Amendments to Regulation. The
Department of Law proposes to update and adopt the regulation that governed
human rights complaints under the now defunct Virginia Human Rights Council.1
Result of Analysis. Benefits outweigh costs for all proposed
Estimated Economic Impact. In 2012, as part of the Governor's
initiative to streamline executive branch agencies and regulation, the General
Assembly abolished the Virginia Human Rights Council and moved its
investigative functions to the Office of the Attorney General. In order to
implement this statutory change, the Department of Law now proposes to adopt
this Virginia Human Rights Council's regulation, update statutory references
and correct obsolete language as well as add several definitions. None of the
proposed changes to this regulation are substantive changes to the process of
reporting suspected human rights violations and having those reports
investigated. Consequently, no affected entity is likely to incur any cost or
harm on account of these changes. These entities will benefit from clarifying
changes that, for instance, correct the address at which complaints can be
filed in person or by mail and insert an email address so that complaints can
be filed electronically.
Businesses and Entities Affected. These proposed regulatory
changes will affect all individuals who file human rights complaints as well as
the employers, places of public accommodation and education institutions that
might be the subject of those complaints. Department of Law staff report that
businesses with six or more employees are subject to this regulation and that
they receive approximately 120 to 150 complaints per year alleging
Localities Particularly Affected. These proposed regulatory
changes will not particularly affect any locality.
Projected Impact on Employment. These proposed regulatory
changes are unlikely to affect employment in the Commonwealth.
Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.
Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. No small businesses will be adversely
affected by these proposed regulatory changes.
Alternative Method that Minimizes Adverse Impact. No small
businesses will be adversely affected by these proposed regulatory changes.
Businesses. No businesses will be adversely affected by these
proposed regulatory changes.
Localities. Localities in the Commonwealth are unlikely to see
any adverse impacts on account of these proposed regulatory changes.
Other Entities. No other entities are likely to be adversely
affected by these proposed changes.
1 The Virginia Human Rights Council was eliminated, and
its investigative functions were transferred to the Attorney General's office,
by Chapter 803 of the 2012 Acts of the Assembly. Chapter 803 can be accessed
electronically here: http://leg1.state.va.us/cgi-bin/legp504.exe?ses=121&typ=bil&val=
Agency's Response to Economic Impact Analysis: The
Department of Law concurs with the economic impact analysis of the Department
of Planning and Budget.
Chapters 803 and 835 of 2012 Acts of Assembly abolished the
Human Rights Council and transferred the council's regulations to the Division
of Human Rights of the Department of Law. This regulatory action (i) renumbers
the regulations and places them under the Department of Law in the Virginia
Administrative Code and makes minor or technical changes to reflect Chapters
803 and 835; (ii) specifies the elements that a complaint must contain, when a
response to the division's request for information must be submitted, and the
method for submitting correspondence after filing the initial complaint; and
(iii) modifies certain timeframes.
REGULATIONS TO SAFEGUARD VIRGINIANS' HUMAN RIGHTS FROM UNLAWFUL DISCRIMINATION
REGULATIONS REGARDING THE VIRGINIA HUMAN RIGHTS ACT
22VAC25-10-10. 1VAC45-20-10. Policy.
The purpose of this chapter is to supplement the Virginia
Human Rights Act (§
2.1-714 2.2-3900 et seq.) of the Code of
Virginia, which safeguards all individuals within the Commonwealth from
22VAC25-10-20. 1VAC45-20-20. Definitions.
The following words and terms
, when used in this
chapter , shall have the following meaning, meanings unless
the context clearly indicates otherwise:
"Act" means the Virginia Human Rights Act, Chapter
39 (§ 2.1- 714 2.2-3900 et seq.) of Title 2.1 2.2
of the Code of Virginia.
"Complaint" means a written statement by a person
or by the
council division alleging an act of discrimination
prohibited by § 2.1-716 2.2-3901 of the Code of Virginia.
"Complainant" or "charging party"
means a person who claims to have been injured by a discriminatory practice.
"Designee" means an individual
by the director to act in his stead stay pursuant to this chapter.
"Director" means an individual
appointed by the
Governor designated by the Attorney General to oversee the
division and perform the duties and responsibilities outlined in the Act.
"Discharge" means an actual or constructive
termination or separation of an employee from employment.
"Division" means the Division of Human Rights of
the Department of Law.
"Hearing officer" means a person qualified from the
list of hearing officers maintained by the Executive Secretary of the Supreme
Court of Virginia.
"Respondent" means a person against whom a
complaint of violation of the Act is filed.
Each reference to a
"complainant" and "respondent" shall be deemed to refer, as
appropriate, to the singular and plural. In addition those terms and any
other referring to people will be considered masculine or feminine.
22VAC25-10-30. 1VAC45-20-30. Complaints by or on
behalf of persons claiming to be aggrieved.
A. A complaint on behalf of a person claiming to be aggrieved
may be made by any person, agency, or organization; however, the complaint
shall be made in writing. The written complaint need not identify by name the
person on whose behalf it is made. The person making the complaint, however,
shall provide the council division orally with the name,
address, and telephone number of the person on whose behalf the
complaint is made. During the council's division's investigation,
the director shall verify the complaint with the person on whose behalf the
complaint is made. The council division may reveal the identity
of complainants to federal, state, or local agencies that have agreed to
keep such information confidential.
B. The complainant
has the responsibility of providing
shall provide the council division with notice of
any change in address and with notice of any prolonged absence from his current
C. A complaint shall be filed with the
not later than 180 days from the day upon which the alleged discriminatory
22VAC25-10-40. 1VAC45-20-40. Where to make a
A complaint may be
made filed in person at 1100
E. Bank Street, Washington Building, 12th Floor, Richmond, Virginia 23219 or
by mail to 202 North 9th Street, Richmond, VA 23219 between the
hours of 9:30 9 a.m. and 5 p.m., Monday through Friday; or by
mail at P.O. Box 717, Richmond, Virginia 23206; or by FAX to (804)
225-3294; or by email to email@example.com. Telephone calls
may be made at 1-800-633-5510 or to (804) 224-2292 225-2292
in order to receive information on how and where to file complaints. No
complaint will be taken over the phone. Complaints shall not be accepted
over the telephone.
22VAC25-10-50. 1VAC45-20-50. Contents of
A. Each complaint
should shall contain the
1. The full name, address, and telephone number of the person
making the complaint;
2. The full name and address of the person against whom the
complaint is made;
3. A clear concise statement of the facts, including pertinent
dates, constituting the alleged unlawful discriminatory practices;
4. The date of filing and the name of the agency in cases
alleged complaints alleging unlawful discriminatory
practices have been filed before a local, state, or federal agency
charged with the enforcement of discrimination laws; and
5. Any documentation the complainant
will support the claim.
B. Notwithstanding the provisions of subsection A of this
section, a complaint shall be considered filed when the
receives a written statement which that identifies the
parties and describes generally the action or practices complained of.
C. A complaint may be reasonably and fairly amended by
the complainant or the director at any time prior to a hearing. Except for
the purposes of notifying the respondent as specified in subsection D of this
section, amended complaints will be considered as having been made as of the
original filing date.
D. When an amendment is filed, the
Office of Human Rights
division shall forward a copy of the amendment to the respondent
within five working days of the amendment. The respondent shall , within
10 working days after receiving the amendment , file an answer to the
22VAC25-10-60. 1VAC45-20-60. Filing referrals to
state and federal agencies.
which that are under the
jurisdiction of another state agency are considered filed with that agency when
received by the council if the filing falls within the time limits for
filing as required by that agency pursuant to § 2.1-722 of the Code of Virginia
division provided the time limit for filing with the other agency has not
council division has established
interagency agreements with the following state agencies:
1. Department of Professional and Occupational Regulation-Real
2. Department of Labor and Industry;
3. Department of
Personnel and Training Human
Department for Rights of Virginians with Disabilities
Virginia Office of Protection and Advocacy; and
5. Department of
Employee Relations Counselors Human
Resources Management, Office of Employee Dispute Resolutions.
If it is deemed appropriate, agreements will be established
with other state agencies and these regulations will be amended to include the
If the director or his designee determines that the complaint
is not within the
council's division's jurisdiction, but possibly
in the jurisdiction of one of the interagency agreement agencies, the complaint
shall be sent to the appropriate agency within 15 working days of the
determination. The complainant shall be notified of this action and a reason
provided. Once the complaint has been forwarded and the complainant notified,
the council division shall close the case. In the event
the complaint is not under the jurisdiction of the agency to which it was
referred or if additional evidence is submitted the case will be reopened.
C. Persons filing under Title VII of the Civil Rights Act of
1964, as amended, or the Fair Labor Standards Act shall be notified within 15
days that they should also file with the appropriate federal agency within the
appropriate time period if the statute of limitations has not already expired.
charges complaints shall be dated and time
time-stamped upon receipt.
E. Complaints shall be filed with the council not later
than 180 days from the day upon which the alleged discriminatory practice
22VAC25-10-70. 1VAC45-20-70. Notice of complaint.
working days after the filing perfecting
of a complaint, the director shall notify the respondent of the complaint by
22VAC25-10-80. 1VAC45-20-80. Investigations by
the director or his designee.
A. During the investigation of a complaint, the director may
utilize the information gathered by government agencies. The director shall
accept a statement of position or evidence submitted by the complainant, the
person making the complaint on behalf of complainant, or the respondent. The
director may submit a request for information to the respondent
in addition to specific questions, may request a response to the allegations
contained in the complaint. The director's or his designee's request for
information shall be mailed within 20 30 working days of receipt
of the complaint. A response to the request for information should shall
be submitted within 20 21 working days from the date the request
The director may require the complainant to provide
such additional information as he deems necessary to conduct an investigation.
The complainant and respondent shall provide such additional information
deemed necessary by the director or his designee to conduct an investigation.
C. The director may require a fact-finding conference held
in accordance with § 2.2-4019 of the Code of Virginia with the parties
prior to a determination of a complaint of discrimination. The conference is an
investigative forum intended to define the issues, to determine the elements in
dispute, and to ascertain whether there is a basis for a negotiated
settlement of the complaint.
D. The director's or his designee's authority to investigate
a complaint is not limited to the procedures outlined in subsections A, B,
and C of this section.
22VAC25-10-90. 1VAC45-20-90. Dismissal; procedure
A. When the director determines that the complaint (i)
is not timely filed
, or (ii) fails to state a claim under the
Act, the director shall dismiss the complaint.
B. When the director determines after investigation that
there is not reasonable cause to believe that the Act has been violated, the
director shall dismiss the complaint. If the complainant disagrees with the
director's decision, the
council division can be
petitioned within 10 working days for a review of the decision.
Upon petition for review, the council shall establish a
panel of three members to hear such petitions. If it is determined within 30
working days after the petition for review of a dismissal of a complaint that
there is not reasonable cause to believe the respondent has engaged in a
discriminatory practice, the council shall issue an order dismissing the complaint
and furnish a copy of the order to all parties. Upon receiving a
petition for review, the division shall determine whether to:
1. Issue a final determination to the parties in accordance
with § 2.2-4023 of the Code of Virginia;
2. Refer the matter to the appropriate federal agency when
3. Hold a formal hearing in accordance with 1VAC45-20-110.
22VAC25-10-100. 1VAC45-20-100. Settlement.
A. When the director determines that there is reasonable
cause to believe that an unlawful discriminatory practice has occurred or is
occurring, the director shall endeavor to eliminate such practice by informal
methods of conference, conciliation, and negotiation.
B. When conciliation or negotiated settlement is successful,
the terms of the agreement shall be reduced to writing and signed by the
complainant, respondent, and the director within 10 working days of the
22VAC25-10-110. Public 1VAC45-20-110. Formal
A. When conciliation efforts fail
, or when the
director determines that the conciliation process will not be in the best
interest of the complainant or the Commonwealth, the director shall set the
matter for public formal hearing conducted in accordance with
§ 2.2-4020 of the Code of Virginia or refer the complaint to the
appropriate federal agency.
B. Notice of the time and place of the hearing shall be
mailed to the parties at least 20 working days before the date of the hearing.
C. All hearings shall be open to the public.
D. A case
will shall be heard by a hearing
officer appointed by the council division from a list obtained
from the Supreme Court of Virginia.
E. The hearing officer shall not be bound by statutory rules
of evidence or technical rules of procedure.
F. Both the complainant and the respondent shall appear and
be heard in person, but may be assisted by counsel
, or by an authorized
G. All testimony shall be given under oath or affirmation.
H. The order of presentation shall be established by the
hearing officer with the burden of
going forward proof being
placed on the complainant.
Any Where any party who fails to
appear at a fact-finding conference or hearing or to respond to a
request for information by a specified date, in the absence of good cause
shown, shall be deemed to have waived all further rights to appear, present
evidence, or petition for rehearing or reconsideration conducted
pursuant to this chapter, the division shall proceed in accordance with the
provisions of § 2.2-4020.2 of the Code of Virginia.
J. Irrelevant, immaterial, and unduly repetitious
evidence shall, at the discretion of the hearing officer, be excluded. The
rules of privilege shall be given effect.
K. The hearing officer may accept relevant documents or other
evidence into the record as exhibits. Documents to be submitted at the hearing
by a party
must shall be distributed to the council division
and the other party no later than five working days prior to the hearing.
Documents not submitted in accordance with this rule will shall
only be admitted when the presiding body or hearing officer determines
that just cause exists for failure to follow this rule.
L. Before the hearing
is closed concludes, the
parties shall be given an opportunity to present an oral closing
argument of their case cases and proposed findings and conclusions in
accordance with the provisions of § 2.2-4020 of the Code of Virginia.
M. The hearing shall be recorded by an official reporter and
will shall be purchased by the council division.
The council's After the division has received the transcript, the
division's copy will shall be made available for
review within a reasonable time after five working days upon
request at to the Office of Human Rights division
during regular business hours.
22VAC25-10-120. 1VAC45-20-120. Findings and
A. The hearing officer
of the council shall state
submit a recommended decision with findings of fact and conclusions of
law in writing to the division. The findings recommended
decision of the hearing officer shall be filed with the council division
within 30 working 90 days of the date of completion of the
B. If the
council votes to director accepts the
hearing officer's findings that the respondent has not engaged in a
discriminatory practice, it the division shall issue an order
dismissing the complaint. A copy of the order shall be furnished to the
complainant and the respondent.
C. If the
council votes to division accepts
the hearing officer's findings that the respondent has committed an unlawful
discriminatory practice, it the division shall state its findings
and may issue recommendations to the respondent to eliminate the
discriminatory practice, including , but not limited to:
1. Hiring, reinstating, promoting, or upgrading the
position of the complainant, with or without back pay, and providing such
fringe benefits as the complainant has been denied;
2. Restoring or admitting the complainant to membership in a
labor organization, a training program, a guidance program, or
other occupational training program, using the objective criteria for admission
of persons to such programs;
3. Leasing, renting, or selling property at issue to
4. Extending to the complainant the full and equal enjoyment of
the goods, services, facilities, privileges, or accommodations of the
5. Admitting the complainant to a public accommodation or an
6. Reporting as to the manner of compliance;
7. Posting notices in a conspicuous place setting forth
requirements for compliance with this chapter or other information that the
division deems necessary to explain the Act;
8. Revising personnel policies and procedures, including the
undertaking of affirmative efforts; and
9. Reimbursing attorney's fees to complainant.
D. If the council votes not to accept the hearing
officer's findings, it will return the findings to the hearing officer for
further consideration, or appoint a new hearing officer and set a new hearing
on the complaint If the division rejects the hearing officer's
recommended decision, the division shall state its own finding of facts and/or
conclusions of law based on the record.
E. Copies of
council's the division's final
decision, including where applicable, any recommendations, shall be
furnished to the complainant and respondent within 15 working days.
22VAC25-10-130. 1VAC45-20-130. General.
A. If the
council division fails to act
by dates specified herein in this chapter, neither the rights of
the complainant nor the respondent will shall be prejudiced.
B. If the complainant or the respondent fails to comply with
the provisions stated
herein in this chapter, except where good
cause is shown, the failure may be deemed a waiver of any rights provided herein
in this chapter.
C. After the initial filing, all correspondence relative to
should shall be by certified mail, hand delivered,
or by a carrier who that will furnish a receipt.
VA.R. Doc. No. R17-3944; Filed March 1, 2017, 11:23 a.m.