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 scheduled.

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 pkugelman@oag.state.va.us.

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 Analysis:

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 changes.

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 discrimination.

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 Commonwealth.

Small Businesses:

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.

Adverse Impacts:

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.

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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=
ch803

Agency's Response to Economic Impact Analysis: The Department of Law concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

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.

CHAPTER 10
REGULATIONS TO SAFEGUARD VIRGINIANS' HUMAN RIGHTS FROM UNLAWFUL DISCRIMINATION

CHAPTER 20
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 unlawful discrimination.

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 43 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 named designated 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 must 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 address.

C. A complaint shall be filed with the council division not later than 180 days from the day upon which the alleged discriminatory practice occurred.

22VAC25-10-40. 1VAC45-20-40. Where to make a complaint.

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 human_rights@oag.state.va.us. 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 complaint.

A. Each complaint should shall contain the following:

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 where 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 feels believes will support the claim.

B. Notwithstanding the provisions of subsection A of this section, a complaint shall be considered filed when the council division 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 amendment.

22VAC25-10-60. 1VAC45-20-60. Filing referrals to state and federal agencies.

A. Complaints 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 expired.

B. The council division has established interagency agreements with the following state agencies:

1. Department of Professional and Occupational Regulation-Real Estate Board;

2. Department of Labor and Industry;

3. Department of Personnel and Training Human Resources Management;

4. 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 agencies.

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.

D. All 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 occurred.

22VAC25-10-70. 1VAC45-20-70. Notice of complaint.

Within 15 working days after the filing perfecting of a complaint, the director shall notify the respondent of the complaint by mail.

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 which that, 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 is postmarked.

B. 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 and authority.

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.

C. 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 applicable; or

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 agreement settlement.

22VAC25-10-110. Public 1VAC45-20-110. Formal hearing.

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 representative.

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.

I. 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 one transcript 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 recommendations.

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 hearing.

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 the complainant;

4. Extending to the complainant the full and equal enjoyment of the goods, services, facilities, privileges, or accommodations of the respondent;

5. Admitting the complainant to a public accommodation or an educational institution;

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 council 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 the case should shall be by certified mail, hand delivered, or by a carrier who that will furnish a receipt.