Title of Regulation: 1VAC45-20. Regulations Regarding the Virginia Human Rights Act (amending 1VAC45-20-20, 1VAC45-20-30, 1VAC45-20-50 through 1VAC45-20-90, 1VAC45-20-110, 1VAC45-20-120; adding 1VAC45-20-25, 1VAC45-20-55, 1VAC45-20-75, 1VAC45-20-82 through 1VAC45-20-87, 1VAC45-20-92 through 1VAC45-20-98; repealing 1VAC45-20-100, 1VAC45-20-130).

Statutory Authority: § 2.2-520 of the Code of Virginia.

Effective Date: October 28, 2020.

Agency Contact: R. Thomas Payne II, Senior Assistant Attorney General, Section Chief, Department of Law, 202 North 9th Street, Richmond, VA 23219, telephone (804) 225-2019, or email oagregcoordinator@oag.state.va.us.

Summary:

Pursuant to Chapter 1140 of the 2020 Acts of Assembly, which amended the Virginia Human Rights Act (§ 2.2-3900 et seq. of the Code of Virginia), the amendments (i) add new protected classes, (ii) expand prohibited actions, and (iii) codify the general processes by which the Department of Law, Division of Human Rights receives complaints, investigates and attempts to settle complaints, and issues final determinations regarding allegations of unlawful discriminatory practices.

1VAC45-20-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means the Virginia Human Rights Act, Chapter 39 (§ 2.2-3900 et seq.) of Title 2.2 of the Code of Virginia.

"Charge of discrimination" or "charge" means a complaint that has been perfected by the division and served on the parties to provide notice that the division has accepted and will investigate a complaint.

"Complaint" means a written statement by a person or by the division alleging an act of discrimination prohibited by § 2.2-3901 of the Code of Virginia Act.

"Complainant" or "charging party" means a person who claims to have been injured by a discriminatory practice.

"Designee" means an individual designated by the director to act in his stead pursuant to this chapter.

"Determination" means the final written report detailing the division's findings of fact and analysis of whether or not there is reasonable cause to believe the Act was violated.

"Director" means an individual 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.

"Person" means, consistent with § 1-230 of the Code of Virginia, any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.

"Respondent" means a person against whom a complaint of violation of the Act is filed. In addition, those terms and any other referring to people will be considered masculine or feminine.

1VAC45-20-25. General.

A. If the division fails to act by dates specified in this chapter, neither the rights of the complainant nor the respondent shall be prejudiced.

B. If the complainant or the respondent fails to comply with the provisions stated in this chapter, except where good cause is shown, the failure may be deemed a waiver of any rights provided in this chapter.

C. After the initial filing, all correspondence relative to the case shall be by certified mail, electronic communications, hand delivered, or by a carrier that will furnish a receipt or proof of delivery.

1VAC45-20-30. Complaints by or on behalf of persons claiming to be aggrieved.

A. The division shall receive information concerning alleged violations of the Act from any person. Where the information discloses that a person is entitled to file a complaint with the division, the division shall render assistance in the filing and perfecting of a complaint.

B. 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 and shall be verified. 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 division orally with the name, address, and telephone number of the person on whose behalf the complaint is made. During the division's investigation, the director shall verify the complaint with the person on whose behalf the complaint is made. The division may reveal the identity of complainants to federal, state, or local agencies that have agreed to keep such information confidential.

B. C. The complainant shall provide the division with notice of any change in address and with notice of any prolonged absence from his current address.

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

E. A complaint alleging a violation of federal statutes governing discrimination in employment that also falls under the jurisdiction of the Act shall be filed with the division not later than 300 days from the day upon which the alleged discriminatory practice occurred.

1VAC45-20-50. Contents of complaint.

A. Each complaint 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 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 believes will support the claim.

B. Notwithstanding the provisions of subsection A of this section, a complaint shall be considered filed when the division receives a written statement that identifies the parties and describes generally the action or practices complained of.

C. A complaint or charge may be reasonably and fairly amended by the complainant or the director at any time prior to a determination, settlement, or hearing. Except for the purposes of notifying the respondent as specified in subsection D of this section, an amended complaints complaint or charge will be considered as having been made as of the original filing date.

D. When an amendment is filed, the 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.

1VAC45-20-55. Cooperative agreements with federal agencies or local commissions.

The division may enter into cooperative agreements with the U.S. Equal Employment Opportunity Commission (EEOC) or other federal agencies or local commissions to carry out the purposes of the Act. Under such cooperative agreements, the division may dual file cases and exchange information with the EEOC or other federal agencies or local commissions under such agreements. For complaints that also fall under the jurisdiction of federal laws and regulations, the division will recognize the provisions of such laws and regulations to the extent permitted under the laws of Virginia.

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

A. Complaints that are under the jurisdiction of another state agency are considered filed with that agency when received by the division provided the time limit for filing with the other agency has not expired.

B. The division has established may establish interagency agreements with the following other state agencies:

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

2. Department of Labor and Industry;

3. Department of Human Resources Management; and

4. Department of Human Resources Management, Office of Employee Dispute Resolutions for purposes of carrying out its referral functions.

C. If the director or his the director's designee determines that the complaint is not within the division's jurisdiction, but possibly in the jurisdiction of one of the interagency agreement agencies another state or federal agency, the complaint shall be promptly sent to the appropriate agency within 15 working days of the after such determination. The complainant shall be notified of this action and provided with a reason provided for the referral. Once the complaint has been forwarded referred to the appropriate agency and the complainant notified has received notification of the referral, the 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 division may reopen the complaint.

C. D. Persons filing under Title VII of the Civil Rights Act of 1964, as amended, or the Fair Labor Standards Act shall be promptly 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 E. The division shall time-stamp and date all complaints shall be dated and time-stamped upon receipt.

1VAC45-20-70. Notice of complaint charge of discrimination.

Within 15 days after the perfecting of a complaint, the director shall notify the respondent of the complaint by mail issue a notice of the charge of discrimination to the respondent by a delivery service with proof of receipt.

1VAC45-20-75. Withdrawal of a complaint by a complainant.

A. A complaint filed by or on behalf of a person claiming to be aggrieved by a violation of the Act may be withdrawn only by the person claiming to be aggrieved and only with consent of the division. The director or the director's designee may grant consent to a request to withdraw a complaint, other than a complaint initiated by the division, where the withdrawal of the complaint will not defeat the purposes of the Act.

B. A request for the withdrawal of a complaint shall be made in writing and signed by the person claiming to be aggrieved by the alleged unlawful discriminatory employment practice. The director or the director's designee shall likewise sign and date the request for withdrawal upon granting consent.

1VAC45-20-80. Investigations by the director or his the director's designee.

A. During the investigation of a complaint, the director may utilize the information gathered by other 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, any witnesses identified by the parties, or the respondent. The director may submit a request for information a position statement to the respondent that, in addition to specific questions, may request a response to the allegations contained in the complaint.

B. The director's or his designee's request for information by the director or the director's designee shall be mailed within 30 working business days of receipt of the complaint charge of discrimination. A response to the request for information shall be submitted within 21 working business days from the date the request is postmarked.

B. C. 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 of the director or the director's designee to investigate a complaint is not limited to the procedures outlined in subsections A, B, and C of this section.

1VAC45-20-82. Witnesses.

The division may contact and interview any witnesses identified by the parties as part of its investigation of the allegations set forth in a charge of discrimination. The identity and any information that may reveal the identity of a witness shall remain confidential throughout the division's investigation and in documents that may be available to the parties or to the public once the division's investigation is concluded.

1VAC45-20-83. Requests for documents.

A. The division is authorized to collect documents relevant to and in furtherance of its investigation of the allegations set forth in a charge of discrimination.

B If a person receiving a request for documents from the division does not voluntarily produce the requested documents, the division may issue a subpoena for the production of the documents in accordance with the Act and this chapter.

C. Any information in a document that may reveal the identity of a witness shall remain confidential throughout the division's investigation and will be removed or redacted from any documents that may be available to the parties or public once the division's investigation is concluded.

1VAC45-20-84. Fact-finding conference.

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 issuing a determination regarding a charge of discrimination. The fact-finding 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.

1VAC45-20-85. Withdrawal of a charge.

A. A person claiming to be aggrieved by a violation of the Act may withdraw a charge of discrimination only with the consent of the division. The director or the director's designee may grant consent to a request to withdraw a charge of discrimination, other than a charge of discrimination initiated by the division, where the withdrawal of the charge of discrimination will not defeat the purposes of the Act.

B. A request for the withdrawal of a charge of discrimination shall be made in writing and shall be signed by the person claiming to be aggrieved by the alleged unlawful discriminatory employment practice. The director or the director's designee shall likewise sign and date the request for withdrawal of the charge of discrimination upon granting their consent.

C. If the request for a withdrawal of the charges of discrimination includes a request for the division to issue a notice of right to sue, the division will issue such notice in accordance with the provisions of 1VAC45-20-87.

D. Upon the granting of the aggrieved person's request to withdraw that person's charge of discrimination, the division will cease its investigation and dismiss the charge of discrimination.

1VAC45-20-86. Negotiated settlement.

A. Prior to the issuance of a final determination, the division may encourage the parties to settle the charge of discrimination through mediation on terms that are mutually agreeable. The director or the director's designee shall have the authority to sign any settlement agreement that is agreeable to the parties.

B. When the division agrees in any negotiated settlement not to further process the related charge of discrimination, the division's agreement shall be in consideration for the promises made by the other parties to the agreement. Such an agreement shall not affect the processing of any other charge in which the allegations are like or related to the individual allegations settled.

C. The division may also, prior to the issuance of a final determination, facilitate a settlement between a complainant and a respondent by permitting the withdrawal of a charge of discrimination in accordance with 1VAC45-20-85.

1VAC45-20-87. Issuance of notice of right to sue during investigation.

A. If a complainant submits a request that the division issue a notice of right to sue prior to the completion of its investigation in accordance with the provisions of § 2.2-3907 H of the Code of Virginia, the division will promptly issue a notice of right to sue in accordance with 1VAC45-20-98 upon receipt of such request.

B. A request for the issuance of a notice of right to sue made in accordance with § 2.2-3907 H of the Code of Virginia must be in writing and signed by the complainant and specify that such request is made because either (i) 180 days have passed from the date the complaint was filed or (ii) the division will be unable to complete its investigation within 180 days from the date the complaint was filed.

C. Upon issuing the requested notice for right to sue to the complainant, the division will cease its investigation and dismiss the matter.

1VAC45-20-90. Dismissal; procedure and authority.

A. When the director determines that the complaint or charge (i) is not timely filed or (ii) fails to state a claim under the Act, the director shall dismiss the complaint and provide prompt written notice of the dismissal to the parties by a delivery service with proof of receipt.

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 division can be petitioned within 10 working days for a review of the decision.

C. 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.

1VAC45-20-92. No reasonable cause determinations; procedure and authority.

A. 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 and issue the complainant a notice of right to sue. If the matter falls under the jurisdiction of a federal law, the director shall then immediately refer the matter to the appropriate federal agency for further processing.

B. The division will provide the parties a copy of its written no cause determination by a delivery service with proof of receipt.

C. The division may, on its own initiative, reconsider a final determination of no cause within 10 business days from the date of the no cause determination was issued. If the division decides to reconsider a no cause determination, it shall promptly issue a notice of intent to reconsider to all parties to the charge. Such notice of intent to reconsider shall vacate the no cause determination and shall revoke the complainant's notice of right to sue. After reconsideration, the division shall issue a new final determination and shall, if appropriate, include a new notice of right to sue under which the 90-day period begins upon the date the new determination was issued.

1VAC45-20-94. Reasonable cause determination; procedure and authority.

A. When the director determines after investigation that there is reasonable cause to believe that the Act has been violated, the director shall issue a final determination to the parties stating that based on and limited to the evidence obtained by the division, reasonable cause existed to believe that an unlawful discriminatory employment practice has occurred.

B. The division will immediately offer the parties an opportunity to settle the matter in accordance with 1VAC45-20-96. If the parties are unable to conciliate this matter in a timely fashion, the director shall promptly dismiss the matter, notify the parties of the dismissal in writing by a delivery service that verifies receipt, and issue a notice of right to sue to the charging party.

C. The division may, on its own initiative, reconsider a final determination of reasonable cause within 10 business days from the date the reasonable cause determination was issued. If the division decides to reconsider a reasonable cause determination, it shall promptly issue a notice of intent to reconsider to all parties to the charge. Such notice of intent to reconsider shall vacate the reasonable cause determination and shall revoke the charging party's notice of right to sue. After reconsideration, the division shall issue a new determination and shall, if appropriate, include a new notice of right to sue under which the 90-day period begins upon the date the new determination was issued.

1VAC45-20-96. Conciliation.

A. Where the division determines there is reasonable cause to believe that the Act has been violated, the division shall endeavor to eliminate such practice by informal methods of conference, mediation, conciliation, and negotiation. In such instances, the division shall attempt to achieve a just resolution of all alleged violations found and to obtain agreement that the respondent will eliminate the unlawful discriminatory practice and provide appropriate affirmative relief.

B. When such conciliation efforts are successful, the terms of the agreement shall be reduced to writing and promptly signed by the complainant, respondent, and the director or the director's designee. A copy of the conciliation agreement shall be sent to the aggrieved person and the respondent. Where a charge was filed on behalf of an aggrieved person, the conciliation agreement may be signed by the person who filed the charge or by the aggrieved person.

C. Proof of compliance with the terms of the agreement shall be obtained by the division before the case is closed. In an instance in which an aggrieved person or a member of the class claimed to be aggrieved by the unlawful discriminatory practice is not a party to such agreement, the agreement shall not extinguish or in any way prejudice the rights of such person to proceed with a civil action under the Act.

D. Where such conciliation efforts are not successful or the division determines that further conciliation efforts would be futile or unproductive, the division will so notify the parties in writing, cease conciliation efforts, dismiss the matter, and issue the charging party a notice of right to sue in accordance with 1VAC45-20-98.

1VAC45-20-98. Notice of right to sue.

A. If a charging party requests a notice of right to sue in accordance with § 2.2-3907 H of the Code of Virginia, the division will immediately cease the investigation, dismiss the charge of discrimination, and issue a notice of right to sue to the charging party. If the matter falls under the jurisdiction of a federal law, the division will promptly notify the appropriate federal agency of the charging party's request for withdrawal and issuance of a notice of right to sue.

B. When the division completes its investigation and issues its final determination, the division will issue a notice of right to sue to the charging party once the matter is dismissed.

C. The charging party will have 90 days from the date the division issues its notice of right to sue to file a civil action in the appropriate state court to enforce their rights under the Act.

1VAC45-20-100. Settlement. (Repealed.)

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 settlement.

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 formal hearing conducted in accordance with § 2.2-4020 of the Code of Virginia prior to dismissing the matter and issuing a notice of right to sue or refer the complaint to the appropriate federal agency for further processing.

B. Notice If a matter is set for a formal hearing under subsection A of this section, the division shall mail a notice of the time and place of the hearing shall be mailed to the parties at least 20 working business days before the date of the hearing.

C. All formal hearings shall be open to the public.

D. A case shall be heard by a hearing officer appointed by the division from a list obtained from the Supreme Court of Virginia shall preside over the hearing.

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 proof being placed on the complainant.

I. Where any party fails to appear at a fact-finding conference or hearing 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 shall be distributed to the division and the other party no later than five working business days prior to the hearing. Documents not submitted in accordance with this rule shall only be admitted when the hearing officer determines that just cause exists.

L. Before the hearing concludes, the parties shall be given an opportunity to present an oral closing argument of their 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 shall be purchased by the division. After the division has received the transcript, the division's copy shall be made available for review within five working business days upon request to the division during regular business hours.

1VAC45-20-120. Findings and recommendations.

A. The hearing officer shall submit a recommended decision with findings of fact and conclusions of law in writing to the division. The recommended decision of the hearing officer shall be filed with the division within 90 days of the date of completion of the hearing.

B. If the director accepts the hearing officer's findings that the respondent has not engaged in a discriminatory practice, 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 division accepts the hearing officer's findings that the respondent has committed an unlawful discriminatory practice, the division shall state its findings and may issue recommendations to the respondent to eliminate the discriminatory practice, including:

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 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 division rejects the hearing officer's recommended decision, the division shall state its own finding of facts and/or and conclusions of law based on the record.

E. Copies of the division's final decision, including where applicable, any recommendations, shall be furnished to the complainant and respondent within 15 working business days.

1VAC45-20-130. General. (Repealed.)

A. If the division fails to act by dates specified in this chapter, neither the rights of the complainant nor the respondent shall be prejudiced.

B. If the complainant or the respondent fails to comply with the provisions stated in this chapter, except where good cause is shown, the failure may be deemed a waiver of any rights provided in this chapter.

C. After the initial filing, all correspondence relative to the case shall be by certified mail, hand delivered, or by a carrier that will furnish a receipt.