Whistleblower Protection for Sexual Orientation Discrimination

Due to recent developments nationally and at the state level, Virginia workers now enjoy protection from retaliation when bringing forward allegations of sexual orientation discrimination.

As we have written about previously, Virginia enacted a sweeping statute effective as of July 1, 2020 providing broad protections for Virginia workers from retaliation for protected whistleblowing activities. Specific to sexual orientation discrimination, the statute protects employees from retaliatory conduct by their employer when the employee alleges violations of state or federal law.

A recent decision by the U.S. Supreme Court makes it a violation of federal law to discriminate based on sexual orientation. In Bostock v. Clayton County, the Supreme Court ruled Title VIII of the Civil Rights Act of 1964 prohibits discrimination based on an individual’s sexual orientation and transgender status.[1] Justice Gorsuch wrote the majority opinion[2], which was a 6-3 ruling.

What does this all mean? It means that an employee who suffers from retaliatory conduct by his employer for reporting sexual orientation discrimination has a claim under the new Virginia whistleblower statute. The employee should be able to file suit in state court. The employee should not be required to file suit in the EEOC or federal court. Perhaps most importantly, under Virginia law summary judgment is rare – making it much more likely the case may proceed to trial and increasing the pressure on defendants to settle.

[1] Totenberg, Nina. Supreme Court Delivers Major Victory to LGBTQ Employees. National Public Radio. June 15, 2020. Available at https://www.npr.org/2020/06/15/863498848/supreme-court-delivers-major-victory-to-lgbtq-employees.

[2] Bostock v. Clayton County, 590 U.S. ___ (2020). Available at https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf.

Bo Frith