Bill Text: VA SB179 | 2022 | Regular Session | Prefiled
Bill Title: Virginia Human Rights Act; employee safety, definition changes.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2022-01-26 - Passed by indefinitely in General Laws and Technology (8-Y 7-N) [SB179 Detail]
Download: Virginia-2022-SB179-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-3905, 40.1-2, 40.1-49.3, and 40.1-49.8 of the Code of Virginia are amended and reenacted as follows:
§2.2-3905. Nondiscrimination in employment; definitions; exceptions.
A. As used in this section:
"Age" means being an individual who is at least 40 years of age.
"Domestic worker" means an individual who is
compensated directly or indirectly for the performance of services of a
household nature performed in or about a private home, including services
performed by individuals such as companions,
babysitters, cooks, waiters,
butlers, valets, maids, housekeepers, nannies,
nurses, janitors, laundresses, caretakers,
handymen, gardeners, home health aides,
personal care aides, and chauffeurs of automobiles for
family use. "Domestic worker" does not include (i) a family member,
friend, or neighbor of a child, or a parent of a child, who provides child care
in the child's home; (ii) any child day program as defined in §22.1-289.02 or
an individual who is an employee of a child day program; or (iii) any employee
employed on a casual basis in domestic service employment to provide
companionship services for individuals who, because of age or infirmity, are
unable to care for themselves.
"Employee" means an individual employed by an employer.
"Employer" means a person employing (i) 15 or more
employees for each working day in each of 20 or more calendar weeks in the
current or preceding calendar year, and any agent of such a person or (ii) one
three or more domestic workers. However, (a) for purposes
of unlawful discharge under subdivision B 1 on the basis of race, color,
religion, national origin, military status, sex, sexual orientation, gender
identity, marital status, disability, pregnancy, or childbirth or related
medical conditions including lactation, "employer" means any person
employing more than five persons or one three or more domestic workers
and (b) for purposes of unlawful discharge under subdivision B 1 on the basis
of age, "employer" means any employer employing more than five but
fewer than 20 persons.
"Employment agency" means any person, or an agent of such person, regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer.
"Joint apprenticeship committee" means the same as that term is defined in §40.1-120.
"Labor organization" means an organization engaged in an industry, or an agent of such organization, that exists for the purpose, in whole or in part, of dealing with employers on behalf of employees concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment. "Labor organization" includes employee representation committees, groups, or associations in which employees participate.
"Lactation" means a condition that may result in the feeding of a child directly from the breast or the expressing of milk from the breast.
B. It is an unlawful discriminatory practice for:
1. An employer to:
a. Fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to such individual's compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, military status, disability, or national origin; or
b. Limit, segregate, or classify employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect an individual's status as an employee, because of such individual's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, military status, disability, or national origin.
2. An employment agency to:
a. Fail or refuse to refer for employment, or otherwise discriminate against, any individual because of such individual's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin; or
b. Classify or refer for employment any individual on the basis of such individual's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin.
3. A labor organization to:
a. Exclude or expel from its membership, or otherwise discriminate against, any individual because of such individual's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin;
b. Limit, segregate, or classify its membership or applicants for membership, or classify or fail to or refuse to refer for employment any individual, in any way that would deprive or tend to deprive such individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect an individual's status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin; or
c. Cause or attempt to cause an employer to discriminate against an individual in violation of subdivisions a or b.
4. An employer, labor organization, or joint apprenticeship committee to discriminate against any individual in any program to provide apprenticeship or other training program on the basis of such individual's race, color, religion, sex, sexual orientation, gender identity, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin.
5. An employer, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin.
6. Except as otherwise provided in this chapter, an employer to use race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin as a motivating factor for any employment practice, even though other factors also motivate the practice.
7. (i) An employer to discriminate against any employees or applicants for employment, (ii) an employment agency or a joint apprenticeship committee controlling an apprenticeship or other training program to discriminate against any individual, or (iii) a labor organization to discriminate against any member thereof or applicant for membership because such individual has opposed any practice made an unlawful discriminatory practice by this chapter or because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
8. An employer, labor organization, employment agency, or joint apprenticeship committee controlling an apprenticeship or other training program to print or publish, or cause to be printed or published, any notice or advertisement relating to (i) employment by such an employer, (ii) membership in or any classification or referral for employment by such a labor organization, (iii) any classification or referral for employment by such an employment agency, or (iv) admission to, or employment in, any program established to provide apprenticeship or other training by such a joint apprenticeship committee that indicates any preference, limitation, specification, or discrimination based on race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, age, or national origin when religion, sex, age, or national origin is a bona fide occupational qualification for employment.
C. Notwithstanding any other provision of this chapter, it is not an unlawful discriminatory practice:
1. For (i) an employer to hire and employ employees; (ii) an employment agency to classify, or refer for employment, any individual; (iii) a labor organization to classify its membership or to classify or refer for employment any individual; or (iv) an employer, labor organization, or joint apprenticeship committee to admit or employ any individual in any apprenticeship or other training program on the basis of such individual's religion, sex, or age in those certain instances where religion, sex, or age is a bona fide occupational qualification reasonably necessary to the normal operation of that particular employer, employment agency, labor organization, or joint apprenticeship committee;
2. For an elementary or secondary school or institution of higher education to hire and employ employees of a particular religion if such elementary or secondary school or institution of higher education is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society or if the curriculum of such elementary or secondary school or institution of higher education is directed toward the propagation of a particular religion;
3. For an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment, pursuant to a bona fide seniority or merit system, or a system that measures earnings by quantity or quality of production, or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin;
4. For an employer to give and to act upon the results of any professionally developed ability test, provided that such test, its administration, or an action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin;
5. For an employer to provide reasonable accommodations related to disability, pregnancy, childbirth or related medical conditions, and lactation, when such accommodations are requested by the employee; or
6. For an employer to condition employment or premises access based upon citizenship where the employer is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute or regulation of the federal government or any executive order of the President of the United States.
D. Nothing in this chapter shall be construed to require any employer, employment agency, labor organization, or joint apprenticeship committee to grant preferential treatment to any individual or to any group because of such individual's or group's race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin on account of an imbalance that may exist with respect to the total number or percentage of persons of any race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to or employed in any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, military status, disability, or national origin in any community.
E. The provisions of this section shall not apply to the employment of individuals of a particular religion by a religious corporation, association, educational institution, or society to perform work associated with its activities.
§40.1-2. Definitions.
As used in this title, unless the context clearly requires otherwise, the following terms have the following meanings:
"Board" means the Safety and Health Codes Board.
"Business establishment" means any proprietorship, firm, or corporation where people are employed, permitted, or suffered to work, including agricultural employment on a farm.
"Commission" means the Safety and Health Codes Board.
"Commissioner" means the Commissioner of Labor and Industry. Except where the context clearly indicates the contrary, any reference to "Commissioner" shall include his authorized representatives.
"Department" means the Department of Labor and Industry.
"Domestic service" means services related to the
care of an individual in a private home or the maintenance of a private home or
its premises, on a permanent or temporary basis, including services performed
by individuals such as companions,
cooks, waiters, butlers, maids, valets, and chauffeurs. "Domestic
service" does not include work that is irregular, uncertain, or incidental, or uniquely personal in
nature and duration.
"Employ" shall include to permit or suffer to work.
"Employee" means any person who, in consideration of wages, salaries, or commissions, may be permitted, required, or directed by any employer to engage in any employment directly or indirectly.
"Employer" means an individual, partnership,
association, corporation, legal representative, receiver, trustee, or trustee
in bankruptcy doing business in or operating within this Commonwealth who
employs another to work for wages, salaries, or on commission and shall include
any similar entity acting directly or indirectly in the interest of an employer
in relation to an employee three or more employees.
"Female" or "woman" means a female 18 years of age or over.
"Machinery" means machines, belts, pulleys, motors, engines, gears, vats, pits, elevators, conveyors, shafts, or tunnels, including machinery being operated on farms in connection with the production or harvesting of agricultural products.
§40.1-49.3. Definitions.
For the purposes of §§40.1-49.4, 40.1-49.5, 40.1-49.6, 40.1-49.7, and 40.1-51.1 through 40.1-51.3 the following terms shall have the following meanings:
"Commission" means the Virginia Workers' Compensation Commission.
"Commissioner" means the Commissioner of Labor and Industry. Except where the context clearly indicates the contrary, any reference to Commissioner shall include his authorized representatives.
"Employee" means an individual who is employed by an employer.
"Employer" means any person that (i) is engaged in business or engages an individual to perform domestic service and (ii) has three or more employees. "Employer" does not include the United States.
"Occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
"Serious violation" means a violation deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.
"Person" means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.
"Circuit court" means the circuit court of the city or county wherein the violation of this title or any standard, rule or regulation issued pursuant thereto is alleged to have occurred. Venue shall be determined in accordance with the provisions of §§8.01-257 through 8.01-267.
§40.1-49.8. Inspections of workplace.
In order to carry out the purposes of the occupational safety and health laws of the Commonwealth and any such rules, regulations, or standards adopted in pursuance of such laws, the Commissioner, upon representing appropriate credentials to the owner, operator, or agent in charge, is authorized, with the consent of the owner, operator, or agent in charge of such workplace as described in subdivision 1, or with an appropriate order or warrant:
1. To enter without delay and at reasonable times any factory,
plant, establishment, construction site, or other area, workplace, or
environment where work is performed,
including any place where an individual is
engaged to perform domestic service, by an employee of an
employer; and
2. To inspect, investigate, and take samples during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee.
