This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Many security clearance holders and future applicants have been affected by the COVID-19/Coronavirus pandemic, most often in connection with their overall financial situation or credit. This article discusses the potential security clearance implications of the Coronavirus/COVID-19 for security clearance holders and applicants.
Financial Issues
The most common security clearance concern for clearance holders, even before the pandemic, involved financial issues. The current COVID-19 crisis will directly impact these types of security concerns. Individuals will likely face potential financial losses, bankruptcy, bad credit or unmanageable debt as a result of the crisis.
These types of issues fall under Guideline F, Financial Considerations pursuant to Security Executive Agent Directive 4 (SEAD 4). SEAD 4 provides the Government’s security clearance guidelines that adjudicators review in evaluating whether or not to grant a security clearance. Financial concerns usually include bad credit, unpaid debts, unpaid taxes and other related financial issues.
It is very likely, due to the existing and future disruptions in business and work that many individuals could be laid off or lose their jobs if the COVID-19 pandemic lasts for an extended period of time. We may very well be entering a recession right now given the number of jobless claims that have recently been filed.
With these recent layoffs, individual finances are clearly going to be negatively impacted. An economic downturn and loss of work can have massive financial implications for many government contractors and other private-sector employees in a relatively short period of time. If individuals are laid off, it is often the case that they find themselves financially underwater within a month. As a result, these individuals are often unable to pay their mortgage, rent, car loans, consumer credit loans or other major bills.
These types of issues affect security clearance holders as debts which result from such a recession are not easily rectified immediately even when new positions requiring clearances become available. We still have clients who lost a majority of their investments during the Great Recession between 2007 and 2009 who still have to address financial issues in connection with their security clearances.
In other words, COVID-19 may lead to a downturn which can have a major effect on security clearance holders or applicants for a long period of time.
The COVID-19 Crisis Will Most Certainly be Viewed as Unique and Mitigating
In terms of security clearances, there is good news for clearance holders, applicants and future applicants. Clearance adjudicators recognize that major shared events, like recessions, are unique in nature which can help to mitigate those security clearance concerns. COVID-19 related financial issues and any downturn would almost certainly fall in this category.
Specifically, SEAD 4, under Guideline F, Financial Considerations, provides mitigation to those facing security concerns related to debts, credit and other financial issues. SEAD 4. Paragraph 20(a) provides as mitigation that “the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur…” Furthermore, Paragraph 20(b) states, as a key mitigating factor that “the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency… and the individual acted responsibly under the circumstances.)”
There is no reason to doubt that security clearance adjudicators will give serious consideration to mitigating financial-related security clearance concerns related to debts, bankruptcy and taxes as they have done in the past as it relates to losses occurring as a result of the COVID-19 pandemic.
Our general advice to security clearance holders is for them to keep on top of their finances, work with creditors (even if they are uncooperative) if they are laid off or lose their jobs and keep copies of all documents and their attempts to resolve debts or otherwise appear to act responsibly. Even if a creditor doesn’t act reasonable, copies of records showing that the individual tried to do their best in a difficult financial situation is often very helpful.
Contact Us
If you are in need of security clearance law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Many Virginians have recently found themselves laid off or otherwise out of work due to the impact of the COVID-19 pandemic. As a result, unemployment compensation benefits are needed like never before. This is a short article on the unemployment claims process in Virginia and benefits in light of new legislation.
Benefits for affected employees can be sought through the Virginia Employment Commission (VEC). Employees who have been laid off, terminated or otherwise had their hours reduced can qualify. Here is a link to the VEC directions for initiating a claim.
Changes to Unemployment Claims Related to COVID-19
On March 12, the U.S. Department of Labor (DOL) also provided additional guidance to state unemployment agencies interpreting unemployment benefits related to the COVID-19 pandemic. The DOL offered states guidance in being flexible in awarding unemployment compensation to those affected.
As of March 15, the Commonwealth of Virginia waived the one-week waiting period for the unemployed to receive unemployment benefits. The effect of this change is that out of work Virginians can receive unemployment compensation benefits sooner.
Another change is that a claimant in Virginia has usually had to show that they were actively seeking new work, but Virginia changed this requirement in light of COVID-19 for obvious reasons.
Lastly, Virginia is in the process of making unemployment compensation benefits available to the self-employed (1099 and Gig Economy workers) pursuant to an order from Governor Northam.
To file for unemployment compensation in Virginia, please apply at www.vec.virginia.gov. It is also recommended to file as soon as possible so that benefits can start as soon as possible.
Contact Us
If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By Kimberly Berry
Our law firm handles many different types of federal retirement issues in our representation of federal employees.
One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management.
Federal employees filing for disability retirement are typically covered under the Federal Employees Retirement System or the Civil Service Retirement System.
Federal employees should consider the following questions before they pursue OPM disability retirement:
How serious are the federal employee’s medical issues and are they linked to the federal employee’s position description duties?
When making a disability retirement decision, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.
How long is the medical disability realistically expected to last?
OPM requires that a medical disability be expected to last at least one year in duration. When considering whether to file for disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.
Can a federal employee survive on a reduced annuity?
If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement. As a result, we recommend that you obtain benefit estimates from your human resources representative and consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.
Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?
Oftentimes a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition workable. This can often be the best solution, even if it is only a short-term solution.
As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.”
Do your medical professionals believe that you should not continue in your current position?
This is an important consideration when filing for disability retirement. In most cases, physicians will be open with their patients about whether it is a good idea to keep working in their current federal employment position.
There are at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical provider(s). First, your health should be of primary importance and a consideration when determining whether continuing in a job hinders or impedes your recovery. Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM.
OPM will require a physician’s statement about your medical issues, and the physician’s statement can either make or break the outcome of your disability retirement application.
When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. You can contact our law firm through www.retirementlaw.com, www.berrylegal.com, or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Government contractors, federal employees and military personnel holding security clearances have a duty to self-report security issues that happen between investigations.
Not reporting timely security concerns can lead to a loss of one’s security clearance in itself. Unfortunately, there are often uncertain about self-reporting and when and how it applies to a clearance holder.
The Duty to Self Report
The duty to self-report was best defined by an administrative judge from the Defense Office of Hearings and Appeals (DOHA) in a 2001 case: “[I]t is the responsibility of security clearance holders to report events which negatively affect the status of the security clearance holder or the facility. [A]ny information…Â [which] reflects adversely on the integrity or character of a security clearance holder should be reported to security personnel to avoid compromising situations that make the security clearance holder vulnerable to coercion, exploitation, or duress.”
Examples of What Might be Reported
A reportable security concern is an incident that falls under one of the Adjudicative Guidelines contained in Security Executive Agent Directive 4 (SEAD 4). In most cases legal counsel should be consulted to determine how to self-report an issue. The following are just a few of the more common examples of security issues that could trigger a duty to self-report:
- An individual uses illegal drugs (including the use of marijuana even in states or countries where legal locally). This can be a very complicated security concern given the intersection of criminal law and clearance law where legal advice will definitely be needed.
- An individual is arrested. The timing and substance of reporting this incident will be important so legal advice will be needed.
- An individual petitions for bankruptcy. Because filing for bankruptcy bears on financial considerations under SEAD 4, the individual should likely report the filing as soon as possible to his or her security officer.
- An individual marries a foreign citizen. Because marrying a foreign citizen can raise foreign influence issues under SEAD 4, it most likely will trigger a duty to self-report.
When Should a Security Concern be Reported?
When an individual who holds a security clearance determines that a security concern requires self-reporting, it is important to do so as soon as timely as possible. The typical procedure for doing so is to notify one’s security officer of the security concern. The security officer may simply take note of the situation, report it or take other action.
The individual almost always feels embarrassed to self-report a security concern. However, not reporting an incident can lead to the loss of an individual’s security clearance. If an individual has questions about what should be reported, he or she should seek legal advice from an attorney experienced in security clearance law as soon as possible. There are risks to self-reporting, so it is important to seek legal counsel prior to doing so where possible.
Contact Us
If you are in need of legal representation or advice on the reporting of security clearance issues or any other security clearance matters, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By Melissa L. Watkins, Esq.
Failing to accommodate an employee based on their religious beliefs can be costly for an employer.
Recently, a hotel dishwasher in Miami was awarded $21.5 million in damages after her employer refused to grant a religious accommodation, requiring that she work on Sundays and eventually terminating her. While the employee will not likely be able to recover this amount due to a cap on punitive damages, the award demonstrates the courts and Equal Employment Opportunity Commission’s (EEOC’s) heightened attention to employers’ obligation to adequately respond to employees’ requests for religious accommodations.
Religious Discrimination and Title VII
Title VII of the U.S. Code protects workers from employment discrimination based on their religion. The law forbids discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, training, benefits and other terms and conditions of employment. Title VII requires reasonable accommodation of an employee’s sincerely held religious beliefs, observances, and practices when requested.
The need for religious accommodation most often arises where an individual’s religious beliefs, observances, or practices conflict with a specific task or requirement of the job or application process. Accommodation requests often relate to work schedules, dress, grooming, or religious expression or practice while at work.
The prohibition on religious discrimination and the requirement for reasonable accommodation apply whether an employee’s religious views are mainstream or non-traditional, and even if the views are not recognized by an organized religion. An employer cannot require that an employee provide documentation from an established religious congregation.
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation can be shown to be an undue hardship. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. However, customer preferences or even the anticipated loss of business are not considered undue hardships.
How Religious Discrimination Claims are Established
In order to establish a claim of discrimination for an employer’s failure to grant a religious accommodation, employees generally need to show that the following:
(1) he or she has a bona fide religious belief, the practice of which conflicted with their employment
(2) he or she informed the agency/employer of this belief and conflict
(3) the agency/employer nevertheless enforced its requirement against the employee
Contact Us
If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Employees in the Commonwealth of Virginia have a number of forums for potentially filing a sexual harassment complaint.
First, employees must determine whether the facts in their case constitute sexual harassment. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC), is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
The harassment victim can be either a woman or a man. Additionally, the harassment victim does not have to be of the opposite sex. That being said, sexual harassment does not always have to be of a sexual nature, however, and can include offensive remarks about a person’s gender/sex. Harassing an individual by making offensive comments about his or her gender can constitute sexual harassment.
Additionally, when more minor comments or teasing are made on a continuing basis, a hostile work environment based on sexual harassment can arise. Additional EEOC regulations and guidance on sexual harassment can be viewed here.
Harassment Complaints for Federal Employees in Virginia
For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint alleging sexual harassment is to go through their federal agency’s EEO office within 45 days of the date of the harassment. This very short deadline can usually be satisfied by initiating contact directly with a federal EEO counselor. Federal agencies will provide contact information for federal EEO complaint counselors to federal employees.
The formal complaint process involving the claims of sexual harassment will follow thereafter if the matter is not resolved. There are also other less common routes for filing a federal employee sexual harassment complaint, such as filing a grievance (where permitted, but not usually recommended) and/or a complaint though the Office of Special Counsel (OSC), but these are usually not effective when compared to a federal employee’s options for filing an EEO complaint.
Harassment Complaints for Private Sector Employees in Virginia
For employees who are employed by private companies in Virginia, there are a number of potential options for filing a sexual harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the Equal Employment Opportunity Commission (EEOC), which is the most common route for those employed by private companies. The deadline for doing so in Virginia is generally 180 days, which can be extended to 300 days due to a work-sharing agreement between Virginia and the EEOC.
A private sector employee can also usually file a sexual harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15. Additionally, if the matter involves a government contractor, a private sector employee can also file a harassment complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is rarely used.
Lastly, some counties and municipalities in Virginia have enacted harassment ordinances, such as Fairfax County and Arlington County, which also have procedures for filing complaints against employers. The deadlines for county filings can vary between 180 and 365 days depending on the county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.
Harassment Complaints for State Employees of the Commonwealth of Virginia
State employees who are employed by the Commonwealth of Virginia have somewhat different sexual harassment complaint options. These include the possibility of filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. The current Executive Order governing state employees was issued in 2014.  State employees should consult with an attorney before deciding which forum is best for their sexual harassment complaint.
Harassment Complaints for County and Local Employees in Virginia
Finally, employees of Virginia’s various counties and municipalities also have options for filing a sexual harassment complaint. They may typically file harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court, if their matter is not resolved.
Talk to an Attorney to Determine the Best Forum
It is very important to speak with an attorney before choosing a forum in which to file a sexual harassment complaint since the correct forum for filing complaints can vary based on the facts of the claim, location and size of the employer, and nature of the employer.
If you need assistance with filing a sexual harassment complaint, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
We thought that an article on whistleblowing would be timely given the recent news involving the whistleblower complaint involving Ukraine. A whistleblower is simply an individual who learns of illegal or unethical activity (or waste, fraud and abuse) and reports it.
Most whistleblowers do not end up famous, but they often play a critical role in holding employers and the government accountable for engaging in illegal activities. Too often illegal activities are ignored by an employee for fear of retaliation. Some employees, however, take a stand at great risk to themselves. As a result, many whistleblower laws have developed over the years to protect these individuals.
Whistleblower Laws in the United States and Virginia
The United States has had whistleblower laws in effect since 1863 during the time of President Abraham Lincoln, who wanted to encourage individuals to report rampant fraud against the federal government in response to purchases during the Civil War. As a result, the False Claims Act (FCA) became law and encouraged private citizens to bring lawsuits against individuals and companies who were defrauding the government.
As an incentive, the whistleblower could receive a percentage of whatever the government recovered from the disclosure. The FCA is still in effect today, though numerous other federal and state laws cover different types of whistleblowers.
In 1989, the Whistleblower Protection Act (WPA) was enacted to protect federal employees who disclosed illegal actions by the federal government and waste, fraud and abuse. The WPA sought to protect federal employee whistleblowers who suffered retaliation for reporting these illegal activities. There are numerous other whistleblower laws at the federal and state levels that protect individuals who disclose different types of illegal activities, such as the Clean Air Act, the Sarbanes-Oxley Act, the Toxic Substances Control Act, and the Occupational Safety and Health Act (OSHA).
These are just some of the existing whistleblower laws that can protect individuals that make disclosures. Additionally, many states allow employees, either by statute or common law, the ability to challenge retaliation related to whistleblowing activities.
In Virginia, because the state has not yet enacted general state whistleblower protections for employees, the courts have allowed employees to bring whistleblower claims through common law. These are known as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).
General Test to Qualify for Whistleblower Protection
The importance of being a whistleblower is that certain protections can then come into play after the disclosures are made. Generally, once a disclosure is made, an employer finds out who disclosed the illegal activity and are very unhappy with the employee. This often causes employer retaliation against the whistleblower.
Whistleblower protection laws usually follow the same 3-part test to determine if an employee can prevail on a retaliation claim. In general, this requires:
- That the individual had a good faith belief that their employer was engaging in illegal activities or waste, fraud and abuse and they reported it
- That the individual’s employer knew that the individual made such disclosures
- That the whistleblower suffered retaliation due to the disclosures
Depending on the statute involved, a whistleblower can receive legal protection from retaliation (the most common retaliatory action involves termination from employment), damages, back pay and attorney fees. Each statute is different so individuals should consult with an attorney if they believe that they may need whistleblower protection.
Conclusion
If you need assistance with whistleblower representation or other employment issues, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
A psychological condition can become a security clearance concern for government contractors and federal employees.
The good news is that federal agencies, especially over the past 10-15 years, have responded to such concerns with more empathy and consideration than ever before. However, there are some considerations to be aware of when these issues arise.
We all know that a mental health condition can enter an individual’s life at any time and for any reason. It can be genetic or can be triggered by a death, divorce, loss of employment or injury. When a psychological condition arises in the context of applying for or attempting to retain a security clearance, the individual needs to seek legal advice to enable the person the best opportunity to maintain or obtain their security clearance.
Being diagnosed with a mental health illness doesn’t mean that the individual can’t obtain or continue to hold a security clearance. Thousands upon thousands of clearance holders retain their security clearances even if they have psychological conditions. These days, the best way for a security clearance holder to address psychological issues is to disclose them where appropriate and demonstrate that any psychological issues are under control or no longer an issue. There are many ways to do this.
Furthermore, the revised Adjudicative Guidelines (SEAD 4) for Psychological Concerns (Guideline I) state that “no negative inference concerning the standards in this guideline may be raised solely on the basis of mental health counseling.”
The key for an individual is to be upfront and honest in completing security clearance forms and in speaking with investigators about such issues. It is often the case that an individual can lose a security clearance because they did not disclose a serious psychological condition (dishonesty) when had they disclosed the psychological concern they would have obtained their security clearance.
The following are examples of the potential mitigation evidence that can be used in security clearance cases involving psychological conditions, depending on the specific facts or condition at issue. These can include:
- Medical opinions issued by mental health professionals (psychiatrists, psychologists, counselors) showing that a psychological condition is under control
- Evidence that demonstrates that an individual has complied with medical treatment and recommendations related to a psychological condition
- Evidence that the individual has entered counseling, therapy or other treatment programs administered by medical professionals
- Evidence that a psychological condition no longer affects the individual
Each case under Guideline I is different, but we have found that most cases can be mitigated with the proper attention to treatment and the preparation of documentation showing that any major psychological condition is under control or in the past.
Conclusion
If you are in need of security clearance representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Security Clearance Blog, Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
On October 8, 2019, the United States Supreme Court heard oral arguments as to whether or not Title VII of the Civil Rights Act of 1964 involving sex discrimination applies to LGBT employees.
The U.S. Circuit Courts of Appeal are currently split on the issue. Hopefully, the Supreme Court will focus on the text of the law, not politics, and do the right thing here. In my opinion, the Civil Rights Act clearly protects LGBT employees from employment discrimination based on sexual orientation and transgender status. The civil rights law was written broadly and anticipates other forms of sex discrimination.
The Three Cases
The Supreme Court heard three combined cases on the issue during oral argument. They involve 3 employees, two gay males and one transgender female. The two men were fired due to their sexual orientation and the transgender woman was fired from her employment because of her gender identity. A link to the synopsis on Scotusblog can be found here.
Common Sense Should Prevail
As with so many other issues in the law, common sense has been distorted through the various legal arguments. Most individuals know that “sex” discrimination is discrimination based on some aspect of sex. Those opposing the inclusion of LGBT employees from sexual discrimination protections have tried to twist the plain meaning of the statute’s wording by claiming it to be different than it reads.
To some, it could reasonably appear that LGBT employees are attempting to enlarge the definition of a law which was meant to protect women from sex discrimination back in 1964. However, the law was also meant to broadly define sex discrimination, which can happen to anyone, regardless of whether they are straight, LGBTQ or otherwise. Opponents have argued that gender identity, sexual orientation and sex discrimination have multiple different meanings in an effort to confuse the issue.
One of the arguments put forth seems to make the concept clear to me:
The argument before the Court is that sexual orientation discrimination is sex discrimination under Title VII, because when an employer fires a male employee for dating men, but does not fire a female employee who also dates men, the employer discriminates based on sex.Â
History of Sex Discrimination Law is Non-Existent
Furthermore, Title VII’s ban on sex discrimination was a last-minute inclusion in the Civil Rights Act that was intended to scuttle the bill by former Congressman Howard Smith from Virginia. Apparently, Congressman Smith elicited laughter from his colleagues when he proposed this addition at the last minute. He must have been shocked when the sex discrimination law passed Congress.
As a result, the definition was left broad, without any hearings and debate to define it. Many courts and the EEOC have concluded that the law was intended to protect LGBT employees. Hopefully, the Supreme Court will do the right thing here. Nobody should be subject to sex discrimination.
A ruling, either way, is probably likely to be 5-4, either way. The swing justice is likely Justice Neil Gorsuch, who has taken the view that the text was clear in that sex discrimination could include these forms of discrimination. If the 3 employees prevail it will likely be because Justice Gorsuch and/or Kavanaugh rule with them. However, if the Court rules against LGBT employees, it will only be a matter of time before a future Supreme Court overrules them and the justices that supported this type of discrimination will be remembered poorly.
Conclusion
If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
With the change in control of the Virginia House of Delegates and Senate, there is an opportunity to modernize employment laws in the Commonwealth of Virginia.
While there are a number of other suggestions out there already regarding the raising wages, right to work laws and other wage-related issues, I think that there are also some less contentious fixes that could offer employees enhanced protections.
Here are some suggestions for the Virginia Legislature to consider:
Enact a Whistleblower Law: Virginia has been one of those states where whistleblower laws for the private sector are nearly non-existent. Currently, there is no general statute where an individual employed in the private sector is terminated because of disclosures about illegal activities.
There has been a common-law cause of action known as a Bowman claim but the courts have long avoided holding employers accountable without a statute in place. We are hopeful that the legislature is able to accomplish this. New York has a very good law that protects private-sector employees from whistleblower retaliation that should be considered. NY Consolidated Laws, Labor Law – LAB § 740.
Add Sexual Orientation Discrimination to the Virginia Human Rights Act: The Virginia Human Rights Act does not currently protect workers from sexual orientation discrimination. It is past time for the Commonwealth of Virginia to change this. Doing so would only require a minor addition to VA Code § 2.2-3900.
Provide an Employee the Right to Dispute Termination Allegations: While Virginia and other jurisdictions remain at-will states, there is no reason why an employee should not be permitted to rebut false allegations made against them in a termination matter which have been placed on file with the employer. Massachusetts has an excellent law (MGL Ch. 149, Section 52C) on this subject which provides an employee a complete copy of their personnel file and the opportunity to negotiate what their final employment record will reflect.
Alternatively, the law provides the employee the opportunity to respond to negative termination allegations that would be kept in their employment file. If a third party requests information about the person’s former employment, both the termination letter and the former employee’s response would be provided, not just the termination letter. While amended recently, the Virginia Legislature would likely have to amend VA Code § 8.01-413.1 to accomplish this needed reform.
Revamp the Administrative Grievance Process for State/Public Employees: Presently, while there is a process that allows public employees to file a grievance and seek a hearing in termination cases, the truth is that the process is heavily slanted to the public employer. The hearing officers rule overwhelmingly on an employer’s behalf even when a termination is flawed. There is no reason why the hearing process cannot provide a level playing field for public sector employees. This would not require legislation, only changes and training at the hearing official level at the Virginia Office of Equal Employment and Dispute Resolution.
Conclusion
If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
