Losing your job can be a difficult situation regardless of the circumstances, but it can feel even harder to bear when you’ve been fired unfairly. What if your employer fired you for reporting discrimination? Or your employer or a coworker deliberately attempted to harm you? Or you endured months of harassment while management looked the other way?
Compensation for lost wages can be a common remedy in successful employment cases, but that may not feel like enough to make up for losing your hard-earned career. Punitive damages, however, may be the justice you’re seeking if your employer’s conduct was especially harmful.
Virginia employees who have been discriminated or retaliated against by their employers can be awarded additional money in the form of punitive damages under the Virginia Human Rights Act (VHRA).
What Are Punitive Damages?
Punitive damages are awarded when a jury or judge decides that a defendant’s actions were so egregious that they warrant punishment.1 Where compensatory damages aim to make up for measurable financial losses or emotional harm, punitive damages are meant to deter defendants from engaging in similar conduct in the future.
An employee requesting punitive damages would have to show that their employer acted with “actual malice” or “reckless indifference,”2 which we’ll explain further in a later section.
What is the Virginia Human Rights Act?
The VHRA is a state statute that prohibits discrimination based on:3
- Race or color,
- Religion,
- Ethnic or national origin,
- Sex,
- Gender identity,
- Sexual orientation,
- Age,
- Disability,
- Military status,
- Marital status, or
- Pregnancy, childbirth, or related medical conditions, including lactation.
Any employer who has five or more employees is subject to the VHRA.4 Employees are not only able to sue their employers for discrimination but also for retaliation if the employee experienced an adverse action (such as termination or demotion) for opposing a discriminatory practice or participating in an investigation, proceeding, or hearing related to a discrimination complaint.5
A successful VHRA claim can result in awards for economic damages, compensatory damages, and attorney fees and costs, but what truly sets the VHRA apart is the potential for punitive damages, which can significantly increase a plaintiff’s recovery.6
How to Get Awarded Punitive Damages Under the VHRA
Punitive damages can be awarded at the jury’s discretion, but it requires a two-step showing. First, the employee must prove that discrimination or retaliation occurred. Then they must prove that the discrimination and/or retaliation was accompanied by particularly egregious conduct or malicious intent. If the employee satisfies both requirements, the jury may decide whether to award punitive damages and, if so, how much to award.
Step One: Proving Discrimination or Retaliation
For a successful VHRA complaint, an employee would need to establish that:
- They possess a protected trait (e.g., gender, race, or disability status), or they engaged in a “protected activity” to oppose illegal acts under the VHRA (e.g., reporting discrimination or participating in an internal investigation);
- Their employer took an adverse employment action (e.g., failing to promote the employee accordingly, paying them less, or terminating them unfairly); and
- There is a direct link between the employee’s protected status or activity and the employer’s adverse action.
The employee must provide enough evidence to show that it is more likely than not that the discrimination/retaliation occurred.7 Lawyers and judges refer to this “more likely than not” standard as a “preponderance of evidence.”8
Step Two: Proving “Actual Malice” or “Reckless Indifference”
Punitive damages are not available in every case under the VHRA. An employee must show that the defendant acted with actual malice (meaning they intentionally attempted to mistreat the employee) or reckless indifference to the consequences of their actions.9
Malice or reckless indifference can be shown in many ways. Some examples include an employer:
- Reprimanding an employee for performance issues that didn’t previously exist;
- Spreading false information about an employee to harm their reputation;
- Referring to an employee’s protected status when taking an adverse action; or
- Making threats, such as, “you’ll regret this” or “I’ll make sure you never work here again.”
In one case, a jury awarded $50,000 in punitive damages to an employee based on evidence that the employer dismissed him because he “was just too old,”10 showing a conscious disregard for the employee’s right to be free from age discrimination in employment.11 In another case, a jury awarded $25,000 in punitive damages after finding that the defendant repeatedly made defamatory statements about the plaintiff, both at work and in public, and did so with clear malicious intent, which was shown by a statement that she was out to “get” him.12
Proving malice requires a stricter standard of evidence. This reflects the seriousness of punitive damages, which are meant to punish particularly egregious conduct rather than compensate every successful VHRA claimant.
An employee must present “clear and convincing evidence”13 that the discrimination or retaliation was harmful enough to warrant punitive damages. The evidence needs to be strong enough to convince the jury that the misconduct was highly probable or reasonably certain14 — a firm belief rather than just “more likely than not.”
Under Virginia law, punitive damages are capped at $350,000.15 If a jury award exceeds that amount, a trial judge must reduce it to meet the cap.16
Can You Sue Individual Managers Under the VHRA?
It is up in the air whether employees can pursue a VHRA case against individual supervisors rather than solely the company as a whole. There are possible arguments to be made that the VHRA is meant to allow for individual liability, but there are also arguments to support the opposite. For now, courts have not clearly decided whether to extend liability to individuals, so managers remain in a gray area.
Can Requesting Punitive Damages Help My Case?
A viable claim for punitive damages can result in a faster and more favorable resolution.
Going to trial means risking the jury siding with the employee and awarding punitive damages. There is a cap on how large the award can be, but it still means more money the employer may have to pay. Employers may wish to avoid this possibility by offering a reasonable settlement instead.
Employers might also want a quick resolution to avoid the reputational harm that can result from allegations of egregious discriminatory conduct becoming part of the public record.
Making a claim for punitive damages can be a powerful strategy in negotiating and resolving a VHRA claim. If you are an employee in Virginia and believe your employer may have discriminated or retaliated against you, call The Employment Law Group to discuss the possibility of pursuing a claim under the VHRA.
Footnotes
1 Bowers v. Westvaco Corp., 244 Va. 139, 150 (1992).
2 A.H. v. Church of God in Christ, Inc., 297 Va. 604, 636 (2019); Harris v. Harman, 253 Va. 336, 340-41 (1997).
3 Va. Code § 2.2-3905(B)(1).
4 Va. Code § 2.2-3905(B)(1)(a).
5 Va. Code § 2.2-3905(B)(7).
6 Va. Code § 2.2-3908(B).
7 Benefield v. Commonwealth, 82 Va. App. 561, 571 (2024)
8 Ballagh v. Fauber Enterprises, Inc., 290 Va. 120, 124-25, 773 S.E.2d 366 (2015).
9 A.H. v. Church of God in Christ, Inc., 297 Va. 604, 636 (2019); Harris v. Harman, 253 Va. 336, 340-41 (1997).
10 Smith v. Litten, 256 Va. 573, 576 (1998).
11 Id. at 579.
12 254, 263 (1996).
13 Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 59, 547 S.E.2d 216 (2001).
14 In re Brown, 295 Va. at 227, 810 S.E.2d 444 (quoting Black’s Law Dictionary 674 (10th ed. 2014)).
15 Va. Code § 8.01-38.1.
16 Id.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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