4.11 Procedure Under the Vda

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

4.11 PROCEDURE UNDER THE VDA

4.1101 The Virginia Office for Protection and Advocacy and the DisAbility Law Center of Virginia. Effective January 1, 2014, the disAbility Law Center of Virginia (dLCV) became the protection and advocacy system (P&A system) in Virginia. ³²²

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The dLCV has not changed the prior method used by VOPA for pursuing claims under the VDA. However, because of the limited range of recovery and the fact that employers with more than fifteen employees are covered by the ADA, the dLCV rarely files suits for employment related claims. The dLCV does not have any formal requirements about filing complaints. A complaint can be communicated to the dLCV in any manner, such as in a letter or by telephone, and the nature and extent of the response depends on many factors. Filing a complaint with the agency does not toll the statute of limitations for a private court action.

The dLCV may use mediation to resolve complaints.

The dLCV does not charge disabled persons for giving them advice or representing them. The dLCV can be an effective advocate for a disabled individual because, instead of resorting immediately to litigation, its representatives can talk to an employer on behalf of the worker and try to resolve the situation amicably. Attorneys can also contact the dLCV to receive technical assistance about the law, including claims under the ADA. Since the dLCV is required to exhaust administrative remedies before it can file suit, if a claimant contacts the dLCV with a claim that is about to be time-barred, the dLCV will encourage that person to seek assistance from an attorney immediately.

4.1102 Private Cause of Action. An aggrieved individual has a private cause of action to enforce the VDA. ³²³ As a practical matter, an employee who can sue an employer under the ADA or under the Rehabilitation Act of 1973 would probably find it more advantageous to do so. Among other reasons, the available remedies are greater under federal law, and the "undue burden" defense is easier for the employer to prove under the VDA than it is under analogous federal law. Moreover, claims under the ADA do not require that the plaintiff prove that the discrimination was due "solely" to disability. However, if an employee works for an organization that employs one to fourteen workers and the organization is not covered by the Rehabilitation Act, the only statutory recourse for an employment practice that discriminates based on disability is an action under...