With the enactment of Chapter 901 of the Virginia Acts of Assembly on April 9, 2020, the General Assembly of Virginia and Governor directed the Division of Human Rights (“Division") to develop recommendations related to the proactive enforcement of statutory requirements for equal pay of similarly situated employees irrespective of sex and race and to report its findings and recommendations to the Governor and the General Assembly by November 30, 2020. Specifically, the General Assembly and Governor tasked the Division with developing recommendations in the following areas:

1. The type of information about businesses and their employees and the accompanying methodology that would be required for the Division to proactively enforce the provisions of Code of Virginia § 40.1-28.6 requiring equal pay of similarly situated employees irrespective of sex;

2. The data and methodological requirements for proactively enforcing a requirement for equal pay irrespective of race; and

3. Appropriate enforcement mechanisms, including causes of action and civil remedies, to address discrimination in compensation based on sex and race.

To prepare this report, the Division engaged stakeholders representing employers and employees in the Commonwealth in developing such recommendations. Given that the U.S. Equal Employment Opportunity Commission (“EEOC") has been engaged in collecting pay data to assist with enforcing federal equal pay laws for most of the past decade, the Division likewise communicated with EEOC officials involved in that process and reviewed information related to those efforts, including its regulatory actions and research by the National Academy of Sciences prepared for the EEOC.

The Division’s findings and recommendations are set forth below. First, this report provides a brief background on the problem of pay disparity on the basis of sex and race, a legislative overview of federal and state laws that establish an employer’s duty to compensate similarly situated employees with equal pay irrespective of sex and race, and current enforcement mechanisms to ensure compliance of these laws. Second, this Report assesses the type of aggregate workforce data and methodology currently collected to enforce employment discrimination laws, the effectiveness of this data to enforce equal pay laws irrespective of sex or race, and the significance and challenges of collecting and using pay data as an enforcement mechanism for unlawful pay discrimination. Within this framework, and taking into account concerns raised by stakeholders representing employers and employees in Virginia, this report proposes recommendations regarding: (1) the type of data and accompanying methodology that would be required for the Division to proactively enforce equal pay laws irrespective of sex or race; and (2) an appropriate enforcement mechanism to address pay discrimination based on sex or race.