H. B. 2449
(By Mr. Speaker, Mr. Chambers and Delegates Brown,
Sorah, Douglas, Brum, Spencer and Doyle)
[Introduced March 3, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two, three, four, eight,
nine, thirteen and sixteen, article eleven, chapter five of
the code of West Virginia, one thousand nine hundred thirty-
one, as amended; and to amend and reenact sections three,
five, six and seven, article eleven-a of said chapter, all
relating to declaration of policy; definitions; human rights
commission continued; commission powers; unlawful
discriminatory practices; exclusiveness of remedy; certain
records exempt; the fair housing act; prohibiting
discrimination based upon sexual orientation in residential
real-estate-related transactions; and in provisions of
brokerage services changing from handicap to disability.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, eight, nine, thirteen and
sixteen, article eleven, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that sections three, five, six andseven, article eleven-a of said chapter be amended and reenacted,
all to read as follows:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§5-11-2. Declaration of policy.
It is the public policy of the state of West Virginia to
provide all of its citizens equal opportunity for employment
and
equal access to places of public accommodations.
and equal
opportunity in the sale, purchase, lease, rental and financing of
housing accommodations or real property Equal opportunity in the
areas of employment and public accommodations is hereby declared
to be a human right or civil right of all persons without regard
to race, religion, color, national origin, ancestry, sex, age,
blindness,
a disability or
handicap sexual orientation. Equal
opportunity in housing accommodations or real property is hereby
declared to be a human right or civil right of all persons
without regard to race, religion, color, national origin,
ancestry, sex, blindness, handicap, or familial status.
The denial of these rights to properly qualified persons by
reason of race, religion, color, national origin, ancestry, sex,
age, blindness,
handicap, or familial status disability or sexual
orientation is contrary to the principles of freedom and equality
of opportunity and is destructive to a free and democratic
society.
§5-11-3. Definitions.
When used in this article:
(a) The term "person" means one or more individuals,partnerships, associations, organizations, corporations, labor
organizations, cooperatives, legal representatives, trustees,
trustees in bankruptcy, receivers and other organized groups of
persons;
(b) The term "commission" means the West Virginia human
rights commission;
(c) The term "director" means the executive director of the
commission;
(d) The term "employer" means the state, or any political
subdivision thereof, and any person employing twelve or more
persons within the state:
Provided, That such terms shall not be
taken, understood or construed to include a private club;
(e) The term "employee" shall not include any individual
employed by his parents, spouse or child, or in the domestic
service of any person;
(f) The term "labor organization" includes any organization
which exists for the purpose, in whole or in part, for collective
bargaining or for dealing with employers concerning grievances,
terms or conditions of employment, or for other mutual aid or
protection in relation to employment;
(g) The term "employment agency" includes any person
undertaking with or without compensation to procure, recruit,
refer or place employees. A newspaper engaged in the activity of
advertising in the normal course of its business shall not be
deemed to be an employment agency;
(h) The term "discriminate" or "discrimination" means toexclude from, or fail or refuse to extend to, a person equal
opportunities because of race, religion, color, national origin,
ancestry, sex, age, blindness,
handicap or familial status
disability or sexual orientation and includes to separate or
segregate;
(i) The term "unlawful discriminatory practices" includes
only those practices specified in section nine of this article;
(j) The term "place of public accommodations" means any
establishment or person, as defined herein, including the state,
or any political or civil subdivision thereof, which offers its
services, goods, facilities or accommodations to the general
public, but shall not include any accommodations which are in
their nature private;
(k) The term "age" means the age of forty or above;
(l) For the purpose of this article, a person shall be
considered to be blind only if his central visual acuity does not
exceed twenty/two hundred in the better eye with correcting
lenses, or if his visual acuity is greater than twenty/two
hundred but is occasioned by a limitation in the fields of vision
such that the widest diameter of the visual field subtends an
angle no greater than twenty degrees;
and
(m) The term
"handicap" "persons with a disability" means a
person who:
(1) Has a mental or physical impairment which substantially
limits one or more of such person's major life activities; the
term "major life activities" includes functions such as caringfor one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working;
(2) Has a record of such impairment; or
(3) Is regarded as having such an impairment.
For the purposes of this article, this term does not include
persons whose current use of or addiction to alcohol or drugs
prevents
such the individual from performing the duties of the
job in question or whose employment, by reason of such current
alcohol or drug abuse, would constitute a direct threat to
property or the safety of others;
and
(n) The term "sexual orientation" means actual or perceived
male or female, homosexuality, heterosexuality or bisexuality by
practice or identification.
§5-11-4. Human rights commission continued; status, powers and
objects.
The West Virginia human rights commission, heretofore
created, is hereby continued. The commission shall have the
power and authority and shall perform the functions and services
as in this article prescribed and as otherwise provided by law.
The commission shall encourage and endeavor to bring about mutual
understanding and respect among all racial, religious and ethnic
groups within the state and shall strive to eliminate all
discrimination in employment and places of public accommodations
by virtue of race, religion, color, national origin, ancestry,
sex, age, blindness,
disability or sexual orientation. or
handicap and shall strive to eliminate all discrimination in thesale, purchase, lease, rental or financing of housing and other
real property by virtue of race, religion, color, national
origin, ancestry, sex, blindness, handicap, or familial status
§5-11-8. Commission powers; functions; services.
The commission is hereby authorized and empowered:
(a) To cooperate and work with federal, state and local
government officers, units, activities and agencies in the
promotion and attainment of more harmonious understanding and
greater equality of rights between and among all racial,
religious, and
disabled ethnic groups in this state;
(b) To enlist the cooperation of racial, religious and
ethnic units, community and civic organizations, industrial and
labor organizations and other identifiable groups of the state in
programs and campaigns devoted to the advancement of tolerance,
understanding and the equal protection of the laws of all groups
and peoples;
(c) To receive, investigate and pass upon complaints
alleging discrimination in employment or places of public
accommodations, because of race, religion, color, national
origin, ancestry, sex, age, blindness,
or handicap, and
complaints alleging discrimination in the sale, purchase, lease,
rental and financing of housing accommodations or real property
because of race, religion, color, national origin, ancestry, sex,
blindness, handicap, or familial status, disability or sexual
orientation, and to initiate its own consideration of any
situations, circumstances or problems, including therein anyracial, religious or ethnic group tensions, prejudice, disorder
or discrimination reported or existing within the state relating
to employment, places of public accommodations, housing
accommodations and real property;
(d) To hold and conduct public and private hearings in the
county where the respondent resides or transacts business or
where agreed to by the parties or where the acts complained of
occurred, on complaints, matters and questions before the
commission and, in connection therewith, relating to
discrimination in employment, or places of public accommodations,
housing accommodations or real property and during the
investigation of any formal complaint before the commission
relating to employment
or places of public accommodations:
housing accommodations or real property to
(1) Issue subpoenas and subpoenas duces tecum upon the
approval of the executive director or the chairperson of the
commission; administer oaths; take the testimony of any person
under oath; and make reimbursement for travel and other
reasonable and necessary expenses in connection with such
attendance;
(2) Furnish copies of public hearing records to parties
involved therein upon their payment of the reasonable costs
thereof to the commission;
(3) Delegate to
a hearing examiner an administrative law
judge who shall be an attorney, duly licensed to practice law in
West Virginia, the power and authority to hold and conducthearings, as herein provided, to determine all questions of fact
and law presented during the hearing and to render a final
decision on the merits of the complaint, subject to the review of
the commission as hereinafter set forth.
Any respondent or complainant who shall feel aggrieved at
any final action of
a hearing examiner an administrative law
judge shall file a written notice of appeal with the commission
by serving
such the notice on the executive director and upon all
other parties within thirty days after receipt of the
hearing
examiner's administrative law judge's decision. The commission
shall limit its review upon such appeals to whether the
hearing
examiner's administrative law judge's decision is:
(a) In conformity with the constitution and the laws of the
state and the United States;
(b) Within the commission's statutory jurisdiction or
authority;
(c) Made in accordance with procedures required by law or
established by appropriate rules or regulations of the
commission;
(d) Supported by substantial evidence on the whole record;
or
(e) Not arbitrary, capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
(4) To enter into conciliation agreements and consent
orders.
Each conciliation agreement shall include provisionsrequiring the respondent to refrain from the commission of
unlawful discriminatory practices in the future and shall contain
such further provisions as may be agreed upon by the commission
and the respondent.
If the respondent and the commission agree upon conciliation
terms, the commission shall serve upon the complainant a copy of
the proposed conciliation agreement. If the complainant agrees
to the terms of the agreement or fails to object to
such its
terms within fifteen days after its service upon him
or her, the
commission shall issue an order embodying such conciliation
agreement. If the complainant objects to the agreement, he
or
she shall serve a specification of his
or her objections upon the
commission within such period. Unless
such the objections are
met or withdrawn within ten days after service thereof, the
commission shall notice the complaintant for hearing.
Notwithstanding any other provisions of this section, the
commission may, where it finds the terms of the conciliation
agreement to be in the public interest, execute such agreement,
and limit the hearing to the objections of the complainant.
If a conciliation agreement is entered into, the commission
shall serve a copy of the order embodying
such the agreement upon
all parties to the proceeding.
Not later than one year from the date of a conciliation
agreement, the commission shall investigate whether the
respondent is complying with the terms of
such the agreement.
Upon a finding of noncompliance, the commission shall takeappropriate action to assure compliance;
(5) To apply to the circuit court of the county where the
respondent resides or transacts business for enforcement of any
conciliation agreement or consent order by seeking specific
performance of
such the agreement or consent order;
(6) To issue cease and desist orders against any person
found, after a public hearing, to have violated the provisions of
this article or the rules and regulations of the commission;
(7) To apply to the circuit court of the county where the
respondent resides or transacts business for an order enforcing
any lawful cease and desist order issued by the commission;
(e) To recommend to the governor and Legislature policies,
procedures, practices and legislation in matters and questions
affecting human rights;
(f) To delegate to its executive director such powers,
duties and functions as may be necessary and expedient in
carrying out the objectives and purposes of this article;
(g) To prepare a written report on its work, functions and
services for each year ending on the thirtieth day of June and to
deliver copies thereof to the governor on or before the first day
of December next thereafter;
(h) To do all other acts and deeds necessary and proper to
carry out and accomplish effectively the objects, functions and
services contemplated by the provisions of this article,
including the promulgation of legislative rules in accordance
with the provisions of article three, chapter twenty-nine-a ofthis code, implementing the powers and authority hereby vested in
the commission;
(i) To create such advisory agencies and conciliation
councils, local, regional or statewide, as in its judgment will
aid in effectuating the purposes of this article, to study the
problems of discrimination in all or specific fields or instances
of discrimination because of race, religion, color, national
origin, ancestry, sex, age, blindness,
handicap, or familial
status disability or sexual orientation; to foster, through
community effort or otherwise, goodwill, cooperation and
conciliation among the groups and elements of the population of
this state, and to make recommendations to the commission for the
development of policies and procedures, and for programs of
formal and informal education, which the commission may recommend
to the appropriate state agency. Such advisory agencies and
conciliation councils shall be composed of representative
citizens serving without pay. The commission may itself make the
studies and perform the acts authorized by this subdivision. It
may, by voluntary conferences with parties in interest, endeavor
by conciliation and persuasion to eliminate discrimination in all
the stated fields and to foster goodwill and cooperation among
all elements of the population of the state;
(j) To accept contributions from any person to assist in the
effectuation of the purposes of this section and to seek and
enlist the cooperation of private, charitable, religious, labor,
civic and benevolent organizations for the purposes of thissection;
(k) To issue
such any publications and
such the results of
investigation and research as in its judgment will tend to
promote goodwill and minimize or eliminate discrimination:
Provided, That the identity of the parties involved shall not be
disclosed.
§5-11-9. Unlawful discriminatory practices.
It shall be an unlawful discriminatory practice, unless
based upon a bona fide occupational qualification, or except
where based upon applicable security regulations established by
the United States or the state of West Virginia or its agencies
or political subdivisions:
(1) For any employer to discriminate against an individual
with respect to compensation, hire, tenure, terms, conditions or
privileges of employment if the individual is able and competent
to perform the services required even if
such the individual is
blind or
handicapped disabled: Provided, That it shall not be
unlawful discriminatory practice for an employer to observe the
provisions of any bona fide pension, retirement, group or
employee insurance or welfare benefit plan or system not adopted
as a subterfuge to evade the provisions of this subdivision;
(2) For any employer, employment agency or labor
organization, prior to the employment or admission to membership,
to: (A) Elicit any information or make or keep a record of or
use any form of application or application blank containing
questions or entries concerning the race, religion, color,national origin, ancestry, sex,
or age,
sexual orientation or
disability of any applicant for employment or membership; (B)
print or publish or cause to be printed or published any notice
or advertisement relating to employment or membership indicating
any preference, limitation, specifications or discrimination
based upon race, religion, color, national origin, ancestry, sex,
or age,
or sexual orientation or disability; or (C) deny or
limit, through a quota system, employment or membership because
of race, religion, color, national origin, ancestry, sex, age,
blindness,
or handicap disability or sexual orientation;
(3) For any labor organization because of race, religion,
color, national origin, ancestry, sex, age, blindness,
or
handicap disability or sexual orientation; of any individual to
deny full and equal membership rights to any individual or
otherwise to discriminate against such individual with respect to
hire, tenure, terms, conditions or privileges of employment or
any other matter, directly or indirectly, related to employment;
(4) For an employer, labor organization, employment agency
or any joint labor-management committee controlling apprentice
training programs to:
(A) Select individuals for an apprentice training program
registered with the state of West Virginia on any basis other
than their qualifications as determined by objective criteria
which permit review;
(B) Discriminate against any individual with respect to his
or her right to be admitted to or participate in a guidanceprogram, an apprenticeship training program, on-the-job training
program or other occupational training or retraining program;
(C) Discriminate against any individual in his
or her
pursuit of such programs or to discriminate against such a person
in the terms, conditions or privileges of such programs;
(D) Print or circulate or cause to be printed or circulated
any statement, advertisement or publication, or to use any form
of application for such programs or to make any inquiry in
connection with such program which expresses, directly or
indirectly, discrimination or any intent to discriminate unless
based upon a bona fide occupational qualification;
(5) For any employment agency to fail or refuse to classify
properly, refer for employment or otherwise to discriminate
against any individual because of his race, religion, color,
national origin, ancestry, sex, age, blindness,
or handicap
disability or sexual orientation;
(6) For any person being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any place of public
accommodations to:
(A) Refuse, withhold from or deny to any individual because
of his race, religion, color, national origin, ancestry, sex,
age, blindness,
or handicap disability or sexual orientation,
either directly or indirectly, any of the accommodations,
advantages, facilities, privileges or services of such place of
public accommodations;
(B) Publish, circulate, issue, display, post or mail, eitherdirectly or indirectly, any written or printed communication,
notice or advertisement to the effect that any of the
accommodations, advantages, facilities, privileges or services of
any such a place shall be refused, withheld from or denied to any
individual on account of race, religion, color, national origin,
ancestry, sex, age, blindness,
or handicap disability or sexual
orientation, or that the patronage or custom thereat of any
individual, belonging to or purporting to be of any particular
race, religion, color, national origin, ancestry, sex,
or age,
blindness, disability or sexual orientation or who is blind or
handicapped, is unwelcome, objectionable, not acceptable,
undesired or not solicited; or
(7) For any person, employer, employment agency,
or labor
organization
owner, real estate broker, real estate salesman or
financial institution to:
(A) Engage in any form of threats or reprisal, or to engage
in, or hire, or conspire with others to commit acts or activities
of any nature, the purpose of which is to harass, degrade,
embarrass or cause physical harm or economic loss or to aid,
abet, incite, compel or coerce any person to engage in any of the
unlawful discriminatory practices defined in this section;
(B) Willfully obstruct or prevent any person from complying
with the provisions of this article, or to resist, prevent,
impede or interfere with the commission or any of its members or
representatives in the performance of duty under this article; or
(C) Engage in any form of reprisal or otherwise discriminateagainst any person because he
or she has opposed any practices or
acts forbidden under this article or because he
or she has filed
a complaint, testified or assisted in any proceeding under this
article.
§5-11-13. Exclusiveness of remedy; exceptions.
(a) Except as provided in subsection (b), nothing contained
in this article shall be deemed to repeal or supersede any of the
provisions of any existing or hereafter adopted municipal
ordinance, municipal charter or of any law of this state relating
to discrimination because of race, religion, color, national
origin, ancestry, sex, age, blindness,
or handicap disability or
sexual orientation, but as to acts declared unlawfully by section
nine of this article the procedure herein provided shall, when
invoked, be exclusive and the final determination therein shall
exclude any other action, civil or criminal, based on the same
grievance of the complainant concerned. If such complainant
institutes any action based on such grievance without resorting
to the procedure provided in this article, he
or she may not
subsequently resort to the procedure herein. In the event of a
conflict between the interpretation of a provision of this
article and the interpretation of a similar provision contained
in any municipal ordinance authorized by charter, the
interpretation of the provision in this article shall apply to
such municipal ordinance.
(b) Notwithstanding the provisions of subsection (a) of this
section,
a complainant may institute an action against arespondent in the county wherein the respondent resides or
transacts business at any time within ninety days after the
complainant is given notice of a right to sue pursuant to this
subsection (b) or, if the statute of limitations on the claim has
not expired at the end of such ninety-day period, then at any
time during which such statute of limitations has not expired. If
a suit is filed under this section the proceedings pending before
the commission shall be deemed concluded.
The commission shall give a complainant who has filed a
complaint a notice of a right to sue forthwith upon (1) the
dismissal of the complaint within one hundred eighty days of the
filing thereof for any reason other than a decision on the merits
of the case, or (2) the expiration of a period of one hundred
eighty days during which period no public hearing has been held
on such complaint and the commission and the respondent have not
entered into a conciliation agreement to which the complainant is
a party: Provided, That the commission shall also give the
complainant notice of a right to sue in any case in which, after
the expiration of one year, the complaint has not been determined
on its merits or a conciliation agreement entered into to which
the complainant is a party a complainant has the right to request
a notice of right to sue any time after one hundred eighty days
from the date of the filing of the complaint for the purpose of
bringing an action against the respondent in the county where the
respondent resides or transacts business. The action may be
filed any time within ninety days after complainant is givennotice of right to sue; or if the two-year statute of limitations
on the claim has not expired at the end of such ninety-day
period, then at any time during which such statute of limitation
has not expired.
The commission shall give a notice of right to sue to any
complainant who makes a written request for a notice of right to
sue any time after one hundred eighty days from the filing of the
complaint: Provided, That no public hearing has been held on the
complaint and the commission and the respondent have not entered
into a conciliation agreement to which the complainant is a
party.
Notice of right to sue shall be given immediately upon
complainant's request by personal service or certified mail. The
notice shall inform the complainant in plain terms of the right
to institute a civil action as provided in this section within
ninety days of the receipt of the notice. Service of the notice
shall be complete upon mailing. The issuance of a notice of
right to sue shall terminate further proceedings before the
commission of the specific complaint.
Notice of right to sue shall be given immediately upon
complainant being entitled thereto, by personal service or
certified mail, return receipt requested, which notice shall
inform the complainant in plain terms of his right to institute
a civil action as provided in this section within ninety days of
the giving of such notice. Service of the notice shall be
complete upon mailing.
(c) In any action filed under this section, if the court
finds that the respondent has engaged in or is engaging in an
unlawful discriminatory practice charged in the complaint, the
court shall enjoin the respondent from engaging in
such the
unlawful discriminatory practice and order affirmative action
which may include, but is not limited to, reinstatement or hiring
of employees, granting of back pay or any other legal or
equitable relief as the court deems appropriate. In actions
brought under this section, the court in its discretion may award
all or a portion of the costs of litigation, including reasonable
attorney fees and witness fees, to the complainant.
(d) The provisions of this section shall be available to all
complainants whose active cases are pending before the human
rights commission as well as those complainants who file after
the effective date of this section.
§5-11-16. Certain records exempt.
Notwithstanding any other provisions of this article, it
shall not be an unlawful discriminatory practice for the bureau
of employment programs to ascertain and record the age, sex,
race, religion, color, national origin, ancestry, blindness or
handicap disability of any individual for the purpose of making
such any reports as may from time to time be required by agencies
of the federal government or be necessary to show compliance with
any rule or regulation issued by any
such agency. Said records
may be made and kept in the manner required by the federal
government:
Provided, That
such the recording of the age, sex,race, religion, color, national origin, ancestry, blindness or
handicap disability of any individual shall not be used to
discriminate, within the meaning of this article, directly or
indirectly, against any
such individual as prohibited by all
other sections of this article.
ARTICLE 11A. WEST VIRGINIA FAIR HOUSING ACT.
§5-11A-3. Definitions.
As used in this article:
(a) "Commission" means the West Virginia human rights
commission;
(b) "Dwelling" means any building, structure or portion
thereof which is occupied as, or designed or intended for
occupancy as, a residence or sleeping place by one or more
persons or families, and any vacant land which is offered for
sale or lease for the construction or location thereon of any
such building, structure or portion thereof;
(c) "Family" includes a single individual;
(d) "Person" includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal
representatives, mutual companies, joint-stock companies, trusts,
unincorporated organizations, trustees, trustees in cases under
Title 11 of the United States Code, receivers and fiduciaries;
(e) "To rent" includes to lease, to sublease, to let and
otherwise to grant for a consideration the right to occupy
premises not owned by the occupant;
(f) "Discriminatory housing practice" means an act that isunlawful under section five, six, seven or nineteen of this
article;
(g)
"Handicap" "Disability" means, with respect to a person:
(1) A physical or mental impairment which substantially
limits one or more of
such the person's major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but such
term does not include current, illegal use of or addiction to a
controlled substance, as defined in Section 102 of the Controlled
Substances Act, Title 21, United States Code, Section 802;
(h) "Aggrieved person" includes any person who:
(1) Claims to have been injured by a discriminatory housing
practice; or
(2) Believes that such person will be injured by a
discriminatory housing practice that is about to occur;
(i) "Complainant" means the person, including the
commission, who files a complaint under section eleven of this
article;
(j) "Familial status" means:
(1) One or more individuals who have not attained the age of
eighteen years being domiciled with:
(A) A parent or another person having legal custody of such
individual or individuals; or
(B) The designee of such parent or other person having such
custody with the written permission of such parent or other
person; or
(2) Any person who is pregnant or is in the process of
securing legal custody of any individual who has not attained the
age of eighteen years;
(k) "Conciliation" means the attempted resolution of issues
raised by a complaint or by the investigation of such complaint
through informal negotiations involving the aggrieved person, the
respondent and the commission;
(1) "Conciliation agreement" means a written agreement
setting forth the resolution of the issues in conciliation;
(k) "Sexual orientation" is defined as actual or perceived
male or female homosexuality, heterosexuality, or bisexuality by
practice or identification.
(l) "Conciliation" means the attempted resolution of issues
raised by a complaint or by the investigation of such complaint
through informal negotiations involving the aggrieved person, the
respondent and the commission;
(m) "Conciliation agreement" means a written agreement
setting forth the resolution of the issues in conciliation;
(m) (n) "Respondent" means:
(1) The person or other entity accused in a complaint of an
unfair housing practice; and
(2) Any other person or entity identified in the course of
investigation and notified as required with respect to
respondents so identified under subsection (a), section eleven of
this article; and
(n) (o) The term "rooming house" means a house or buildingwhere there are one or more bedrooms which the proprietor can
spare for the purpose of giving lodgings to such persons as he
chooses to receive.
§5-11A-5. Discrimination in sale or rental of housing and other
prohibited practices.
As made applicable by section four of this article and
except as exempted by sections four and eight of this article, it
shall be unlawful:
(a) To refuse to sell or rent after the making of a bona
fide offer, or to refuse to negotiate for the sale or rental of,
or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, ancestry, sex, familial status,
blindness,
handicap or disability, national origin
or sexual
orientation;
(b) To discriminate against any person in the terms,
conditions or privileges of sale or rental of a dwelling, or in
the provision of services or facilities in connection therewith,
because of race, color, religion, ancestry, sex, familial status,
blindness,
handicap or disability, national origin
or sexual
orientation;
(c) To make, print or publish, or cause to be made, printed
or published any notice, statement or advertisement, with respect
to the sale or rental of a dwelling that indicates any
preference, limitation or discrimination based on race, color,
religion, sex, blindness,
handicap disability, familial status,
ancestry,
or national origin,
sexual orientation or an intentionto make any such preference, limitation or discrimination;
(d) To represent to any person because of race, color,
religion, sex, blindness,
handicap disability, familial status,
ancestry,
or national origin
or sexual orientation that any
dwelling is not available for inspection, sale or rental when
such dwelling is in fact so available;
(e) For profit, to induce or attempt to induce any person to
sell or rent any dwelling by representations regarding the entry
or prospective entry into the neighborhood of a person or persons
of a particular race, color, religion, sex, blindness,
handicap
disability, familial status, ancestry,
or national origin
or
sexual orientation; or
(f)(1) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or
renter because of a
handicap disability of:
(A) That buyer or renter;
(B) A person residing in or intending to reside in that
dwelling after it is so sold, rented or made available; or
(C) Any person associated with that buyer or renter.
(2) To discriminate against any person in the terms,
conditions or privileges of sale or rental of a dwelling, or in
the provision of services or facilities in connection with such
dwelling, because of a
handicap disability of: (A) That person;
(B) a person residing in or intending to reside in that dwelling
after it is so sold, rented or made available; or (C) any person
associated with that person.
(3) For purposes of this subdivision, discrimination
includes:
(A) A refusal to permit, at the expense of the
handicapped
disabled person, reasonable modifications of existing premises
occupied or to be occupied by such person if such modifications
may be necessary to afford such person full enjoyment of the
premises, except that, in the case of a rental, the landlord may
where it is reasonable to do so condition permission for a
modification on the renter agreeing to restore the interior of
the premises to the condition that existed before the
modification, reasonable wear and tear excepted;
(B) A refusal to make reasonable accommodations in rules,
policies, practices or services when such accommodations may be
necessary to afford such person equal opportunity to use and
enjoy a dwelling; or
(C) In connection with the design and construction of
covered multifamily dwellings for first occupancy after the date
that is thirty months after the date of enactment of the West
Virginia fair housing act, a failure to design and construct
those dwellings in such a manner that:
(i) The public use and common use portions of such dwellings
are readily accessible to and usable by
handicapped disabled
persons;
(ii) All the doors designed to allow passage into and within
all premises within such dwellings are sufficiently wide to allow
passage by
handicapped disabled persons in wheelchairs; and
(iii) All premises within such dwellings contain the
following features of adaptive design: (I) An accessible route
into and through the dwelling; (II) light switches, electrical
outlets, thermostats and other environmental controls in
accessible locations; (III) reinforcements in bathroom walls to
allow later installation of grab bars; and (IV) usable kitchens
and bathrooms such that an individual in a wheelchair can
maneuver about the space.
(4) Compliance with the appropriate requirements of the
American national standard for buildings and facilities providing
accessibility and usability for physically
handicapped disabled
people, commonly cited as ANSI A117.1, suffices to satisfy the
requirements of subparagraph (3)(C)(iii) of this subdivision.
(5)(A) If a unit of general local government has
incorporated into its laws the requirements set forth in
subparagraph (3)(C) of this subdivision, compliance with such
laws shall be deemed to satisfy the requirements of that
subparagraph.
(B) The commission or unit of general local government may
review and approve newly constructed covered multifamily
dwellings for the purpose of making determinations as to whether
the design and construction requirements of subparagraph (3)(C)
of this subdivision are met.
(C) The commission shall encourage, but may not require,
units of local government to include in their existing procedures
for the review and approval of newly constructed coveredmultifamily dwellings, determinations as to whether the design
and construction of such dwellings are consistent with
subparagraph (3)(C) of this subdivision, and may provide
technical assistance to units of local government and other
persons to implement the requirements of such subparagraph.
(D) Nothing in this article shall be construed to require
the commission to review or approve the plans, designs or
construction of all covered multifamily dwellings to determine
whether the design and construction of such dwellings are
consistent with the requirements of subparagraph (3)(C) of this
subdivision.
(6)(A) Nothing in paragraph (5) of this subdivision shall be
construed to affect the authority and responsibility of the
commission or a local public agency to receive and process
complaints or otherwise engage in enforcement activities under
this article.
(B) Determinations by a unit of general local government
under subparagraphs (5)(A) and (B) of this subdivision shall not
be conclusive in enforcement proceedings under this article.
(7) As used in this section, the term "covered multifamily
dwellings" means: (A) Buildings consisting of four or more units
if such buildings have one or more elevators; and (B) ground
floor units in other buildings consisting of four or more units.
(8) Nothing in this article shall be construed to invalidate
or limit any law of this state or any political subdivision
hereof that requires dwellings to be designed and constructed ina manner that affords
handicapped disabled persons greater access
than is required by this article.
(9) Nothing in this section requires that a dwelling be made
available to an individual whose tenancy would constitute a
direct threat to the health or safety of other individuals or
whose tenancy would result in substantial physical damage to the
property of others. The burden of proving such threat to health
or safety or the likelihood of such damage shall be upon the
respondent.
§5-11A-6. Discrimination in residential real estate-related
transactions.
(a) It shall be unlawful for any person or other entity
whose business includes engaging in residential real
estate-related transactions to discriminate against any person in
making available such a transaction or in the terms or conditions
of such a transaction because of race, color, religion, sex,
blindness,
handicap disability, familial status, ancestry,
or
national origin
or sexual orientation.
(b) As used in this section, the term "residential real
estate-related transaction" means any of the following:
(1) The making or purchasing of loans or providing other
financial assistance: (A) For purchasing, constructing,
improving, repairing or maintaining a dwelling; or (B) secured by
residential real estate; or
(2) The selling, brokering or appraising of residential real
property.
(c) Nothing in this article prohibits a person engaged in
the business of furnishing appraisals of real property to take
into consideration factors other than race, color, religion,
national origin, ancestry, sex, blindness,
handicap disability,
or familial status
or sexual orientation.
§5-11A-7. Discrimination in provision of brokerage services.
It shall be unlawful to deny any person access to or
membership or participation in any multiple listing service, real
estate broker's organization or other service, organization or
facility relating to the business of selling or renting
dwellings, or to discriminate against him or her in the terms or
conditions of such access, membership or participation on account
of race, color, religion, sex, blindness,
handicap disability,
familial status, ancestry,
or national origin
or sexual
orientation.
NOTE: The purpose of this bill is to add "sexual
orientation" to the categories covered by the Human Rights Act,
prohibiting discrimination in employment and places of public
accommodations; to change the term "handicap" to "disabled" in
conformity with the Americans with Disabilities Act; to preclude
employment applications and employers from obtaining medical
information concerning prospective employees prior to a
conditional offer of employment. This provision is proposed to
amend the statute to conform with the Americans with Disabilities
Act; to amend the statute regarding a complainant's private right
of action to conform with Title VII of the Civil Rights Act of
1964; and to allow the exemption of the Bureau of Employment
Programs from the Human Rights Act in order to collect certain
data. This bill also adds "sexual orientation" to the categories
covered by the Fair Housing Act prohibiting discrimination in
housing; to change the term "handicap" to "disability" to
conform with the term of act requested by the disability
community.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.