FISCAL NOTE
Date Requested: February 23, 2024
Time Requested: 10:53 AM |
| Agency: |
Attorney General, WV |
|---|
| CBD Number: |
Version: |
Bill Number: |
Resolution Number: |
| 3118 |
Introduced |
SB496 |
|
|---|
| CBD Subject: |
Human Rights |
|---|
|
FUND(S):
Attorney General – General Fund
Sources of Revenue:
General Fund
Legislation creates:
Fiscal Note Summary
Effect this measure will have on costs and revenues of state government.
This bill clarifies that discrimination based on race includes discriminating based on hair textures and “protective hairstyles” (as defined in the bill) that are historically associated with a particular race. While it is highly difficult to determine the exact costs of this change in law, any changes to law that result in more litigation where the Attorney General office’s Civil Rights Division represents the Human Rights Commission (HRC) will, by definition, add some costs to state government. This is an unavoidable consequence of any changes in law that require education and may result in litigation. As such, costs estimates cannot be considered zero. However, given the lack of any relevant data on this at present, it is unclear whether any litigation will actually arise from this bill and, more particularly, whether the Attorney General’s office will bear measurable increases as a result.
Fiscal Note Detail
| Effect of Proposal |
Fiscal Year |
2024
Increase/Decrease
(use"-") |
2025
Increase/Decrease
(use"-") |
Fiscal Year
(Upon Full
Implementation) |
| 1. Estmated Total Cost |
10,000 |
5,000 |
5,000 |
| Personal Services |
0 |
0 |
0 |
| Current Expenses |
0 |
0 |
0 |
| Repairs and Alterations |
0 |
0 |
0 |
| Assets |
0 |
0 |
0 |
| Other |
0 |
0 |
0 |
| 2. Estimated Total Revenues |
0 |
0 |
0 |
Explanation of above estimates (including long-range effect):
As mentioned above, while it is reasonable to anticipate complaints, cases, and some litigation to arise in relation to this bill’s passage, it is highly difficult to assess the degree to which such litigation would increase expenses of the Attorney General’s office. In the event that matters proceed through the processes of the HRC and result in a determination that legal proceedings are warranted, such litigation handled by the Attorney General’s office would result in increased expenses. However, forecasting the probability or number of such matters that result in litigation cannot be done reliably with current information. Also, it is likely that there would be an increase in representation of state agencies for employment-related matters, which would result in increased litigation costs for those agencies.
Beyond direct representation, related training and outreach demands would increase expenses. Unknown amounts of time and effort would be needed to provide guidance and counsel for state agencies, as well as assistance to the HRC, and to answer questions — from both the public and private sectors — regarding the ramifications of this new law. The estimated costs reported above reflect these anticipated efforts.
Memorandum
There well may be increases in expenses to the HRC if there are additional complaints of unlawful discrimination it must investigate. Additionally, there may be increases in expenses to Respondent employers, including state agencies, relative to the HRC’s efforts in relation to complaints. This is due to the HRC’s mandate and operations. The HRC’s mission is to end unlawful discrimination in the state through various means. As counsel for the HRC, the Attorney General’s office represents the HRC when it pursues a charge against the entity accused of unlawfully discriminating against an individual. The Attorney General’s office does not represent the individual who is the alleged victim of unlawful discrimination. That individual has the option of pursuing a direct claim for damages either before the Administrative Law Judge of the HRC or in Circuit Court where he or she may have additional remedies available to them. If the alleged victim of unlawful discrimination is represented by counsel, the case is presented by that individual’s attorney, unless — in rare cases — the HRC has some independent interest in the matter. In those cases, the HRC’s independent interest would be pursued by the Attorney General’s office alongside the alleged victim’s claim being pursued by their retained counsel.
Before any cases alleging unlawful discrimination would be handled by any division of the Attorney General’s office, though, the HRC serves as a gatekeeper in receiving and investigating claims of unlawful discrimination in the state. The HRC receives individuals’ complaints alleging unlawful discrimination in violation of the West Virginia Human Rights Act, the West Virginia Fair Housing Act, and/or the West Virginia Pregnant Workers Fairness Act. Once the HRC receives a complaint of alleged unlawful discrimination of some type, including unlawful racial discrimination, it notifies the person or entity accused of committing the alleged unlawful discrimination of the complaint. The HRC’s investigators conduct an investigation regarding the accusations through witness interviews, discovery requests, and possibly through the use of subpoenas. Following the investigation, the HRC makes a finding that either no probable cause exists or that probable cause does exist to establish that the alleged discriminating party committed unlawful discrimination in violation of the law.
If the HRC finds there is probable cause to support the accusation of unlawful discrimination, the HRC will issue a Notice of Charge to the Respondent advising it of the charge of unlawful discrimination. At this point, the Civil Rights Division of the Attorney General’s office may be asked to represent the HRC, but only if the individual who made the complaint to the HRC is not represented by counsel or if the HRC has an independent interest. If the HRC finds probable cause and issues a Notice of Charge against a state agency, other divisions of the Attorney General’s Office would represent those state agencies accused of the alleged unlawful discrimination.
In cases where there is a finding of probable cause, the majority of alleged victims decide to retain private counsel. In those instances where the HRC has no independent interest, the case would be pursued exclusively by counsel for the alleged victim of unlawful discrimination, and the HRC would not request the assistance of the Office of the Attorney General.
Given that the burden of investigating claims of unlawful discrimination and determining whether there is probable cause to make a charge falls on the HRC and the other aspects of representation in any ensuing litigation described above — as well as the predicate need to occasions of the conduct targeted by the bill — the likelihood of increased litigation expenses due to this bill is very possible but also incapable of being forecast at this juncture.
Person submitting Fiscal Note: Curtis R. A. Capehart
Email Address: curtis.r.a.capehart@wvago.gov