WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary
A BILL to amend and
reenact §5-11-10 of the Code of West Virginia, 1931, as amended, relating to
requiring the Human Rights Commission, when investigating a complaint of
discrimination, to specifically include an examination of the intent of the
person or entity alleged to have committed the unlawful discriminatory
practice.
Be it enacted by the Legislature
of West Virginia:
That §5-11-10 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§5-11-10. Discriminatory practices; investigations,
hearings, procedures and orders.
Any individual claiming to
be aggrieved by an alleged unlawful discriminatory practice shall make, sign
and file with the commission a verified complaint, which shall state the name
and address of the person, employer, labor organization, employment agency,
owner, real estate broker, real estate salesman or financial institution
alleged to have committed the unlawful discriminatory practice complained of,
and which shall set forth the particulars thereof and contain such other information
as may be required by the commission's rules and regulations. The commission upon its own initiative, or
the Attorney General, shall, in like manner, make, sign and file such
complaint. Any employer, whose
employees, or some of them, hinder or threaten to hinder compliance with the
provisions of this article, shall file with the commission a verified
complaint, asking for assistance by conciliation or other remedial action and,
during such period of conciliation or other remedial action, no hearings,
orders or other actions shall be held, made or taken by the commission against
such employer. Any complaint filed
pursuant to this article must be filed within three hundred sixty-five days
after the alleged act of discrimination.
After the filing of any
complaint, or whenever there is reason to believe that an unlawful
discriminatory practice has been committed, the commission shall make a prompt
investigation in connection therewith. That
investigation shall specifically include an examination of the intent of the
person, employer, labor organization, employment agency, owner, real estate
broker, real estate salesman or financial institution alleged to have committed
the unlawful discriminatory practice complained of against that individual.
If it shall be determined
after such investigation that no probable cause exists for substantiating the
allegations of the complaint, the commission shall, within ten days from such
determination, cause to be issued and served upon the complainant written
notice of such determination, and the said complainant or his or her
attorney may, within ten days after such service, file with the commission a
written request for a meeting with the commission to show probable cause for
substantiating the allegations of the complaint. If it shall be determined after such
investigation or meeting that probable cause exists for substantiating the
allegations of the complaint, the commission shall immediately endeavor to
eliminate the unlawful discriminatory practices complained of by conference,
conciliation and persuasion. The members
of the commission and its staff shall not disclose what has transpired in the
course of such endeavors: Provided,
That the commission may publish the facts in the case of any complaint which
has been dismissed, and the terms of conciliation when the complaint has been
adjusted, without disclosing the identity of the parties involved.
In case of failure so to
eliminate such practice or in advance thereof, if in the judgment of the
commission circumstances so warrant, the commission shall cause to be issued
and served a written notice, together with a copy of such complaint as the same
may have been amended, in the manner provided by law for the service of summons
in civil actions, requiring the person, employer, labor organization,
employment agency, owner, real estate broker, real estate salesman or financial
institution named in such complaint, hereinafter referred to as respondent, to
answer the charges of such complaint at a hearing before the commission in the
county where the respondent resides or transacts business at a time and place
to be specified in such notice: Provided, That said written notice be
served at least thirty days prior to the time set for the hearing.
The case in support of the complaint
shall be presented before the commission by one of its attorneys or
agents. The respondent may file a
written, verified answer to the complaint and appear at such hearing in person
or otherwise, with or without counsel, and submit testimony and evidence.
Except as provided in this article, all of the pertinent provisions of article
five, chapter twenty-nine-a of this code shall apply to and govern the hearing
and the administrative procedures in connection with and following such
hearing, with like effect as if the provisions of said article five were set
forth in extensor in this section.
If, after such hearing and
consideration of all of the testimony, evidence and record in the case, the
commission shall find that a respondent has engaged in or is engaging in any
unlawful discriminatory practice as defined in this article, the commission
shall issue and cause to be served on such respondent an order to cease and
desist from such unlawful discriminatory practice and to take such affirmative
action, including, but not limited to, hiring, reinstatement or upgrading of
employees, with or without back pay, admission or restoration to membership in
any respondent labor organization, or the admission to full and equal enjoyment
of the services, goods, facilities, or accommodations offered by any respondent
place of public accommodation, and the sale, purchase, lease, rental or
financial assistance to any complainant otherwise qualified for the housing
accommodation or real property, denied in violation of this article, as in the
judgment of the commission, will effectuate the purposes of this article, and
including a requirement for report of the manner of compliance. Such order shall be accompanied by findings
of fact and conclusions of law as specified in section three, article five,
chapter twenty-nine-a of this code.
If, after such hearing and
consideration of all of the testimony, evidence and record in the case, the
commission shall find that a respondent has not engaged in such unlawful
discriminatory practice, the commission shall state its findings of fact and
conclusions of law as aforesaid and shall issue and cause to be served on the
complainant an order dismissing the said complaint as to such respondent.
A copy of its order shall
be delivered in all cases by the commission to the complainant, the respondent,
the Attorney General and to such other public officers as the commission may
deem proper. Any such order shall not be
enforceable except as provided in section eleven of this article.
NOTE: The purpose of this bill is to require the
Human Rights Commission, when investigating a complaint of discrimination, to
specifically include an examination of the intent of the person or entity
alleged to have committed the unlawful discriminatory practice.
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring
indicates new language that would be added.