H. B. 2505
(ByDelegates Fleischauer, Doyle,
Hubbard, Mahan, Osborne,
and Amores)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two, three, four, eight,
nine and thirteen, 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; and prohibiting discrimination based
upon sexual orientation in residential real-estate-related
transactions.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, eight, nine and thirteen,
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 and seven, 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,
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,
sexual orientation, blindness or handicap.
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,
sexual orientation, handicap or
familial status.
The denial of these rights to properly qualified persons by
reason of race, religion, color, national origin, ancestry, sex, age,
sexual orientation, blindness, handicap or familial status
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 the terms
shall
may not be taken, understood or construed to include a private
club;
(e) The term "employee"
shall may not include any individual
employed by his
or her parents, spouse or child;
(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 is not
be
deemed to be an employment agency;
(h) The term "discriminate" or "discrimination" means to
exclude from, or fail or refuse to extend to, a person equal
opportunities because of race, religion, color, national origin,
ancestry, sex, age,
sexual orientation, blindness, handicap or
familial status 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 may not include any accommodations which are in
their nature private. To the extent that any penitentiary, correctional facility, detention center, regional jail or county
jail is a place of public accommodation, the rights, remedies and
requirements provided by this article for any violation of
subdivision (6), section nine of this article
shall may not apply
to any person other than: (1) Any person employed at a
penitentiary, correctional facility, detention center, regional
jail or county jail; (2) any person employed by a law-enforcement
agency; or (3) any person visiting any
such employee or visiting
any person detained in custody at
such the facility;
(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
or her central visual acuity
does not exceed twenty/two hundred in the better eye with
correcting lenses, or if his
or her 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" means a person who:
(1) Has a mental or physical impairment which substantially
limits one or more of
such the person's major life activities.
The term "major life activities" includes functions such as
caring for 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 disclosed 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 has 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,
sexual orientation, blindness or handicap and shall
strive to eliminate all discrimination in the sale, purchase,
lease, rental or financing of housing and other real property by
virtue of race, religion, color, national origin, ancestry, sex,
age, sexual orientation, blindness, handicap or familial status.
Pursuant to the provisions of article ten, chapter four of
this code, the West Virginia human rights commission shall
continue to exist until the first day of July, one thousand nine
hundred ninety-seven, to allow for monitoring of compliance with
recommendations contained in the preliminary performance review
and to allow for further review by the joint committee on
government operations.
§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 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,
sexual orientation, 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,
age,
sexual orientation, blindness, handicap, or familial status, and
to initiate its own consideration of any situations,
circumstances or problems, including therein any racial,
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, 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 the
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 who shall be an attorney,
duly licensed to practice law in West Virginia, the power and
authority to hold and conduct hearings, 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 is aggrieved at
any final action of a hearing examiner
shall may 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 decision.
The commission shall limit its review upon
such these appeals to
whether the hearing examiner'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 provisions requiring
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 the
terms within fifteen days after its service upon him
or her, the
commission shall issue an order embodying
such the 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 that period. Unless
such these objections
are met or withdrawn within ten days after service thereof, the
commission shall notice the complaint 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 the
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 take
appropriate 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 those 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 of
this code, implementing the powers and authority hereby vested in
the commission;
(i) To create
such those 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,
sexual orientation, blindness,
handicap or familial status; 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 These 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 this
section;
(k) To issue
such the 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 may not
be disclosed.
§5-11-9. Unlawful discriminatory practices.
It
shall be is 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:
Provided, That it
shall may 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,
sexual orientation, or age 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,
sexual orientation,
or
age,
or handicap; (C) deny or limit, through a quota system,
employment or membership because of race, religion, color, national origin, ancestry, sex,
sexual orientation, age,
blindness or handicap;
(3) For any labor organization because of race, religion,
color, national origin, ancestry, sex,
sexual orientation, age,
blindness, or handicap of any individual to deny full and equal
membership rights to any individual or otherwise to discriminate
against
such that 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 guidance program,
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 these 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 these programs or to make any inquiry in
connection with
such the 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
or her race, religion,
color, national origin, ancestry, sex,
sexual orientation, age,
blindness or handicap;
(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
or her race, religion, color, national origin, ancestry, sex,
sexual orientation, age, blindness or handicap, either directly
or indirectly, any of the accommodations, advantages, facilities,
privileges or services of
such the place of public
accommodations;
(B) Publish, circulate, issue, display, post or mail, either directly 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,
sexual orientation, age, blindness or handicap, 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,
sexual orientation or age, or who
is blind or handicapped, is unwelcome, objectionable, not
acceptable, undesired or not solicited; or
(7) For any person, employer, employment agency, 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 discriminate
against 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,
sexual orientation, blindness or
handicap, but as to acts declared unlawfully by section nine of
this article the procedure herein provided
shall are, 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 the complainant
institutes any action based on
such the 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
applies to
such the municipal ordinance.
(b) Notwithstanding the provisions of subsection (a) of this
section, a complainant may institute an action against a
respondent 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 the ninety-day period, then at any
time during which
such the 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 the 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.
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
or her right to
institute a civil action as provided in this section within
ninety days of the giving of
such the 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.
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 is
unlawful under section five, six, seven or nineteen of this
article;
(g) "Handicap" 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 the
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 a 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
the individual or individuals; or
(B) The designee of
such the parent or other person having
such the custody with the written permission of
such the 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 the
complaint through informal negotiations involving the aggrieved
person, the respondent and the commission;
(l) "Conciliation agreement" means a written agreement setting
forth the resolution of the issues in conciliation;
(m) "Sexual orientation" is defined as disclosed or perceived
male or female homosexuality, heterosexuality, or bisexuality by
practice or identification;
(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 building
where there are one or more bedrooms which the proprietor can
spare for the purpose of giving lodgings to
such persons as he
or
she 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,
age, sexual
orientation, familial status, blindness, handicap or national
origin;
(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,
age, sexual
orientation, familial status, blindness, handicap or national
origin;
(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,
age, sexual orientation, blindness, handicap, familial status,
ancestry or national origin, or an intention to make any such
preference, limitation or discrimination;
(d) To represent to any person because of race, color,
religion, sex,
age, sexual orientation, blindness, handicap,
familial status, ancestry, or national origin that any dwelling
is not available for inspection, sale or rental when
such the
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,
age, sexual
orientation, blindness, handicap, familial status, ancestry, or
national origin; 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 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
the dwelling, because of a handicap 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
person, reasonable modifications of existing premises occupied or
to be occupied by
such that person if
such the modifications may
be necessary to afford
such that 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 the accommodations may
be necessary to afford
such the 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 the
dwellings are readily accessible to and usable by handicapped
persons;
(ii) All the doors designed to allow passage into and within
all premises within
such the dwellings are sufficiently wide to
allow passage by handicapped persons in wheelchairs; and
(iii) All premises within
such the 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 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 those laws
shall be is
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 covered multifamily
dwellings, determinations as to whether the design and
construction of
such the 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 that subparagraph.
(D) Nothing in this article
shall may 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 the dwellings are
consistent with the requirements of subparagraph (3)(C) of this
subdivision.
(6)(A) Nothing in paragraph (5) of this subdivision
shall may
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 are
not 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 the 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 may be construed to invalidate or limit any law of this state or any political
subdivision hereof that requires dwellings to be designed and
constructed in a manner that affords handicapped 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 a threat to
health or safety or the likelihood of
such damage
shall be is
upon the respondent.
§5-11A-6. Discrimination in residential real estate-related
transactions.
(a) It
shall be is 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,
age,
sexual orientation, blindness, handicap, familial status,
ancestry or national origin.
(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,
age, sexual orientation,
blindness, handicap or familial status.
§5-11A-7. Discrimination in provision of brokerage services.
It
shall be is 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 the access, membership or participation on
account of race, color, religion, sex,
age, sexual orientation,
blindness, handicap, familial status, ancestry or national
origin.
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.
This bill also adds "sexual orientation" to the categories
covered by the Fair Housing Act prohibiting discrimination in
housing.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.