H. B. 4428
(By Delegate Louisos)
[Introduced February 13, 1998; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section ten, article eleven, chapter
five of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to eliminating
administrative hearings before the West Virginia human
rights commission; giving jurisdiction of human rights
claims to circuit courts.
Be it enacted by the Legislature of West Virginia:
That section ten, article eleven, chapter five of the code
of West Virginia, one thousand nine hundred thirty-one, 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.
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. the commissioner
shall direct the respondent to file a civil complaint in the
circuit court of the county in which the respondent resides,
which circuit court shall have jurisdiction of the complaint.
NOTE: The purpose of this bill is to eliminate
administrative hearings before the West Virginia Human Rights
Commission and place human rights complaints within the
jurisdiction of the circuit courts.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.