ENROLLED
H. B. 4545
(By Delegates Amores, Rowe, Fleischauer, Trump,
Johnson, Faircloth and Mahan)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact sections two, three, four, five, six,
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 further amend said article by
adding thereto a new section, designated section twenty, all
relating to the West Virginia human rights act; establishing
public policy; defining terms; continuing the human rights
commission; providing for appointment and composition of
members; providing for organization and administration of
commission; describing commission's authority and
responsibilities; defining unlawful discriminatory practices;
establishing exclusiveness of remedies and exceptions;
issuance of notice of a right to sue; injunctions of
discriminatory practices; exemption of certain records;
establishing a civil action by attorney general; and providing
for civil and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, five, six, 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 said article be further amended by
adding thereto a new section, designated section twenty, 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, blindness or
disability. 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, disability or familial status.
The denial of these rights to properly qualified persons by
reason of race, religion, color, national origin, ancestry, sex,
age, blindness, disability 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 for twenty or more calendar weeks in the
calendar year in which the act of discrimination allegedly took
place or the preceding calendar year:
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 or her parents, spouse or child;
(f) The term "labor organization" includes any organization
which exists for the purpose, in whole or in part, of collective bargaining or of 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 to
exclude from, or fail or refuse to extend to, a person equal
opportunities because of race, religion, color, national origin,
ancestry, sex, age, blindness, disability 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 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 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 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 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 "disability" means:
(1) 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 caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working;
(2) A record of such impairment; or
(3) Being 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 persons 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.
§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 or disability 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, blindness, disability 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, two thousand.
§5-11-5. Composition; appointment, terms and oath of members; compensation and expenses.
The commission shall be composed of nine members, all
residents and citizens of the state of West Virginia and broadly
representative of the several racial, religious and ethnic groups
residing within the state, to be appointed by the governor, by and
with the advice and consent of the Senate. Not more than five
members of the commission shall be members of the same political
party and at least one member, but not more than three members,
shall be from any one congressional district.
Members of the commission shall be appointed for terms of
three years commencing on the first day of July of the year of
their appointments, except that the nine members first appointed
hereunder shall be appointed for terms of from one to three years,
respectively, so that the terms of three members of the commission
will expire on the thirtieth day of June of each succeeding year
thereafter. Upon the expiration of the initial terms, all
subsequent appointments shall be for terms of three years each,
except that appointments to fill vacancies shall be for the
unexpired term thereof. Members shall be eligible for
reappointment. Before assuming and performing any duties as a
member of the commission, each commission member shall take and
subscribe to the official oath prescribed by section 5, article IV
of the constitution of West Virginia, which executed oath shall be
filed in the office of the secretary of state.
The members of the commission shall not receive a salary, but
each appointed member shall be paid fifty dollars per diem for
actual time spent in the performance of duties under this article
and shall be reimbursed for actual and necessary expenses incident
to the performance of their duties, upon presentation of an
itemized and sworn statement thereof. The foregoing per diem and
reimbursement for actual and necessary expenses shall be paid from
appropriations made by the Legislature to the commission.
§5-11-6. Commission organization and personnel; executive
director; offices; meetings; quorum; expenses of personnel.
As soon as practical after the first day of July of each year,
the governor shall call a meeting of the commission to be convened
at the state capitol. The commission shall at such meeting
organize by electing one of its members as chairperson of the
commission and one as vice chairperson thereof for a term of one
year or until their successors are elected and qualified. At such
meeting the commission shall also elect from its membership such
other officers as may be found necessary and proper for its
effective organization.
The governor shall, by and with the advice and consent of the
Senate, appoint an executive director to serve at his or her will
and pleasure. The executive director shall serve as secretary of
the commission. The executive director shall have a college
degree. He or she shall be selected with particular reference to his or her training, experience and qualifications for the position
and shall be paid an annual salary, payable in monthly
installments, from any appropriations made therefor. The
commission, upon recommendation of the executive director and in
accordance with the requirements of the civil service law, may
employ such personnel as may be necessary for the effective and
orderly performance of the functions and services of the
commission. The commission shall employ an administrative law
judge who shall be an attorney, duly licensed to practice law in
the state of West Virginia, for the conduct of the public hearings
authorized in subdivision (3), subsection (d), section eight of
this article.
The commission shall equip and maintain its offices at the
state capitol and shall hold its annual organizational meeting
there. The commission may hold other meetings during the year at
such times and places within the state as may be found necessary
and may maintain one branch office within the state as determined
by the commission to be necessary for the effective and orderly
performance of the functions and services of the commission. Any
five members of the commission shall constitute a quorum for the
transaction of business. Minutes of its meetings shall be kept by
its secretary.
The executive director and other commission personnel shall be
reimbursed for necessary and reasonable travel and subsistence expenses actually incurred in the performance of commission
services upon presentation of properly verified expense accounts as
prescribed by law.
§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, blindness or disability, 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,
disability 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 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 an administrative law judge 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 aggrieved at any
final action of an administrative law judge shall file a written
notice of appeal with the commission by serving such notice on the
executive director and upon all other parties within thirty days
after receipt of the administrative law judge's decision. The
commission shall limit its review upon such appeals to whether the
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 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 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 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 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 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 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 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 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 of this 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, disability 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 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 publications and such 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 individual is blind or
disabled:
Provided, That it shall not be an 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 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, disability
or age; or (C) deny or limit, through a quota system, employment or
membership because of race, religion, color, national origin,
ancestry, sex, age, blindness or disability;
(3) For any labor organization because of race, religion,
color, national origin, ancestry, sex, age, blindness or disability
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 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 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 these programs or to make any inquiry in connection
with a 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, age, blindness or disability;
(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, age, blindness or disability, either directly or indirectly, any of
the accommodations, advantages, facilities, privileges or services
of 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 place shall be refused, withheld from or denied to any
individual on account of race, religion, color, national origin,
ancestry, sex, age, blindness or disability, 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, or who is blind or disabled, 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 a 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, blindness or disability, but as to acts
declared unlawful 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 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 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 upon: (1) The dismissal of the
complaint for any reason other than an adjudication of the merits
of the case; or (2) the request of a complainant at any time after
the timely filing of the complaint in any case which has not been
determined on its merits or has not resulted in a conciliation
agreement to which the complainant is a party. Upon the issuance
of a right to sue letter pursuant to subdivision (1) or (2), the
commission may dismiss the 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 or her 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 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 disability
of any individual for the purpose of making such 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
recording of the age, sex, race, religion, color, national origin,
ancestry, blindness or 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.
§5-11-20.
Violations of human rights; civil action by attorney
general.
(a) A person has the right to engage in lawful activities
without being subject to actual or threatened:
(1) Physical force or violence against him or her or any other
person, or
(2) Damage to, destruction of or trespass on property,
any of which is motivated by race, color, religion, sex, ancestry,
national origin, political affiliation or disability.
(b) Whenever any person, whether or not acting under the color
of law, intentionally interferes or attempts to interfere with
another person's exercise or enjoyment of rights secured by this
article or article eleven-a of this chapter, by actual or threatened physical force or violence against that person or any
other person, or by actual or threatened damage to, destruction of
or trespass on property, the attorney general may bring a civil
action:
(1) For injunctive or other appropriate equitable relief in
order to protect the peaceable exercise or enjoyment of the rights
secured, or
(2) For civil penalties as specified in subsection (c) of this
section, or
(3) For both equitable relief and civil penalties.
This action must be brought in the name of the state and instituted
in the circuit court for the county where the alleged violator
resides or has a principal place of business or where the alleged
violation occurred.
(c) A civil penalty of not more than five thousand dollars per
violation may be assessed against any person violating this
section.
(d) Each preliminary, temporary, or permanent injunction
issued under this section must include a statement describing the
penalties to be imposed for a knowing violation of the order or
injunction as provided in subsection (e) of this section. The
clerk of the circuit court shall transmit one certified copy of
each order or injunction issued under this section to the
appropriate law-enforcement agency or agencies having authority over locations where the defendant was alleged to have committed
the act giving rise to the action, and service of the order or
injunction must be accomplished pursuant to the West Virginia rules
of civil procedure.
(e) A person who knowingly violates a preliminary, temporary
or permanent injunction issued under this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than five thousand dollars, or imprisoned in the county or regional
jail not more than one year, or both fined and imprisoned.