State Law: West Virginia

 

The Law

West Virginia Human Rights Act, found in the West Virginia Code, Section 5-11, makes it illegal for an employer or labor organization to discriminate against someone on the basis of sex. Title 77 CSR 2 governs the procedures for the Human Rights Commission, and specific regulations for sexual harassment are contained in 77 CSR 4.

 

Title 77 (77 CSR 7) further defines an "employer" under the West Virginia Human Rights Act as, "the state, or any political subdivision of the state, and any person employing 12 or more persons within the state for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year … such terms shall not be taken, understood, or construed to include a private club." When calculating the number of employees, all those with an employment relationship to the employer should be included, even if they do not receive compensation on a particular day. The Human Rights Act excludes from its definition of employees those employed by their parents, spouse, or child.

 

Thus, the West Virginia statute against discrimination in the workplace applies to employers with 12 or more employees, while Title VII only applies to employers with 15+ employees.

 

The West Virginia Human Rights Act specifically covers employment discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, blindness or disability.

 

Filing A Complaint

The West Virginia Human Rights Commission investigates complaints filed with it free of charge. Complaints under state law must be filed within 365 days of the date you became aware you were being discriminated against or the date of the alleged illegal act. You may file a complaint with the Commission by calling (304) 558-2616 or 1-888-676-5546. You may also visit the office or mail in a complaint form.

 

An Employment Complaint Form for the Human Rights Commission may be completed and mailed into the Human Rights Commission. The address is 1321 Plaza East, Room 108A; Charleston, WV 25301. Instructions for employment complaints can also be found online.

 

Once you file a formal complaint with the Commission, the Commission will send your employer a letter and a copy of your complaint, stating that you believe you were/are being discriminated against. The employer will have an opportunity to respond to this complaint. Two investigators will be assigned to your case, who will have up to 150 days to investigate your claim by colleting all relevant information and interviewing potential witnesses. After the investigation is complete, it will be determined whether there is reasonable cause to believe you have been discriminated against and your rights violated.

 

If probable cause is found, you and your employer will be asked to attempt to negotiate a settlement through the Commission’s conciliation proceedings. If settlement negotiations fail, a public hearing will be held before an Administrative Law Judge. A Commission attorney will argue your case, which means that you will not have to incur any legal expenses or other costs, as you would have to pay in a court case. However, you may decide to be represented by an attorney of your own choosing instead.

 

There is also a state agency called the West Virginia Equal Employment Opportunity Office that accepts complaints.

 

You may decide to go through the federal or state court process instead of the Commission’s investigative process. You must first file with the EEOC and request a Notice of Right to Sue in order to file in federal court. There is no "exhaustion" requirement for state law, which means that you can file your claim directly in state court. The attorney you hire will explain this process to you. State law does not limit punitive damages, which are capped under federal law.

 

For more information and a more detailed explanation of the complaint process, please visit the West Virginia Human Rights Commission website.