Bill Text: WV HB2872 | 2021 | Regular Session | Introduced
Bill Title: Relating to statute of limitations for discrimination
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-03-03 - To House Workforce Development [HB2872 Detail]
Download: West_Virginia-2021-HB2872-Introduced.html
WEST virginia legislature
2021 regular session
Introduced
House Bill 2872
By Delegate Young
[Introduced March 03, 2021; Referred to the Committee on Workforce Development then the Judiciary]
A BILL to amend and reenact §5-11-3 and §5-11-10 of the Code of West Virginia, 1931, as amended, all relating to the Human Rights Commission; amending the definition of employer and the number of persons employed to qualify as an employer; and extending the period of the statute of limitations to file a complaint for an alleged unlawful discriminatory practice.
Be it enacted by the Legislature of West Virginia:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§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 two 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: Provided, That such
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, 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 §5-11-9 (6), of this
code 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 facility;
(k) The term “age” means the age of 40 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 20/200 in the better eye with correcting lenses, or if his visual acuity is greater than 20/200 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 20 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.
§5-11-10. 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 three years 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 is
determined after such investigation that no probable cause exists for
substantiating the allegations of the complaint, the commission shall, within
10 days from such the 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 10 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 is 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 may
not disclose what has transpired in the course of such these
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 the 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
the complaint as the same it 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 the
notice: Provided, That said the written notice be served
at least 30 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 the 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 §29A-5-1 et
eq. of this code shall apply to and govern the hearing and the
administrative procedures in connection with and following such the
hearing, with like effect as if the provisions of said article five §29A-5-1
et eq. of this code 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 the 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 The order shall be accompanied
by findings of fact and conclusions of law as specified in §29A-5-3. 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
the 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 may not be enforceable except
as provided in §5-11-11 of this code.
NOTE: The purpose of this bill is to amend the definition of employer and the number of persons employed to qualify as an employer; and to extend the period of the statute of limitations to file a complaint for an alleged unlawful discriminatory practice under the the Human Rights Commission.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.