Bill Text: WV HB3003 | 2021 | Regular Session | Introduced
Bill Title: Relating to the definition of employer for sexual harassment purposes
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2021-03-09 - To House Workforce Development [HB3003 Detail]
Download: West_Virginia-2021-HB3003-Introduced.html
WEST virginia legislature
2021 regular session
Introduced
House Bill 3003
By Delegate Young
[Introduced March 09, 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 actions for discriminatory practices before the human rights commission; providing that certain employers with two or more employees are subject to the article; including an individual who provides work for an employer under the terms of an independent contract with the employer in the definition of “employee”; increasing the time period in which to bring an action before the human rights commission to three years after the alleged act of discrimination.
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 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
does not include any individual employed by his or her parents, spouse
or child; the term “employee” includes an individual who provides work for
an employer under the terms of an independent contract with such employer;
(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 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.
§5-11-10. 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 the employer.
Any complaint filed pursuant to this article must be filed within three hundred
sixty-five days 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 determined
after such the investigation that no probable cause exists for
substantiating the allegations of the complaint, the commission shall, within
ten days from such the determination, cause to be issued and
served upon the complainant written notice of such the 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 is determined after such
the 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 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 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 the complaint,
hereinafter referred to as respondent, to answer the charges of such the
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 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 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
seq. 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 §29A-5-1 et seq. of
this code were set forth in extensor in this section.
If, after such the
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 the 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 the
hearing and consideration of all of the testimony, evidence and record in the
case, the commission shall find finds 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 The order shall is not be
enforceable except as provided in §5-11-11 of this code.
NOTE: The purpose of this bill is to include certain employers with two or more employees subject to actions for discriminatory practices before the human rights commission; to include individual independent contractors in the definition of “employee”; and to increase the time period in which to bring an action before the human rights commission to three years after the alleged act of discrimination.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
