WEST VIRGINIA LEGISLATURE
2023 REGULAR SESSION
Introduced Senate Bill 696
By Senators Plymale and Caputo [Introduced February 20, 2023; referred to the Committee on the Judiciary]
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1 A BILL to amend and reenact §5-11-2, §5-11-3, §5-11-4, §5-11-8, §5-11-9, and §5-11-13 of the
2 Code of West Virginia, 1931, as amended; and to amend and reenact §5-11A-3, §5-11A-5,
3 §5-11A-6, and §5-11A-7 of said code, all relating to unlawful discriminatory practices in
4 categories covered by the Human Rights Act and the Fair Housing Act; prohibiting
5 discrimination based upon age and sexual orientation, or gender identity; and defining
6 "sexual orientation" and "gender identity".
Be it enacted by the Legislature of West Virginia:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§5-11-2. Declaration of policy.
1 It is the public policy of the State of West Virginia to provide all of its citizens’ equal
2 opportunity for employment, equal access to places of public accommodations, and equal
3 opportunity in the sale, purchase, lease, rental, and financing of housing accommodations or real
4 property. Equal opportunity in the areas of employment and public accommodations is hereby
5 declared to be a human right or civil right of all persons without regard to race, religion, color,
6 national origin, ancestry, sex, age, sexual orientation, gender identity, blindness, or disability or
7 familial status. Equal opportunity in housing accommodations or real property is hereby declared
8 to be a human right or civil right of all persons without regard to race, religion, color, national origin,
9 ancestry, sex, age, sexual orientation, gender identity, blindness, disability, or familial status.
10 The denial of these rights to properly qualified persons by reason of race, religion, color,
11 national origin, ancestry, sex, age, sexual orientation, gender identity, blindness, disability, or
12 familial status is contrary to the principles of freedom and equality of opportunity and is destructive
13 to a free and democratic society.
§5-11-3. Definitions.
1 When used in this article:
2 (a) The term "person" means one or more individuals, partnerships, associations,
3 organizations, corporations, labor organizations, cooperatives, legal representatives, trustees,
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4 trustees in bankruptcy, receivers, and other organized groups of persons;
5 (b) The term "commission" means the West Virginia Human Rights Commission;
6 (c) The term "director" means the executive director of the commission;
7 (d) The term "employer" means the state, or any political subdivision thereof, and any
8 person employing 12 or more persons within the state for 20 or more calendar weeks in the
9 calendar year in which the act of discrimination allegedly took place or the preceding calendar
10 year: Provided, That such the terms shall may not be taken, understood, or construed to include a
11 private club;
12 (e) The term "employee" shall does not include any individual employed by his or her
13 parents, spouse, or child;
14 (f) The term "labor organization" includes any organization which exists for the purpose, in
15 whole or in part, of collective bargaining or of dealing with employers concerning grievances,
16 terms or conditions of employment, or for other mutual aid or protection in relation to employment;
17 (g) The term "employment agency" includes any person undertaking, with or without
18 compensation, to procure, recruit, refer, or place employees. A newspaper engaged in the activity
19 of advertising in the normal course of its business shall may not be deemed considered to be an
20 employment agency;
21 (h) The term "discriminate" or "discrimination" means to exclude from, or fail or refuse to
22 extend, to a person, equal opportunities because of race, religion, color, national origin, ancestry,
23 sex, age, sexual orientation, gender identity, blindness, disability, or familial status, and includes to
24 separate or segregate;
25 (i) The term "unlawful discriminatory practices" includes only those practices specified in
26 §5-11-9 of this code;
27 (j) The term "place of public accommodations" means any establishment or person, as
28 defined herein, including the state, or any political or civil subdivision thereof, which offers its
29 services, goods, facilities, or accommodations to the general public, but shall does not include any
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30 accommodations which are, in their nature, private. To the extent that any penitentiary state
31 correctional facility, detention center, regional jail, or county jail is a place of public
32 accommodation, the rights, remedies, and requirements provided by this article for any violation of
33 §5-11-9 (6) of this code shall do not apply to any person other than: (1) Any person employed at a
34 penitentiary state correctional facility, detention center, regional jail, or county jail; (2) any person
35 employed by a law-enforcement agency; or (3) any person visiting any such employee or visiting
36 any person detained in custody at such the facility;
37 (k) The term "age" means the age of 40 or above;
38 (l) For the purpose of this article, a person shall be is considered to be blind only if his or her
39 central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or if his or her
40 visual acuity is greater than 20/200 but is occasioned by a limitation in the fields of vision such that
41 the widest diameter of the visual field subtends an angle no greater than 20 degrees; and
42 (m) The term "disability" means:
43 (1) A mental or physical impairment which substantially limits one or more of such the
44 person’s major life activities. The term "major life activities" includes functions such as caring for
45 one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
46 working;
47 (2) A record of such impairment; or
48 (3) Being regarded as having such an impairment.
49 For the purposes of this article, this term does not include persons whose current use of or
50 addiction to alcohol or drugs prevents such persons the individuals from performing the duties of
51 the job in question or whose employment, by reason of such current alcohol or drug abuse, would
52 constitute a direct threat to property or the safety of others; and
53 The term "gender identity" means the actual or perceived gender-related identity,
54 expression, appearance, mannerisms, or other gender-related characteristics of an individual,
55 regardless of the individual’s designated sex at birth.
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56 The term "sexual orientation" means heterosexuality, bisexuality, homosexuality, or gender
57 identity or expression, whether actual or perceived.
§5-11-4. Powers and objectives.
1 The commission shall have the power and authority and shall may perform the functions
2 and services as in this article prescribed and as otherwise provided by law. The commission shall
3 encourage and endeavor to bring about mutual understanding and respect among all racial,
4 religious, and ethnic groups within the state and shall strive to eliminate all discrimination in
5 employment and places of public accommodations by virtue of race, religion, color, national origin,
6 ancestry, sex, age, sexual orientation, gender identity, blindness, or handicap disability or familial
7 status and shall strive to eliminate all discrimination in the sale, purchase, lease, rental, or
8 financing of housing and other real property by virtue of race, religion, color, national origin,
9 ancestry, sex, age, sexual orientation, gender identity, blindness, handicap disability, or familial
10 status.
§5-11-8. Commission powers; functions; services.
1 The commission is hereby authorized and empowered may:
2 (a) To Cooperate and work with federal, state, and local government officers, units,
3 activities, and agencies in the promotion and attainment of more harmonious understanding and
4 greater equality of rights between and among all racial, religious, and ethnic groups in this state;
5 (b) To Enlist the cooperation of racial, religious, and ethnic units, community and civic
6 organizations, industrial and labor organizations, and other identifiable groups of the state in
7 programs and campaigns devoted to the advancement of tolerance, understanding, and the equal
8 protection of the laws of all groups and peoples;
9 (c) To Receive, investigate, and pass upon complaints alleging discrimination in
10 employment or places of public accommodations, because of race, religion, color, national origin,
11 ancestry, sex, age, sexual orientation, gender identity, blindness, or disability or familial status,
12 and complaints alleging discrimination in the sale, purchase, lease, rental, and financing of
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13 housing accommodations, or real property because of race, religion, color, national origin,
14 ancestry, sex, age, sexual orientation, gender identity, blindness, disability, or familial status, and
15 to initiate its own consideration of any situations, circumstances or problems, including therein any
16 racial, religious, or ethnic group tensions, prejudice, disorder, or discrimination reported or existing
17 within the state relating to employment, places of public accommodations, housing
18 accommodations, and real property;
19 (d) To Hold and conduct public and private hearings, in the county where the respondent
20 resides or transacts business, or where agreed to by the parties or where the acts complained of
21 occurred, on complaints, matters, and questions before the commission and, in connection
22 therewith, relating to discrimination in employment or places of public accommodations, housing
23 accommodations, or real property and during the investigation of any formal complaint before the
24 commission relating to employment, places of public accommodations, housing accommodations,
25 or real property to:
26 (1) Issue subpoenas and subpoenas duces tecum upon the approval of the executive
27 director or the chairperson of the commission; administer oaths; take the testimony of any person
28 under oath; and make reimbursement for travel and other reasonable and necessary expenses in
29 connection with such attendance;
30 (2) Furnish copies of public hearing records to parties involved therein upon their payment
31 of the reasonable costs thereof to the commission;
32 (3) Delegate to an administrative law judge who shall be is an attorney, duly licensed to
33 practice law in West Virginia, the power and authority to hold and conduct hearings, as herein
34 provided, to determine all questions of fact and law presented during the hearing and to render a
35 final decision on the merits of the complaint, subject to the review of the commission as hereinafter
36 set forth.
37 Any respondent or complainant who shall feels aggrieved at any final action of an
38 administrative law judge shall file a written notice of appeal with the commission by serving such
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39 the notice on the executive director and upon all other parties within 30 days after receipt of the
40 administrative law judge’s decision. The commission shall limit its review upon such appeals to
41 whether the administrative law judge’s decision is:
42 (A) In conformity with the Constitution and the laws of the state and the United States;
43 (B) Within the commission’s statutory jurisdiction or authority;
44 (C) Made in accordance with procedures required by law or established by appropriate
45 rules of the commission;
46 (D) Supported by substantial evidence on the whole record; or
47 (E) Not arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted
48 exercise of discretion.
49 (4) To enter into conciliation agreements and consent orders.
50 Each conciliation agreement shall include provisions requiring the respondent to refrain
51 from the commission of unlawful discriminatory practices in the future and shall contain such
52 further provisions as may be agreed upon by the commission and the respondent.
53 If the respondent and the commission agree upon conciliation terms, the commission shall
54 serve upon the complainant a copy of the proposed conciliation agreement. If the complainant
55 agrees to the terms of the agreement or fails to object to such the terms within 15 days after its
56 service upon him or her, the commission shall issue an order embodying such conciliation
57 agreement. If the complainant objects to the agreement, he or she shall serve a specification of his
58 or her objections upon the commission within such this period. Unless such the objections are met
59 or withdrawn within 10 days after service thereof, the commission shall notice the complaint for
60 hearing.
61 Notwithstanding any other provisions of this section, the commission may, where it finds
62 the terms of the conciliation agreement to be in the public interest, execute such the agreement,
63 and limit the hearing to the objections of the complainant.
64 If a conciliation agreement is entered into, the commission shall serve a copy of the order
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65 embodying such the agreement upon all parties to the proceeding.
66 Not later than one year from the date of a conciliation agreement, the commission shall
67 investigate whether the respondent is complying with the terms of such the agreement. Upon a
68 finding of noncompliance, the commission shall take appropriate action to assure compliance;
69 (5) To apply to the circuit court of the county where the respondent resides or transacts
70 business for enforcement of any conciliation agreement or consent order by seeking specific
71 performance of such agreement or consent order;
72 (6) To issue cease and desist orders against any person found, after a public hearing, to
73 have violated the provisions of this article or the rules of the commission;
74 (7) To apply to the circuit court of the county where the respondent resides or transacts
75 business for an order enforcing any lawful cease and desist order issued by the commission;
76 (e) To recommend to the Governor and Legislature policies, procedures, practices, and
77 legislation in matters and questions affecting human rights;
78 (f) To delegate to its executive director such powers, duties, and functions as may be that
79 are necessary and expedient in carrying out the objectives and purposes of this article;
80 (g) To prepare a written report on its work, functions, and services for each year ending on
81 June 30 and to deliver copies thereof to the Governor on or before December 1, next thereafter;
82 (h) To do all other acts and deeds necessary and proper to carry out and accomplish
83 effectively the objects, functions, and services contemplated by the provisions of this article,
84 including the promulgation of legislative rules in accordance with the provisions of §29A-3-1 et
85 seq. of this code, implementing the powers and authority hereby vested in the commission;
86 (i) To create such advisory agencies and conciliation councils, local, regional, or statewide,
87 as in its judgment will aid in effectuating the purposes of this article, to study the problems of
88 discrimination in all or specific fields or instances of discrimination because of race, religion, color,
89 national origin, ancestry, sex, age, sexual orientation, gender identity, blindness, disability, or
90 familial status; to foster, through community effort or otherwise, goodwill, cooperation, and
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91 conciliation among the groups and elements of the population of this state, and to make
92 recommendations to the commission for the development of policies and procedures, and for
93 programs of formal and informal education, which the commission may recommend to the
94 appropriate state agency. Such The advisory agencies and conciliation councils shall be
95 composed of representative citizens serving without pay. The commission may itself make the
96 studies and perform the acts authorized by this subdivision. It may, by voluntary conferences with
97 parties in interest, endeavor by conciliation and persuasion to eliminate discrimination in all the
98 stated fields and to foster goodwill and cooperation among all elements of the population of the
99 state;
100 (j) To accept contributions from any person to assist in the effectuation of the purposes of
101 this section and to seek and enlist the cooperation of private, charitable, religious, labor, civic, and
102 benevolent organizations for the purposes of this section;
103 (k) To issue such publications and such results of investigation and research as in its
104 judgment will tend to promote goodwill and minimize or eliminate discrimination: Provided, That
105 the identity of the parties involved shall may not be disclosed.
§5-11-9. Unlawful discriminatory practices.
1 It