A Historical Birthday - article by Monia Turley
A BRIEF HISTORY OF THE WEST VIRGINIA HUMAN RIGHTS ACT
The West Virginia Human Rights Act (WVHRA) was enacted in 1961. This was in the very midst of the Civil Rights Movement, only a few years after the 1954 Brown v. Board of Education decision which had mandated school desegregation, and several years before the federal Civil Rights Act of 1964, which outlawed discrimination nationwide.
The 1961 Human Rights Act created the nine-member West Virginia Human Rights Commission (WVHRC) to:
encourage and endeavor to bring about mutual understanding and respect among all racial, religious and ethnic groups within the state and [to] strive to eliminate all discrimination in employment and places of public accommodation.
1961 W. Va. Acts 135, § 1 (Reg. Sess.).
Although the powers and the functions of the Commission have expanded in some important ways over the years, the form of the nine-member Commission and its purposes have remained substantially the same.
All of the functions of the original Human Rights Commission, as set out in the 1961 Act, also remain among the functions of the WVHRC today. The Commission then, as now, is “authorized and empowered” to work cooperatively with other governmental agencies and bodies to promote harmony and understanding among racial, religious, and ethnic groups; enlist the cooperation of groups in programs and campaigns advancing tolerance and understanding; encourage and conduct studies related to human rights; and make recommendations to the Governor and Legislature on questions affecting human rights. (1961 W. Va. Acts 135, § 4).
The original Human Rights Commission had the power “to receive and consider complaints,” to hold hearings, and to “act as conciliator in matters of employment and places of public accommodation.” Id. However, significantly, the original statute was clear in limiting the power of the HRC with regard to resolving such matters. It explicitly provided that “no decision of the commission shall be binding upon any parties to the conciliation[.]” Id. The ability of the WVHRC to order parties to cease discrimination, and the ability to order compensation for the harm of discrimination, would have to wait for another day.
In the late 1960s, that day came, as the WVHRC began a transition from an agency designed to “encourage” equal opportunity and to “endeavor to bring about mutual understanding,” (1961 W. Va. Acts 135, § 1), to an agency with power to compel equal opportunity. While some changes came quickly, the transition of the WVHRC into an agency capable of effectively exercising enforcement authority would take almost two decades.
In 1967, several years after the enactment of the federal Civil Rights Act of 1964, an amendment to the WVHRA added a statutory provision prohibiting discrimination in employment and places of public accommodations. This made equal opportunity an enforceable right for the first time under state law. The 1967 amendment also added statutory language to the Act which gave the WVHRC enforcement powers and adjusted the nature of Commission hearings from fact finding sessions to administrative adjudications. W. Va. Code § 5-11-10.
The 1967 amendment also contained a “declaration of policy” section which enunciated a state public policy to ensure that all citizens of the state had equal opportunity in employment and public accommodations.
It is the public policy of the state of West Virginia to provide all of its citizens equal opportunity for employment and equal access to places of public accommodations. . . .Equal opportunity . . . is hereby declared to be a human right or civil right of all persons. . . .
W. Va. Code § 5-11-2.
This declaration became the basis of important developments which followed.
In the subsequent 25 years, the Legislature gradually expanded the coverage of the WVHRA, reflecting a commitment to the public policy which had been enunciated in 1967. Despite the fact that employment discrimination based on sex was prohibited in the federal Civil Rights Act enacted in 1964, a similar prohibition was not included in the Human Rights Act until 1971. The 1971 amendment to the WVHRA also prohibited housing discrimination based on race, religion, color, national origin, and ancestry. Between 1971 and 1981, the Legislature amended the statute three more times, to include prohibitions against blindness and handicap discrimination in all of the covered areas, and to add coverage for sex discrimination in housing. In 1992, the law governing housing discrimination was separately enacted as the West Virginia Fair Housing Act.
The West Virginia Supreme Court of Appeals has also played a very important part in defining and shaping both the nature of human rights in West Virginia and the role of the WVHRC in protecting those rights. In 1975, the West Virginia Supreme Court recognized the pubic policy of equal opportunity in State of West Virginia Human Rights Commission v. Pauley, 158 W. Va. 495, 212 S.E.2d 77 (1975), wherein the Court drew upon the WVHRA’s strong policy language to uphold the power of the WVHRC to take enforcement action against discrimination.
[I]t is readily discernible that the Legislature, by its recent enactments in the field of human rights, intended to and did provide the Commission the means with which to effectively enforce the law and meaningfully implement the legislative
declaration of policy. If our society and government seriously desire to stamp out the evil of unlawful discrimination which is symptomatic of unbridled bigotry, and we believe they do, then it is imperative that the duty of enforcement be accompanied by an effective and meaningful means of enforcement. The forceful language used by the Legislature mandates the eradication of unlawful discrimination. If this mandate is to be carried to fruition the provisions of the 1967 Human Rights Act and the amendments thereto must be given the significance intended so as to provide for meaningful enforcement.
Pauley, 158 W. Va. at 499-500, 212 S.E.2d at 79 (internal citations omitted).
Between 1975 and 1984, the West Virginia Supreme Court issued nine decisions which clarified the functions and powers of the WVHRC and provided guidance for the application of the Act in specific circumstances. These decisions acknowledged the power of the HRC to remedy discrimination with the award of monetary damages (State of West Virginia Human Rights Commission v. Pauley, 158 W. Va. 495, 212 S.E.2d 77 (1975); State of West Virginia Human Rights Commission v. Pearlman Realty Agency, 161 W. Va. 1, 239 S.E.2d 145 (1977)); and to remedy the present effects of past of past discrimination (West Virginia Human Rights Commission v. United Transportation Union, Local No. 655, 167 W. Va. 282, 280 S.E.2d 653 (1981); Greyhound Lines-East v. Geiger, 168 W. Va. 229, 283 S.E.2d 858 (1981)). The Court also acknowledged the importance of enforcement hearings. Currey v. State of West Virginia Human Rights Commission, 166 W. Va. 163, 273 S.E.2d 77 (1980). And, perhaps most significantly, the Court recognized circumstantial proof as a legitimate means of proving discrimination under the Human Rights Act. Shepherdstown Volunteer Fire Department v. West Virginia Human Rights Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983).
In December 1984, the West Virginia Supreme Court of Appeals issued a decision in Allen v. State of West Virginia Human Rights Commission, 174 W. Va. 139, 324 S.E.2d 99 (1984), which dramatically underscored the importance of the public policy opposing discrimination and which significantly reshaped the handling of discrimination complaints by the HRC. This decision equipped the WVHRC with the necessary institutional resources and framework to see complaints of discrimination through to a just resolution.
To ensure that the WVHRC had the capacity to adjudicate discrimination cases, the Court directed the hiring of a full-time hearing examiner, thus ensuring that for any case where voluntary compliance with the law could not be obtained, the HRC was equipped with the tribunal to conduct evidentiary hearings to determine whether or not unlawful discrimination had occurred.
In addition, in the same decision, the Court directed the Attorney General to provide lawyers necessary to present the cases before this tribunal. This was the birth of the Attorney General’s Civil Rights Division. Since 1984, between two and five full-time attorneys have
been made available by the Attorney General to litigate claims brought before the WVHRC for which there is a “probable cause” determination.
As justification and support for the extraordinary measures it was taking in Allen to ensure that discrimination was effectively addressed by the WVHRC, the Court discussed the fundamental nature of human rights, and the lofty purposes established by the West Virginia Legislature in the WVHRA. The Allen Court began by citing to the powerful language of the purpose section which had been added to the Human Rights Act in 1967, just as it had in its Pauley opinion. The Court then quoted the Legislature’s powerful words about the profound impact of discrimination.
This concept of equality is so basic to our system of government, that the Legislature has declared, "The denial of these rights to properly qualified persons by reason of race, religion, color, national origin, ancestry, sex, age, blindness or handicap is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society."
Allen, 174 W. Va. at 148, 324 S.E.2d at 108 (quoting W. Va. Code § 5-11-2).
And then, the Court used a vivid analogy to indicate how high a priority must attach to these rights.
Therefore, every act of unlawful discrimination in employment, housing, or public accommodations is akin to an act of treason, undermining the very foundations of our democracy.
Allen, 174 W. Va. at 148, 324 S.E.2d at 108.
In its Allen decision, in addition to the specific directives regarding the employment of a full-time hearing examiner and the creation of the Civil Rights Division, the Court also recognized that the Legislature had made the protection of human rights an overriding priority to be applied throughout government.
The Legislature, in these respects, has generously bestowed upon the Human Rights Commission substantial power to utilize all the resources available in state government without recompense by the Commission in pursuit of its fundamental objectives. It has established human and civil rights as the highest priority not only of the Human Rights Commission, but also of the Attorney General, and of every executive officer, department, and agency of this State.
Allen, 174 W. Va. at 162, 324 S.E.2d at 122.
There have been many other important developments at various points during the last 50 years which have underscored the state’s commitment to ensuring equal opportunity.
In the 25 years since Allen, the Court expanded the scope of Human Rights Act protection to cover many forms of discrimination which are now considered well-settled rights; for example, to cover constructive discharge (State of West Virginia Human Rights Commission v. Logan-Mingo Area Mental Health Agency, 174 W. Va. 711, 329 S.E.2d 77 (1985)), pregnancy discrimination (Frank’s Shoe Store v. West Virginia Human Rights Commission, 179 W. Va. 53, 365 S.E.2d 251 (1986)), class action cases (Greyhound Lines-East v. Geiger, 179 W. Va. 174, 366 S.E.2d 135 (1988)), discriminatory wage disparities (West Virginia Institute of Technology v. West Virginia Human Rights Commission, 181 W. Va. 525, 383 S.E.2d 490 (1989)), and sexual harassment (Westmoreland Coal Company v. West Virginia Human Rights Commission, 181 W. Va. 368, 382 S.E.2d 562 (1989)). The Court ruled that it is unlawful to deny a person housing opportunities because of the race of the people with whom he or she associates. West Virginia Human Rights Commission v. Wilson Estates, Inc., 202 W. Va. 152, 503 S.E.2d 6 (1998). In the two calendar years of 1988 and 1989 alone, the Court decided 32 Human Rights Act cases.
In the 50-plus human rights cases decided by the West Virginia Court since 1995, the aspect of the law addressed most often has been disability discrimination. The scope of human rights related to disability, unrecognized by earlier versions of the Human Rights Act, has been defined and refined by 14 decisions in this period.
In this more recent period, the Court has also had some occasion to look back to the fundamental principles which motivated the earlier versions of the Human Rights Act and which were first articulated there. For example, in a decision allowing punitive damages to be awarded by juries in Human Rights Act cases under some circumstances, the Court explicitly recognized “that the legislative purpose contained in the Human Rights Act contemplates not merely compensating victims of discrimination for violations of their human rights, but preventing violations of these rights.” Haynes v. Rhone-Poulenc, Inc., 206 W. Va. 18, 33, 521 S.E.2d 331, 346 (1999) (emphasis supplied).
As the West Virginia Court has noted, when discrimination occurs today, it can be as difficult as ever to prove.
"Gone are the days (if, indeed, they ever existed) when an employer would admit to firing an employee because she is a woman, over forty years of age, disabled or a member of a certain race or religion. . . .”
Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 79, 479 S.E.2d 561, 589 n.21 (1995) (citation omitted).
In 1995, the Court issued a decision in Barefoot v. Sundale Nursing Home, 193 W. Va. 475, 457 S.E.2d 152 (1995), which, while not making new law, thoroughly reviewed and clearly set out the method of analysis which has evolved over the past 25 years, and which is to be used in discerning violations of the Human Rights Act. It is the framework of proof summarized in Barefoot that the WVHRC and private litigants rely upon today to prove claims of unlawful discrimination.
[The elements of a prima facie case] create an inference of discrimination. If the decision is not explained, we would suspect the employer had an illicit motive; a fair and rational employer does not fire an employee who is performing adequately and then hire someone totally new to replace the discharged worker. Of course, the employer might have a rational explanation for its action. When that explanation is offered, a function of the prima facie case is served; it is designed to allow a plaintiff with only minimal facts to smoke out a defendant--who is in control of most of the facts--and force it to come forward with some explanation for its action.
Barefoot, 198 W. Va. at 485, 457 S.E.2d at 162 (internal citations omitted).
Using these legal devices, employers and others can be held appropriately accountable for discriminatory decisions.
Fifty years after its inception, the work of the West Virginia Human Rights Commission continues. The agency’s efforts to eliminate unlawful discrimination in West Virginia workplaces, places of public accommodations, and in housing opportunities are ongoing. The HRC mandate and authority have evolved through the years by virtue of legislative action and judicial interpretation, and will likely continue to adapt over the next 50 years to address the important public policy of facilitating mutual understanding and eliminating unlawful discrimination. What changes will occur to the Human Rights Act in the next 50 years? One can only hope that any future changes are consistent with West Virginia’s historic commitment to equality and equal opportunity for all.
Paul R. Sheridan
Deputy Attorney General
Jamie S. Alley
Senior Assistant Attorney General
Civil Rights Division
December 2011