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EEO - Retaliation: West Virginia

EEO - Retaliation requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Eric E. Kinder, Spilman Thomas & Battle, PLLC

Summary

Retaliation Under the West Virginia Human Rights Act

The WVHRA is the state analog to the federal Title VII. W. Va. Code § 5-11-1 et seq. It prohibits discrimination on the basis of race, religion, color, national origin, ancestry, sex, age (40 years of age and older), blindness, or handicap. +W. Va. Code § 5-11-4. Employers cannot discriminate against members of these classes with respect to compensation, hire, tenure, and terms, conditions, or privileges of employment. Employers, employment agencies, and labor organizations cannot elicit information from individuals regarding these classes prior to membership, nor can they deny full and equal membership to the organization because of them. These classifications cannot be used to select or exclude individuals from training programs. Owners of any place of public accommodation cannot discriminate against individuals because of these classifications. Finally, individuals may not be retaliated against because they made a claim of discrimination. +W. Va. Code § 5-11-9.

Covered Employers

The WVHRA applies to employers with 12 or more employees in West Virginia for twenty or more calendar weeks within the calendar year that the alleged act of discrimination occurred in. The WVHRA applies to public and private employers. It does not apply to private clubs. +W. Va. Code § 5-11-3(d). An employer can be liable for the discriminatory acts of his employees in certain circumstances. See Employer Liability. Individuals may not discriminate against someone in a protected class by denying them the accommodations or privileges of places of public accommodation or by engaging in reprisal for filing a claim of discrimination or opposing discriminatory practices; they also may not willfully obstruct any person from complying with the WVHRA. +W. Va. Code §§ 5-11-9 (6), (7).

Retaliation Provisions

The WVHRA prohibits retaliation and makes it unlawful to engage in any form of reprisal or otherwise discriminate against any person because he or she has opposed any practices or acts forbidden under the WVHRA or because he or she has filed a complaint, testified or assisted in any proceeding under the WVHRA. +W. Va. Code § 5-11-9(7) (C).

Comparison to Federal Retaliation Claims

Claims brought under the WVHRA use federal law standards unless the WVHRA directs otherwise. See Ways v. Imation Enterprises Corp., +214 W. Va. 305 (2003).

Individual Liability

There is no individual liability for retaliation under the WVHRA other than under Section 5-11-9 (6) and Sections 5-11-9 (7) unless the individual qualifies as an employer under the statute.

Employer Liability

An employer is strictly liable for discriminatory practices committed by management personnel. Liability for discriminatory acts by non-managerial employees depends on the employer's knowledge of the offending conduct, the effectiveness of remedial procedures, and the adequacy of its response. An employer with effective guidelines for prohibiting and dealing with discriminatory practices is not liable unless the employer had knowledge - actual or constructive - of the misconduct. See Conrad v. ARA Szabo, +198 W. Va. 362 (1996).

Establishing a Claim of Retaliation

The West Virginia Supreme Court of Appeals has set forth the following elements for a cause of action of unlawful retaliatory discharge under the WVHRA:

  1. The complainant engaged in protected activity;
  2. The complainant's employer was aware of the protected activities;
  3. The complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation); and
  4. The complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.

See Colgan Air, Inc. v. West Virginia Human Rights Comm'n, +221 W. Va. 588, 597 (2007) (citing Brammer v. West Virginia Human Rights Comm'n, +183 W. Va. 108 (1999)).

Enforcement Through West Virginia Human Rights Commission and Judicial Proceedings

Claims filed under the WVHRA through the West Virginia Human Rights Commission (WVHRC) must be filed within 365 days of the alleged discriminatory action. +W. Va. ADC § 77-2-3.9. The statute of limitations for filing under the WVHRA in state court is two years after the date of the alleged discrimination. An employee who wishes to withdraw his or her claim from the WVHRC and instead file in state court can have statute of limitation problems. If the period when the statute of limitations would end is less than 90 days away when the request to withdraw is made, the time to file in the state court is extended to 90 days from the date the WVHRC complaint is withdrawn.

Unlike federal law, the WVHRC does not require a complaining party to file a claim with the WVHRC prior to bringing a lawsuit in state court (exhaustion of the claim).

Even if the WVHRC issues a finding of no reasonable cause on a claim, an employee is not barred from bringing a cause of action under the WVHRA in state court. See Wilfong v. Chenoweth Ford, Inc. +192 W. Va. 207 (1994). However, if the WVHRC conducts a public hearing on the merits of a discrimination claim, it is considered a final determination on the matter and the complainant is barred from filing the complaint in state court. See Wilfong v. Chenoweth Ford, Inc. +192 W. Va. 207 (1994) (citing Jones v. Glenville State College, +189 W. Va. 546 (1993)).

If a case is pending before the WVHRC, an employee cannot file the same claim in state court. However, an employee can request that his or her complaint with the Commission be withdrawn and then file in circuit court.

Remedies for Retaliation Under WVHRA

Employees can be reinstated or hired, granted back pay or any other legal or equitable relief, and awarded the costs of litigation including attorney and witness fees. +W. Va. Code § 5-11-13(c). The West Virginia Supreme Court of Appeals has held that employees can recover punitive damages as well as tort damages including front pay and emotional distress damages. See Dobson v. Eastern Associated Coal Corp., +188 W. Va. 17 (1992); Akers v. Cabell Huntington Hosp., Inc., +215 W. Va. 346 (2004); Haynes v. Rhone-Poulenc, Inc., +206 W. Va. 18 (1999).

Retaliation Under the Equal Pay for Equal Work Act

Pursuant to the Equal Pay for Equal Work Act (Act), covered employers may not retaliate against any employee for complaining about matters relating to sex discrimination or for instituting or testifying in a legal proceeding related to sex discrimination. +W. Va. Code § 21-5B-3. Under the Act, employer means any person, partnership, firm or corporation employing one or more employees, but does not include the state, or any municipal corporation or political subdivision of the state having in force a civil service system based on merit. However, the term employershall not include any individual, corporation, business trust, or similar unit whose operations are subject to any federal act relating to equal wages for equal work, regardless of sex.

An employer will have a defense to a claim of wage discrimination if:

  1. Payment is made pursuant to a seniority or merit system which does not discrimination on the basis of sex; or
  2. A difference in wages is based on good faith factors other than sex.

+W. Va. Code § 21-5B-3.

An employer may not reduce the wages of an employee in order to eliminate an existing, past or future wage discrimination or to effectuate wage equalization. +W. Va. Code § 21-5B-3.

The State Commissioner of Labor has the right to enforce this Act. +W. Va. Code § 21-5B-2.

Any aggrieved employee may file a claim to recover:

  • Unpaid wages for the one-year period prior to filing the action;
  • Additional amount as liquidated damages; and/or
  • Reasonable attorneys' fees.

One or more employees can maintain actions for themselves or on behalf of other employees. +W. Va. Code § 21-5B-4.

Common Law Retaliation Claim

Even if an employee does not qualify under the WVHRA, he or she can maintain a common law claim for retaliatory discharge because sexual discrimination and harassment in employment go against the public policy of West Virginia. See Roth v. DeFeliceCare Inc., +226 W. Va. 214 (2010).

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

EEO - Harassment: Federal

West Virginia Human Rights Commission

West Virginia Human Rights Commission - Your Guide to Frequently Asked Questions in Discrimination Complaints