WEST virginia Legislature
2017 regular session
House Bill 2623
By Delegates Fleischauer, Pyles, Brewer, Hornbuckle, Byrd, Rowe, Robinson, Blair and Pethtel
[Introduced February 21,
to the Committee on Government Organization then the Judiciary.]
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 Code of West Virginia, 1931, as amended; and to amend and reenact §5-11A-3, §5-11A-5, §5-11A-6 and §5-11A-7 of said code, all relating to unlawful discriminatory practices; prohibiting discrimination based upon age or sexual orientation; and defining sexual orientation.
Be it enacted by the Legislature of West Virginia:
That §5-11-2, §5-11-3, §5-11-4, §5-11-8, §5-11-9 and §5-11-13 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §5-11A-3, §5-11A-5, §5-11A-6 and §5-11A-7 of said code be amended and reenacted, all to read as follows:
ARTICLE 11. HUMAN RIGHTS COMMISSION.
§5-11-2. Declaration of policy.
It is the public policy of the State of West Virginia to provide all of its citizens equal opportunity for employment, equal access to places of public accommodations, and equal opportunity in the sale, purchase, lease, rental and financing of housing accommodations or real property[WC1] . Equal opportunity in the areas of employment and public accommodations is hereby declared to be a human right or civil right of all persons without regard to race, religion, color, national origin, ancestry, sex, age, sexual orientation, blindness or disability. Equal opportunity in housing accommodations or real property is hereby declared to be a human right or civil right of all persons without regard to race, religion, color, national origin, ancestry, sex, blindness, sexual orientation, disability or familial status.
The denial of these rights to properly qualified persons by reason of race, religion, color, national origin, ancestry, sex, age, sexual orientation, blindness, disability or familial status is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society.
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 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
terms shall may not be taken, understood or construed to include
a private club: Provided, however, That this article, with
regards to sexual orientation, does not apply to a corporation, association,
educational institution or institution of learning, or society that is exempt
from the religious discrimination provisions of title VII of the Civil Rights
Act of 1964 (42 U.S.C. 2000e et seq.) pursuant to section 702(a) or 703(e)(2)
of such Act (42 U.S.C. 2000e-1(a), 2000e-2(e)(2)), except in the operation of a
program funded by the state;
(e) The term “employee”
shall does 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
may 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, sexual orientation, 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,
shall does not include any accommodations which are in their
nature private. To the extent that any penitentiary, state 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 subdivision (6), section nine of this article shall
do not apply to any person other than: (1) Any person employed at a penitentiary,
state 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
(k) The term “age” means the age of forty or above;
(l) For the purpose of
this article, a person
shall be is considered to be blind only if
his or her central visual acuity does not exceed twenty/two hundred in
the better eye with correcting lenses, or if his or her 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
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 the individual
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; and
(n) The term “sexual orientation” means heterosexuality, bisexuality, homosexuality or gender identity or expression, whether actual or perceived.
§5-11-4. Powers and objectives.
The commission shall
the power and authority and shall perform the functions and services as in
this article prescribed and as otherwise provided by law. The commission shall
encourage and endeavor to bring about mutual understanding and respect among
all racial, religious and ethnic groups within the state and shall strive to
eliminate all discrimination in employment and places of public accommodations
by virtue of race, religion, color, national origin, ancestry, sex, age, sexual
orientation, blindness or handicap disability and shall
strive to eliminate all discrimination in the sale, purchase, lease, rental or
financing of housing and other real property by virtue of race, religion,
color, national origin, ancestry, sex, age, sexual orientation,
blindness, handicap disability or familial status.
§5-11-8. Commission powers; functions; services.
The commission i
hereby authorized and empowered may:
and work with federal, state and local government officers, units, activities
and agencies in the promotion and attainment of more harmonious understanding
and greater equality of rights between and among all racial, religious and
ethnic groups in this state;
the cooperation of racial, religious and ethnic units, community and civic
organizations, industrial and labor organizations and other identifiable groups
of the state in programs and campaigns devoted to the advancement of tolerance,
understanding and the equal protection of the laws of all groups and peoples;
investigate and pass upon complaints alleging discrimination in employment or
places of public accommodations, because of race, religion, color, national
origin, ancestry, sex, age, sexual orientation, blindness or disability,
and complaints alleging discrimination in the sale, purchase, lease, rental and
financing of housing accommodations or real property because of race, religion,
color, national origin, ancestry, sex, age, sexual orientation, blindness,
disability or familial status, and to initiate its own consideration of any
situations, circumstances or problems, including therein any racial, religious
or ethnic group tensions, prejudice, disorder or discrimination reported or
existing within the state relating to employment, places of public
accommodations, housing accommodations and real property;
To Hold and
conduct public and private hearings, in the county where the respondent resides
or transacts business or where agreed to by the parties or where the acts
complained of occurred, on complaints, matters and questions before the
commission and, in connection therewith, relating to discrimination in
employment or places of public accommodations, housing accommodations or real
property and during the investigation of any formal complaint before the
commission relating to employment, places of public accommodations, housing
accommodations or real property to:
(1) Issue subpoenas and subpoenas duces tecum upon the approval of the executive director or the chairperson of the commission; administer oaths; take the testimony of any person under oath; and make reimbursement for travel and other reasonable and necessary expenses in connection with such attendance;
(2) Furnish copies of public hearing records to parties involved therein upon their payment of the reasonable costs thereof to the commission;
(3) Delegate to an administrative law judge who shall be an attorney, duly licensed to practice law in West Virginia, the power and authority to hold and conduct hearings, as herein provided, to determine all questions of fact and law presented during the hearing and to render a final decision on the merits of the complaint, subject to the review of the commission as hereinafter set forth.
Any respondent or
complainant who shall feel aggrieved at any final action of an administrative
law judge shall file a written notice of appeal with the commission by serving
such notice on the executive director and upon all other parties within thirty
days after receipt of the administrative law judge’s decision. The commission
shall limit its review upon
such the appeals to whether the
administrative law judge’s decision is:
(A) In conformity with the Constitution and the laws of the state and the United States;
(B) Within the commission’s statutory jurisdiction or authority;
(C) Made in accordance with procedures required by law or established by appropriate rules of the commission;
(D) Supported by substantial evidence on the whole record; or
(E) Not arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
into conciliation agreements and consent orders.
Each conciliation agreement shall include provisions requiring the respondent to refrain from the commission of unlawful discriminatory practices in the future and shall contain such further provisions as may be agreed upon by the commission and the respondent.
If the respondent and
the commission agree upon conciliation terms, the commission shall serve upon
the complainant a copy of the proposed conciliation agreement. If the
complainant agrees to the terms of the agreement or fails to object to
the terms within fifteen days after its service upon him or her, the
commission shall issue an order embodying such conciliation agreement. If the
complainant objects to the agreement, he or she shall serve a specification of
his or her objections upon the commission within such this
period. Unless such the objections are met or withdrawn within
ten days after service thereof, the commission shall notice the complaint for
other provisions of this section, the commission may, where it finds the terms
of the conciliation agreement to be in the public interest, execute
the agreement, and limit the hearing to the objections of the
If a conciliation
agreement is entered into, the commission shall serve a copy of the order
such the agreement upon all parties to the proceeding.
Not later than one year
from the date of a conciliation agreement, the commission shall investigate
whether the respondent is complying with the terms of
agreement. Upon a finding of noncompliance, the commission shall take
appropriate action to assure compliance;
To Apply to
the circuit court of the county where the respondent resides or transacts
business for enforcement of any conciliation agreement or consent order by
seeking specific performance of such the agreement or consent
cease and desist orders against any person found, after a public hearing, to
have violated the provisions of this article or the rules of the commission;
To Apply to
the circuit court of the county where the respondent resides or transacts business
for an order enforcing any lawful cease and desist order issued by the
to the Governor and Legislature policies, procedures, practices and legislation
in matters and questions affecting human rights;
to its executive director such powers, duties and functions as may be necessary
and expedient in carrying out the objectives and purposes of this article;
To Prepare a
written report on its work, functions and services for each year ending on June
30 and to deliver copies thereof to the Governor on or before December 1, next
To Do all
other acts and deeds necessary and proper to carry out and accomplish
effectively the objects, functions and services contemplated by the provisions
of this article, including the promulgation of legislative rules in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, implementing the powers and authority hereby vested in the commission;
such advisory agencies and conciliation councils, local, regional or statewide,
as in its judgment will aid in effectuating the purposes of this article, to
study the problems of discrimination in all or specific fields or instances of
discrimination because of race, religion, color, national origin, ancestry,
sex, age, sexual orientation, blindness, disability or familial status;
to foster, through community effort or otherwise, goodwill, cooperation and
conciliation among the groups and elements of the population of this state, and
to make recommendations to the commission for the development of policies and
procedures, and for programs of formal and informal education, which the
commission may recommend to the appropriate state agency. Such The
advisory agencies and conciliation councils shall be composed of representative
citizens serving without pay. The commission may itself make the studies and
perform the acts authorized by this subdivision. It may, by voluntary
conferences with parties in interest, endeavor by conciliation and persuasion
to eliminate discrimination in all the stated fields and to foster goodwill and
cooperation among all elements of the population of the state;
contributions from any person to assist in the effectuation of the purposes of
this section and to seek and enlist the cooperation of private, charitable,
religious, labor, civic and benevolent organizations for the purposes of this
To Issue such
publications and such results of investigation and research as in its
judgment will tend to promote goodwill and minimize or eliminate
discrimination: Provided, That the identity of the parties involved shall
may not be disclosed.
§5-11-9. Unlawful discriminatory practices.
shall be an is
unlawful discriminatory practice, unless based upon a bona fide occupational
qualification, or except where based upon applicable security regulations
established by the United States or the State of West Virginia or its agencies
or political subdivisions:
(1) For any employer to discriminate
against an individual with respect to compensation, hire, tenure, terms,
conditions or privileges of employment if the individual is able and competent
to perform the services required even if
such the individual is
blind or disabled: Provided, That it shall not be is not an
unlawful discriminatory practice for an employer to observe the provisions of
any bona fide pension, retirement, group or employee insurance or welfare
benefit plan or system not adopted as a subterfuge to evade the provisions of
this subdivision: Provided, however, That an employer my grant
preference in hiring to a veteran or a disabled veteran in accordance with the
provisions of section nine-a of this article without violating the provisions
of this article.
(2) For any employer, employment agency or labor organization, prior to the employment or admission to membership, to: (A) Elicit any information or make or keep a record of or use any form of application or application blank containing questions or entries concerning the race, religion, color, national origin, ancestry, sex, sexual orientation or age of any applicant for employment or membership; (B) print or publish or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, specifications or discrimination based upon race, religion, color, national origin, ancestry, sex sexual orientation, disability or age; or (C) deny or limit, through a quota system, employment or membership because of race, religion, color, national origin, ancestry, sex, age, sexual orientation blindness or disability;
(3) For any labor organization because of race, religion, color, national origin, ancestry, sex, age sexual orientation, blindness or disability of any individual to deny full and equal membership rights to any individual or otherwise to discriminate against such individual with respect to hire, tenure, terms, conditions or privileges of employment or any other matter, directly or indirectly, related to employment;
(4) For an employer, labor organization, employment agency or any joint labor-management committee controlling apprentice training programs to:
(A) Select individuals for an apprentice training program registered with the State of West Virginia on any basis other than their qualifications as determined by objective criteria which permit review;
(B) Discriminate against any individual with respect to his or her right to be admitted to or participate in a guidance program, an apprenticeship training program, on-the-job training program or other occupational training or retraining program;
(C) Discriminate against
any individual in his or her pursuit of
such these programs or to
discriminate against such a person in the terms, conditions or privileges of such
(D) Print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for these programs or to make any inquiry in connection with a program which expresses, directly or indirectly, discrimination or any intent to discriminate unless based upon a bona fide occupational qualification;
(5) For any employment agency to fail or refuse to classify properly, refer for employment or otherwise to discriminate against any individual because of his or her race, religion, color, national origin, ancestry, sex, age, sexual orientation, blindness or disability;
(6) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodations to:
(A) Refuse, withhold from or deny to any individual because of his or her race, religion, color, national origin, ancestry, sex, age, sexual orientation, blindness or disability, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of the place of public accommodations;
(B) Publish, circulate, issue, display, post or mail, either directly or indirectly, any written or printed communication, notice or advertisement to the effect that any of the accommodations, advantages, facilities, privileges or services of any such place shall be refused, withheld from or denied to any individual on account of race, religion, color, national origin, ancestry, sex, age, blindness or disability, or that the patronage or custom thereat of any individual, belonging to or purporting to be of any particular race, religion, color, national origin, ancestry, sex, sexual orientation or age, or who is blind or disabled, is unwelcome, objectionable, not acceptable, undesired or not solicited; or
(7) For any person, employer, employment agency, labor organization, owner, real estate broker, real estate salesman or financial institution to:
(A) Engage in any form of threats or reprisal, or to engage in, or hire, or conspire with others to commit acts or activities of any nature, the purpose of which is to harass, degrade, embarrass or cause physical harm or economic loss or to aid, abet, incite, compel or coerce any person to engage in any of the unlawful discriminatory practices defined in this section;
(B) Willfully obstruct or prevent any person from complying with the provisions of this article, or to resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of a duty under this article; or
(C) Engage in any form of reprisal or otherwise discriminate against any person because he or she has opposed any practices or acts forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.
§5-11-13. Exclusiveness of remedy; exceptions.
(a) Except as provided
in subsection (b), nothing contained in this article shall be
to repeal or supersede any of the provisions of any existing or hereafter
adopted municipal ordinance, municipal charter or of any law of this state
relating to discrimination because of race, religion, color, national origin,
ancestry, sex, age, sexual orientation, blindness or disability, but as
to acts declared unlawful by section nine of this article the procedure herein
provided shall, when invoked, be exclusive and the final determination therein
shall exclude any other action, civil or criminal, based on the same grievance
of the complainant concerned. If such the complainant institutes
any action based on such that grievance without resorting to the
procedure provided in this article, he or she may not subsequently resort to
the procedure herein. In the event of If there is a conflict
between the interpretation of a provision of this article and the
interpretation of a similar provision contained in any municipal ordinance
authorized by charter, the interpretation of the provision in this article
shall apply to such the municipal ordinance.
(b) Notwithstanding the
provisions of subsection (a) of this section, a complainant may institute an
action against a respondent in the county wherein the respondent resides or
transacts business at any time within ninety days after the complainant is
given notice of a right to sue pursuant to this subsection or, if the statute
of limitations on the claim has not expired at the end of
ninety-day period, then at any time during which such the statute
of limitations has not expired. If a suit is filed under this section, the
proceedings pending before the commission shall be deemed considered
The commission shall give a complainant who has filed a complaint a notice of a right to sue upon: (1) The dismissal of the complaint for any reason other than an adjudication of the merits of the case; or (2) the request of a complainant at any time after the timely filing of the complaint in any case which has not been determined on its merits or has not resulted in a conciliation agreement to which the complainant is a party. Upon the issuance of a right to sue letter pursuant to subdivision (1) or (2), the commission may dismiss the complaint.
Notice of right to sue
shall be given immediately upon complainant being entitled thereto, by personal
service or certified mail, return receipt requested, which notice shall inform
the complainant in plain terms of his or her right to institute a civil action
as provided in this section within ninety days of the giving of
notice. Service of the notice shall be complete upon mailing.
(c) In any action filed
under this section, if the court finds that the respondent has engaged in or is
engaging in an unlawful discriminatory practice charged in the complaint, the
court shall enjoin the respondent from engaging in
unlawful discriminatory practice and order affirmative action which may
include, but is not limited to, reinstatement or hiring of employees, granting
of back pay or any other legal or equitable relief as the court deems
appropriate. In actions brought under this section, the court in its
discretion may award all or a portion of the costs of litigation, including
reasonable attorney fees and witness fees, to the complainant.
(d) The provisions of this section shall be available to all complainants whose active cases are pending before the Human Rights Commission as well as those complainants who file after the effective date of this section.
ARTICLE 11A. WEST VIRGINIA FAIR HOUSING ACT.
As used in this article:
(a) “Commission” means the West Virginia Human Rights Commission;
(b) “Dwelling” means any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence or sleeping place by one or more persons or families and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof;
(c) “Family” includes a single individual;
(d) “Person” includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11 of the United States Code, receivers and fiduciaries;
(e) “To rent” includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant;
(f) “Discriminatory housing practice” means an act that is unlawful under section five, six, seven or nineteen of this article;
(g) “Disability” means, with respect to a person:
(1) A physical or mental impairment which substantially limits one or more of the person’s major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but the term does not include current, illegal use of or addiction to a controlled substance, as defined in Section 102 of the Controlled Substances Act, Title 21, United States Code, Section 802;
(h) “Aggrieved person” includes any person who:
(1) Claims to have been injured by a discriminatory housing practice; or
(2) Believes that the person will be injured by a discriminatory housing practice that is about to occur;
(i) “Complainant” means the person, including the commission, who files a complaint under section eleven of this article;
(j) “Familial status” means:
(1) One or more individuals who have not attained the age of eighteen years being domiciled with:
(A) A parent or another person having legal custody of the individual or individuals; or
(B) The designee of the parent or other person having custody of the individual with the written permission of the parent or other person; or
(2) Any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years;
(k) “Conciliation” means the attempted resolution of issues raised by a complaint or by the investigation of the complaint through informal negotiations involving the aggrieved person, the respondent and the commission;
(l) “Conciliation agreement” means a written agreement setting forth the resolution of the issues in conciliation;
(m) “Respondent” means:
(1) The person or other entity accused in a complaint of an unfair housing practice; and
(2) Any other person or entity identified in the course of investigation and notified as required with respect to respondents identified under subsection (a), section eleven of this article;
(n) The term “rooming house” means a house or building where there are one or more bedrooms which the proprietor can spare for the purpose of giving lodgings to persons he or she chooses to receive; and
(o) “Sexual orientation” means heterosexuality, bisexuality, homosexuality or gender identity or expression, whether actual or perceived;
(o) (p) The term “basic universal design” means
the design of products and environments to be useable by all people, to the
greatest extent possible, without the need for adaptation or specialization; and (p) (q) “Assistance animal” means any service,
therapy or support animal, weighing less than one hundred fifty pounds, with or
without specific training or certification, that works, provides assistance, or
performs tasks for the benefit of a person with a disability, or provides
emotional support that alleviate one or more identified symptoms or effects of
a person’s disability.
§5-11A-5. Discrimination in sale or rental of housing and other prohibited practices.
As made applicable by section four of this article and except as exempted by sections four and eight of this article, it is unlawful to:
To Refuse to
sell or rent after the making of a bona fide offer, or to refuse to negotiate
for the sale or rental of, or otherwise make unavailable or deny, a dwelling to
any person because of race, color, religion, ancestry, sex, age, sexual
orientation, familial status, blindness, disability or national origin;
(b) To discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, ancestry, sex, age, sexual orientation, familial status, blindness, disability or national origin;
print or publish, or cause to be made, printed or published any notice,
statement or advertisement, with respect to the sale or rental of a dwelling
that indicates any preference, limitation or discrimination based on race,
color, religion, sex, age, sexual orientation, blindness, disability,
familial status, ancestry or national origin, or an intention to make any such
preference, limitation or discrimination;
to any person because of race, color, religion, sex, age, sexual orientation,
blindness, disability, familial status, ancestry or national origin that any
dwelling is not available for inspection, sale or rental when the dwelling is
in fact available;
For profit, to
Induce or attempt to induce any person, for profit, to sell or rent any
dwelling by representations regarding the entry or prospective entry into the
neighborhood of a person or persons of a particular race, color, religion, sex,
age, sexual orientation, blindness, disability, familial status,
ancestry or national origin; or
in the sale or rental, or to otherwise make unavailable or deny, a dwelling to
any buyer or renter because of a disability of: (A) That buyer or renter; (B) a
person residing in or intending to reside in that dwelling after it is so sold,
rented or made available; or (C) any person associated with that buyer or
against any person in the terms, conditions or privileges of sale or rental of
a dwelling, or in the provision of services or facilities in connection with
the dwelling, because of a disability of: (A) That person; (B) a person
residing in or intending to reside in that dwelling after it is so sold, rented
or made available; or (C) any person associated with that person.
(3) For purposes of this subdivision, discrimination includes:
(A) A refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by the person if the modifications may be necessary to afford the person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;
(B) A refusal to make reasonable accommodations in rules, policies, practices or services when the accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling; or
(C) In connection with the design and construction of covered multifamily dwellings for first occupancy after the date that is thirty months after the date of enactment of the West Virginia Fair Housing Act, a failure to design and construct those dwellings in a manner that:
(i) The public use and common use portions of the dwellings are readily accessible to and usable by disabled persons;
(ii) All the doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by disabled persons in wheelchairs; and
(iii) All premises within the dwellings contain the following features of adaptive design: (I) An accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms that an individual in a wheelchair can maneuver about the space.
(4) Compliance with the appropriate requirements of the American National Standard for Buildings and Facilities Providing Accessibility and Usability for Physically Handicapped People, commonly cited as ANSI A117.1, suffices to satisfy the requirements of subparagraph (3)(C)(iii) of this subdivision.
(5) (A) If a unit of general local government has incorporated into its laws the requirements set forth in subparagraph (3)(C) of this subdivision, compliance with those laws satisfy the requirements of that subparagraph.
(B) The commission or unit of general local government may review and approve newly constructed covered multifamily dwellings for the purpose of making determinations as to whether the design and construction requirements of subparagraph (3)(C) of this subdivision are met.
(C) The commission shall encourage, but may not require, units of local government to include in their existing procedures for the review and approval of newly constructed covered multifamily dwellings, determinations as to whether the design and construction of such dwellings are consistent with subparagraph (3)(C) of this subdivision, and may provide technical assistance to units of local government and other persons to implement the requirements of that subparagraph.
(D) Nothing in this article requires the commission to review or approve the plans, designs or construction of all covered multifamily dwellings to determine whether the design and construction of the dwellings are consistent with the requirements of subparagraph (3)(C) of this subdivision.
(6) (A) Nothing in paragraph (5) of this subdivision affects the authority and responsibility of the commission or a local public agency to receive and process complaints or otherwise engage in enforcement activities under this article.
(B) Determinations by a unit of general local government under subparagraphs (5)(A) and (B) of this subdivision are not conclusive in enforcement proceedings under this article.
(7) As used in this section, the term “covered multifamily dwellings” means: (A) Buildings consisting of four or more units if the buildings have one or more elevators; and (B) ground floor units in other buildings consisting of four or more units.
(8) Nothing in this article invalidates or limits any law of this state or any political subdivision of this state that requires dwellings to be designed and constructed in a manner that affords disabled persons greater access than is required by this article.
(9) This section does
not require that a dwelling be made available to an individual whose tenancy
would constitute a direct threat to the health or safety of other individuals
or whose tenancy would result in substantial physical damage to the property of
others. The burden of proving
such the threat to health or
safety or the likelihood of such damage is upon the respondent.
(10) For the purposes of this subdivision, rules, policies, practices or services regarding animals are subject to the reasonable accommodation requirements of subparagraph (B), paragraph (3) of this subdivision and the following provisions:
(A) In connection with a request for reasonable accommodation to the rules, policies or services, a person with a disability may be required to submit documentation, from a professional treatment provider, of the disability related need for the assistance animal.
(i) Such documentation is sufficient if it establishes that the assistance animal will provide some type of disability-related assistance or emotional support.
(ii) A person with a disability may not be required to submit or provide access to medical records or medical providers, or to provide detailed or extensive information or documentation of a person’s physical or mental impairments.
(B) A person with a disability may be denied the accommodation of an assistance animal if there is credible evidence that:
(i) The assistance animal poses a direct threat to the health or safety of others that cannot be eliminated by another reasonable accommodation; or
(ii) The assistance animal would cause substantial physical damage to the property of other that cannot be reduced or eliminated by another reasonable accommodation.
(C) A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct.
(D) A request for a reasonable accommodation may not be unreasonably denied, conditioned on payment of a fee or deposit or other terms and conditions applied to applicants or residents with pets, and a response may not be unreasonably delayed.
§5-11A-6. Discrimination in residential real estate-related transactions.
(a) It is unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction or in the terms or conditions of such a transaction because of race, color, religion, sex, age, sexual orientation, blindness, disability, familial status, ancestry or national origin.
(b) As used in this section, the term “residential real estate-related transaction” means any of the following:
(1) The making or purchasing of loans or providing other financial assistance: (A) For purchasing, constructing, improving, repairing or maintaining a dwelling; or (B) secured by residential real estate; or
(2) The selling, brokering or appraising of residential real property.
(c) Nothing in this article prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, ancestry, sex, age, sexual orientation, blindness, disability or familial status.
§5-11A-7. Discrimination in provision of brokerage services.
It is unlawful to deny any person access to or membership or participation in any multiple listing service, real estate broker's organization or other service, organization or facility relating to the business of selling or renting dwellings, or to discriminate against him or her in the terms or conditions of such access, membership or participation on account of race, color, religion, sex, age, sexual orientation, blindness, disability, familial status, ancestry or national origin.
NOTE: The purpose of this bill is to add “sexual orientation” to the categories covered by the Human Rights Act, prohibiting discrimination in employment and places of public accommodation. The bill adds “age” and “sexual orientation” to the categories covered by the Fair Housing Act prohibiting discrimination in housing. The bill defines “sexual orientation”.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.