Discrimination by employers is prohibited by the following sections of the Code of West Virginia.
West Virginia Human Rights Act

• 5-11-3. Definitions.
• 5-11-9. Unlawful discriminatory practices.
• 5-11-10. Discriminatory practices; investigations, hearings, procedures and orders.
• 5-11-13. Exclusiveness of remedy; exceptions.
• 5-11-16. Certain records exempt.
• 5-11-17. Posting of law and information.

White Cane Law

• 5-15-3. Definitions.
• 5-15-4. Equal right to use public facilities; service animals and trainers.
• 5-15-7. Policy of the state on employment of person who are blind or persons with disabilities.

Tobacco Use

• 21-3-19. Discrimination for use of tobacco products prohibited.
• 21-3-20. Use of video and other electronic surveillance devices by employers prohibited.

Equal Pay - Private Employment

• 21-5B-1. Definitions.
• 21-5B-3. Discrimination between sexes in payment of wages for work of comparable character prohibited.
• 21-5B-4. Employee's right of action against his employer.

Equal Pay - Public Employment

• 21-5E-2. Definitions.
• 21-5E-3. Discrimination between sexes in payment of wages for work of comparable character prohibited.
• 21-5E-4. Employee's right of action against employer.

West Virginia Human Rights Act

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 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 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 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 subdivision (6), section nine of this article 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.

5-11-9. Unlawful discriminatory practices.

It shall be an 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 individual is blind or disabled: Provided, That it shall not be 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;

(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 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, 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, blindness or disability;

(3) For any labor organization because of race, religion, color, national origin, ancestry, sex, age, 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 programs or to discriminate against such a person in the terms, conditions or privileges of such programs;

(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

(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, 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, 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 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.

5-11-10. 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 employer. Any complaint filed pursuant to this article must be filed within three hundred sixty-five days 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 investigation that no probable cause exists for substantiating the allegations of the complaint, the commission shall, within ten days from such determination, cause to be issued and served upon the complainant written notice of such determination, and the said complainant or his 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 determined after such 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 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 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 complaint, hereinafter referred to as respondent, to answer the charges of such 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 notice: Provided, That said 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 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 article five, chapter twenty-nine-a of this code shall apply to and govern the hearing and the administrative procedures in connection with and following such hearing, with like effect as if the provisions of said article five were set forth in extensor in this section.

If, after such 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 respondent an order to cease and desist from such 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 order shall be accompanied by findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code.

If, after such hearing and consideration of all of the testimony, evidence and record in the case, the commission shall find 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 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 order shall not be enforceable except as provided in section eleven of this article.

5-11-11. Appeal and enforcement of commission orders.

(a) From any final order of the commission, an application for review may be prosecuted by either party to the supreme court of appeals within thirty days from the receipt thereof by the filing of a petition therefor to such court against the commission and the adverse party as respondents, and the clerk of such court shall notify each of the respondents and the commission of the filing of such petition. The commission shall, within ten days after receipt of such notice, file with the clerk of the court the record of the proceedings had before it, including all the evidence. The court or any judge thereof in vacation may thereupon determine whether or not a review shall be granted. And if granted to a nonresident of this state, he shall be required to execute and file with the clerk before such order or review shall become effective, a bond, with security to be approved by the clerk, conditioned to perform any judgment which may be awarded against him thereon. The commission may certify to the court and request its decision of any question of law arising upon the record, and withhold its further proceeding in the case, pending the decision of court on the certified question, or until notice that the court has declined to docket the same. If a review be granted or the certified question be docketed for hearing, the clerk shall notify the board and the parties litigant or their attorneys and the commission of the fact by mail. If a review be granted or the certified question docketed, the case shall be heard by the court in the manner provided for other cases: Provided, That in the following cases the appellant may prosecute the appeal in the circuit court of Kanawha County pursuant to section four, article five, chapter twenty-nine-a of this code: (1) Cases in which the commission awards damages other than back pay exceeding five thousand dollars; (2) cases in which the commission awards back pay exceeding thirty thousand dollars; and (3) cases in which the parties agree that the appeal should be prosecuted in circuit court. In such cases the appellee shall respond within thirty days of filing and the court shall make a determination within the following thirty days: Provided, however, That appeals filed erroneously in the circuit court after the first day of April, one thousand nine hundred eighty-seven, and prior to the first day of July, one thousand nine hundred eighty-nine, may be prosecuted in the supreme court of appeals without regard to the time limits specified herein: Provided further, That any party adversely affected by the final judgment of the circuit court of Kanawha County may seek review thereof by appeal to the supreme court of appeals pursuant to section one, article six, chapter twenty-nine-a of this code filed within thirty days of entry of the final order of the circuit court.

The appeal procedure contained in this subsection shall be the exclusive means of review, notwithstanding the provisions of chapter twenty-nine-a of this code: Provided, That such exclusive means of review shall not apply to any case wherein an appeal or a petition for enforcement of a cease and desist order has been filed with a circuit court of this state prior to the first day of April, one thousand nine hundred eighty-seven.

(b) In the event that any person shall fail to obey a final order of the commission within thirty days after receipt of the same, or, if applicable, within thirty days after a final order of the circuit court or the supreme court of appeals, a party or the commission may seek an order from the circuit court for its enforcement. Such proceedings shall be initiated by filing of a petition in said court, and served upon the respondent in the manner provided by law for the service of summons in civil actions; a hearing shall be held on such petition within sixty days of the date of service. The court may grant appropriate temporary relief, and shall make and enter upon the pleadings, testimony and proceedings such order as is necessary to enforce the order of the commission or supreme court of appeals.

5-11-12. Local human relations commissions.

(a) The legislative body of a political subdivision may, by ordinance or resolution, authorize the establishment or membership in and support of a local human relations commission. The number and qualifications of the members of any local commission and their terms and method of appointment or removal shall be such as may be determined and agreed upon by the legislative body, except that no such member shall hold office in any political party.

(b) The legislative body of any political subdivision shall have the authority to appropriate funds, in such amounts as may be deemed necessary, for the purpose of contributing to the operation of a local commission.

(c) The local commission shall have the power to appoint such employees and staff, as it may deem necessary, to fulfill its purpose.

5-11-13. Exclusiveness of remedy; exceptions.

(a) Except as provided in subsection (b), nothing contained in this article shall be deemed 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, 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 complainant institutes any action based on such 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 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 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 such ninety-day period, then at any time during which such statute of limitations has not expired. If a suit is filed under this section the proceedings pending before the commission shall be deemed concluded.

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 such 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 such 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.

5-11-14. Penalty.

Any person who shall willfully resist, prevent, impede or interfere with the commission, its members, agents or agencies in the performance of duties pursuant to this article, or shall willfully violate a final order of the commission, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment, in the discretion of the court, but seeking judicial review of an order shall not be deemed to be such willful conduct.

5-11-15. Construction; severability.

The provisions of this article shall be liberally construed to accomplish its objectives and purposes. If any provision of this article be held invalid or unconstitutional by any court of competent jurisdiction, such invalidity or unconstitutionality shall not affect or invalidate the other provisions hereof, all of which are declared and shall be construed to be separate and severable.

5-11-16. Certain records exempt.

Notwithstanding any other provisions of this article, it shall not be an unlawful discriminatory practice for the bureau of employment programs to ascertain and record the age, sex, race, religion, color, national origin, ancestry, blindness or disability of any individual for the purpose of making such reports as may from time to time be required by agencies of the federal government or be necessary to show compliance with any rule or regulation issued by any such agency. Said records may be made and kept in the manner required by the federal government: Provided, That such recording of the age, sex, race, religion, color, national origin, ancestry, blindness or disability of any individual shall not be used to discriminate, within the meaning of this article, directly or indirectly, against any such individual as prohibited by all other sections of this article.

5-11-17. Posting of law and information.

Every employer, labor organization, employment agency and person operating a place of public accommodations, as defined herein, subject to this article, shall keep posted in a conspicuous place or places on his premises a notice or notices to be prepared or approved by the commission, which shall set forth excerpts of this article and such other relevant information which the commission shall deem necessary.

White Cane Law.

5-15-1. Short title.

This article shall be known as the "White Cane Law." (1969, c. 150.)

5-15-2. Policy

It is the policy of this state to encourage and enable persons who are blind or otherwise visually impaired or who have a disability to participate fully in the social and economic life of the state and to engage in remunerative employment. (1969, c. 150; 2002, c. 323.)

Effect of amendment of 2002 - Acts 2002, c. 323, effective June 7, 2002, substituted "persons

who are blind or otherwise visually impaired or who have a disability" for "blind persons".

5-15-3. Definitions.

For the purpose of this article:

(a) A "person who is blind" means a person whose central visual acuity does not exceed twenty/two hundred in the better eye with correcting lenses, or whose 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.

(b) A "person with a disability" means any person who has a physical or mental impairment that substantially limits one or more of the major life activities of the individual; who has a record of such an impairment or who is regarded as having such an impairment.

(c) A "service animal" means any guide dog, signal dog or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items. (1969, c. 150; 2002, c. 323.)

Effect of amendment of 2002. - Acts 2002, c. 323, effective June 7, 2002, designated the former provisions of this section as the present introductory language and (a); deleted "person shall be considered blind only if his" at the end of the introductory language; added "A 'person who is blind' means a person whose" at the beginning of (a); and added (b) and (c).

5-15-4. Equal right to use public facilities; service animals and trainers.

(a) A person who is blind or is a person with a disability shall have the same rights as other persons to the full and free use of the highways, roads, streets, sidewalks, walkways, public buildings, public facilities and other public places.

(b) Any person who is blind and any person with a disability is entitled to full and equal accommodations, advantages, facilities and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, boats or any other public conveyances or modes or transportation, hotels, lodging places, restaurants, professional offices for health or legal services, hospitals, other places of public accommodation, amusement or resort, and other places, including places of employment, to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons.

(c) Every person who is blind, every person with a hearing impairment and every person with a disability shall have the right to be accompanied by a service animal in any of the places, accommodations or conveyances specified in subsection (b) of this section without being required to pay an extra charge for the admission of the service animal. The person who is blind, deaf or has a disability shall be liable for any damage done by the service animal to the premises or facilities or to persons using such premises or facilities; Provided, That the person who is blind, deaf or has a disability shall not be liable for any damage done by the service animal to any person or the property of a person who has contributed to or caused the service animal's behavior by inciting or provoking such behavior. A service animal shall not occupy a seat in any public conveyance and shall be upon a leash while using the facilities of a common carrier.

(d) The rights, privileges and responsibilities provided by this section also apply to any person who is certified as a trainer of a service animal while he or she is engaged in the training.

(e) A service animal as defined by section three [Sec. 5-15-3] of this article is not required to be licensed or certified by a state or local government, nor shall there be any requirement for the specific signage or labeling of a service animal. (1969, c. 150; 1982, c. 131; 1984, c. 24; 1994, c. 12; 2002, c. 323.)

Effect of amendment of 2002. - Acts 2002, c. 323, effective June 7, 2002, added "service animals and trainers" at the end of the section heading; in (a), substituted "A person who is blind or is a person with a disability" for "Blind and disabled persons" at the beginning, and substituted "the same rights as other persons" for "the same right as persons with normal sight"; in (b), substituted "Any person who is blind and any person with a disability is entitled" for "Blind and disabled person are entitled" at the beginning, inserted "professional offices for health or legal services, hospitals" following "restaurants" and inserted "including places of employment" following "other places" near the end; rewrote (c); and added (d) and (e).
ALR references - Validity and construction of state statutes requiring construction of handicapped access facilities in buildings open to public, 82 ALR4th 121.

5-15-4. Standard of care to be exercised by and with respect to persons who are blind or who have a disability.

(a) A person who is blind or who has a disability shall exercise that degree of care for his or her own safety in any of the places, accommodations or conveyances specified in section four [Sec. 5-15-4] of this article which an ordinary prudent person would exercise under similar circumstances.

(b) The driver of a vehicle approaching a pedestrian who is blind or who has a disability and who knows, or in the exercise of reasonable care should know, that the pedestrian is blind because the pedestrian is carrying a cane predominately white or metallic in color, with or without a red tip, or is using a service animal or otherwise, shall exercise care commensurate with the situation to avoid injuring the pedestrian or the service animal. (1969, c. 150; 2002, c. 323.)

Effect of amendment of 2002. - Acts 2002, c. 323, effective June 7, 2002, substituted "persons who are blind or who have a disability" for "blind persons" in the section heading; designated the former provisions of the section as (a) and (b); in (a), substituted "A person who is blind or who has a disability" for "A blind person" at the beginning, and deleted "so handicapped" following "prudent person" near the end; and in (b), substituted "the" for "such: in three places, substituted, "pedestrian who is blind or who has a disability and who knows" for "blind pedestrian who knows", substituted "service animal" for guide dog", and added "or the service animal" at the end.

5-15-6. Annual proclamation of white cane day.

Each year the governor shall take suitable public notice of the fifteenth day of October as white cane day. The governor shall issue a proclamation that:

(a) Comments upon the significance of the white cane;

(b) Calls upon the citizens of the state to observe the provisions of the white cane law and to take precautions necessary for the safety of persons who are blind;

(c) Reminds the citizens of the state of the policies with respect to person who are blind herein declared and urges the citizens to cooperate in giving effect to them;

(d) Emphasizes the need of the citizens to be aware of the presence of persons who are blind or visually impaired in the community and to keep safe for persons who are blind or visually impaired the highways, roads, streets, sidewalks, walkways, public buildings, public facilities, other public places, places of public accommodation, amusement and resort and other places to which the public is invited, and to offer assistance to person who are blind upon appropriate occasions. (1969, c. 150; 2002, c. 323.)

Effect of amendment of 2002. - Acts 2002, c. 323, effective June 7, 2002, in the introductory paragraph, substituted "the fifteenth day of October" for October fifteen" in the first sentence, and substituted "The governor" for "He" at the beginning of the second sentence; substituted "persons who are blind" for "the blind" in (b) and (c); and, in (d), substituted "persons who are blind or visually impaired" for the first occurrence of "blind persons" and for "the blind", and substituted "to persons who are blind" for "to blind persons" near the end.

5-15-7. Policy of the state on employment of person who are blind or persons with disabilities.

It is the policy of this state that persons who are blind or visually impaired and persons with disabilities shall be employed in the state service, the service of the political subdivisions of the state, in the public schools and in all other employment supported, in whole or in part, by public funds on the same terms and conditions as any other person, unless it is shown that the blindness or disability prevents the performance of the work involved. (1969, c. 150; 2002, c. 323.)

Effect of amendment of 2002. - Acts 2002, c. 323, effective June 7, 2002, substituted "person who are blind or persons with disabilities" for "blind persons" at the end of the section heading; substituted "persons who are blind or visually impaired and persons with disabilities" for "blind persons", substituted "any other person" for "persons with normal sight", and inserted "blindness or " near the end of the section.

5-15-8. Interference with rights hereunder; penalties.

Any person, firm or corporation, or the agent of any person, firm or corporation, who denies or interferes with admittance to or enjoyment of the places, accommodations or conveyances specified in section four [Sec. 5-15-4] of this article or otherwise interferes with the rights of a person who is blind or visually impaired or a person with a disability under the provisions of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined an amount not to exceed fifty dollars. (1969, c. 150; 2002, c. 323)

Effect of amendment of 2002. - Acts 2002, c. 323, effective June 7, 2002, substituted "a person who is blind or visually impaired or a person with a disability" for "a blind person".>

Tobacco Use

21-3-19. Discrimination for use of tobacco products prohibited.

(a) It shall be unlawful for any employer, whether public or private, or the agent of such employer to refuse to hire any individual or to discharge any employee or otherwise to disadvantage or penalize any employee with respect to compensation, terms, conditions or privileges of employment solely because such individual uses tobacco products off the premises of the employer during nonworking hours.

(b) This section shall not apply with respect to an employer which is a nonprofit organization which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public.

(c) This section shall not prohibit an employer from offering, imposing or having in effect a health, disability or life insurance policy which makes distinctions between employees for type of coverage or price of coverage based upon the employee's use of tobacco products: Provided, That any differential premium rates charged to employees must reflect differential costs to the employer: Provided, however, That the employer must provide employees with a statement delineating the differential rates used by its insurance carriers.

(d) Nothing in this section shall be construed to prohibit an employer from making available to smokers and other users of tobacco products, programs, free of charge or at reduced rates, which encourage the reduction or cessation of smoking or tobacco use.

21-3-20. Use of video and other electronic surveillance devices by employers prohibited.

(a) It is unlawful for any employer or the agent or representative of an employer, whether public or private, to operate any electronic surveillance device or system, including, but not limited to, the use of a closed circuit television system, a video-recording device, or any combination of those or other electronic devices for the purpose of recording or monitoring the activities of the employees in areas designed for the health or personal comfort of the employees or for safeguarding of their possessions, such as rest rooms, shower rooms, locker rooms, dressing rooms and employee lounges.

(b) Any employer or agent thereof who violates any provision of this section is guilty of a misdemeanor and, if convicted, shall be fined five hundred dollars for the first offense. An employer or agent thereof convicted a second time under this provision shall be fined one thousand dollars. For the third and any subsequent offense, the penalty shall be two thousand dollars.

Equal Pay - Private Employment

21-5B-1. Definitions.

(1) "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: Provided, That the term employer shall 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.

(2) "Employee" means any individual who, otherwise than as a co-partner of the employer or as an independent contractor, renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate: Provided, however, That where services are rendered only partly in this state, an individual is not an employee unless his contract of employment has been entered into, or payments thereunder are ordinarily made or are to be made, within this state.

(3) "Wages" means all compensation for performance of service by an employee for an employer whether paid by the employer or another person, including cash value of all compensation paid in any medium other than cash.

(4) "Rate" with reference to wages means the basis of compensation for services by an employee for an employer and includes compensation based on the time spent in the performance of such services, or on the number of operations accomplished, or on the quantity produced or handled.

(5) "Unpaid wages" means the difference between the wages actually paid to an employee and the wages required under section three of this article, to be paid to such employee.

21-5B-2. State commissioner of labor to enforce article.
The state commissioner of labor shall have the power and it shall be his duty to carry out and enforce the provisions of this article.

21-5B-3. Discrimination between sexes in payment of wages for work of comparable character prohibited.

(1) No employer shall:

(a) In any manner discriminate between the sexes in the payment of wages for work of comparable character, the performance of which requires comparable skills;

(b) pay wages to any employee at a rate less than that at which he pays wages to his employees of the opposite sex for work of comparable character, the performance of which requires comparable skills.

(2) Subsection (1) of this section does not apply where:

(a) Payment is made pursuant to a seniority or merit system which does not discriminate on the basis of sex,

(b) a differential in wages between employees is based in good faith on factors other than sex. No employee shall be reduced in wages in order to eliminate an existing, past or future wage discrimination or to effectuate wage equalization.

(3) No employer shall in any manner discriminate in the payment of wages against any employee because the employee has filed a complaint in a proceeding under this article, or has testified, or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceedings pursuant to this article or in a criminal action pursuant to this article.

21-5B-4. Employee's right of action against his employer.

(1) Any employee whose compensation is at a rate that is in violation of section three of this article shall have a right of action against his employer for the recovery of (a) the amount of the unpaid wages to which the employee is entitled for the one-year period preceding the commencement of the action, and (b) an additional amount as liquidated damages equal to the amount referred to in paragraph (a) of this subsection.

(2) In addition to any judgment awarded to the plaintiff, the court shall allow reasonable attorney's fees to be taxed as costs in any judgment recovered.

(3) The action for the unpaid wages and liquidated damages may be maintained by one or more employees on behalf of themselves or other employees similarly situated.

(4) No agreement for compensation at a rate of less than the rate to which such employee is entitled under this article is a defense to any action under this article.

21-5B-5. Offenses; penalties.

In addition to the civil damages recoverable under section four of this article, any employer who violates any of the provisions of this article shall, upon conviction thereof, be guilty of a misdemeanor and shall be fined not less than twenty-five dollars nor more than one hundred dollars.

21-5B-6. Provisions of article severable.

If any provision of this article or the application thereof to any person or circumstances shall be held invalid, such invalidity shall not affect the provisions or application of this article which can be given effect without the invalid provisions or application, and to this end the provisions of this article are declared to be severable.

Equal Pay - Public Employment

21-5E-2. Definitions.

For the purposes of this article:

(1) "Employer" means the state of West Virginia;

(2) "Employee" means any person hired for permanent employment, either full or part-time, or hired for temporary employment for more than six consecutive months, by any department, agency, commission or board of the state created by an act of the Legislature, except any person employed by the university of West Virginia board of trustees, the board of directors of the state college system or by any state institution of higher education, or a member of the state police, an employee of any constitutional officer who is not classified under the provisions of article six, chapter twenty-nine of this code and any employee of the Legislature. The definition of "employee" does not include any patient or inmate employed in a state institution;

(3) "Wages" means all compensation for performance of service by an employee for an employer, whether paid by the employer or another person, including the cash value of all compensation paid in any medium other than cash;

(4) "Rate" with reference to wages means the basis of compensation for services by an employee for an employer and includes compensation based on the time spent in the performance of those services, or on the number of operations accomplished, or on the quantity produced or handled;

(5) "Unpaid wages" means the difference between the wages actually paid to an employee and the wages required to be paid to an employee pursuant to section three of this article;

(6) "Work of comparable character" means work that may be dissimilar, but whose requirements are comparable or equivalent when viewed as a composite of levels of skill, effort, responsibility and working conditions; and

(7) "Wage gap" means the difference between the median annual earnings of men and women.

21-5E-3. Discrimination between sexes in payment of wages for work of comparable character prohibited.

(a) No employer shall:

(1) In any manner discriminate between the sexes in the payment of wages for work of comparable character, the performance of which requires comparable skills; or

(2) Pay wages to any employee at a rate less than the rate other employees of the opposite sex are paid for work of comparable character, the performance of which requires comparable skills.

(b) Nothing in subsection (a) of this section prohibits the payment of different wages to employees where the payment is made pursuant to:

(1) A bona fide seniority system;

(2) A merit system; or

(3) A system that measures earnings by quantity or quality of production.

(c) No employee shall be reduced in wages in order to eliminate an existing, past or future wage discrimination or to effectuate wage equalization.

(d) No employer shall in any manner discriminate in the payment of wages to any employee because the employee has filed a complaint in a proceeding under this article, or has testified, or is about to testify, or because the employer believes that the employee may testify, in any investigation or proceeding pursuant to this article.

(e) Except as otherwise provided in subsection (d), section six of this article, the provisions of this section shall not become effective until the Legislature approves for promulgation the rules proposed by the equal pay commission under the provisions of subsection (c) of said section.

21-5E-4. Employee's right of action against employer.

(a) Any employee whose compensation is at a rate that is in violation of section three of this article has the right to file a grievance pursuant to the provisions of article six-a, chapter twenty-nine of this code.

(b) No agreement for compensation at a rate of less than the rate to which the employee is entitled under this article is a defense to any action under this article.

(c) The rights and procedures provided under this section shall be subject to the provisions of the rules promulgated by the equal pay commission in accordance with section six of

(d) Except as otherwise provided in subsection (d), section six of this article, the provisions of this section shall not become effective until the Legislature approves for promulgation the rules proposed by the equal pay commission under the provisions of subsection (c) of said section.

ARTICLE 11B. PREGNANT WORKERS’ FAIRNESS ACT. (Effective June 4, 2014)

§5-11B-1. Short title.
    This article may be cited as the Pregnant Workers Fairness Act.

§5-11B-2. Nondiscrimination with regard to reasonable accommodations related to pregnancy.
    It shall be an unlawful employment practice for a covered entity to:
    (1) Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee, following delivery by the applicant or employee of written documentation from the applicant’s or employee’s health care provider that specifies the applicant’s or employee’s limitations and suggesting what accommodations would address those limitations, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity;
    (2) Deny employment opportunities to a job applicant or employee, if such denial is based on the refusal of the covered entity to make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee or applicant;
    (3) Require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept; or
    (4) Require an employee to take leave under any leave law or policy of the covered entity if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of an employee.

§5-11B-3. Remedies and enforcement.
    (a) The powers, procedures, and remedies provided in article eleven of this chapter to the Commission, the Attorney General, or any person, alleging a violation of the West Virginia Human Rights Act shall be the powers, procedures, and remedies this article provides to the Commission, the Attorney General, or any person, respectively, alleging an unlawful employment practice in violation of this article against an employee or job applicant.
    (b) No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this article or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this article. The remedies and procedures otherwise provided for under this section shall be available to aggrieved individuals with respect to violations of this subsection.

§5-11B-4. Rule-making.
    Not later than two years after the date of enactment of this article, the Commission shall propose legislative rules in accordance with article three, chapter twenty-nine-A of this code, to carry out this article. Such rules shall identify some reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions that shall be provided to a job applicant or employee affected by such known limitations unless the covered entity can demonstrate that doing so would impose an undue hardship.

§5-11B-5. Definitions.
As used in this article:
    (1) “Attorney General” means the West Virginia Attorney General;
    (2) “Commission” means the West Virginia Human Rights Commission;
    (3) “Covered entity” has the meaning given the word employer in section three, article eleven of this chapter;
    (4) “Person” has the meaning given the word in section three, article eleven of this chapter; and
    (5) “Reasonable accommodation” and “undue hardship” have the meanings given those terms in section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) and shall be construed as such terms have been construed under such Act and as set forth in the rules required by this article.

§5-11B-6. Relationship to other laws.
    Nothing in this article shall be construed to invalidate or limit the remedies, rights, and procedures that provides greater or equal protection for workers affected by pregnancy, childbirth, or related medical conditions.

§5-11b-7. Reports.
    The Commission shall annually on October 1 of each year report to the Joint Committee on Government and Finance on the number of complaints filed under this article during the pervious year and their resolution.