Senate Bill No. 226
(By Senators McCabe, Snyder, Wells, Klempa and Kessler (Acting President))
[Introduced January 20, 2011; referred to the Committee on the Judiciary; then to the Committee on Finance.]
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; to amend said code by adding thereto a new section, designated §5-11-9a; 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 generally; prohibiting discrimination based upon age or sexual orientation in housing; defining "sexual orientation" and "age"; correcting internal citations; exempting religious institutions from the sexual orientation proscriptions of this bill when such employment comports with specific criteria; and defining “religious institutions”.
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; that said code be amended by adding thereto a new
section, designated §5-11-9a; 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. 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 such the terms shall may not be taken, understood or construed to include a private club;
(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, for collective bargaining or for 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 is 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, but shall does 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 do 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 the 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 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 such the 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;
(n) The term "sexual orientation" means heterosexuality, bisexuality, homosexuality or gender identity, whether actual or perceived; and
(o) The term “religious institutions” means a church or convention or association of churches, or an organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches.
§5-11-4. Powers and objectives.
The commission shall have has 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 is hereby authorized and empowered:
(a) To cooperate 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;
(b) To enlist 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;
(c) To receive, 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;
(d) 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 is aggrieved at any final action of an administrative law judge shall may 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 these 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.
(4) To enter 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 such the
terms within fifteen days after its service upon him or her, the
commission shall issue an order embodying such the 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 these objections
are met or withdrawn within ten days after service thereof, the
commission shall notice the complaint for hearing.
Notwithstanding any other provisions of this section, the commission may, where it finds the terms of the conciliation agreement to be in the public interest, execute such the agreement and limit the hearing to the objections of the complainant.
If a conciliation agreement is entered into, the commission shall serve a copy of the order embodying 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 such the agreement. Upon a finding of noncompliance, the commission shall take appropriate action to assure compliance;
(5) 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 order;
(6) To issue 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;
(7) 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 commission;
(e) To recommend to the Governor and Legislature policies, procedures, practices and legislation in matters and questions affecting human rights;
(f) To delegate to its executive director such the powers, duties and functions as may be necessary and expedient in carrying out the objectives and purposes of this article;
(g) 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 thereafter;
(h) 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;
(i) To create such the 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;
(j) To accept 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 section;
(k) 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
§5-11-9. Unlawful discriminatory practices.
It shall be is 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 the individual is blind or disabled; Provided, That it shall may 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, 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 the 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 these 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 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, sexual orientation, 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, sexual orientation, 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.
§5-11-9a. Exemption of religious institutions from prohibition of discriminating against certain employees due to sexual orientation.
Religious organizations shall be exempt from the provisions of section nine of this article as pertaining to sexual orientation discrimination in respect to the employment of: A duly ordained, commissioned or licensed minister of a church in the exercise of his or her ministry; or by a member of a religious order in the exercise of duties required by the order.
§5-11-13. Exclusiveness of remedy; exceptions.
(a) Except as provided in subsection (b), nothing contained in this article shall be deemed considered 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 are, 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 the 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 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 such 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 are considered 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 this subdivision or subdivision (1) of this subsection, 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 the 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 an
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 considers 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) "Age" means the age of forty or above;
(a) (b) "Commission" means the West Virginia Human Rights Commission;
(b) (c) "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) (d) "Family" includes a single individual;
(d) (e) "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) (f) "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) (g) "Discriminatory housing practice" means an act that is unlawful under section five, six, seven or nineteen of this article;
(g) (h) "Handicap" "Disability" means, with respect to a person:
(1) A physical or mental impairment which substantially limits one or more of such the person's major life activities;
(2) A record of having such an impairment; or
(3) Being regarded as having such an impairment, but such 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) (i) "Aggrieved person" includes any person who:
(1) Claims to have been injured by a discriminatory housing practice; or
(2) Believes that such a person will be injured by a discriminatory housing practice that is about to occur;
(I) (j) "Complainant" means the person, including the commission, who files a complaint under section eleven of this article;
(j) (k) "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 such the individual or individuals; or
(B) The designee of such the parent or other person having such the custody with the written permission of such 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) (l) "Conciliation" means the attempted resolution of issues raised by a complaint or by the investigation of such the complaint through informal negotiations involving the aggrieved person, the respondent and the commission;
(l) (m) "Conciliation agreement" means a written agreement setting forth the resolution of the issues in conciliation;
(n) "Sexual orientation" is defined as heterosexuality, bisexuality, homosexuality or gender identity, whether actual or perceived;
(m) (o) "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 so identified under subsection (a), section eleven of this article; and
(n) (p) 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 such persons as he or she chooses to receive.
(o) (q) 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.
§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
shall be unlawful:
(a) 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, handicap 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, handicap disability or national origin;
(c) To make, 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, handicap disability, familial status, ancestry or national origin or an intention to make any such preference, limitation or discrimination;
(d) To represent to any person because of race, color, religion, sex, age, sexual orientation, blindness, handicap disability, familial status, ancestry or national origin that any dwelling is not available for inspection, sale or rental when such the dwelling is in fact so available;
(e) For profit, to induce or attempt to induce any person 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, handicap disability, familial status, ancestry or national origin; or
(f) (1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap 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 renter.
(2) 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 with such the dwelling, because of a handicap 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 handicapped person, reasonable modifications of existing premises occupied or to be occupied by such that person if such the modifications may be necessary to afford such that 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 such the accommodations may be necessary to afford such 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 such a manner that:
(i) The public use and common use portions of such the dwellings are readily accessible to and usable by handicapped persons;
(ii) All the doors designed to allow passage into and within all premises within such the dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and
(iii) All premises within such 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 such 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 clause (iii), subparagraph (C), paragraph (3) of this subdivision.
(5) (A) If a unit of general local government has incorporated into its laws the requirements set forth in paragraph (C), subdivision (3) of this subsection subparagraph (C), paragraph (3) of this subdivision, compliance with such those laws shall be deemed is considered to 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 paragraph (C), subdivision (3) of this subsection subparagraph (C), paragraph (3) 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 the dwellings are consistent with paragraph (C) subdivision (3) of this subsection subparagraph (C), paragraph (3) of this subdivision and may provide technical assistance to units of local government and other persons to implement the requirements of such that subparagraph.
(D) Nothing in this article shall may be construed to require the commission to review or approve the plans, designs or construction of all covered multifamily dwellings to determine whether the design and construction of such the dwellings are consistent with the requirements of subparagraph paragraph (3) of this subdivision.
(6) (A) Nothing in subdivision paragraph (5) of this subsection subdivision shall may be construed to affect 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 paragraphs (A) and (B), subdivision (5) of this subsection subparagraphs (A) and (B), paragraph (5) of this subdivision shall not be 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 such 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 shall may be construed to invalidate or limit any law of this state or any political subdivision hereof that requires dwellings to be designed and constructed in a manner that affords handicapped persons greater access than is required by this article.
(9) Nothing in this section requires 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 a threat to health or safety or the likelihood of such damage shall be is upon the respondent.
§5-11A-6. Discrimination in residential real estate-related transactions.
(a) It shall be 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, handicap 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, handicap disability or familial status.
§5-11A-7. Discrimination in provision of brokerage services.
It shall be is unlawful to deny any person access to 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 the access, membership or participation on account of race, color, religion, sex, age, sexual orientation, blindness, handicap 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 accommodations. This bill also provides clarification as to an exemption from the “sexual orientation” employment-based proscriptions of this bill for “religious institutions” and offers, for the purposes of this article, a definition thereof. This bill also adds "age" and "sexual orientation" to the categories covered by the Fair Housing Act prohibiting discrimination in housing. It defines "sexual orientation" as "heterosexuality, bisexuality, homosexuality or gender identity, whether actual or perceived."
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§5-11-9a is new; therefore, strike-throughs and underscoring have been omitted.