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Filing a Discrimination Claim - West Virginia

Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion.  Each state has passed laws and rules to protect your workplace rights: this page covers West Virginia employment discrimination.  The purpose of the West Virginia Human Rights Act is to protect workers in West Virginia from unlawful discrimination in employment. Read below to learn more about West Virginia employment law and how the law protects you.

1. What kinds of discrimination are against state law in West Virginia?

The West Virginia Human Rights Act  makes it illegal for an employer to discriminate on the basis of race, sex, age (40 years old and up), disability, religion, color, ancestry, national origin, blindness and/or disability.

2. How do I file a discrimination claim in West Virginia?

A discrimination claim can be filed either with the state administrative agency, the West Virginia Human Rights Commission or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency. Recent changes in WVHRC administration and complaint evaluation processes have led some attorneys to recommend against this venue for enforcement of the WVHRA.  In cases of employment discrimination, the Humans Rights Commission cannot accept complaints against any employer who is an agent of the Federal Government or any employer which does not employ 12 or more employees within the State of West Virginia.  If this is your situation, your claim should be filed with the EEOC.

To file a claim with the WVHRC, contact your closest office below. More information about filing a claim with the WVHRC can be found at the WVHRC website.

Charleston — Main Office
1321 Plaza East, Suite 108A
Charleston, WV 25301
Phone: (304) 558-2616
Toll-free: (888) 676-5546
Fax: (304) 558-0085

To file a claim with the EEOC, contact your local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC Filing a Charge page.

EEOC — Philadelphia District Office
1000 Liberty Avenue
Suite 1112
Philadephia, PA 19106
Phone: (215) 440-2600
TTY: (215) 440-2610

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC's state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the WVHRC or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the WVHRC (or cross-file with the EEOC) within one year of the last instance of discrimination against you. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

How long the investigation takes depends on a lot of different things, including the amount of information that needs to be gathered and analyzed. On average, it takes the EEOC nearly 6 months to investigate a charge. A charge is often able to settle faster through mediation (usually in less than 3 months).

5. How can I or my attorney pursue a claim in court in West Virginia?

If your case is successfully resolved by an administrative agency, it may not be necessary to hire an attorney or file a lawsuit (to resolve your case, you probably will be required as to sign a release of your legal claims). If your case is not resolved by the WVHRC or EEOC, you may need to pursue your claim in court. A federal employment discrimination case cannot be filed in court without first going to the EEOC, as discussed above, and having the EEOC dismiss your case. This process is called “exhaustion” of your administrative remedy. Exhaustion is not required to proceed with your state discrimination claim, although going to the WVHRC may help you get more information about your case and your employer's position.

Once the EEOC issues the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161), only then can you file a case based on your federal claim. A suit based upon your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. (Be sure to mark down that date when you receive the notice.). A suit based upon your state discrimination claim must be filed within 2 years of the last instance of discrimination against you. These deadlines are called the “statute of limitations.”

If you have received one of these EEOC notices, do not delay consulting with an attorney. If your lawsuit is not filed by the deadline, then you may lose your ability to pursue a discrimination case.

Because the limit or cap on punitive damages (damages intended to punish the employer) is much higher under West Virginia law compared to federal law, many West Virginia attorneys choose to file employment discrimination cases in state court under state law.

Terry A. Venneberg Weekly Weekly

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