Filing a Discrimination Claim - West Virginia

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, and blindness.

West Virginia state law has been considered more protective of employees in the areas of sexual harassment and disability than federal law. Because of recent changes in the state judiciary, it is unclear whether this will continue to be true.

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.

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 http://www.wvf.state.wv.us/wvhrc/.

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

Buckhannon Branch Office
Rt. 3, Box 376A
PO Box 460
Buckhannon, WV 26201
Phone: (304) 473-4282
Fax: (304) 473-4207
Huntington Branch Office
801 Madison Avenue, Suite 233
Huntington, WV 25704
Phone: (304) 528-5823 or (304) 528-5798
Fax: (304) 528-5813

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 http://www.eeoc.gov/facts/howtofil.html.

EEOC Philadelphia District Office
21 South 5th Street
4th Floor
Philadelphia, PA 19106
Phone: (215) 440-2600
TTY: (215) 440-2610

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. 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.

Because West Virginia law does not limit or cap the punitive damages (damages intended to punish the employer), damages that are capped under federal law, many West Virginia attorneys choose to file employment discrimination cases in state court under state law only. It been considered easier in West Virginia state court to prevent summary judgment (a dismissal of the case prior to trial after presenting disputed and undisputed facts to a judge), according to some attorneys. Because of recent changes in the state judiciary, it is unclear whether this will continue to be true.

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.