HUMAN RIGHTS

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City Code

Bill No. 7275

A BILL to amend ? 62-2, ? 62-3, ? 62-41, ? 62-45, ? 62-81, and ? 62-182 of The Charleston Human Rights Ordinance, Chapter 62 of the code of the City of Charleston, to include sexual orientation as a classification protected from discrimination.

WHEREAS, the City of Charleston continues to strive to be an inclusive City, where people can live and work without fear of discrimination; and

WHEREAS, jurisdictions around the country are making a commitment to end discrimination based on sexual orientation; and

WHEREAS, businesses recognize the importance of providing a workplace free from fear and have included sexual orientation and gender identity in their employment nondiscrimination policies; and

WHEREAS, the City of Charleston wishes to maintain a competitive business environment by working with businesses to eliminate barriers to recruiting a talented workforce;

Now, therefore, be it Ordained by the Council of the City of Charleston, West Virginia:

That ? 62-2, ? 62-3, ? 62-41, ? 62-45, ? 62-81, and ? 62-182 of The Charleston Human Rights Ordinance, Chapter 62 of the code of the City of Charleston, be amended to read as follows:

SEC. 62-2. DECLARATION OF POLICY.

(a)Equal opportunity in the areas of employment, 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, blindness, handicap, or sexual orientation. Equal opportunity in the sale, lease, rental and financing of housing 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, blindness, handicap, familial status, or sexual orientation.

(b)   The denial of these rights of properly qualified persons is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society.

(Bill No. 7040, 12-6-2004)

SEC. 62-3. DEFINITIONS.

When used in this chapter:

Age  means 40 or above. 

Chair  means the chair of the Charleston Human Rights Commission. 

Commission  means the Charleston Human Rights Commission. 

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, handicap, familial status, or sexual orientation and includes "to separate" or "segregate". 

Employee  shall not include any individual employed by his parents, spouse or child, or in the domestic service of any person. 

Employer  means any person employing 12 or more persons within the city and includes an agent of such person, and its agencies. Provided, that such terms shall not be taken, understood or construed to include a private club, which, in fact, is not open to the public.

Employment agency includes any person regularly 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.

Familial status means one or more individuals (who have not attained the age of 18 years) being domiciled with:

(1) A parent or another person having legal custody of such individual or individuals; or

(2) The designee of such parent or other person having such custody, with the written permission of such parent or other person.

The protections afforded against discrimination on the basis of familial status shall apply to 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. Nothing in this definition restricts advertisements of dwellings which are intended and operated for occupancy by older persons and which constitute housing for older persons.

Handicap means a person who:

(1) Has a mental or physical impairment which substantially limits one or more of such person's major life activities; "major life activities" includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

(2) Has a record of such impairment; or

(3) Is regarded as having such an impairment.

For this purposes of this article "handicap" does not include persons whose current use of or addiction to alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reasons of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

For the purpose of this article, a person shall be considered to be blind only if his central visual acuity does not exceed 20/200 in the better eye with correcting lenses, or if his visual acuity is greater than 20/200 but is occasioned by a imitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees.

Housing accommodations means any building or portion thereof which is used or intended for use as the residence or sleeping place of one or more persons. Nothing contained in this definition or this article shall apply to the rental of a room or rooms in a rooming house occupied by the owner as a place of residence and containing no more than four rented rooms, or rooms to be rented.

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. 

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.

Owner shall include the owner, lessee, sublessee, assignee, manager, agents or other person having the right to sell, rent or lease any housing accommodation or real property within the city or any agent of any of these.

Place of public accommodations   means any establishment or person, as defined herein, including the city and any of its affiliated boards and commissions, or any political or civil subdivision thereof, which offers its services, goods, facilities or accommodations to the general public, but does not include any accommodations which are in their nature private.

Purchaser includes any occupant, prospective occupant, lessee, prospective lessee, renter, prospective renter, buyer or prospective buyer.

Real estate broker includes any person, firm or corporation who, for a fee, commission or other valuable consideration, or by reason of a promise or reasonable expectation thereof, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of real estate or an interest therein, or collects or offers or attempts to collect rent for the use of real estate or solicits for a prospective purchaser, or assists or desists in the procuring of prospects or the negotiation or closing of any transaction which does or is contemplated to result in the sale, exchange, leasing, renting or auctioning of any real estate, or negotiates, offers or attempts or agrees to negotiate a loan secured or to be secured by mortgage or other encumbrance upon transfer of any real estate for others, or any person who, for pecuniary gain or expectation of pecuniary gain, conducts a public or private competitive sale of lands or any interest in lands. In the sale of lots, the term "real estate broker" also includes any person, partnership, association or corporation employed by or on behalf of the owner or owners of lots or other parcels of real estate at a stated salary, or upon a commission, or upon a salary and commission, or otherwise, to sell such real estate, or any parts thereof, in lots or other parcels, and who shall sell or exchange, or offer or attempt or agree to negotiate the sale or exchange of any such lot or parcel of real estate. A newspaper engaged in the activity of advertising in the normal course of its business shall not be deemed to be a real estate broker.

Real estate salesman includes any person who, for compensation, valuable consideration or commission, or other thing of value, or by reason of a promise or reasonable expectation thereof, is employed by and operates under the supervision of real estate broker to sell, buy or offer to buy or negotiate the purchase, sale or exchange of real state, offers or attempts to negotiate a loan secured or to be secured by a mortgage or other encumbrance upon or transfer of real estate for others, or to collect rents for the use of real estate, or to solicit for prospective purchasers or lessees of real estate, or who is employed by a licensed real estate broker to sell or offer to sell lots or other parcels of real estate, at a stated salary, or upon a commission, or upon a salary and commission, or otherwise, to sell real estate, or any parts thereof, in lots or other parcels.

Real property includes real estate, lands, leaseholds, commercial or industrial buildings and any vacant land offered for sale or rent on which the construction of a housing accommodation, commercial or industrial building is intended, and any land operated as a trailer camp or rented or leased for the use, parking or storage of mobile homes or house trailers.

Rooming house means a house or building where there is one or more bedrooms which the proprietor can spare for the purpose of giving lodgings to such persons as he chooses to receive.

Sexual Orientation means actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, appearance, or behavior of an individual, with or without regard to the individual?s assigned sex at birth.

Unlawful discriminatory practices includes only those practices specified in section 62-81.

(Bill No. 7040, 12-6-2004)

SECS. 62-4--62-40. RESERVED.

SEC. 62-41. POWERS AND OBJECTIVES.

The commission shall encourage and endeavor to bring about mutual understanding and respect among all racial, religious and ethnic groups within the city; 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, blindness?, handicap, or sexual orientation 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, blindness, handicap, sexual orientation or familial status.

(Bill No. 7040, 12-6-2004)

SEC. 62-45. POWERS; FUNCTIONS; SERVICES.

The commission is authorized and empowered to:

(1) 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 city.

(2) Enlist the cooperation of racial, religious and ethnic units, community and civic organizations, industrial and labor organizations and other identifiable groups of the city in programs and campaigns devoted to the advancement of tolerance, understanding and the equal protection of the laws for all groups and peoples.

(3) Receive, investigate and pass upon complaints alleging discrimination in employment or places of public accommodations, because of race, religion, color, national origin, ancestry, handicap, sex, blindness, sexual orientation or age, and complaints alleging discrimination in the sale, purchase, lease, rental and financing of housing accommodations or real property because of race, religion, color, sex, age, handicap, national origin, blindness, familial status, sexual orientation or ancestry, 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 city relating to employment, places of public accommodations, housing accommodations and real property.

(4) Hold and conduct public or private hearings 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 during the investigation of any formal complaint before the commission relating to employment, places of public accommodations, housing accommodations or real property to:

a. Issue cease and desist orders against any person found, after a public or private hearing, to have violated the provisions of this article or the rules and regulations of the commission.

b. Apply to the Circuit Court of Kanawha County to issue subpoenas and subpoenas duces tecum upon the concurrence of at least five members of the commission; administer oaths and take the testimony of any person under oath; and make reimbursement for travel and other reasonable and necessary expenses in connection with such attendance;

c. Furnish copies of hearing records to parties involved therein upon their payment of the reasonable costs thereof to the commission;

d. Enter into conciliation agreements on behalf of the city;

e. Apply to a court of competent jurisdiction for enforcement of any conciliation agreement or consent order by seeking specific performance of such agreement or consent order, on behalf of the city;

f. Apply to any court of competent jurisdiction, or any federal, state or local agency, for injunctive or other relief, on behalf of the city, in any matters falling within the scope of the commission's functions, upon the concurrence of four members of the commission.

(5) Recommend to the mayor and council policies, procedures, practices and legislation in matters and questions affecting human relations.

(6) 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 mayor on or before December 1 next thereafter.

(7) To do all other acts and deeds necessary and proper to carry out and accomplish effectively the objectives, functions and services contemplated by the provisions of this article, including the promulgation of rules and regulations implementing the powers and authority hereby vested in the commission.

(8) To create such advisory agencies and conciliation councils within the City as in its judgment will aid in effectuating the purposes of this article; to study the problem of discrimination in all or specific fields or instances of discrimination because of race, religion, color, national origin, ancestry, sex, age, blindness, handicap, sexual orientation or familial status; to foster, through community effort or otherwise, goodwill, cooperation and conciliation among the groups and elements of the population of the city and to make the 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 city agency. Such advisory agency and conciliation councils shall be composed of representative residents serving without pay. The commission may itself make the studies and perform the acts authorized by this subsection. It may, by voluntary conferences with parties in interest, endeavor by conciliation and persuasion to eliminate discrimination in all stated fields and to foster goodwill and cooperation among all elements of the population of the city.

(9) 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 and civic and benevolent organizations for the purposes of this section.

(10) Issue such publications and such results of investigation and research as in its judgment will tend to promote goodwill and minimize or eliminate discrimination; however, the identity of the parties involved shall not be disclosed.

(Bill No. 7040, 12-6-2004)

SECS. 62-46--62-80. RESERVED.

SEC. 62-81. UNLAWFUL DISCRIMINATORY PRACTICES.

It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification.

(1) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, handicap, or sexual orientation. 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 subsection (1).

(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, handicap, sex, blindness, age, or sexual orientation of any applicant for employment or membership, except for such forms which shall be kept separate from the application blanks for the administration of any bona-fide affirmative action plan, that is in accordance with state and federal laws and regulations, or for the purpose of complying with any state or federal statute, or rule or regulation issued by any agency of the state or federal government, or for the purpose of making reports required by agencies of the state or federal government;

b. Print or publish or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, specification or discrimination based upon race, religion, color, national origin, ancestry, handicap, sex, blindness, age, or sexual orientation; or

c. Deny or limit, through a quota system, employment or membership because of race, religion, color, national origin, ancestry, handicap, sex, blindness, age, or sexual orientation.

(3) For any labor organization because of race, religion, color, national origin, ancestry, handicap, sex, blindness, age, or sexual orientation of any individual to deny full and equal membership rights to any individual or otherwise to discriminate against such individuals 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 on any basis other than their qualifications as determined by objective criteria which permit review.

b. Discriminate against any individual with respect to his 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 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 such programs; or to make any inquiry in connection with such 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 race, religion, color, national origin, ancestry, handicap, sex, blindness, age, or sexual orientation.

(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 race, religion, color, national origin, ancestry, handicap, sex, blindness, age, or sexual orientation, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of such 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 such place shall be refused, withheld from or denied to any individual on account of race, religion, color, national origin, ancestry, handicap, sex, blindness, age, or sexual orientation, 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, age, or sexual orientation or who is blind or handicapped is unwelcome, objectionable, not acceptable, undesired or not solicited.

(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 duty under this article.

c. Engage in any form of reprisal or otherwise discriminate against any person who has opposed any practices or acts forbidden under this article or because he has filed a complaint, testified or assisted in any proceeding under this article.

(Bill No. 7040, 12-6-2004)

State law references: Unlawful discriminatory practices, W. Va. Code ? 5-11-9; housing discrimination, W. Va. Code ? 5-11A-1 et seq.

SEC. 62-182. AMENDMENTS TO W. VA. CODE, ? 5-11A, "THE WEST VIRGINIA FAIR HOUSING ACT."

W. Va. Code, ? 5-11A is amended throughout by striking out the words "West Virginia Fair Housing Act" and inserting in lieu thereof the words "City of Charleston Fair Housing Act".

W. Va. Code, ? 5-11A is amended throughout by striking out the words "Attorney General" and inserting in lieu thereof the words "Commission's Attorney".

W. Va. Code, ? 5-11A is amended throughout by striking out the words "Administrative Law Judge" and inserting in lieu thereof the words "Hearing Examiner".

W. Va. Code, ? 5-11A-2 is amended by striking out the entire section and inserting in lieu thereof the following:

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, blindness , sexual orientation or handicap. Equal opportunity in the sale, lease, rental and financing of housing 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, blindness, handicap, sexual orientation or familial status.

The denial of these rights of properly qualified persons is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society.

W. Va. Code, ? 5-11A-9 is amended on the second paragraph, line seven (7), following the words "held in the", by striking out the word "county" and inserting in lieu thereof the words "City of Charleston".

W. Va. Code, ? 5-11A-12 is amended by striking out the first paragraph and inserting in lieu thereof the following:

The commission may request the Kanawha County Circuit Court to issue subpoenas and order discovery in aid of investigations and hearings under this chapter. Such subpoenas and discovery may be ordered to the same extent and subject to the same limitations as would apply if the subpoenas or discovery were ordered or served in aid of a civil action in the Kanawha County Circuit Court.

W. Va. Code, ? 5-11A-17 is amended following the words "published in the" by striking out the words "state register" and inserting in lieu thereof the words "city clerk's office."

W. Va. Code, ? 5-11A-20 is amended on the last sentence by striking out the following:

The commission shall comply with article three, chapter twenty-nine-a of this code when promulgating rules.

(Bill No. 7040, 12-6-2004)

For additional information, questions or comments, please contact the Human Rights Commission via email to hrc@cityofcharleston.org.