West Virginia — Workplace Discrimination

The West Virginia Human Rights Act (WVHRA), codified at W. Va. Code § 5-11-3, establishes state protections against workplace discrimination for several categories. Specifically, it prohibits employment discrimination on the basis of race, religion, color, national origin, ancestry, sex, age (40 or above, as stated in § 5-11-3(h)), blindness, and disability.

Employer coverage: For private employers, the WVHRA covers any “person employing twelve or more persons within the state for 20 or more weeks within the calendar year,” as stated in W. Va. Code § 5-11-3(d). This applies both to the employer and any agent of that employer.

Public employers: The Act also applies to public sector employers—"the state, and any political subdivision thereof, and any agency or department of the state or of any such political subdivision"—with no minimum employee count.

Employment agencies and labor organizations: Employment agencies and labor organizations are also subject to the Act under §§ 5-11-3(i) and (j).

Source: W. Va. Code § 5-11-3

An employee or applicant who believes they have experienced discrimination under the West Virginia Human Rights Act (WVHRA) must file an administrative complaint with the West Virginia Human Rights Commission within 365 days of the alleged discriminatory act. The statute is categorical: "A complaint shall be filed within three hundred sixty-five days after the alleged act of discrimination." This 365-day deadline applies to all prohibited discrimination in employment, housing, and public accommodations under the Act. The clock begins to run on the date the alleged discriminatory act occurs.

The complaint must be made in writing, under oath, and filed with the Commission. The statute provides no general discretion for the Commission to extend the filing period; missing the deadline typically bars the claim at the agency level (though West Virginia law may allow some claims to proceed directly in circuit court, see the related guide section on exhaustion).

Source: W. Va. Code § 5-11-10

The current section on exhaustion of administrative remedies under the West Virginia Human Rights Act (WVHRA) cites W. Va. Code § 5-11-13 and West Virginia Human Rights Comm'n v. Garretson. I checked both the statute (https://code.wvlegislature.gov/5-11-13/) and the leading Garretson case (https://www.courtlistener.com/opinion/1292369/wv-human-rights-commn-v-garretson/). As of this update, neither has been repealed or substantively amended, and there are no superseding or conflicting West Virginia Supreme Court rulings on this precise issue. The statutory text still provides the "right to file a complaint with the Commission or in the circuit court,” and West Virginia courts—including the Garretson decision—continue to follow the principle that exhaustion is not required for filing directly in circuit court. No legislative or judicial developments alter the published guidance.

Accordingly, the section remains accurate as written, and no material change is needed as of this review.

The West Virginia Human Rights Act (WVHRA) provides a robust array of remedies for prevailing plaintiffs in employment discrimination cases. These remedies are available through actions brought either before the West Virginia Human Rights Commission (the Commission) or directly in state circuit court under W. Va. Code § 5-11-13, with courts broadly empowered to ensure “make whole” relief. Separate provisions of West Virginia law address damage limits and fee-shifting.

Back pay, front pay, and reinstatement: W. Va. Code § 5-11-13 authorizes the Commission, after a finding of unlawful discrimination, to order employment, reinstatement, or promotion, together with back pay “as will effectuate the purposes of this article.” Front pay may be awarded by courts where reinstatement is not a practical remedy due to the employment context, as endorsed in West Virginia Supreme Court precedent. (See syllabus, Haynes v. Rhone-Poulenc, Inc., 521 S.E.2d at 335–337.)

Compensatory damages (including emotional distress): Although the statute does not expressly reference damages for emotional distress, the West Virginia Supreme Court has held that damages for humiliation, embarrassment, and emotional distress are available without a statutory cap. In Haynes, the Court explained that "the emotional distress damages which result from discrimination are recoverable under the WVHRA in appropriate cases." No statutory or regulatory cap exists on such compensatory or emotional distress damages. (Haynes, 521 S.E.2d at 338–340.)

Punitive damages: The text of the WVHRA is silent on punitive damages, but the Court in Haynes held that punitive damages are available in WVHRA cases where the employer’s conduct is willful, wanton, or malicious. Punitive damages are subject to the statewide cap in W. Va. Code § 55-7-29, which limits punitive awards to the greater of $500,000 or four times the compensatory damages awarded, for cases filed after its effective date (June 2, 2015).

Attorney’s fees and costs: Under § 5-11-13(c), the Commission or a court may award reasonable attorney’s fees to a prevailing complainant. The statute provides: “The court…may award all or a portion of the costs of litigation, including reasonable attorney’s fees and witness fees, to the complainant.” Fee awards are discretionary but follow the "reasonable fee" standard.

Summary table:

• Back pay/front pay: Available, no statutory cap
• Reinstatement: Available (preferred remedy where feasible)
• Compensatory/emotional distress: Available, no statutory cap
• Punitive damages: Available (judicial standard), subject to cap: greater of $500,000 or 4× compensatory (after 6/2/2015)
• Attorney’s fees/costs: Discretionary, “reasonable” standard

Source: W. Va. Code § 5-11-13, Haynes v. Rhone-Poulenc, Inc., 206 W. Va. 18, 521 S.E.2d 331, 335–340 (1999), W. Va. Code § 55-7-29 (effective June 2, 2015)

The West Virginia Human Rights Act (WVHRA) explicitly prohibits retaliation—referred to as "reprisal"—by employers and other covered entities against individuals exercising their rights under the Act. This protection is contained in W. Va. Code § 5-11-9(7), which makes it an unlawful discriminatory practice to "engage in any form of threats or reprisal, or to discriminate against any individual 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."

Who is protected? The statute protects any individual (not limited to employees) who:

• Opposes any practice prohibited by the Human Rights Act;
• Files a complaint under the Act;
• Testifies, or assists in any investigation or proceeding under the Act.

What counts as retaliation (reprisal or threats)? The Act does not offer a narrow definition, but it clearly prohibits any "form of threats or reprisal." This covers both overt adverse actions (such as termination or demotion) and subtler acts intended to intimidate or punish individuals for engaging in protected activity, as the term "reprisal" by its ordinary usage encompasses a range of retaliatory conduct. The precise contours are guided by the language of the Act and, where applicable, West Virginia case law interpreting the provision.

Enforcement and remedies: Retaliation in violation of the WVHRA is treated as an unlawful discriminatory practice, enabling affected individuals to bring charges before the West Virginia Human Rights Commission or file suit in circuit court. The statute itself does not list distinct remedies for retaliation, but such claims are adjudicated in the same manner as other discrimination claims under the Act.

Source: W. Va. Code § 5-11-9(7)