The West Virginia Human Rights Act prohibits discrimination in employment based on sex (WV Code Sec. 5-11-1 et seq.). The West Virginia Supreme Court has ruled that sexual harassment is a form of sex discrimination under the state Human Rights Act (Westmoreland Coal Co. v. West Virginia Human Rights Cmsn., 382 S.E.2d 562 (1989)).
The Act applies to all public employers and private employers with 12 or more employees.
The rules of the state Human Rights Commission (WV Admin. Code Sec. 77-4-1 et seq.) define "sexual harassment" as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:
• Submission to or rejection of the conduct is made a term or condition of an individual's employment or is exchanged for job benefits,
• Submission to or rejection of the conduct is used as the basis for employment decisions affecting the individual, or
• The conduct unreasonably interferes with an individual's work performance or creates an intimidating, hostile, or offensive working environment.
In order for conduct to rise to the level of sexual harassment, it must be severe or pervasive, involving either unwelcome touching, offensive or threatening verbal abuse, or unwelcome and consistent sexual innuendo or physical contact. When considering a complaint of sexual harassment, the Commission will consider the frequency with which the conduct occurred, whether other individuals have similar complaints, and the context within which the conduct occurred.
Evidence of harassment. The 4th Circuit Court of Appeals ruled that a former employee could proceed to trial because she presented sufficient evidence that her supervisor directed his ...