LGBTQIA+ Discrimination Protections in West Virginia
Last updated on 06/10/2021 at 1:03 pm
Are LGBTQIA+ people protected against discrimination in West Virginia?
As of 2021, there is no one easy answer. There are several different answers. Some are clear and some not so clear.
- Thirteen cities in West Virginia have said LGBTQ discrimination is illegal in their town limits.
- Some types of LGBTQ discrimination are illegal under federal law. These federal protections apply no matter where you live or work in West Virginia.
- Federal law is not clear yet for some other forms of LGBTQ discrimination. That may be changing. But we’ll have to wait and see.
- At this time there is no West Virginia state law that prohibits discrimination based on LGBTQIA+ status. That also might be changing. We’ll have to wait and see.
Yeah, this is really confusing. We’ll try to take it one piece at a time.
Complete Protection in Thirteen West Virginia Towns
What protections do these towns offer?
There are thirteen towns in West Virginia that have adopted non-discrimination ordinances. These towns have said LGBTQIA+ discrimination is illegal in their town. They want to protect their LGBTQIA+ citizens.
The key is whether the discriminatory act took place inside or outside their city limits. If the discriminatory act was inside the town, then it’s a violation of that town’s law. If the discriminatory act was outside the city limits, then the protection doesn’t apply.
These protections generally apply to:
- jobs and employment;
- rental or purchase of housing;
- and access to “public accommodations” like restaurants, movie theaters, and stores.
Where are these thirteen towns?
- Charles Town
- Harpers Ferry
Some of these cities may have an office in city government to help enforce their rules against LGBTQ discrimination. Some don’t. You may need to talk to a lawyer to understand how get the protection of these city ordinances.
Are there protections if the discriminatory act didn’t take place in one of those towns?
Here’s where things get more complicated. There’s no one single answer that covers everything. We’ll need to break it down to different pieces. We’ll look separately at discrimination in:
- Public Accommodations
Am I protected against LGBTQIA+ discrimination in Employment? Can I be fired, demoted, or not hired because of my LGBTQIA+ identity?
There is good news here, but there’s also a “loophole.”
In June of 2020 the US Supreme Court made a major ruling. The Supreme Court said that workplace discrimination based on sexual orientation or gender identity violated the federal law against Sex Discrimination in Employment. The US Court wrote: “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The Supreme Court was dealing with three cases where people were fired.
- One man was fired from the local court system because he played in a gay recreational softball league.
- One man was a skydiving instructor who was fired after revealing he was gay.
- One case involved a funeral home employee fired after she announced she was going to live and dress as a woman after years of presenting as a man.
The Supreme Court said all three employers violated the federal law against Sex Discrimination in Employment.
BUT, things are never simple. The federal law against Sex Discrimination in employment applies only to companies with 15 or more employees. That’s the loophole. If the employer has fewer than 15 employees, this federal law does not apply.
So here’s the clearest answer we can give in February 2020 about LGBTQIA+ discrimination in employment in West Virginia: Yes, you are protected, if the employer has 15 or more employees. You cannot be fired or denied a job because of LGBTQIA+ status, if the employer has 15 or more employees.
If you believe you have been a victim of LGBTQIA+ discrimination at work, you can file a claim with the federal Equal Employment Opportunity Commission (EEOC), or talk with a lawyer who handles Employment Discrimination cases.
What if the company is a small outfit with less than 15 employees?
Frankly, right now in February 2021 the answer in West Virginia is “probably no protection.”
West Virginia has a law against Sex Discrimination in Employment. West Virginia’s statute has the same words as the federal law against Sex Discrimination in Employment. But no West Virginia court has ever said that LGBTQIA+ discrimination is a form of illegal Sex Discrimination. Will that change because of the 2020 US Supreme Court case?
- It’s possible that future West Virginia court cases might agree with the US Supreme Court’s understanding. West Virginia courts might decide that LGBTQIA+ discrimination is illegal Sex Discrimination; or
- It’s possible that future West Virginia court cases might reject the US Supreme Court’s understanding. West Virginia courts might say that the West Virginia Legislature never intended to make LGBTQIA+ discrimination a form of illegal sex discrimination under State law; or
- It’s possible that West Virginia’s Legislature could adopt new language to clarify that LGBTQIA+ discrimination is (or is not) a form of illegal sex discrimination. A bill to prohibit LGBTQIA+ discrimination has been introduced in many previous legislative sessions, but has never passed. A bill to prohibit LGBTQIA+ discrimination will be introduced again in 2021. We don’t know what will happen in the 2021 Legislature.
Remember the thirteen local city/town non-discrimination ordinances. You are protected if the discriminatory act took place in one of those thirteen WV towns.
Otherwise, if you feel you have been discriminated against in hiring or firing or job conditions, by a small employer (fewer than 15 employees), you may want to talk to a lawyer or an advocacy group (Fairness WV, or ACLU of West Virginia) to see what options may be available to you.
Am I protected against LGBTQIA+ discrimination in Housing? Can I be evicted, or denied an apartment, due to LGBTQIA+ identity?
There is pretty good news here. In February 2021 the US Department of Housing and Urban Development (HUD) said it had concluded “the Fair Housing Act’s sex discrimination provisions … prohibit discrimination because of sexual orientation and gender identity.” The website of the US Department of Housing and Urban Development says that “A person who identifies as LGBTQ who has experienced … discrimination” may file a complaint with HUD. The federal agency gives this example:
“A transgender woman is asked by the owner of her apartment building not to dress in women’s clothing in the common areas of the property. This may violate the Fair Housing Act’s prohibition against sex discrimination, which included discrimination based on non-conformity with gender stereotypes.”
This example shows that HUD uses the same understanding that the US Supreme Court announced in 2020 for employment discrimination. LGBTQIA+ discrimination is a form of illegal sex discrimination under the federal Fair Housing Act.
The federal Fair Housing Act applies to all types of housing. It applies to rental housing. It applies to sale or purchase of homes. It applies to purely private housing. It applies to public housing. It applies to federally subsidized housing. It applies anywhere in West Virginia.
The Fair Housing Act means that in rental housing, if the reason is LGBTQIA+ status you cannot be:
- denied admission, or
- evicted, or
- charged a higher rate, or
- required to meet rules that don’t apply to everyone else.
The Fair Housing Act means that in the home or condo market, if the reason is LGBTQIA+ status you can’t be:
- denied a loan for a house, or
- denied the right to buy a house, or
- denied the right to sell your house, or
- charged a higher interest rate on your loan.
If you feel you have been discriminated against in housing, you can contact a HUD Fair Housing Enforcement Office for help. You can also talk to a lawyer with experience handling discrimination cases. Again, always remember that you are protected if the discriminatory act took place inside the city limits of one of the thirteen WV towns that have adopted LGBTQIA+ non-discrimination ordinances.
What is a “public accommodation”?
A “Public Accommodation” is any facility or service open to the general public. Examples:
- restaurants or bars,
- gyms or skating rinks or public swimming pools,
- stores or shopping malls,
- hotels, or
- movie theaters
Examples of public accommodation discrimination may include:
- denial of entrance or admission,
- denial of service, or
- denial of the use of the facility of any public accommodation.
Am I protected against LGBTQIA+ discrimination in places of public accommodation?
Is the public accommodation that discriminated against you located in one of the thirteen towns in West Virginia with LGBTQIA+ non-discrimination ordinances? If yes, then you’re protected. Everywhere else, it is less clear.
There is a federal law that prohibits Sex Discrimination in Public Accommodations. Will this federal law now also prohibit LGBTQIA+ discrimination (like the 2020 US Supreme Court case about Sex Discrimination in Employment)? We don’t yet know, but we think the best prediction is “probably Yes.” In January 2021 the President of the United States instructed every federal agency to apply the reasoning of the 2020 Supreme Court decision to any statute enforced by that agency which prohibits sex discrimination. That’s why HUD announced that the Fair Housing Act prohibited discrimination because of sexual orientation or gender identity. We are still waiting for other federal agencies to analyze the laws they enforce. In the future, there may also be federal court cases discussing this question for Public Accommodations. We think the answer probably will be the same – the law prohibiting sex discrimination in Public Accommodations will also prohibit discrimination based on sexual orientation or gender identity. But in February 2021 we cannot say that for a fact.
There is no West Virginia law that, by its plain words, prohibits LGBTQIA+ discrimination in Public Accommodations. There is a West Virginia law that prohibits Sex Discrimination in Public Accommodations. Will West Virginia’s law now also prohibit LGBTQIA+ discrimination, like the 2020 US Supreme Court case about Sex Discrimination in Employment? We don’t know yet. There may be state court cases discussing this question right now. We don’t know how they will rule.