§5-11-13. Exclusiveness of remedy; exceptions

Published: 2015

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WVC 5 - 11 - 13

§5-11-13. Exclusiveness of remedy; exceptions.

(a) Except as provided in subsection (b), nothing contained in

this article shall be deemed to repeal or supersede any of the

provisions of any existing or hereafter adopted municipal

ordinance, municipal charter or of any law of this state relating

to discrimination because of race, religion, color, national

origin, ancestry, sex, age, blindness or disability, but as to acts

declared unlawful by section nine of this article the procedure

herein provided shall, when invoked, be exclusive and the final

determination therein shall exclude any other action, civil or

criminal, based on the same grievance of the complainant concerned.

If such complainant institutes any action based on such grievance

without resorting to the procedure provided in this article, he or

she may not subsequently resort to the procedure herein. In the

event of a conflict between the interpretation of a provision of

this article and the interpretation of a similar provision

contained in any municipal ordinance authorized by charter, the

interpretation of the provision in this article shall apply to such

municipal ordinance.

(b) Notwithstanding the provisions of subsection (a) of this

section, a complainant may institute an action against a respondent

in the county wherein the respondent resides or transacts business

at any time within ninety days after the complainant is given

notice of a right to sue pursuant to this subsection or, if the

statute of limitations on the claim has not expired at the end of such ninety-day period, then at any time during which such statute

of limitations has not expired. If a suit is filed under this

section the proceedings pending before the commission shall be

deemed concluded.

The commission shall give a complainant who has filed a

complaint a notice of a right to sue upon: (1) The dismissal of

the complaint for any reason other than an adjudication of the

merits of the case; or (2) the request of a complainant at any time

after the timely filing of the complaint in any case which has not

been determined on its merits or has not resulted in a conciliation

agreement to which the complainant is a party. Upon the issuance

of a right to sue letter pursuant to subdivision (1) or (2), the

commission may dismiss the complaint.

Notice of right to sue shall be given immediately upon

complainant being entitled thereto, by personal service or

certified mail, return receipt requested, which notice shall inform

the complainant in plain terms of his or her right to institute a

civil action as provided in this section within ninety days of the

giving of such notice. Service of the notice shall be complete

upon mailing.

(c) In any action filed under this section, if the court finds

that the respondent has engaged in or is engaging in an unlawful

discriminatory practice charged in the complaint, the court shall

enjoin the respondent from engaging in such unlawful discriminatory

practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employees, granting of back

pay or any other legal or equitable relief as the court deems

appropriate. In actions brought under this section, the court in

its discretion may award all or a portion of the costs of

litigation, including reasonable attorney fees and witness fees, to

the complainant.

(d) The provisions of this section shall be available to all

complainants whose active cases are pending before the human rights

commission as well as those complainants who file after the

effective date of this section.

Note: WV Code updated with legislation passed through the 2015 Regular Session

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