Filing a Workplace Harassment Complaint in West Virginia

Because the Act moved in 2024 and older material has not caught up. W. Va. Code 5-11-1 et seq. was repealed in its entirety by 2024 Com. Sub. for S.B. 300, effective from passage on 8 February 2024, and the West Virginia Human Rights Act now sits at W. Va. Code 16B-17-1 et seq. in the chapter headed Inspector General. The numbering carried over one for one, so 5-11-9 is now 16B-17-9 and 5-11-13 is now 16B-17-13. The Commission's rules moved too, from Title 77 to Title 71 of the Code of State Rules, refiled effective 5 February 2025, so a citation to Title 77 is also out of date.

This guide will not give you a number, and you should be wary of any source that does. 16B-17-13(b) allows suit within 90 days after the complainant is given notice of a right to sue, or, if the statute of limitations on the claim has not expired at the end of that 90 days, at any time while it is still running. That makes the underlying limitation period the thing that actually controls, and nothing in 16B-17 says what it is. Take your dates to a West Virginia employment lawyer, and note that service of the right to sue notice is complete upon mailing, so the 90 days starts when the Commission posts it.

Not under the Human Rights Act, and not under Title VII either. W. Va. Code 16B-17-3(d) requires 12 or more persons employed within the state for 20 or more calendar weeks, and federal Title VII requires 15, so eleven falls below both. West Virginia has not followed the states that lower the threshold for sexual harassment specifically, so the 12 is a hard floor for every basis. Two things are still worth checking with a lawyer: whether the employer met the 12 in the preceding calendar year, because the definition looks back two years, and whether a different claim entirely is available on your facts.

More generously than you might expect, and the rule is in a regulation rather than in the code. W. Va. Code R. 71-7-2.2 provides that the number of employees is calculated by including all persons with whom the employer has an employment relationship, whether or not the person is performing tasks or receiving compensation from the employer on a particular day, and that individuals employed by a parent, spouse or child are not counted. That is a payroll based method rather than a working day method, so part time staff and employees on leave count toward the 12. The state and its political subdivisions are covered with no threshold at all, because 16B-17-3(d) names them before it names the 12.

The governing standard is a legislative rule rather than the statute, which is the single easiest thing to get wrong here. W. Va. Code R. 71-4, the rules regarding sexual harassment, was filed effective 5 February 2025, and 71-4-2.3 states that in all cases the harassment complained of must be sufficiently severe or pervasive. 71-4-2.4 lists the factors, including unwelcome physical touching, verbal abuse of an offensive or threatening nature, unwelcome and consistent sexual innuendo, and the frequency of the unwelcome encounters. 71-4-2.4.5 helps a claimant whose own experience was isolated, providing that evidence of harassment suffered by other employees may be offered to show the harassment was pervasive or severe, and 71-4-2.5 adds that hostile or physically aggressive behavior can be sexual harassment where the disparate treatment is based on gender.

The rules treat the two differently and both are broader than many readers expect. W. Va. Code R. 71-4-3.1 makes an employer responsible for the acts of its officers, agents and supervisory employees regardless of whether the acts were authorized or even forbidden, and regardless of whether the employer knew or reasonably should have known of them, except where the supervisor was acting outside the scope of employment. 71-4-3.2 applies a knew or should have known standard to harassment by co-workers, with a defense where the employer took timely and appropriate corrective action. 71-4-3.3 reaches harassment by non-employees such as customers, vendors and patients where the employer knew or should reasonably have known and failed to act, with the Commission weighing the extent of the employer's control.