CHICO DAIRY COMPANY, STORE NO. 22 v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Terrah Elynn Alfred.
No. 18317.
Supreme Court of Appeals of West Virginia.
June 27, 1989.
382 S.E.2d 75 | 181 W.Va. 238
McHUGH, Justice:
This Court will issue a writ of prohibition for the reasons set out in the single Syllabus of Ash v. Twyman, 174 W.Va. 177, 324 S.E.2d 138 (1984):
“‘In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.’ Syl. pt. 1, Hinkle v. Black, [164] W.Va. [112], 262 S.E.2d 744 (1979).”
It is the оpinion of this Court that the petitioner has not demonstrated by the record any clear-cut legal error based upon undisputed facts.
For the foregoing reasons, the petition for a writ of prohibition is hereby denied.
Writ denied.
Jackson & Kelly, Charleston, for Chico Dairy Co.
McHUGH, Justice:
This appeal is by the West Virginia Human Rights Commission and by a complainant before that body, both of whom assert here a violation of the West Virginia Human Rights Act,
I.
A. The Facts
The complainant, Ms. Terrah Elynn Alfred, had been employed, as an assistant manager, by Chico Dairy Company (the “employer“) at its Chico Dairy Mart Store No. 22 in Fairmont, West Virginia. The complainant is blind in her left eye. That eye was removed when she was an infant to abate cancer. She wears a prosthesis, or artificial, replacement eye. The socket around that eye is somewhat sunken or hollow.
As the assistant manager of a Chico Dairy Mart the complainant‘s duties included opening the store, getting the cash registers ready, preparing deрosits, keeping track of inventory, ordering goods from vendors and dealing with customers and the vendors. The manager of a Chico Dairy Mart store performs essentially the same duties as the assistant manager and also has the final responsibility for running the affairs of the store, including supervising, hiring and firing subordinate personnel.
On each of two separate occasions, the first time in July, 1980 and the second time on July 24, 1981, a male, part-time clerk with a Chico Dairy Mart who had less experience than the complainant was promoted to store manager at her store, instead of the complainant. The complainant was at least as well qualified as the first of these men and undoubtedly better qualified than the second for the promotion to store manager.
The employer employed many women as managers of its various stores. One of these female store managers, a Ms. Vandergrift, who had рreviously been the store manager at the complainant‘s store, testified that the employer‘s area supervisor, who is responsible for selecting store managers, told Ms. Vandergrift, in August, 1980, that the complainant would not be his choice for a store manager‘s position because of the complainant‘s noticeable “fa-
After being “passed over” the second time for a promotion to the position of store manager, the complainant was so upset that she, on July 25, 1981, submitted her resignation from employment. Her resignation was effective on August 1, 1981.
B. Proceedings before the Commission
The complainant thereafter timely filed a complaint against the employer with the West Virginia Human Rights Commission (the “Commission“), alleging that her resignation was a constructive discharge based upon unlawful discrimination on account of her sex. Much later, but as soon as she learned from Ms. Vandergrift about the area supervisor‘s statements concerning his opinion of the complainant‘s physical appearance, the complainant amended her complaint to add an allegation of unlawful discrimination against her by the employer on account of her alleged “handicap,” expressly referring to the manner in which the employer regarded her physical appearance, not to her blindness in one eye. In her amended complaint the complainant stated that she was able to perform the job, and she did not mention any actual handicаp for which the employer should have made reasonable accommodations.
After an evidentiary hearing, a hearing examiner for the Commission found that there had been no unlawful discrimination by the employer against the complainant on account of her sex. On the other hand, the hearing examiner found that there had been an unlawful discrimination by the employer against the complainant on account of her “handicap.” The “handicap” was, not her blindness in one eye, but the perception of the employer‘s area supervisor that the complainant‘s “facial deformity” was “unsavory and unacceptable” for a store manager who dealt with vendors and customers. It was this perception which was the reason that the complainant was not promoted to the position of store manager. The hearing examiner expressly found that the complainant‘s “facial deformity” in no way affected her ability to perform the duties of a store manager in a satisfactory manner.
Having found an employment-related discrimination on account of what he believed was a “handicap,” the hearing examiner concluded that the employer had violated the West Virginia Human Rights Act.2 Ac-
The Commission subsequently adopted the hearing examiner‘s findings of fact and conclusions of law, except that the Commission ordered a recalculation of the amount of back pay. The parties later stipulated that the amount of back pay would be $49,223.70, if the conclusion that a violation had occurred was ultimately upheld.
C. Review by the Circuit Court
Upon appeal by the employer the Circuit Court of Kanawha County reversed and remanded. It held, inter alia, that the Commission‘s finding of discrimination on account of a “handicap” was erroneous as a matter of law because the statute,
The Commission and the complainant then prosecuted this appeal.
II.
A. The Commission‘s Rule on Perceived Handicaps
According to
Effective formally on August 1, 1982, the Commission promulgated so-called “interpretive rules” on discrimination against the handicapped.
Like the definition of ‘Handicap,’ this definition of ‘Handicapped Person’ is based upon the definition of ‘Handicapped Person’ in
The Rehabilitation Act of 1973, 29 U.S.C. § 706(7) .. . . .
This regulation follows the federal [statutory] definition and expands upon the [West Virginia] statutory definition of ‘Handicap’ by including persons who are regarded as having a substantially limiting impairment and persons with a history of such impairment. This extension is necessary to make it clear that the law prohibits discrimination against
persons who are incorrectly perceived as handicapped as well as persons who are correctly perceived as handicapped. . . . .
[D]iscriminatiоn against persons who are regarded as being substantially impaired even though they are not actually impaired is discrimination rooted in prejudices or mistaken ideas about the capacities of persons who are not physically or mentally normal. . . . Examples of discrimination against persons who are regarded as being substantially impaired include . . . denial of employment to a person with a florid face on the mistaken assumption he or she has high blood pressure.
(emphasis added)4
The Commission views § 77-1-2.7 of its rules on discrimination against the handicapped as a reasonable “interpretive” rule which “relates back” to July 6, 1981, when the handicap provisions of the West Virginia Human Rights Act (the “Act“) became effective. This Court disagrees because this rule is a “legislative rule” and as such is invalid, not having been properly promulgated in accordance with statutory requirements. Moreover, this rule is invalid because it clearly enlarges the statutory definition of “handicap,” contrary to the obvious legislative intent.
B. Invalidity of Rule Under State Administrative Procedures Act
which is not intended by the agency to bе determinative of any issue affecting private rights, privileges or interests. An interpretive rule may not be relied upon to impose a civil or criminal sanction nor to regulate private conduct or the exercise of private rights or privileges nor to confer any right or privilege [not] provided by law and is not admissible in any administrative or judicial proceeding for such purpose, . . . However, an interpretive rule is admissible for the purpose of showing that the prior conduct of a person was based on good faith reliance on such rule.
rule which, when promulgated after or pursuant to authorization of the legislature, has (1) the force of law, or (2) supplies a basis for the imposition of civil or criminal liability, or (3) grants or denies a specific benefit. Every rule which, when effective, is determinative on any issue affecting private rights, privileges or interests is a legislative rule. Unless lawfully promulgated as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or effect until promulgated by specific authorization of the legislature.
In the present case the Commission‘s rule § 77-1-2.7 is a “legislative rule,” not an “interpretive rule.” It expressly extends the statutory definition of “handicap” so as to form a basis for the imposition of civil sanctions under the Act, as was done in this case; the rule confers a right not provided by law; and the rule affects private rights and purports to regulate private conduct.
This “legislative rule” was not, however, submitted to, reviewed by and approved by the legislative rule-making review committee and the legislature, as required by
This Court holds that the rule the West Virginia Human Rights Commission,
Finally, this Court notes that this case is to be distinguished from West Virginia Board of Education v. Hechler, 180 W.Va. 451, 376 S.E.2d 839 (1988). In that case the administrative agency, the State Board of Education, was expressly granted general supervisory powers over state educatiоnal matters by the State Constitution, and we invalidated legislative provisions which interfered with the Board‘s exercise of the general supervisory powers. Here, in contrast, the administrative agency, the West Virginia Human Rights Commission, derived its rule-making powers from a statute, specifically,
C. Invalidity of Rule Under Case Law
Those cases from other states holding discrimination based upon the mere perception of a handicap to be actionable under the state human rights law (or a similar law) fall into either of two categories, both of which are materially distinguishable from this case. The first category involves a state statute which tracks the federal statute.8 See, e.g., Kenall Manufacturing Co. v. Human Rights Commission, 152 Ill.App.3d 695, 702-03, 105 Ill.Dec. 520, 524-25, 504 N.E.2d 805, 809-10, petition for leave to appeal denied, 115 Ill.2d 542, 110 Ill.Dec. 457, 511 N.E.2d 429 (1987); City of La Crosse Police & Fire Commission v. Labor & Industry Review Commission, 139 Wis.2d 740, 755-65, 407 N.W.2d 510, 516-20 (1987) (analyzing five prior Wisconsin cases falling into the second category below).9
A case from another state which is virtually identical to the case now before us is Kirby v. Illinois Cent. G.R.R., 117 Ill. App.3d 1070, 73 Ill.Dec. 719, 454 N.E.2d 816 (1983). The complaint there was under the Illinois Equal Opportunities for the Handicapped Act (the “EOHA“), then in effect. The complainant in that case alleged an unlawful refusal to hire him on the basis that the potential employer “perceived” that the complainant had spina bifida, a back condition. The complaint did not allege any existing back condition which was a handicap, and, instead, alleged the complainant‘s ability to perform the work in question. The statute prohibited unlawful employment discrimination because of an individual‘s physical or mental handicap, defined by the statute, in relevant part, as “‘a handicap unrelated to one‘s ability to perform jobs or positions available to him for hire or promotion[.]‘” 117 Ill.App.3d at 1071, 73 Ill.Dec. at 721, 454 N.E.2d at 818.
The court in Kirby examined prior cases under the statute and held: “Plaintiff‘s theory that only the perception of a handicap need be alleged was previously rejected by” state precedents. “The EOHA does not provide a remedy to persons who are not in fact handicapped. The complaint under consideration did not state a cause of action under the Act.” Id. at 1074, 73 Ill.Dec. at 722, 454 N.E.2d at 819. Restating its holding, the court said: “We hold that pleading the existence of a handicap is a threshold requirement for stating a cause of action under the EOHA. Secondly, it is necessary to allege that the complained-of discriminatory employment practice occurred because of the perception of the handicap.” Id.
The complainant here likewise failed to allege and prove unlawful discrimination on account of an actual, existing “handicap,” defined by
The definition of “handicap” under the West Virginia Human Rights Act, see supra note 3, is more restrictive than the federal definition of “handicapped individual,” see supra note 8. The West Virginia statute requires an actual, existing handicaр. In obvious contrast, the federal statute, and the Commission‘s rule taken verbatim therefrom, include—in addition to an actual, existing handicap—a past handicap and a perceived handicap. The West Virginia statute was enacted in 1981, after the tripartite definition was added to the federal statute in 1974. Nevertheless, the West Virginia statute does not use the federal definition. Accordingly, the Commission‘s rule which makes discrimination based upon past or perceived handicaps to be actionable under the Act conflicts with the clear legislative intent.
This Court very recently decided another case involving the handicap provisions of the Act. In Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W.Va. 260, 376 S.E.2d 154 (1988), the complainant had psoriatic lesions on her lower extremities which prevented her employment as a general underground miner in low coal, the job in question, but which did not substantially limit her major life activities. She did not, therefore, havе a “handicap” under the definition set forth in
In light of the fact in Ranger Fuel that the Commission‘s rules on discrimination against handicapped persons supported a ruling favorable to the employer therein, we expressly did not decide the issue of whether the definition of a “handicapped person” contained in those rules was too broad. We did conclude, however, in syllabus point 4 of Ranger Fuel that:
Rules and Regulations of the West Virginia Human Rights Commission must faithfully reflect the intention of the legislature; when there is clear and unambiguous language in a stаtute, that language must be given the same clear and unambiguous force and effect in the Commission‘s Rules and Regulations that it has in the statute.
This Court now decides the issue left open in Ranger Fuel and holds that the rule of the West Virginia Human Rights Commission,
Our holding in this case is consistent with syllabus point 4 of State ex rel. Callaghan v. W. Va. Civil Service Commission, 166 W.Va. 117, 273 S.E.2d 72 (1980): “Procedures and rules properly promulgated by an administrative agency with authority to enforce a law will be upheld so long as they are reasonable and do not enlarge, amend or repeal substantive rights created by statute.”10
III.
To protect the employer‘s procedural rights, the circuit court ordered this case to be remanded to the Commission so that there could be an investigation and attempts at conciliation of the statutorily defined “handicap” issue, in light of the fact that neither of those prehеaring procedures had occurred on that issue. There never was, however, a claim in this case of discrimination on account of an actual, existing handicap. It would, therefore, be inappropriate to remand this case to the Commission for development of a cause of action which the complainant never pursued. Cf. McJunkin Corp. v. West Virginia Human Rights Commission, 179 W.Va. 417, 423, 369 S.E.2d 720, 726 (1988) (not proper to hold employer guilty of an unlawful discriminatory act which had never been complained of by complainant). Accordingly, we reverse this ruling of the circuit court.
IV.
Based upon all of the above, we affirm the circuit court‘s ruling that there was, as a matter of law, no violation of the Act as alleged in this case. On the other hand, we reverse the circuit court‘s ruling that there should be a remand to the Commission in this case.
Affirmed in part; Reversed in part.
MCGRAW, J., participated and concurred in the original decision of this case. After Justice McGraw‘s depаrture from the Court, a petition for rehearing was filed. Upon petition for rehearing, the Court‘s original opinion was modified and the petition for rehearing was denied by a majority of the Court; Justice McGraw took no part in the consideration or decision on rehearing.
WORKMAN, J., participated in the opinion as modified, dissenting, in part, and would have granted a rehearing.
WORKMAN, Justice, dissenting:
The opinion of the majority is not only unconscionable, but wrong as a matter of law.
This is a simple case and the result should be clear: Terrah Elynn Alfred is blind in her left eye and therefore clearly handicapped as that term is defined by the
Therefore, Terrah Elynn Alfred should be compensated for the damages she suffered as a result of such unlawful discrimination.
The majority, however, mistakenly classifies this as a case of “perceived handicap,” as that concept is delineated in a rule of the W.Va. Human Rights Commission (HRC),
This is a handicap (not perceived handicap) discrimination case. Even explanatory footnotes to the perceived handicap rule make it clear that the instant case is not one involving perception of handicap. Footnote 8 to the rules (published therewith) states in pertinent part:
This regulation follows the federal [statutory] definition and expands upon the [West Virginia] statutory definition of ‘Handicap’ by including persons who are regarded as having a substantially limiting impairment and persons with a history of such impairment. This extension is necessary to make it clear that the law prohibits discrimination against persons who are incorrectly perceived as handicapped as well as persons who are correctly perceived as handicapped.
. . . .
[D]iscrimination against persons who are regarded as being substantially impaired even though they are not actually impaired is discrimination rooted in prejudices or mistaken ideas about the capacities of persons who are not physically or mentally normal . . . Examples of discrimination against persons who are regarded as being substantially impaired include . . . denial of employment to a person with a florid face on the mistaken assumption he or she has high blood pressure.
(emphasis added)
The majority fails to perceive what is meant by the concept of perception of handicap, despite the fact that the rule makes clear that it involves the incorrect perception that the person has a handicap when in fact the person does not have a handicap. Terrah Alfred does have a handicap, so it is impossible to bring the circumstances of her case within the definition of perceived handicap as enunciatеd by the rule. Likewise, had the employer perceived the complainant could not perform the duties of the job due to her handicap, when in fact she could, that would also have been a mistaken perception on the part of the employer. But that certainly would not render it a perceived handicap case. The employer here did not mistakenly perceive that Terrah Alfred had a handicap. He discriminatorily perceived it as unsavory and he wrongfully denied her a promotion on that basis.
It is beyond comprehension why the majority goes through nineteen tortuous pages to determine whether the rule on perceived handicap was properly adopted. This woman was denied a promotion for which she was qualified and to which she was entitled—not because her employer mistakenly perceived she was handicapped, but because she is handicapped and the employer did not like the way she looks as a result of that handicap. That is clearly discrimination on the basis of handicap which is unlawful under
Despite the fact that “customer preference” has been held by the United States Supreme Court not to bе a valid defense against handicap discrimination actions, and despite the fact that the majority says in a footnote that they don‘t approve of such a defense, they go on to condone it in this case.
Citing McJunkin Corp. v. West Virginia Human Rights Comm‘n, 179 W.Va. 417, 369 S.E.2d 720 (1988), the majority contends that there was never a claim in this case of discrimination based on an actual, existing handicap, and therefore it would not be proper to hold the employer guilty of such unlawful discrimination. The language of the original complaint contained the following allegation:
4. I also believe that I have been discriminated against because I have a minor facial deformity resulting from a congenital eye defect. I believe Mr. Commodore regarded my eye as a handicap and that this prejudice on his part contributed to his decision to promote a less qualified person instead of me, even though I was able and capable of performing the essential functions of the job.
Because the claimant or her attorney may have inartfully worded the complaint does not negate the fact that unlawful discrimination was alleged. The holding of McJunkin makes it clear that “[t]he purpose of notice requirements is to make certain the prospective party in a contested case is aware of the impending proceeding and its substance with sufficient certainty to be in a position to answer and participate.” 179 W.Va. at 420, 369 S.E.2d at 723. It is clear from an examination of the record below that the employer was fully apprised of the claim against him with sufficient certainty to answer and defend. Furthermore, the court may at any stage of the proceedings notice plain error.
Neither the Hearing Examiner nor the HRC relied on the perceived handicap rule in their decisions. It was never referred to in any manner in the Recommended Decision of the Examiner nor in the Opinion and Order of the Commission. Apparently, neither regarded the rule as a basis for determination of the case. Clearly, the Hearing Examiner (and the HRC) made findings of face that 1) Ms. Alfred‘s handicap caused her deformity; 2) her deformity was the reason she was denied promotion; and, 3) her handicap was the underlying cause of the adverse employment decision, thus bringing her case within the statutory requirements for handicap discrimination. Appellate Courts must give deference to the findings of fact made by the trier of fact in discrimination cases. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). This Court made a similar conclusion in syl. pt. 5, State ex rel. West Virginia Human Rights Comm‘n v. Logan-Mingo Area Mental Health Agency Inc., 174 W.Va. 711, 329 S.E.2d 77, 79 (1985), where we held that
[a] determination by the West Virginia Human Rights Commission, that an employer has accorded disparate treatment to members of different races, is a finding of fact which may not be reversed by a circuit court upon reviеw, unless such finding is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.
Many handicaps leave their victims with a physical appearance that may seem “unsavory” to non-handicapped people. Blind people may be glassy-eyed or have involun-
One of the chief underlying reasons for anti-discrimination laws is to require employers to base their employment decisions on an individual‘s qualifications, as opposed to irrational conclusions about their limitations or deep-seated anxieties about their physical appearance. As the United States Supreme Court said in School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 284, 107 S.Ct. 1123, 1129, 94 L.Ed.2d 307 (1987), “society‘s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”
The majority opinion permits this most blatant and insidious form of handicap discrimination. Their mistake is tragic and wrong.
Notes
Our holding in this particular case turns upon the legislative decision to restrict the protection against discrimination on the basis of a “handicap” to those cases in which the discrimination was on the basis of an actual, existing, physical or mental impairment. Where the discrimination was alleged and shown to be solely upon the employer‘s perception that the complainant‘s physical appearance was “unacceptable,” the employer‘s conduct is not actionable under the West Virginia Human Rights Act because of the statutory definition of “handicap,” not because of the employer‘s so-called “customer preference” defense. By this opinion we do not approve of such a defense to actionable conduct.
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification,
(a) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind or handicapped[.]The 1987 amendment to one of the other subdivisions of
The Legislature finds and declares that administrative law and the administrative practice and procedure of the various executive and administrative officers, offices and agencies comprise[ ] a body of law and policy which is voluminous, often formulated without adequate public participation and collected and preserved for public knowledge and use in an unacceptable and essentially inaccessible fashion. The Legislature further finds that the delegation of its legislative powers to other departments and agencies of government requires of the Legislature that the rules and regulations of such other departments and agencies, which have the force and effect of law because of their legislative character, should be carefully and extensively reviewed by the Legislature in a manner properly respectful of the separation of powers [see State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981),] but in keeping with the legislative force and effect of such rules and regulations. Accordingly the Legislature has and by this chapter intends to fix by law uniform and settled administrative practices and procedures, subject only to enumerated exceptions, for the exercise of executive rule-making authority and for the exercise by executive and administrative оfficers, offices and agencies of lawfully delegated legislative power, with appropriate legislative review of that exercise of such a delegated legislative authority and with established procedures for legislative oversight of the exercise of executive rule-making authority.
The 1988 amendment to
The constitutionality of the current rule-making article of the State Administrative Procedures Act under the separation of powers doctrine has not been challenged in this case, and we therefore express no opinion on the same.
When an agency proposes a legislative rule, other than an emergency rule, it shall be deemed to be applying to the Legislature for permission, to be granted by law, to promulgate such rule as approved by the agency for submission to the Legislature or as amended and authorized by the Legislature by law.
We also note that the silence or inaction of the legislature with respect to a proposed legislative rule is not to be deemed an approval thereof but, instead, a disapproval thereof, by virtue of
For general discussions of the federal statute and cases on the definition of handicapped persons, see M. Player, Employment Discrimination Law § 7.09 (1988); L. Rothstein, Rights of Physically Handicapped Persons § 4.03 (1984 and Supp. 1988).