Guyan Valley Hosp., Inc. v. West Virginia Human Rights Com'n, 18677

• Decision Date: 03 July 1989
• Docket Number: No. 18677,18677
• Citation: 181 W.Va. 251,382 S.E.2d 88
• Parties: , 69 Fair Empl.Prac.Cas. (BNA) 1187, 54 Empl. Prac. Dec. P 40,104 GUYAN VALLEY HOSPITAL, INC. v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Rose Marie Bradsher.
• Court: West Virginia Supreme Court

Page 88

382 S.E.2d 88

181 W.Va. 251, 69 Fair Empl.Prac.Cas. (BNA) 1187,

54 Empl. Prac. Dec. P 40,104

GUYAN VALLEY HOSPITAL, INC. v. WEST VIRGINIA HUMAN RIGHTS COMMISSION and Rose Marie Bradsher.

No. 18677.

Supreme Court of Appeals of West Virginia.

July 3, 1989.

Syllabus by the Court

1. "In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va.Code, 5-11-1 et seq. (1979) the plaintiff must offer proof of the following: (1) That the plaintiff is a member of a protected class. (2) That the employer made an adverse decision concerning the plaintiff. (3) But for the plaintiff's protected status, the adverse decision would not have been made." Syl. Pt. 3, Conaway v. Eastern Assoc. Coal Corp., --- W.Va. ----, 358 S.E.2d 423 (1986).

2. A plaintiff makes out a case of disparate impact in hiring under W.Va.Code, 5-11-9 [1981], by identifying a particular hiring practice that has caused statistical under-representation of a given group within the relevant labor market; however, the burden remains on the plaintiff to demonstrate that the challenged practice is not fairly linked to job performance.

3. Disparate impact in an employment discrimination case is ordinarily proved by statistics; the proper comparison is "between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, [----, 109 S.Ct. 2115, 2121, 104 L.Ed.2d 733], 57 U.S.L.W. 4583, 4586 (1989).

4. In an action for racial discrimination in hiring under W.Va.Code, 5-11-9 [1981], if there is no statistical disparity in the at-issue jobs, there can be no claim of disparate impact in hiring practices.

William E. Robinson, Robinson & McElwee, Charleston, for Guyan Valley Hosp.

Donna S. Quesenberry, Asst. Atty. Gen., Charleston, for West Virginia Human Rights Com'n, et al.

NEELY, Justice:

The appeal in this race discrimination case concerns disparate treatment and disparate impact under the W.Va. Human Rights Act, W.Va.Code, 5-11-1 [1967] et seq. Rose Marie Bradsher is a black woman. In August 1974, Ms. Bradsher applied to Guyan Valley Hospital to work as a nurse's aide. There were no job openings at the time. In July 1976, there was an opening, for which Ms. Bradsher filed a new application. She was not hired. The job went to Rose Marie Wade, a white woman. Ms. Bradsher was qualified for the job by two years of college and two months experience as a nurse's aide. Ms. Bradsher had listed as a reference on her application the Logan Day Care Center, where she had worked before. Logan gave her a poor recommendation. The job application also asked for personal references, including any friends or relatives already working at Guyan Valley Hospital.

Ms. Bradsher brought this case initially before the W.Va. Human Rights Commission. The commission found that the Hospital had violated Ms. Bradsher's rights under W.Va.Code, 5-11-9 [1981] and ordered back pay and damages for mental suffering. The Hospital appealed to the Circuit Court of Kanawha County, which reversed the commission's ruling. This appeal followed.

This Court has recognized a cause of action, under W.Va.Code, 5-11-9 [1981], for "disparate treatment," that is, deliberate discrimination. We have not considered before whether there is a cause of action for "disparate impact." "Disparate impact" is when employers do not deliberately discriminate, but their hiring practices have the effect of disproportionately excluding persons on the basis of race, age, and so forth. We now hold that there is a cause of action for "disparate impact" under W.Va.Code, 5-11-9 [1981].

W.Va.Code, 5-11-9 [1981] prohibits "discrimination" on the basis of race. "Discrimination" means deliberately treating individuals differently because of different individual traits. Examples of such traits are an ability to read, possession of a professional degree, physical strength, or experience in a given line of work. "Illegal discrimination" means treating individuals differently because of some individual trait that the law says can't legitimately be considered. Examples of such traits are race, age, sex, and handicap.

If a plaintiff cannot prove intentional discrimination under the disparate treatment theory, he may proceed under a disparate impact theory. This is appropriate when a facially-neutral hiring policy has the effect of irrationally excluding persons in a protected class.

I. Disparate Treatment

This Court held in Syl.Pt. 3, Conaway v. Eastern Assoc. Coal Corp., --- W.Va. ----, 358 S.E.2d 423 (1986):

In order to make a prima facie case of employment discrimination under the West Virginia Human Rights Act, W.Va.Code, 5-11-1 et seq. (1979) the plaintiff must offer proof of the following:

(1) That the plaintiff is a member of a protected class.

(2) That the employer made an adverse decision concerning the plaintiff.

(3) But for the plaintiff's protected status, the adverse decision would not have been made.

Or, more clearly put, "I was [not hired] because I was [black]." Id. at ----, 358 S.E.2d at 429, n. 5.

We cannot find substantial evidence on the record before us to support the commission's finding of deliberate discrimination. However, because deliberate discrimination is difficult to prove directly, we give the Commission the benefit of the doubt and assume arguendo that Ms. Bradsher made out a prima facie case.

This Court held in Conaway, supra:

Once the plaintiff has met this burden, the burden would shift to the employer to show some non-discriminatory reason for the decision. The reason need not be a particularly good one.... The reason can be any other reason except that the plaintiff was a member of a protected class. If the fact finder believes that the proffered reason was the true reason for the decision, then the employer ... is not guilty of discrimination.

Id. at ----, 358 S.E.2d at 430.

The Hospital showed that it refused to hire Ms. Bradsher because she had unfavorable references from a past job in the same field. The Commission considered this and held in its Conclusions of Law, "Even the most casual...