A Business Entity Cannot Be Liable for Unlawful Discriminatory Practices in West Virginia Without Meeting the Definition of “Employer” in the West Virginia Human Rights Act

Zach Pyers, Esq. and Brandon Harmony, Esq.

The Supreme Court of Appeals of West Virginia’s decision in Pajak v. Under Armour, Inc., 2022 W. Va. LEXIS 307, recently ruled that business entities not meeting the West Virginia Human Rights Act definition of “employer” cannot be liable for unlawful discriminatory practices under W. Va. Code § 5-11-9(7).

In Pajak, the Supreme Court of Appeals of West Virginia examined whether a business entity that does not meet the West Virginia Human Rights Act definition of “employer,” as set out in W. Va. Code § 5-11-3(d), could be liable to its employee for an alleged violation of W. Va. Code § 5-11-9(7). Ms. Pajak alleged that Under Armour discharged her in an unlawful discriminatory practice in violation of W. Va. Code § 5-11-9(7). Under Armour moved to dismiss her claim because W. Va. Code § 5-11-3(d) defines “employer” as “twelve or more persons within the state for twenty or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year” and Ms. Pajak did not allege Under Armour had twelve or more persons in West Virginia at the time of discrimination. The district court denied Under Armour’s motion.

In turn, the district court certified the following question to the Supreme Court of Appeals of West Virginia: Whether an entity that does not meet the definition of “employer” in W. Va. Code § 5-11-3(d) is nonetheless subject to liability under W. Va. Code § 5-11-9(7)? The court accepted the question and determined that an entity that does not meet W. Va. Code § 5-11-3(d)’s definition of “employer” cannot be liable to an employee for an alleged violation of W. Va. Code § 5-11-9(7).

The Pajak decision is an important decision because it precludes liability under W. Va. Code § 5-11-9(7) for business entities that do not meet the definition of “employer” in W. Va. Code § 5-11-3(d).

If you would like a copy of the Pajak decision or have any questions with respect to unlawful discriminatory practice claims in West Virginia, please contact a member of Reminger’s Employment Practices Defense Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel. THIS IS AN ADVERTISEMENT