Civil Rights Issues in West Virginia

Chapter 4

Civil Rights Issues Related to Employment

The third major area of public life discussed in the three forums was employment and the workplace, and panelists offered striking personal experiences of alleged discrimination and unfair treatment, mainly against African Americans. Four main concerns were highlighted:

The background for this discussion is the state’s tightening economy with too few jobs, especially in certain parts of the state. Southern West Virginia has been hit by steep declines in coal industry employment, and this appears to have contributed to problems of hiring and workplace discrimination in Logan, Mingo, and McDowell counties, although such problems also exist statewide. John Fullen, president of the Mingo County NAACP and mayor of Matewan, stressed that jobs in the county are “hard to come by,” and that alleged employment discrimination is the number one reason for complaints to the Mingo County NAACP.[1] He also pointed out that the bad economy affects race relations in other ways as well, since “when times get hard people have got to find somebody to trounce,” and blacks are often the target for these frustrations.[2]

Discrimination Against Racial Minorities in Hiring

The theme of racial discrimination in hiring, mainly against African Americans, emerged strongly in the forums.[3] Panelists alleged discrimination by both small and large businesses, distinct situations since small businesses are not subject to federal antidiscrimination laws. Some suggested that social practices, ranging from “informal” hiring to outright nepotism, play a significant role in hiring; although some such practices are not illegal, their impact may be discriminatory nonetheless. Panelists emphasized that perceptions of discrimination in hiring lead to frustration and hopelessness, especially for young people, many of whom leave their communities and do not return.

Small Employers

Small businesses are becoming an increasingly critical source of jobs in rural communities around the state as opportunities in other economic sectors, especially coal mining, continue to shrink. Small-business owners often prefer to hire informally, finding employees from among a pool of relatives, friends, and acquaintances. In communities where almost all businesses are owned by whites—as is broadly the case in southern West Virginia—this situation presents clear disadvantages for jobseekers who are black. However, under the state Human Rights Act, a business is not considered an “employer” subject to antidiscrimination laws unless it has 12 or more employees, effectively exempting a great many businesses in the state from scrutiny of their hiring practices.[4]

Paul Sheridan, senior assistant attorney general with the Civil Rights Division of the West Virginia Attorney General’s Office, gave an example of how informal hiring practices among small businesses set the stage for discrimination. A convenience store in Buffalo Creek, Logan County, was the subject of a complaint to the state Human Rights Commission:

This small business did its hiring, like a lot of small businesses do, very informally. And as many of you know, informal hiring procedures create all kinds of opportunities for discrimination. . . . What evolved over time was that this particular place completely did away with any kind of application at all. They knew who in the community was looking for jobs and when they had an opening they’d simply go to the people . . . and ask them if they wanted to work there. And so, after a while people simply gave up asking for jobs; particularly African Americans in the community gave up asking about jobs because they were never hired.[5]

An African American man named Dennis Gordon tried to get a job at the store and was not hired. He filed a complaint, but since the store kept no hiring records of any kind, it could not be proven in court that discrimination had occurred. However, according to Mr. Sheridan, the store owners “came to recognize, with the help of the judge,” that their hiring practices were discriminatory, and they agreed to formalize their practices by announcing jobs and hiring from a pool of applicants based on criteria specified in the consent decree; they also have to report to the state Human Rights Commission regularly on their hiring.[6] Mr. Sheridan said he hoped the case would send a message to other small employers that they have an obligation not to discriminate.[7]

Mr. Sheridan emphasized that “the real reality” of discrimination “is often not what you can see or what you can prove. . . . The inability to prove it sometimes doesn’t mean that it’s not there.”[8] Discrimination becomes less visible, he said, as people give up applying for jobs because they expect to be turned down.[9]

Large Employers

In Mingo, Logan, and Boone counties, coal companies, schools, and hospitals are among the largest employers. Panelists named several companies that each have 200 to 500 employees but only two, three, or four blacks. Rev. Stephen Hairston, president of the Logan-Boone chapter of the NAACP, said the NAACP is asking such companies to produce the affirmative action plans they are required to have by law:

I see it over and over again; it’s blatant. And when you go up to these companies and you ask to see their affirmative action plan—because I know they’ve got government contracts—they look at you like you’re crazy . . . I finally got to see the one at the Mann Appalachian Hospital [in] Mann [West Virginia]. They have one black at Mann Appalachian Hospital [out of 250 to 300 employees].[10]

Role of Favoritism and Nepotism

 Several speakers alleged that family connections and other types of favoritism in hiring exclude minorities from jobs.[11] Businessman Leonard George claimed that “there are family clans in [Monongalia] County that have more people working for the Monongalia County school board from one family than all the minority employees combined.”[12] Walter Elmore, an African American who tried for years to work his way into a permanent job at the Division of Highways, but was passed over for less experienced white applicants, noted family relationships in the division’s work force:

And it’s to the point now if something’s not done all you’re going to have up there is your taxpaying money is going to be used to further somebody else’s family. Because you’ve got father-daughter, you’ve got brother-brother, you’ve got first cousin, you’ve got uncle, you’ve got two first cousins, you’ve got another brother-brother. And up at Mann you’ve got three brothers, one uncle, one nephew, one first cousin.[13]

Kenneth Ross, an African American with seven and a half years’ experience as a juvenile corrections officer, said he could not get hired at the regional jail because jobs were given out as favors.[14] “Anything that goes on in Logan County it’s a family thing,” he stated. He expressed bitterness with the situation:

When you [look for a job] and nobody is ever considering you . . . you feel defeated before you get there. . . . But how do I go back and tell my kids this: that your dad can’t work because certain people won’t let him, or they’re hiring all their family members, or it’s been political favors.[15]

Impact of Hiring Discrimination

Rev. David Bell, a pastor in Mingo and Logan counties, emphasized that young people confronted with discriminatory hiring feel hopeless and frustrated:

This past summer, for example, in the community where I lived . . . there were 30 businesses that employ at least four employees. Those 30 businesses hired 15 young people from Magnolia High School, and not one of those was a minority. We had 10 to apply; one was an honor student, two were honor roll students. They were a group with families of good backgrounds, good work ethics, but they were not considered for employment. They were very discouraged.[16]

He said young African Americans have to leave southern West Virginia to find good jobs as soon as they finish high school.[17] Some have found jobs “at the pizza places and the burger places, but nobody has a job where they can live on their own or become a productive citizen.”[18]

Panelists noted the possibility of mounting a community boycott of businesses that openly discriminate in hiring, but recognized that rural communities often depend on one or two businesses “and if you don’t go there, there’s nowhere else to go.”[19]

Discrimination Against Racial Minorities in Welfare-to-Work Placements

Joanne Farmer, outreach director of New Employment for Women in Logan,[20] reported on a survey done by her group in 1997. Of the 25 people interviewed, including 12 whites and 13 African Americans, five reported experiencing some form of racism affecting their placement. Overall, she noted:

We found that race plays a significant role in the placements and referral. The JOIN program, which pays clients $1 an hour, plus their welfare check, is the one in which most minorities are placed. The white clients are placed in Job Readiness, GED classes, and real job referrals. Minorities had to give up their GED classes. . . . When the clients complained to the white caseworkers, they were told they should just try harder.[21]

Walter Elmore, an African American in Logan County, spoke about his experiences with welfare-to-work programs and with the state Division of Highways in particular. According to his testimony and to newspaper reports, he worked for the Division of Highways under the JOIN welfare-to-work program for three different six-month periods between 1992 and 1998, earning $1 an hour, and each time applying for a permanent job.[22] Despite a good work record, each time he was passed over for less experienced white applicants; when he complained to welfare workers, he was simply moved to another workplace.[23]

Based on his experience, Mr. Elmore concluded that the program was “set up to get people off of welfare, but not black people. It’s set up to help white people, but not black people.”[24] In response to a complaint Mr. Elmore filed with the state Human Rights Commission in 1998, the Division of Highways denied any improper action.[25] After the complaint and helping Mr. Elmore fill out a job application, the Division of Highways hired him for an entry-level full-time job in December 1998.[26]

Harassment and Discrimination Against Minority Employees in the Workplace

Several participants described their personal experiences of on-the-job harassment and discrimination and emphasized that they had few options for responding without endangering their jobs. Christopher Drummer, a kitchen manager/trainee at a restaurant in Logan, recounted an incident the week before the forum, in which a waitress repeatedly used racial epithets such as “black bastard” and “black son of a bitch,” and threw plates at him.[27] Despite complaints to his managers and a record of previous abuses by the same woman, Drummer had his hours reduced rather than his complaint resolved.[28]

Pete Kelly told the Logan forum of similar harassment when he was employed by a coal company in West Virginia:

I worked hard and I was moving up in the company. And I walked into the warehouse and there was a warehouse employee who said, “You’re the ugliest nigger that I’ve ever seen. I don’t like niggers. I don’t like being around niggers.” Well, if I had hit him, automatically I would have been fired. But this man didn’t lose one day’s work over calling me a nigger, not one day’s work. But if I had hit him, believe me you, I’d a been fired.[29]

Mr. Kelly also reported that he had experienced discrimination while employed as a rock truck driver. He testified that when he attempted to return to work after an injury, as provided by the union contract, the company gave false information to a doctor to interfere with his clearance to return.[30] Mr. Kelly presented a complaint of racial discrimination to the West Virginia Human Rights Commission, citing evidence that a white worker in similar circumstances had been permitted to return to work without hindrance.[31]

At the Morgantown forum, Katherine Bankole, director of the Center for Black Culture and Research at West Virginia University, referred to the experience of minority faculty members discriminated against in their opportunities for advancement. It is a common experience, according to Dr. Bankole, for the goalposts to be shifted; an individual with a master’s degree, for example, may be told that the lack of a Ph.D. is the bar to advancement, only to find another obstacle after earning the Ph.D.[32]

Barriers to Employment for People with Disabilities

James Jeffers, director of the West Virginia Division of Rehabilitation Services, noted progress in recent years in ensuring the civil rights of people with disabilities, including passage of the 1990 Americans with Disabilities Act and improvement in physical access to many public buildings and businesses.[33] However, he stressed that barriers to employment of people with disabilities must be broken down before the ADA’s goals of equal opportunity, full participation, and economic self-sufficiency can be realized. These barriers include not only direct discrimination against people with disabilities but also other factors that make it difficult or even disadvantageous for people with disabilities to seek employment—most notably, lack of access to health care. Mr. Jeffers explained:

The fear of losing health insurance has been identified as a primary barrier to employment. Individuals who receive cash benefits through Supplemental Security Income [SSI] or Social Security Disability Insurance [SSDI] also receive health care benefits through Medicaid, Medicare, respectively. When employment income results in the elimination of eligibility for SSI, or SSDI, the individual also forfeits access to the highly essential medical benefits. This means the loss of critical residential-, rehabilitation-, and health-related support and services.[34]

Disabled people as a group have serious and chronic medical needs. Knowing this, employers are sometimes reluctant to hire a person with a disability, fearful of the increase in health care costs, and in any case private insurance companies often deny coverage for preexisting conditions. These factors work to exclude people with disabilities from the work force and from the private insurance market and keep them dependent on government programs.

Helen Matlick, a volunteer with the West Virginia Mental Health Consumers Association, affirmed that loss of access to health benefits is a serious deterrent to employment for people with mental health disabilities.[35] She described the common dilemma of persons returning to work after successful treatment for an illness, only to find that by returning to work they have lost the benefits necessary to keep them healthy enough to continue working.[36]

Lack of public transportation, especially in rural areas, was identified as another major barrier to employment for West Virginians with disabilities. While people with disabilities who live in large cities can often use accessible public transportation to reach job interviews and work sites, accessible public transit simply does not exist in many parts of West Virginia. Additional factors that restrict the possibilities for people with disabilities to work include insufficient and inappropriate education and training, and low use of assistive technologies and workplace adaptations that enable people with disabilities to perform jobs.[37]

Suggested Strategies and Ongoing Efforts

Panelists offered a few suggestions for strategies to improve opportunities in employment, although little detail was provided in most cases.

Include More Small Businesses Under State Antidiscrimination Laws

Because so many small employers do not have formal hiring procedures, agencies that enforce civil rights laws must come up with creative strategies for preventing discrimination. A key question is whether it will be possible to “lower the bar” by reducing the number of employees that qualify a business as an employer under the law. Efforts over the past few years to change the way the number of employees is calculated failed in court, and the state legislature recently changed the law to exempt still more small businesses from antidiscrimination laws.[38] Although it will likely be difficult to get the legislature to lower the bar, such efforts are increasingly important in the current economic climate.[39]

Increase Access to Education in Welfare-to-Work Programs

Joanne Farmer of New Employment for Women stressed the importance of education, including GED, vocational, and postsecondary programs, in removing barriers to success for people on public assistance, and she called for public policies to make this happen:

We are really advocating now for our clients to be able to continue their education. And we’re hoping that on a statewide level this will be mandated. In some states they give up to, I think, 20 percent of the welfare recipients the chance to go on to higher education. . . . We feel that by doing this, we’re not only giving the children in these families people to look up to, we’re giving these people a way out—out of minimum wage into jobs that pay a living wage where they can support their families.[40]

Cut Red Tape in Handling of Complaints

One existing strategy for responding to hiring or workplace discrimination is for affected individuals to file complaints with appropriate agencies, including the state Human Rights Commission and the U.S. Equal Employment Opportunity Commission. Several speakers mentioned having taken such action, but with disappointing results. Rev. Russell Medley, a Baptist pastor, noted that “if you go to EEOC, it may take you anywhere from two to five years to get your case heard.”[41] He pointed out that long delays are a critical problem in employment cases, where victims of discrimination may be left without income while complaints wind their way through the bureaucracy; they may also be blacklisted by employers for having made a complaint.[42] He and other speakers called for authorities to take whatever steps necessary to cut red tape and deal expeditiously with complaints of workplace and hiring discrimination.[43]

Remove Barriers to Employment for People with Disabilities

James Jeffers, director of the West Virginia Division of Rehabilitation Services and himself a person with a disability, recommended overhauling the current system for providing health care to people with disabilities, which constitutes a disincentive to work.[44] He called in general terms for reforms to create access to affordable, adequate, private health care for people with disabilities. In addition, steps should be taken to provide accessible transportation, appropriate training, assistive technologies, and other workplace supports to enable people with disabilities to overcome obstacles to sustainable integration into the work force.[45]

[1] Fullen testimony before the West Virginia Advisory Committee to the U.S. Commission on Civil Rights, community forum, Logan, WV, Nov. 17, 1998, transcript, pp. 236–46 (hereafter cited as Logan Transcript).

[2] Ibid., pp. 241–43.

[3] Panelists also referred briefly to hiring discrimination based on gender, age, and national origin, but the discussion focused on racial discrimination in hiring.

[4] W. Va. Code § 5-11-3(d) (2001). In contrast, under federal law (specifically Title VII and the ADA) an employer (including private sector and state and local government entities) must employ 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as, or in the calendar year prior to when the alleged discrimination occurred. U.S. Equal Employment Opportunity Commission, Compliance Manual (Directives Transmittal Number 915.003), <>.

[5] Sheridan testimony, Logan Transcript, pp. 161–63.

[6] Ibid., p. 166.

[7] Ibid., pp. 163–68.

[8] Ibid., p. 170.

[9] Ibid., pp. 170–71.

[10] Hairston testimony, Logan Transcript, p. 249.

[11] A response to this allegation can be found in appendix 2.

[12] George testimony before the West Virginia Advisory Committee to the U.S. Commission on Civil Rights, community forum, Morgantown, WV, June 14, 1999, transcript, p. 119 (hereafter cited as Morgantown Transcript).

[13] Elmore testimony, Logan Transcript, p. 293.

[14] Ross testimony, Logan Transcript, pp. 320–21.

[15] Ibid., pp. 315–20.

[16] Bell testimony, Logan Transcript, pp. 182–83.

[17] Ibid., p. 183.

[18] Ibid.

[19] Ibid., p. 186.

[20] The organization has since changed its name to New Empowerment for Women Plus.

[21] Farmer testimony, Logan Transcript, pp. 205–08. Karen O’Sullivan Thornton, director of the Bureau for Children and Families, West Virginia Department of Health and Human Resources, noted that it is possible that some of these individuals were being transitioned from education programs (which emphasized meeting education needs prior to placement in work activities) to work-related programs in an effort to comply with new federal regulations implementing the Temporary Assistance for Needy Families (TANF) program, a work-first program. Karen O’Sullivan Thornton, letter to Marc Pentino, Eastern Regional Office, U.S. Commission on Civil Rights, July 1, 2002, in response to affected agency review request.

[22] Elmore testimony, Logan Transcript, pp. 282–86.

[23] Ibid., pp. 282–96.

[24] Ibid., pp. 283–84.

[25] According to the West Virginia Department of Transportation, Division of Highways, the Human Rights Commission issued a “no probable cause” finding in the case. The ruling stated that Elmore’s name never appeared on the Division of Personnel’s roster, which was provided to the Department of Highways, and therefore Elmore could not be considered for a position with the department. Fred VanKirk, secretary/highways commissioner, West Virginia Department of Transportation, Division of Highways, letter to Marc Pentino, Eastern Regional Office, U.S. Commission on Civil Rights, May 28, 2002, in response to affected agency review request. For the department’s full response, see appendix 3.

[26] Ibid.; see also Elmore testimony, Logan Transcript, pp. 280–303; F. Brian Ferguson, “Logan Man Struggles to Get $18,000 Job; Racism, Nepotism Alleged at Division of Highways,” Charleston Sunday Gazette-Mail, Apr. 11, 1999.

[27] Drummer testimony, Logan Transcript, pp. 212–17. Although identified in the transcript, the name of the restaurant has been omitted from this report.

[28] Ibid.

[29] Kelly testimony, Logan Transcript, p. 271.

[30] Ibid., pp. 258–61.

[31] Ibid., pp. 256–61.

[32] Bankole testimony, Morgantown Transcript, p. 137.

[33] The intent of the ADA is “to ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.” The ADA ensures (1) employers covered by the act cannot discriminate against qualified individuals with disabilities; (2) access to public accommodations and government services; (3) expanded access to transportation services; and (4) equivalent telephone services for people with speech or hearing impairments. See President George Bush’s Remarks on Signing the Americans with Disabilities Act of 1990, Public Papers of the Presidents of the United States, George Bush, (Washington D.C.: National Archives and Records Administration, 1990), Book 2, p. 1068. 42 U.S.C. §§ 12101–12213.

[34] Jeffers testimony, Morgantown Transcript, pp. 28–33. A possible remedy to this concern is provided by the passage of the Ticket to Work and Work Incentives Improvement Act in late 1999, which allows people with disabilities to retain federal health benefits if they resume work. This point is described in greater detail in the U.S. Commission on Civil Rights report, Sharing the Dream: Is the ADA Accommodating All? October 2000, p. 34.

[35] Matlick testimony, Morgantown Transcript, pp. 43–44.

[36] Ibid., pp. 42–45.

[37] Jeffers testimony, Morgantown Transcript, pp. 34–38.

[38] Under the West Virginia Human Rights Act, an employer is defined as the state, any political subdivision thereof, and any person (not including a private club) employing 12 or more persons within the state. In 1998, Code § 5-11-3(d) was amended to specify that persons be employed “for twenty or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year.” See W. Va. Code § 5-11-3(d) (2001).

[39] Sheridan testimony, Logan Transcript, pp. 172–76.

[40] Farmer testimony, Logan Transcript, p. 208.

[41] Medley testimony, Morgantown Transcript, p. 109. In the affected agency review of the Advisory Committee’s report, Eugene Nelson, director of EEOC’s Pittsburgh Area Office, disagreed with the assertion that it takes two to five years before a case is heard. He notes that the office investigates charges as soon as they are filed, does not have charges that are that old, and processes cases in an average of 180 days or less. Eugene V. Nelson, director, Pittsburgh Area Office, U.S. Equal Opportunity Commission, letter to Marc Pentino, Eastern Regional Office, U.S. Commission on Civil Rights, June 5, 2002.

[42] Ibid., pp. 209–13.

[43] Ibid.

[44] Jeffers testimony, Morgantown Transcript, pp. 30–33. A possible remedy to this concern is provided by the passage of the Ticket to Work and Work Incentives Improvement Act in late 1999, which allows people with disabilities to retain federal health benefits if they resume work. This point is described in greater detail in the U.S. Commission on Civil Rights report, Sharing the Dream: Is the ADA Accommodating All? October 2000, p. 34.

[45] Ibid.