WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v WV HRC; 10/25/07

West Virginia Capitol Building at Night Octo­ber 25, 2007: In Col­gan Air, Inc. v. West Vir­ginia Human Rights Com­mis­sion, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Vir­ginia Supreme Court addressed claims of harass­ment (based on reli­gion and nation­al ori­gin) and retal­i­a­tion under the WV Human Rights Act, W. Va. Code § 5–11-1 et seq.

The plain­tiff was a pilot, Rao Zahid Khan, who alleged that his co-work­ers sub­ject­ed him to fre­quent deroga­to­ry and insult­ing com­ments about his nation­al ori­gin and reli­gion (he was Ara­bic). The West Vir­ginia Supreme Court ruled that Col­gan Air (a) was not liable for harass­ment because it had poli­cies and pro­ce­dures pro­hibit­ing harass­ment and took swift and deci­sive action after learn­ing about the harass­ment, and (b) was not liable for retal­i­a­tion because Col­gan Air ter­mi­nat­ed the employ­ee (Mr. Khan) for a legit­i­mate and non-dis­crim­i­na­to­ry reason–he failed to pass a manda­to­ry FAA pro­fi­cien­cy test for pilots.

Col­gan Air was a 3–2 deci­sion. Jus­tices Davis, May­nard, and Ben­jamin joined in the “per curi­am” major­i­ty opin­ion, and Jus­tice Albright dis­sent­ed and wrote an opin­ion, and Jus­tice Starcher also dis­sent­ed and wrote an opin­ion. Both Jus­tices Albright and Starcher agreed with the major­i­ty that Mr. Khan prop­er­ly lost his job because of his fail­ure to pass the FAA pro­fi­cien­cy test, but dis­sent­ed because they believed that Col­gan Air was prop­er­ly held liable for the hos­tile work envi­ron­ment (based on reli­gion and nation­al ori­gin).

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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4 thoughts on “WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v WV HRC; 10/25/07”

    1. A lack of a prompt response by an employ­er in response to an alle­ga­tion of dis­crim­i­na­tion can be evi­dence of an employer’s lia­bil­i­ty. So these ideas to a sig­nif­i­cant extent oper­ate in both directions–a prompt and appro­pri­ate response helps pro­tect the employ­er from lia­bil­i­ty, and the fail­ure to do the same increas­es the like­li­hood of it being held liable.

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