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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