dissenting:
The opinion of the majority is not only unconscionable, but wrong as a matter of law.
This is a simple case and the result should be clear: Terrah Elynn Alfred is blind in her left eye and therefore clearly handicapped as that term is defined by the *249West Virginia Human Rights Act, W.Va. Code § 5-ll-3(t), as amended. She wears a prosthesis, or glass eye. She was denied a promotion to which she was entitled because of the “deformed” appearance of her eye which resulted from and is part of her handicap. It is unlawful for any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if such individual is able and competent to perform the services required even if such individual is blind or handicapped. W.Va.Code § 5-ll-9(a) [1981].
Therefore, Terrah Elynn Alfred should be compensated for the damages she suffered as a result of such unlawful discrimination.
The majority, however, mistakenly classifies this as a case of “perceived handicap,” as that concept is delineated in a rule of the W.Va. Human Rights Commission (HRC), 6 W.Va.Code of State Rules § 77-1-1.7 [1982]. That rule in pertinent part expands the definition of handicapped person to include a person who does not in fact have a handicap, as defined by Code, 5-ll-13(t), but who is “regarded as having such a handicap.” The majority at great length and in scholarly depth analyzes whether that rule was validly promulgated. Such an analysis, while probably correct, is completely unnecessary. Terrah Alfred is handicapped.
This is a handicap (not perceived handicap) discrimination case. Even explanatory footnotes to the perceived handicap rule make it clear that the instant case is not one involving perception of handicap. Footnote 8 to the rules (published therewith) states in pertinent part:
This regulation follows the federal [statutory] definition and expands upon the [West Virginia] statutory definition of ‘Handicap’ by including persons who are regarded as having a substantially limiting impairment and persons with a history of such impairment. This extension is necessary to make it clear that the law prohibits discrimination against persons who are incorrectly perceived as handicapped as well as persons who are correctly perceived as handicapped.
... [Discrimination against persons who are regarded as being substantially impaired even though they are not actually impaired is discrimination rooted in prejudices or mistaken ideas about the capacities of persons who are not physically or mentally normal ... Examples of discrimination against persons who are regarded as being substantially impaired include ... denial of employment to a person with a florid face on the mistaken assumption he or she has high blood pressure.
(emphasis added)
The majority fails to perceive what is meant by the concept of perception of handicap, despite the fact that the rule makes clear that it involves the incorrect perception that the person has a handicap when in fact the person does not have a handicap. Terrah Alfred does have a handicap, so it is impossible to bring the circumstances of her case within the definition of perceived handicap as enunciated by the rule. Likewise, had the employer perceived the complainant could not perform the duties of the job due to her handicap, when in fact she could, that would also have been a mistaken perception on the part of the employer. But that certainly would not render it a perceived handicap case. The employer here did not mistakenly perceive that Terrah Alfred had a handicap. He discriminatorily perceived it as unsavory and he wrongfully denied her a promotion on that basis.
It is beyond comprehension why the majority goes through nineteen tortuous pages to determine whether the rule on perceived handicap was properly adopted. This woman was denied a promotion for which she was qualified and to which she was entitled — not because her employer mistakenly perceived she was handicapped, but because she is handicapped and the employer did not like the way she looks as a result of that handicap. That is clearly discrimination on the basis of handicap which is unlawful under Code, 5-ll-9(a).
*250The majority’s opinion explicitly permits the employer to decline to promote the complainant because her supervisor considered her appearance unacceptable for dealing with customers and vendors. This determination is insensitive, outrageous and wrong as a matter of law. As pointed out in a brief of amicus curiae, employers in the early days of civil rights litigation frequently argued that their customers would not frequent a store if they were to be served by a black person. The courts have uniformly rejected customer preference as a defense to human rights actions. Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1181 (7th Cir.1982); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir.1981); Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5th Cir.1971), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971).
Despite the fact that “customer preference” has been held by the United States Supreme Court not to be a valid defense against handicap discrimination actions, and despite the fact that the majority says in a footnote that they don’t approve of such a defense, they go on to condone it in this case.
Citing McJunkin Corp. v. West Virginia Human Rights Comm’n, 179 W.Va. 417, 369 S.E.2d 720 (1988), the majority contends that there was never a claim in this case of discrimination based on an actual, existing handicap, and therefore it would not be proper to hold the employer guilty of such unlawful discrimination. The language of the original complaint contained the following allegation:
4. I also believe that I have been discriminated against because I have a minor facial deformity resulting from a congenital eye defect. I believe Mr. Commodore regarded my eye as a handicap and that this prejudice on his part contributed to his decision to promote a less qualified person instead of me, even though I was able and capable of performing the essential functions of the job.
Because the claimant or her attorney may have inartfully worded the complaint does not negate the fact that unlawful discrimination was alleged. The holding of McJunkin makes it clear that “[t]he purpose of notice requirements is to make certain the prospective party in a contested case is aware of the impending proceeding and its substance with sufficient certainty to be in a position to answer and participate.” 179 W.Va. at 420, 369 S.E.2d at 723. It is clear from an examination of the record below that the employer was fully apprised of the claim against him with sufficient certainty to answer and defend. Furthermore, the court may at any stage of the proceedings notice plain error. W.Va.R.Civ.P. 61; See also W.Va.R.Evid. 103(d); Cf. W.Va.R.Crim.P. 52.
Neither the Hearing Examiner nor the HRC relied on the perceived handicap rule in their decisions. It was never referred to in any manner in the Recommended Decision of the Examiner nor in the Opinion and Order of the Commission. Apparently, neither regarded the rule as a basis for determination of the case. Clearly, the Hearing Examiner (and the HRC) made findings of face that 1) Ms. Alfred’s handicap caused her deformity; 2) her deformity was the reason she was denied promotion; and, 3) her handicap was the underlying cause of the adverse employment decision, thus bringing her case within the statutory requirements for handicap discrimination. Appellate Courts must give deference to the findings of fact made by the trier of fact in discrimination cases. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). This Court made a similar conclusion in Syl. Pt. 5, State ex rel. West Virginia Human Rights Comm’n v. Logan-Mingo Area Mental Health Agency Inc., 174 W.Va. 711, 329 S.E.2d 77, 79 (1985), where we held that
[a] determination by the West Virginia Human Rights Commission, that an employer has accorded disparate treatment to members of different races, is a finding of fact which may not be reversed by a circuit court upon review, unless such finding is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.
Many handicaps leave their victims with a physical appearance that may seem “unsavory” to non-handicapped people. Blind people may be glassy-eyed or have involun*251tary eye movements. People with spina bifada or other crippling diseases may walk with a pronounced limp. People with cerebral palsy may drool or have other involuntary body movements. Non-handicapped people often feel “uncomfortable” around handicapped people — a person in a wheelchair, an amputee, one with a withered hand ... or a sunken eye. These examples are not given to over-dramatize. They are the real-life experience of many physically handicapped people, as graphically pointed out by the affidavit of Jim Dickson, executive director of the Disabled Rights Equal Access Movement, a national coalition of disabled organizations, and himself a blind person.
One of the chief underlying reasons for anti-discrimination laws is to require employers to base their employment decisions on an individual’s qualifications, as opposed to irrational conclusions about their limitations or deep-seated anxieties about their physical appearance. As the United States Supreme Court said in School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 284, 107 S.Ct. 1123, 1129, 94 L.Ed.2d 307 (1987), “society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”
The majority opinion permits this most blatant and insidious form of handicap discrimination. Their mistake is tragic and wrong.