KANSAS OFFICE of
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44-1005. Complaints; investigation; proceedings; remedial orders; dismissal of certain complaints, when, procedure and effect. (a) Any person claiming to be aggrieved by an alleged unlawful employment practice or by an alleged unlawful discriminatory practice, and who can articulate a prima facie case pursuant to a recognized legal theory of discrimination, may, personally or by an attorney-at-law, make, sign and file with the commission a verified complaint in writing, articulating the prima facie case, which shall also state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful employment practice complained of or the name and address of the person alleged to have committed the unlawful discriminatory practice complained of, and which shall set forth the particulars thereof and contain such other information as may be required by the commission.

(b) The commission upon its own initiative or the attorney general may, in like manner, make, sign and file such complaint. Whenever the attorney general has sufficient reason to believe that any person as herein defined is engaged in a practice of discrimination, segregation or separation in violation of this act, the attorney general may make, sign and file a complaint. Any employer whose employees or some of whom, refuse or threaten to refuse to cooperate with the provisions of this act, may file with the commission a verified complaint asking for assistance by conciliation or other remedial action.

(c) Whenever any problem of discrimination because of race, religion, color, sex, disability, national origin or ancestry arises, or whenever the commission has, in its own judgment, reason to believe that any person has engaged in an unlawful employment practice or an unlawful discriminatory practice in violation of this act, or has engaged in a pattern or practice of discrimination, the commission may conduct an investigation without filing a complaint and shall have the same powers during such investigation as provided for the investigation of complaints. The person to be investigated shall be advised of the nature and scope of such investigation prior to its commencement. The purpose of the investigation shall be to resolve any such problems promptly. In the event such problems cannot be resolved within a reasonable time, the commission may issue a complaint whenever the investigation has revealed a violation of the Kansas act against discrimination has occurred. The information gathered in the course of the first investigation may be used in processing the complaint.

(d) After the filing of any complaint by an aggrieved individual, by the commission, or by the attorney general, the commission shall, within seven days after the filing of the complaint, serve a copy on each of the parties alleged to have violated this act, and shall designate one of the commissioners to make, with the assistance of the commission's staff, prompt investigation of the alleged act of discrimination. If the commissioner shall determine after such investigation that no probable cause exists for crediting the allegations of the complaint, such commissioner, within 10 business days from such determination, shall cause to be issued and served upon the complainant and respondent written notice of such determination.

(e) If such commissioner after such investigation, shall determine that probable cause exists for crediting the allegations for the complaint, the commissioner or such other commissioner as the commission may designate, shall immediately endeavor to eliminate the unlawful employment practice or the unlawful discriminatory practice complained of by conference and conciliation. The complainant, respondent and commission shall have 45 days from the date respondent is notified in writing of a finding of probable cause to enter into a conciliation agreement signed by all parties in interest. The parties may amend a conciliation agreement at any time prior to the date of entering into such agreement. Upon agreement by the parties the time for entering into such agreement may be extended. The members of the commission and its staff shall not disclose what has transpired in the course of such endeavors.

(f) In case of failure to eliminate such practices by conference and conciliation, or in advance thereof, if in the judgment of the commissioner or the commission circumstances so warrant, the commissioner or the commission shall commence a hearing in accordance with the provisions of the Kansas administrative procedure act naming as parties the complainant and the person, employer, labor organization, employment agency, realtor or financial institution named in such complaint, hereinafter referred to as respondent. A copy of the complaint shall be served on the respondent. At least four commissioners or a presiding officer from the office of administrative hearings shall be designated as the presiding officer. The place of such hearing shall be in the county where respondent is doing business and the acts complained of occurred.

(g) The complainant or respondent may apply to the presiding officer for the issuance of a subpoena for the attendance of any person or the production or examination of any books, records or documents pertinent to the proceeding at the hearing. Upon such application the presiding officer shall issue such subpoena.

(h) The case in support of the complaint shall be presented before the presiding officer by one of the commission's attorneys or agents, or by private counsel, if any, of the complainant, and the commissioner who shall have previously made the investigation shall not participate in the hearing except as a witness. Any endeavors at conciliation shall not be received in evidence.

(i) Any complaint filed pursuant to this act must be so filed within six months after the alleged act of discrimination, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it will be from the last act of discrimination. Complaints filed with the commission may be dismissed by the commission on its own initiative, and shall be dismissed by the commission upon the written request of the complainant, if the commission has not issued a finding of probable cause or no probable cause or taken other administrative action dismissing the complaint within 300 days of the filing of the complaint. The commission shall mail written notice to all parties of dismissal of a complaint within five days of dismissal. Any such dismissal of a complaint in accordance with this section shall constitute final action by the commission which shall be deemed to exhaust all administrative remedies under the Kansas act against discrimination for the purpose of allowing subsequent filing of the matter in court by the complainant, without the requirement of filing a petition for reconsideration pursuant to K.S.A. 44-1010, and amendments thereto. Dismissal of a complaint in accordance with this section shall not be subject to appeal or judicial review by any court under the provisions of K.S.A. 44-1011, and amendments thereto. The provisions of this section shall not apply to complaints alleging discriminatory housing practices filed with the commission pursuant to K.S.A. 44-1015 et seq., and amendments thereto.

(j) The respondent may file a written verified answer to the complaint and appear at such hearing in person or otherwise, with or without counsel, and submit testimony. The complainant shall appear at such hearing in person, with or without counsel, and submit testimony. The presiding officer or the complainant shall have the power reasonably and fairly to amend any complaint, and the respondent shall have like power to amend such respondent's answer. The presiding officer shall be bound by the rules of evidence prevailing in courts of law or equity, and only relevant evidence of reasonable probative value shall be received.

(k) If the presiding officer finds a respondent has engaged in or is engaging in any unlawful employment practice or unlawful discriminatory practice as defined in this act, the presiding officer shall render an order requiring such respondent to cease and desist from such unlawful employment practice or such unlawful discriminatory practice and to take such affirmative action, including but not limited to the hiring, reinstatement, or upgrading of employees, with or without back pay, and the admission or restoration to membership in any respondent labor organizations; the admission to and full and equal enjoyment of the goods, services, facilities, and accommodations offered by any respondent place of public accommodation denied in violation of this act, as, in the judgment of the presiding officer, will effectuate the purposes of this act, and including a requirement for report of the manner of compliance. Such order may also include an award of damages for pain, suffering and humiliation which are incidental to the act of discrimination, except that an award for such pain, suffering and humiliation shall in no event exceed the sum of $2,000.

(l) Any state, county or municipal agency may pay a complainant back pay if it has entered into a conciliation agreement for such purposes with the commission, and may pay such back pay if it is ordered to do so by the commission.

(m) If the presiding officer finds that a respondent has not engaged in any such unlawful employment practice, or any such unlawful discriminatory practice, the presiding officer shall render an order dismissing the complaint as to such respondent.

(n) The commission shall review an initial order rendered under subsection (k) or (m). In addition to the parties, a copy of any final order shall be served on the attorney general and such other public officers as the commission may deem proper.

(o) The commission shall, except as otherwise provided, establish rules of practice to govern, expedite and effectuate the foregoing procedure and its own actions thereunder. The rules of practice shall be available, upon written request, within 30 days after the date of adoption.

History: L. 1953, ch. 249, § 5; L. 1961, ch. 248, § 6; L. 1963, ch. 279, § 4; L. 1965, ch. 323, § 5; L. 1967, ch. 285, § 2; L. 1970, ch. 192, § 3; L. 1972, ch. 194, § 5; L. 1974, ch. 209, § 4; L. 1975, ch. 264, § 4; L. 1984, ch. 186, § 1; L. 1988, ch. 356 § 149; L. 1989, ch. 283, § 9; L. 1991, ch. 147, § 4; L. 1995, ch. 247, § 2; L. 2004, ch. 145, § 15; July 1, 2007.

Revisor's Note:

Probable cause determination exempt from judicial review and civil enforcement of agency actions act, see 44-1044.

Law Review and Bar Journal References:

Discrimination against Indians, Jerry L. Bean, 20 K.L.R. 468, 476, 480, 482 (1972).

Investigatory subpoenas, 14 W.L.J. 340 (1975).

Survey of administrative law, Robert Scherer, 15 W.L.J. 311 (1976).

"Administrative Law: The Kansas Commission on Civil Rights—True De Novo Review Arrives," Samuel D. Ogelby, 16 W.L.J. 161, 164, 166, 168 (1976).

Filing complaints with HUD under federal Fair Housing Act, 26 K.L.R. 255, 267 (1978).

"Administrative Law: Judicial Review of No Probable Cause Determinations," Jan E. Montgomery, 18 W.L.J. 335, 340 (1979).

"Kansas Discrimination Law—Practice and Procedure," David L. Ryan, 49 J.K.B.A. 35 (1980).

"Disability Law: A New Era," David P. Calvert, J.K.T.L.A. Vol. 24, No. 2, 12 (2000).

Attorney General's Opinions:

Confidential nature of investigative files; records received by state archives; confidentiality maintained. 85-2.

Cities powers of home rule; human relations commission. 86-90.

CASE ANNOTATIONS

1. Appeal from finding of discrimination properly dismissed for failure to exhaust administrative remedies. Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P.2d 132.

2. Cited; substitution of hearing commissioners after presentation of evidence did not invalidate decision. Clairborne v. Coffeyville Memorial Hospital, 212 Kan. 315, 317, 510 P.2d 1200.

3. Section does not limit general powers granted to commission by K.S.A. 44-1004 (5). Yellow Freight System, Inc. v. Kansas Commission on Civil Rights, 214 Kan. 120, 121, 122, 123, 124, 126, 127, 519 P.2d 1092.

4. Applied; judgment and injunction by district court against commission set aside; administrative remedies not exhausted. Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 904, 528 P.2d 1232.

5. Specificity in charges not required until adjudicatory stage; amended notice sufficient. Atchison, T.& S.F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 913, 915, 916, 917, 918, 919, 920, 921, 922, 925, 529 P.2d 666; original opinion adhered to, 217 Kan. 15, 535 P.2d 917.

6. Subpoena issued under K.S.A. 44-1004 for arrest and conviction records not constitutionally impermissible as violative of employee's right of privacy. Atchison, T.& S.F. Rly. Co. v. Lopez, 216 Kan. 108, 114, 122, 531 P.2d 455.

7. Cited; compliance with subpoena requiring retail credit information not constitutionally impermissible as violating right of privacy. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 319, 532 P.2d 1263.

8. Notice of investigation failed to advise city sufficiently of activity which it proposed to investigate. City of Independence v. Kansas Commission on Civil Rights, 218 Kan. 243, 244, 245, 542 P.2d 799.

9. Applied; long delay in giving notice of complaint; no abuse of discretion in denial of enforcement of subpoena by court. KCCR v. Sedgwick County Mental Health Clinic, 220 Kan. 653, 654, 655, 657, 658, 556 P.2d 180.

10. No right to appeal "no probable cause" determination of investigating commissioner under K.S.A. 44-1011. Bush v. City of Wichita, 223 Kan. 651, 657, 659, 576 P.2d 1071.

11. Any claim under the Kansas acts against discrimination must first be made to the Civil Rights Commission. Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 306, 580 P.2d 1315.

12. 1975 amendment hereto construed to operate prospectively; showing of prejudice necessary before agency action may be set aside for lack of punctuality. Jones v. The Grain Club, 227 Kan. 148, 149, 150, 151, 152, 605 P.2d 142.

13. Judgment affirmed in sex discrimination case, subpoena power of commission cannot be unreasonable or oppressive. Cessna Aircraft Co. v. Kansas Comm'n on Civil Rights, 229 Kan. 15, 17, 23, 32, 34, 622 P.2d 124.

14. Commission has no authority to award compensatory or punitive damages. Woods v. Midwest Conveyor Co., 231 Kan. 763, 765, 768, 770, 771, 774, 776, 777, 648 P.2d 234 (1982).

15. Charge filed with EEOC after 180 days of discharge defeats KCCR jurisdiction unless filed with KCCR before then. Dickerson v. City Bank & Trust Co., 575 F. Supp. 872, 873 (1983).

16. Cited; failure to seek judicial review of employment termination precludes complaint under discrimination act (K.S.A. 44-1001 et seq.). Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 658, 662, 722 P.2d 569 (1986).

17. Commission dismissed administrative complaint when federal lawsuit filed; administrative remedies exhausted. Freeman v. Kansas State Network, Inc., 719 F. Supp. 995, 997 (1989).

18. Trial court's consideration of evidence regarding nonselection for employment positions other than one complained of examined. Kansas State Univ. v. Kansas Comm'n on Civil Rights, 14 Kan. App. 2d 428, 432, 796 P.2d 1046 (1990).

19. Absent claim of waiver, estoppel, or equitable tolling, failure to file charge with KCCR precludes suit under KAAD. Laughinghouse v. Risser, 754 F. Supp. 836, 842 (1990).

20. Action under act is equitable, does not provide right to jury trial; limitation on damages. Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477 (1991).

21. Subsection (k) cited; KCCR authorized to order award of front pay and promotion to aggrieved party. State v. Kansas Comm'n on Civil Rights, 18 Kan. App. 2d 116, 121, 851 P.2d 1017 (1993).

22. Whether section is primarily equitable or legal for right to jury trial purposes examined. Wagher v. Guy's Foods, Inc., 256 Kan. 300, 321, 885 P.2d 1197 (1994).

23. Limitations period for filing KAAD (K.S.A. 44-1001 et seq.) claim not tolled until employee knew or should have known termination was racially motivated. Davis v. Wesley Retirement Communities, Inc., 913 F. Supp. 1437, 1443 (1995).

24. Failure of plaintiff to file charge with Kansas commission on civil rights excluded suit under KAAD (K.S.A. 44-1001 et seq.). Whayne v. U.S. Dept. of Educ., 915 F. Supp. 1143, 1144 (1996).

25. Employee may not sue for retaliatory discharge because employer fails to modify job to accommodate injured employee. Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 148, 927 P.2d 958 (1996).

26. Co-worker's statements and actions were not sufficient to prove hostile work environment; sexual harassment claim dismissed. O'Shea v. Yellow Technology Services, Inc., 979 F. Supp. 1390, 1394 (1997).

27. Action based on post-contract formation discriminatory conduct subject to federal four-year statute of limitations. Alexander v. Precison Machining, Inc., 990 F. Supp. 1304, 1307 (1997).

28. Substantial competent evidence supported district court's conclusion that requisite level of intolerability justifying constructive discharge not met. Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 265 Kan. 484, 491, 961 P.2d 696 (1998).

29. Plaintiff is not permitted to file a civil action based on Kansas Acts Against Discrimination prior to exhausting all administrative remedies; 1995 amendments construed. Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 88, 995 P.2d 843 (1999).

30. Filing a federal claim with the equal employment opportunity commission does not constitute filing of a state law action. Hughs v. Valley State Bank, 26 Kan. App. 2d 631, 636, 994 P.2d 1079 (1999).

31. KAAD (K.S.A. 44-1001 et seq.) precludes award of punitive damages and limits pain and suffering awards. Parsells v. Manhattan Radiology Group, 255 F. Supp. 2d 1217, 1236 (2003).


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