KANSAS OFFICE of
  REVISOR of STATUTES

  

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44-1009. Unlawful employment practices; unlawful discriminatory practices. (a) It shall be an unlawful employment practice:

(1) For an employer, because of the race, religion, color, sex, disability, national origin or ancestry of any person to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business necessity.

(2) For a labor organization, because of the race, religion, color, sex, disability, national origin or ancestry of any person, to exclude or to expel from its membership such person or to discriminate in any way against any of its members or against any employer or any person employed by an employer.

(3) For any employer, employment agency or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or membership or to make any inquiry in connection with prospective employment or membership, which expresses, directly or indirectly, any limitation, specification or discrimination as to race, religion, color, sex, disability, national origin or ancestry, or any intent to make any such limitation, specification or discrimination, unless based on a bona fide occupational qualification.

(4) For any employer, employment agency or labor organization to discharge, expel or otherwise discriminate against any person because such person has opposed any practices or acts forbidden under this act or because such person has filed a complaint, testified or assisted in any proceeding under this act.

(5) For an employment agency to refuse to list and properly classify for employment or to refuse to refer any person for employment or otherwise discriminate against any person because of such person's race, religion, color, sex, disability, national origin or ancestry; or to comply with a request from an employer for a referral of applicants for employment if the request expresses, either directly or indirectly, any limitation, specification or discrimination as to race, religion, color, sex, disability, national origin or ancestry.

(6) For an employer, labor organization, employment agency, or school which provides, coordinates or controls apprenticeship, on-the-job, or other training or retraining program, to maintain a practice of discrimination, segregation or separation because of race, religion, color, sex, disability, national origin or ancestry, in admission, hiring, assignments, upgrading, transfers, promotion, layoff, dismissal, apprenticeship or other training or retraining program, or in any other terms, conditions or privileges of employment, membership, apprenticeship or training; or to follow any policy or procedure which, in fact, results in such practices without a valid business motive.

(7) For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or attempt to do so.

(8) For an employer, labor organization, employment agency or joint labor-management committee to: (A) Limit, segregate or classify a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; (B) participate in a contractual or other arrangement or relationship, including a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee or an organization providing training and apprenticeship programs that has the effect of subjecting a qualified applicant or employee with a disability to the discrimination prohibited by this act; (C) utilize standards criteria, or methods of administration that have the effect of discrimination on the basis of disability or that perpetuate the discrimination of others who are subject to common administrative control; (D) exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; (E) not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such employer, labor organization, employment agency or joint labor-management committee can demonstrate that the accommodation would impose an undue hardship on the operation of the business thereof; (F) deny employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need to make reasonable accommodation to the physical or mental impairments of the employee or applicant; (G) use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used, is shown to be job-related for the position in question and is consistent with business necessity; or (H) fail to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

(9) For any employer to:

(A) Seek to obtain, to obtain or to use genetic screening or testing information of an employee or a prospective employee to distinguish between or discriminate against or restrict any right or benefit otherwise due or available to an employee or a prospective employee; or

(B) subject, directly or indirectly, any employee or prospective employee to any genetic screening or test.

(b) It shall not be an unlawful employment practice to fill vacancies in such way as to eliminate or reduce imbalance with respect to race, religion, color, sex, disability, national origin or ancestry.

(c) It shall be an unlawful discriminatory practice:

(1) For any person, as defined herein being the owner, operator, lessee, manager, agent or employee of any place of public accommodation to refuse, deny or make a distinction, directly or indirectly, in offering its goods, services, facilities, and accommodations to any person as covered by this act because of race, religion, color, sex, disability, national origin or ancestry, except where a distinction because of sex is necessary because of the intrinsic nature of such accommodation.

(2) For any person, whether or not specifically enjoined from discriminating under any provisions of this act, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.

(3) For any person, to refuse, deny, make a distinction, directly or indirectly, or discriminate in any way against persons because of the race, religion, color, sex, disability, national origin or ancestry of such persons in the full and equal use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof.

History: L. 1961, ch. 248, § 5; L. 1965, ch. 323, § 6; L. 1970, ch. 192, § 5; L. 1972, ch. 194, § 7; L. 1974, ch. 209, § 6; L. 1991, ch. 147, § 6; L. 1999, ch. 32, § 2; July 1.

Law Review and Bar Journal References:

Requiring photograph by applicant considered, opinion of attorney general, 30 J.B.A.K. 141 (1961).

"Employment Discrimination in Kansas," 13 W.L.J. 511, 513 (1974).

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

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

"Limiting the Employer's Absolute Right of Discharge: Can Kansas Courts Meet the Challenge?" Jeffrey W. Byrd, 29 K.L.R. 267, 269 (1981).

"Rights of Kansas Non-Union Employees Against Unjust Termination—Where Are We Now?" William C. Nulton, 54 J.K.B.A. 237, 238 (1985).

"Aids in the Workplace," Douglas L. Stanley, 57 J.K.B.A., No. 4, 21, 25 (1988).

"Tort Law: Kansas Further Limits Employment-at-Will By Providing Relief for Whistleblowers [Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988)]," Lisa K. Hammer, 28 W.L.J. 172, 180, 182, 184 (1988).

"Does Membership Have Its Privileges? The Limits of Permissible Discrimination in Private Clubs," Diane S. Worth and Nancy M. Landis, 60 J.K.B.A. No. 5, 27, 35 (1991).

"Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions?[Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals]," Carolyn May McDermott, 44 K.L.R. 199, 203 (1995).

"Statutory Interpretation: Boy Scouts in the Bible Belt; Boy Scouts' Rejection of Atheist Not Illegal in Kansas, [Seabourn v. Coronado Area Council, Boy Scouts of America, 891 P.2d 385 (Kan. 1995)]," 35 W.L.J. 359, 367 (1996).

"Artful Dodger: Tenth Circuit Finds Hostile Work Environment but No Constructive Discharge [Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10 Cir. 1996)]," Callie Anderson Marks, 36 W.L.J. 152 (1996).

"Bosses Beware—It's a Jungle Out There: Supervisor Liability in Employment Litigation," Celia Garrett and Scott Nehrbass, 65 J.K.B.A. No. 10, 20 (1996).

"Retaliatory Demotion: The Kansas Supreme Court Extends Retaliatory Discharge," Angela Spigarelli, 37 W.L.J. 747 (1998).

" Brigham v. Dillon Cos.: Kansas Creates the Tort of Retaliatory Demotion," Holly M. Pauling, 46 K.L.R. 857 (1998).

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

"Preplacement Examinations and Job-Relatedness: How to Enhance Privacy and Diminish Discrimination in the Workplace," Sharona Hoffman, 49 K.L.R. 517 (2001).

"Vengeance is not Mine: A Survey of the Law of Title VII Retaliation," Nancy Landis Caplenger and Diane S. Worth, 73 J.K.B.A. No. 4, 20 (2004).

Attorney General's Opinions:

Unlawful discriminatory practices; application to Rotary clubs. 87-96.

Organization order for unified school district; affirmative action contracting program. 92-3.

Supreme court nominating commission; questions posed to applicants for appellate court positions; age, marital and family status, religious affiliation and mental health. 97-29.

CASE ANNOTATIONS

1. School board may not discriminate in employing teachers; failure to transfer teacher over his objection to achieve faculty integration is not unlawful employment practice. Londerholm v. Unified School District, 199 K. 312, 314, 330, 332, 430 P.2d 188.

2. Subsection (b) cited; specific performance action of conciliation agreement improperly dismissed; provision that vacancy be filled by minority member not against public policy. Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 K. 308, 320, 517 P.2d 158.

3. Applied; specificity in charges not required until adjudicatory state; amended notice of investigation held sufficient. Atchison, T.&S.F. Rly. Co. v. Commission on Civil Rights, 215 K. 911, 923, 926, 529 P.2d 666; original opinion adhered to, 217 K. 15, 535 P.2d 917.

4. Violation alleged under subsection (c) (1); cited in action to require the production of subpoenaed information. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 K. 306, 308, 312, 313, 532 P.2d 1263.

5. Complaint filed hereunder; appeal from order of commission tried de novo under 44-1011; rehearing requirement under 44-1010 applied. Stephens v. Unified School District, 218 K. 220, 222, 224, 229, 546 P.2d 197.

6. Commission had no authority to investigate governmental activities not involving employment relations, public accommodations or housing. Kansas Commission on Civil Rights v. Howard, 218 K. 248, 249, 252, 255, 259, 544 P.2d 791.

7. After "no probable cause" finding by commission, an independent civil action may be filed in district court hereunder. Van Scoyk v. St. Mary's Assumption Parochial School, 224 K. 304, 305, 580 P.2d 1315.

8. Section not violated by denial of sick leave benefits for pregnancy related disabilities. Harder v. Kansas Commission on Civil Rights, 225 K. 556, 557, 559, 560, 592 P.2d 456.

9. 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 K. 15, 16, 17, 24, 622 P.2d 124.

10. Statute protects employee for activities outside formal proceedings where a good faith, reasonable belief of discrimination exists. McCabe v. Board of Johnson County Comm'rs, 5 K.A.2d 232, 235, 237, 238, 239, 615 P.2d 780.

11. Defense for nonhiring of handicapped person upheld; applicant had job-related physical condition not "physically handicapped" for purposes hereof. U.S.D. No. 259 v. Kansas Comm'n on Civil Rights, 7 K.A.2d, 319, 320, 640 P.2d 1291 (1982).

12. Burden of proving unlawful employment practice is on complainant. Woods v. Midwest Conveyor Co., 231 K. 763, 765, 648 P.2d 234 (1982).

13. Sufficiency of evidence in action alleging discriminatory employment practices considered. Webb v. City of Leavenworth, 8 K.A.2d 525, 526, 661 P.2d 1 (1983).

14. Court will exercise pendent jurisdiction where employee brought action alleging discharge on basis of race. Wynn v. Boeing Military Airplane Co., 595 F.Supp. 727, 729, 730 (1984).

15. Respondent may overcome prima facie case by preponderance of evidence; preponderance applies to whoever has burden of proof. Reber v. Mel Falley, Inc., 235 K. 562, 563, 683 P.2d 229 (1984).

16. Cited; exhaustion of administrative remedies following employment termination (75-2949) before pursuing independent civil action (75-2929) examined. Mattox v. Department of Transportation, 12 K.A.2d 403, 747 P.2d 174 (1987).

17. Company policy affording leaves of absences to employees suffering disabilities from pregnancy does not constitute sex discrimination. Kansas Gas & Electric Co. v. Kansas Comm'n on Civil Rights, 242 K. 763, 768, 750 P.2d 1055 (1988).

18. Cited; discharge of probationary employee in retaliation for reporting employer's illegal practices as actionable tort examined. Palmer v. Brown, 242 K. 893, 896, 752 P.2d 685 (1988).

19. Cited; lack of jurisdiction by KCCR to investigate complaints of discrimination in public schools examined. Kansas Comm'n on Civil Rights v. U.S.D. No. 501, 243 K. 137, 138, 755 P.2d 539 (1988).

20. Order issued under act not res judicata for civil action arising out of same incident and same statutory authority. Parker v. Kansas Neurological Institute, 13 K.A.2d 685, 778 P.2d 390 (1989).

21. Shifting burden of proof in sex and age (44-1113) discrimination in employment complaints examined. Kansas State Univ. v. Kansas Comm'n on Civil Rights, 14 K.A.2d 428, 431, 796 P.2d 1046 (1990).

22. Sectarian corporation not included in definition of "employer"; exempt from act. Zion Lutheran Church v. Kansas Comm'n on Civil Rights, 16 K.A.2d 237, 240, 821 P.2d 334 (1991).

23. HRC lacks jurisdiction to fine or penalize a nonprofit association or corporation not coming within definition herein. Kansas Human Rights Comm'n v. Topeka Golf Ass'n, 18 K.A.2d 581, 582, 856 P.2d 515 (1993).

24. Whether section is primarily equitable or legal for right to jury trial purposes examined. Wagher v. Guy's Foods, Inc., 256 K. 300, 320, 885 P.2d 1197 (1994).

25. Whether employee disability discrimination claim should be dismissed on summary judgment motion examined. Bernard v. Doskocil Companies, Inc., 861 F.Supp. 1006, 1013 (1994).

26. Whether federal court should exercise supplemental jurisdiction over state disability discrimination claim examined. Brinkman v. State of Kan. Dept. of Corrections, 869 F.Supp. 902, 904 (1994).

27. Cited; whether the boy scouts is a public accommodation for KAAD (40-4001 et seq.) purposes in religious discrimination claim examined. Seabourn v. Coronado Area Council, B.S.A., 257 K. 178, 199, 891 P.2d 385 (1995).

28. Case remanded to determine if plaintiff was constructively discharged because of race and possible damages. Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 24 K.A.2d 595, 603, 948 P.2d 1150 (1997).

29. Plaintiff employee not entitled to pierce corporate veil to hold officers individually liable. White v. Midwest Office Technology, Inc., 979 F.Supp. 1354, 1355 (1997).

30. Substantial competent evidence supported district court's conclusion that racially hostile work environment constituting unlawful employment practice did not exist. Garvey Elevators, Inc. v. Kansas Human Rights Comm'n, 265 K. 484, 491, 493, 498, 961 P.2d 696 (1998).

31. State agency is subject to city's anti-discrimination ordinance. State ex rel. Franklin v. City of Topeka, 266 K. 385, 391, 969 P.2d 852 (1998).

32. Employee failed to prove that employer's change of duties was gender based. White v. Midwest Office Technology, Inc., 5 F.Supp. 2d 936, 939 (1998).

33. Summary judgment granted on discrimination claims where plaintiff failed to prove existence of a disability. Hutchings v. Kuebler, 5 F.Supp. 2d 1186, 1192 (1998).

34. Employee plaintiff failed to prove retaliatory discharge based on filing of workers compensation claim. Land v. Midwest Technology, Inc., 114 F.Supp.2d 1121, 1140 (2000).

35. Plaintiff failed to show employer's legitimate reason for poor work appraisal was pretext for race discrimination. Flores v. J.C. Penney Co. Inc., 189 F.Supp.2d 1235, 1240 (2002).


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