Fair Employment Practices Law Summaries

Fair Employment Practices Law Summaries

Kentucky, Fair Employment Practices Law Summaries

The Kentucky Fair Employment Practices Act generally prohibits employment discrimination in the state. The law is codified in Title XXVII, Ch 344. of the Kentucky Revised Statutes Annotated (for full text of the law, see Employment Practices Guide ¶18-20,025.01 ).

DEFINITIONS

“Disability” means, with respect to an individual (Sec. 344.010):

1. a physical or mental impairment that substantially limits one (1) or more of the major life activities of the individual;

2. a record of such an impairment; or

3. being regarded as having such an impairment.

The term does not include persons with current or past controlled substances abuse or alcohol abuse problems and persons excluded from coverage by the federal Americans with Disabilities Act of 1990 (Sec. 344.010).

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions (Sec. 344.030).

“Employee” means an individual employed by an employer (Sec. 344.030).

The term does not include an individual employed by parents, spouse, or children, or an individual employed as a domestic in the employer's home (Sec. 344.030).

For purposes of Kentucky's equal pay law, “employee” means any individual employed by any employer, including but not limited to individuals employed by the state or any of its political subdivisions, instrumentalities, or instrumentalities of political subdivisions (Sec. 337.420(1)).

“Employer” means a person who has eight or more employees within Kentucky during 20 or more calendar weeks within the current or preceding calendar year and an agent of such a person (Sec. 344.030).

“Employer,” with regard to disability, means a person engaged in an industry affecting commerce who has 15 or more employees during 20 or more calendar weeks within the current or preceding calendar year, and any agent of that person (Sec. 344.030).

“Employer,” with regard to disability, does not include (Sec. 344.030):

1. the U.S.;

2. a corporation wholly owned by the government of the U.S.;

3. an Indian tribe; or

4. a bona fide private membership club (other than a labor organization) that is exempt from federal taxation.

For purposes of Kentucky's equal pay law, “employer” means a person who has two or more employees within the state in each of 20 or more calendar weeks in the current or preceding calendar year and an agent of such a person (Sec. 337.420(2)).

“Reasonable accommodation” means making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities (Sec. 344.030).

“Qualified individual with a disability” means an individual with a disability as defined above who, with or without reasonable accommodation, can perform the essential functions of the job that the individual holds or desires unless an employer demonstrates that it is unable to reasonably accommodate an employee's or prospective employee's disability without undue hardship. Consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential function of the job (Sec. 344.030)

COVERAGE

Employers covered under Kentucky's Fair Employment Practices Act include persons employing eight or more employees within Kentucky during 20 or more calendar weeks within the current or preceding calendar year and an agent of such a person (Sec. 344.030).

With regard to disability, employers covered include persons engaged in an industry affecting commerce who have 15 or more employees during 20 or more calendar weeks within the current or preceding calendar year, and any agent of that person (Sec. 344.030).

Not covered, with regard to disability, are (Sec. 344.030):

1. the U.S.;

2. corporations wholly owned by the government of the U.S.;

3. Indian tribes; or

4. a bona fide private membership clubs (other than labor organizations) that are exempt from federal taxation.

Also not covered are religious corporations, associations, educational institutions or societies that employ individuals on the basis of their religion to perform work connected with the carrying on of their religious activities and principles for which they are established or maintained (Sec. 344.090).

EXCEPTIONS

Bona fide occupational qualifications.- Bona fide occupational qualifications, with regard to advertisements and religion or national origin, permit discriminatory behavior (Secs. 344.080 and 344.090):

Bona fide seniority or merit system.- Applying different standards of compensation, or different terms, conditions or privileges of employment pursuant to a seniority or merit system, is permissible if the system or its administration is not used as a subterfuge for or does not have the effect of unlawful discrimination (Sec. 344.100).

Bona fide benefit plan.- It is lawful to observe the terms of a employee benefit plan such as a retirement, pension, or insurance plan that is not used as a subterfuge for or does not have the effect of unlawful discrimination (Sec. 344.110).

WHAT THE EMPLOYER MUST DO

Employers may not discharge any individual, or discriminate with respect to compensation, terms, conditions, or privileges of employment, or refuse to hire because of race, color, religion, national origin, sex (including pregnancy, childbirth or related medical conditions), age (40 and over), a qualified individual with a disability, or the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking (Secs. 344.030 and 344.040).

State government (Executive Order 2008-473).- Governor Steve Beshear signed an executive order that bars state officials from making hiring or firing decisions based on sexual preference or gender identity. The order reverses Executive Order 2006-402, which removed sexual orientation from the list of specifically protected characteristics (Executive Order 2008-473, signed June 2, 2008, effective immediately).

Apprenticeship programs.- Employers may not discriminate with regard to race, color, religion, national origin, sex, or age 40 and over, a qualified individual with a disability in admission to or employment in, any program established to provide apprenticeship or other training (Sec. 344.070).

Classification of employees.- Employers may not limit, segregate, or classify employees in any way that would deprive an individual of employment opportunities or adversely affect status as an employee with regard to race, color, religion, national origin, sex, or age 40 and over, a qualified individual with a disability, or the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking (Sec. 344.040).

Advertisements.- Employers may not print or publish a notice or advertisement indicating any preference, limitation, specification, or discrimination, with regard to race, color, religion, national origin, sex, or age 40 and over, or a qualified individual with a disability (Sec. 344.080)

Use of tobacco products.- Employers may not require that any employee or applicant abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking (See also ¶18-2700 ) (Sec. 344.040).

Pregnancy, childbirth and other related medical conditions.- Women affected by pregnancy, childbirth, or related medical conditions must be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work (Sec. 344.030).

Equal pay.- No employer may discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in Kentucky at a rate less than the rate at which it pays any employee of the opposite sex for comparable work on jobs that have comparable requirements relating to skill, effort and responsibility. Differentials that are paid pursuant to established seniority systems or merit increase systems, and that do not discriminate on the basis of sex, are not included within this prohibition. Nothing in Kentucky's equal pay law applies to any employer who is subject to the federal Fair Labor Standards Act when that law imposes comparable or greater requirements than the state's equal pay law and when the employer files with the Commissioner of the Department of Workplace Standards a statement that the employer is covered by the federal law (Sec. 337.423(1)).

An employer who is paying a wage differential in violation of Kentucky's equal pay law must not, in order to comply with it, reduce the wage rates of any employee (Sec. 337.423(2)).

No person may cause or attempt to cause an employer to discriminate against any employee in violation of Kentucky's equal pay law (Sec. 337.423(3)).

No employer may discharge or discriminate against any employee by reason of any action taken by such employee to invoke or assist the enforcement of Kentucky's equal pay law (Sec. 337.423(4)).

The Commissioner of the Department of Workplace Standards enforces Kentucky's equal pay law (Sec. 337.425).

Any employer who violates the law will be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of willful violation in employee suits under Sec. 337.427(2) below, up to an additional equal amount as liquidated damages (Sec. 337.427(1)).

Action to recover the liability may be maintained in any court of competent jurisdiction (Sec. 337.427(2)).

An agreement by any employee to work for less than the wage to which the employee is entitled under Kentucky's equal pay law will not be a bar to any such action, or to a voluntary wage restitution of the full amount due under the law (Sec. 337.427(3)).

At the written request of any employee claiming to have been paid less than the wage to which he or she may be entitled under the equal pay law, the commissioner may bring any legal action necessary in behalf of the employee to collect the claim for unpaid wages (Sec. 337.427(4)).

In proceedings under the equal pay law, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of the law (Sec. 337.427(5)).

Court action under the equal pay law may be commenced no later than six months after the cause of action occurs (Sec. 337.430).

A person will be assessed a civil penalty of not less than $100 nor more than $1,000 when that person discharges or in any other manner discriminates against an employee because the employee has (Sec. 337.990):

1. made any complaint to his or her employer, the commissioner, or any other person; or

2. instituted, or caused to be instituted, any proceeding under or related to the equal pay law; or

3. testified, or is about to testify, in any such proceedings.

NOTICE

As relief or a penalty for a fair employment practice violation, an employer may be directed to post notices in conspicuous places (Sec. 344.230, as amended by Ch. 318, L. 1996, effective July 15, 1996).

Also, the Commission itself may publish the names of persons who have been determined to have engaged in an unlawful practice (Sec. 344.230, as amended by Ch. 318, L. 1996, effective July 15, 1996).

DEADLINES

Anyone aggrieved by an alleged unlawful employment practice must file a charge with the Kentucky Human Rights Commission within 180 days of the date of the alleged violation (Sec. 344.200, as amended by Ch. 318, L. 1996, effective July 15, 1996).

TESTING

Ability testing. Employers may give or act upon the results of any professionally developed ability test provided that such a test, its administration or action upon the results, is not used as a subterfuge for or does not have the effect of unlawful discrimination (Sec. 344.100).

Physical or medical examinations.- Employers may require post-job-offer physical or medical examinations of applicants or employees to determine their ability to perform the essential functions of the job, with or without reasonable accommodation (Sec. 344.110).

ENFORCEMENT

Complaint.- An individual claiming to be aggrieved by an unlawful employment practice, a member of the Human Rights Commission, or the Attorney General may file a written sworn complaint with the commission. The commission staff or its designee will promptly investigate the allegations, and will furnish the person charged with a copy of the complaint within five days. The complaint must be filed within 180 days after the alleged unlawful practice occurs (Sec. 344.200(1), as amended by Ch. 318, L. 1996, effective July 15, 1996).

The commission or its designee will determine within 30 days after the complaint has been filed whether there is probable cause to believe that the person charged has engaged in an unlawful practice. If it is determined that there is no probable cause, the commission will issue an order dismissing the complaint and will furnish a copy of the order to the complainant, the person charged, the Attorney General, and any other appropriate parties (Sec. 344.200(2), as amended by Ch. 318, L. 1996, effective July 15, 1996).

The complainant, within 10 days after receiving a copy of the dismissal order, may file with the commission an application for reconsideration. Upon receiving a reconsideration application, the commission or its designee will make a new determination within 10 days. If it is determined that there is no probable cause to believe that the person charged has engaged in unlawful conduct, the commission will issue an order dismissing the complaint and furnishing a copy of the order to all appropriate parties (Sec. 344.200(3), as amended by Ch. 318, L. 1996, effective July 15, 1996).

Conciliation.- If the staff determines, after investigation, or if the commission determines after the review described above, that there is probable cause, the commission staff will attempt to eliminate the alleged unlawful practice by conference, conciliation, and persuasion (Sec. 344.200(4), as amended by Ch. 318, L. 1996, effective July 15, 1996).

If a conciliation agreement is reached, at the expiration of one year from the date of the agreement, and at other times in its reasonable discretion, the commission staff may investigate whether the terms of the agreement have been and are being complied with. Upon a finding that the agreement is not being complied with, the commission will take whatever action it deems appropriate to assure compliance (Sec. 344.200(5), as amended by Ch. 318, L. 1996, effective July 15, 1996).

Court action.- At any time after a complaint is filed, the commission may file an action in the Circuit Court in a county in which the subject of the complaint occurs, or in a county in which the person charged resides or has its principal place of business, seeking appropriate temporary relief pending final determination of proceedings (Sec. 344.200(6), as amended by Ch. 318, L. 1996, effective July 15, 1996).

Hearing.- Within 60 days after a complaint is filed, unless the commission has issued an order dismissing the complaint or stating the terms of a conciliation agreement or within 30 days after an application for review is filed under Sec. 344.200(3) (above), the commission will serve on the person charged a written notice, together with a copy of the complaint, requiring the person to answer the allegations at a hearing (Sec. 344.210(1), as amended by Ch. 318, L. 1996, effective July 15, 1996).

The person charged must file an answer with the commission by certified mail within 20 days after receipt of service under Sec. 344.200 (above). The commission or the complainant may amend a complaint and the person charged may amend an answer at any time prior to the issuance of a final order based on the complaint, but no final order may be issued unless the person charged has had the opportunity of a hearing on the complaint or amendment on which the final order is based (Sec. 344.210(3), as amended by Ch. 318, L. 1996, effective July 15, 1996).

If the commission determines that the person charged has not engaged in an unlawful practice, it will issue a final order dismissing the complaint (Sec. 344.230(1), as amended by Ch. 318, L. 1996, effective July 15, 1996).

Affirmative action.- If the commission determines that the person charged has engaged in an unlawful practice, it will issue a final order requiring the person to cease and desist from the unlawful practice and to take affirmative action to carry out the purposes of the state's fair employment practices law (Sec. 344.230(2), as amended by Ch. 318, L. 1996, effective July 15, 1996).

Affirmative action may include, but is not limited to (Sec. 344.230(3), as amended by Ch. 318, L. 1996, effective July 15, 1996):

1. hiring, reinstatement, or upgrading of employees with or without back pay. Interim earnings or amounts earnable with reasonable diligence by the person(s) discriminated against will operate to reduce the back pay otherwise allowable.

2. admission to or participation in a guidance program, apprenticeship training program, on-the-job training program, or other occupational training or retraining program, and the utilization of objective criteria in the admission of individuals to such programs.

3. reporting as to the manner of compliance.

4. posting notices in form prescribed by the commission in conspicuous places in the place of business of the person charged.

WHO TO CONTACT

Contact the Human Rights Commission, The Heyburn Building, 332 West Broadway, 7th Floor, Louisville, KY 40202, Telephone: (502) 595-4024, Fax: (502) 595-4801, TDD: (502) 595-4084.

RECORDKEEPING

Employers are required to make and keep records relevant to the determination of whether unlawful practices have been or are being committed, preserve those records, and make reports, as prescribed by Commission for the enforcement of the Kentucky Fair Employment Practices Act (Sec. 344.250).

POSTING

As relief or a penalty for a fair employment practice violation, an employer may be directed to post notices in conspicuous places (Sec. 344.230, as amended by Ch. 318, L. 1996, effective July 15, 1996).

Equal pay.- Every person subject to Kentucky's equal pay law must keep an abstract or copy of the law posted in a conspicuous place in or about the premises where any employee is employed. Employers will be furnished copies or abstracts of the law by the state on request without charge (Sec. 337.433).

PENALTIES

Willful violation of the recordkeeping or retaliation provisions is a misdemeanor, punishable by a fine of up to $100, imprisonment for up to 30 days, or both (Ky RevStatAnn, Sec. 344.990). Relief or penalties for antidiscrimination violations may include: (1) cease and desist orders: (2) hiring, restatement or upgrading, with or without back pay; (3) admission/participation in apprenticeship/training programs; (4) reporting as to manner of compliance; (4) posting of notices; and (5) payment of damages for injury. The commission may also publish names of those who engaged in unlawful practices (Ky RevStatAnn, Sec. 344.230). In addition to other remedies provided by the law, civil remedies include: (1) enjoinment of further violations; (2) recovery of actual damages sustained; and (3) court costs, including reasonable attorney's fees (Ky RevStatAnn, Sec. 344.450).

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Fair Employment Practices Law Summaries

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