Fair Employment Practices Law Summaries

Fair Employment Practices Law Summaries

Kansas, Fair Employment Practices Law Summaries

The Kansas Act Against Discrimination generally prohibits employment discrimination in the state. The law is codified at Ch. 44, Art. 10 of the Kansas Statutes Annotated. The full text of the law is available beginning at Employment Practices Guide ¶17-20,025.01 .

DEFINITIONS

“Disability” means, with respect to an individual (Sec. 44-1002, as amended by S. 22, L. 1999):

1. a physical or mental impairment that substantially limits one 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 by the person or entity alleged to have committed the unlawful discriminatory practice complained of.

“Disability” does not include an individual who is currently illegally using drugs where possession or distribution of drugs is unlawful under the Controlled Substance Act (21 U.S.C. 812), when the covered entity acts on the basis of drug use (Sec. 44-1002, as amended by S. 22, L. 1999).

“Employee” does not include any individual employed by the individual's parents, spouse or child or in domestic service (Sec. 44-1002, as amended by S. 22, L. 1999).

“Employer” includes any person in Kansas that employs four or more persons, any person acting for an employer, and the state of Kansas and any of its political and municipal subdivisions (Sec. 44-1002, as amended by S. 22, L. 1999).

“Employer” does not include nonprofit fraternal or social associations or corporations (Sec. 44-1002, as amended by S. 22, L. 1999).

“Reasonable accommodation” means (Sec. 44-1002, as amended by S. 22, L. 1999):

• making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

• 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; provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

“Regarded as having such an impairment” means the absence of a physical or mental impairment but regarding or treating an individual as though such an impairment exists (Sec. 44-1002, as amended by S. 22, L. 1999).

COVERAGE

Employers covered under Kansas' Act Against Discrimination include (Sec. 44-1002, as amended by S. 22, L. 1999):

1. persons who employ four or more persons in the state of Kansas;

2. any person acting for an employer;

3. the state of Kansas and any of its political and municipal subdivisions.

Not covered are nonprofit fraternal or social associations or corporations (Sec. 44-1002, as amended by S. 22, L. 1999).

EXCEPTIONS

Bona fide occupational qualifications.- Bona fide occupational qualifications permit discriminatory behavior (Sec. 44-1009, as amended by S. 22, L. 1999).

Elimination or reduction of imbalances.- Filling vacancies in a way as to eliminate or reduce imbalance with respect to race, religion, color, sex, disability, national origin or ancestry is not unlawful (Sec. 44-1009, as amended by S. 22, L. 1999).

WHAT THE EMPLOYER MUST DO

Employers may not bar, discharge, limit, classify, segregate, separate, make any distinction, or discriminate regarding compensation, terms, conditions or privileges of employment, or refuse to hire because of race, religion, color, sex, disability, national origin or ancestry (Sec. 44-1009, as amended by S. 22, L. 1999).

Also, there is an executive order requiring all state entities under the governor's jurisdiction to make certain the following programs are in place (Executive Order 07-24, August 31, 2007):

1. A diversity management program that includes outreach recruitment and hiring, support, mentoring, development, rewards, and recognition for achievement; as well as monitoring the effectiveness of such programs.

2. A strong program prohibiting discrimination and harassment on account of race, color, gender, sexual orientation, gender identity, religion, national origin, ancestry, age, military or veteran status, or disability status. This program will include training, and a prompt and confidential method for expressing complaints.

3. A program of awareness regarding legal protections for persons with disabilities in order to allow qualified applicants to apply for employment and to allow employees with disabilities to perform the essential functions of jobs and enjoy the privileges and benefits of employment.

4. Establishment of an agency affirmative action plan.

Apprenticeship or training programs.- Employers that provide on-the-job, apprenticeship, or other training or retraining programs must admit, hire, assign, upgrade, transfer, promote, layoff, dismiss and conduct their other employment-related activities without regard to race, religion, color, sex, disability, national origin or ancestry (Sec. 44-1009, as amended by S. 22, L. 1999).

Advertisements.- Employers may not print or circulate any statement, advertisement or publication, or use an application form, or make any inquiry that expresses any limitation, specification or discrimination with regard to race, religion, color, sex, disability, national origin or ancestry (Sec. 44-1009, as amended by S. 22, L. 1999).

Retaliation.- Employers may not discriminate or retaliate against an individual because the individual opposes an unlawful employment practice or files a complaint, testifies or assists in an enforcement proceeding (Sec. 44-1009, as amended by S. 22, L. 1999).

Disability discrimination.- Employers are prohibited from (Sec. 44-1009, as amended by S. 22, L. 1999):

1. limiting, segregating or classifying an applicant or employee with a disability that adversely affects the opportunities or status of the applicant or employee because of the disability;

2. participating in a contractual relationship or other arrangement that has the effect of subjecting a qualified applicant or employee with a disability to unlawful discrimination;

3. utilizing standards criteria or methods of administration that have the effect of discriminating with regard to disability or that perpetuate the discrimination of others who are subject to common administrative control;

4. excluding or denying 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;

5. not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer's business;

6. denying employment opportunities to a qualified applicant or employee with a disability, if denial is based on the need to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

Equal pay.- No employer having employees of both sexes may discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate of wages paid to employees of the opposite sex in such establishment for equal work on jobs, the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (Sec. 44-1205):

1. a seniority system;

2. a merit system;

3. a system that measures earnings by quantity or quality of production; or

4. a differential based on a factor other than sex.

An employer who is paying wage rate differentials in violation of the equal pay law shall not be required, in order to comply with the law, to reduce the wage rate of any employee (Sec. 44-1205).

Any employer who is convicted of violating the equal pay law or falsifying any record pertaining to the law will be fined not less than $250 nor more than $1,000. Any employer who discharges or in any other manner discriminates against any employee because the employee has complained to his or her employer or the Secretary of Labor, or to the authorized representative of the secretary, that he or she has not been paid wages in accordance with the equal pay law, or because the employee has caused to be instituted, or is about to cause to be instituted, any proceeding under or related to the equal pay law, or because the employee has testified or is about to testify in any such proceeding, will be deemed in violation of the law, and, upon conviction, will be fined not less than $250 nor more than $1,000 (Sec. 44-1210).

AIDS/HIV information.- Information regarding cases of AIDS or HIV infection reported to state officials as required by law must not be used in any form or manner that would lead to the discrimination against any individual or group with regard to employment (Sec. 65-6002, as amended by S. 64, L. 2001).

Isolation/quarantine.- It shall be unlawful for any public or private employer to discharge an employee solely because the employee or an immediate family member of the employee is under an order of isolation or quarantine (Sec. 4, Ch. 122 (H. 2264), L. 2005).

Illegal aliens.- The employment of aliens illegally by private and public within the territory of the United States and in Kansas is prohibited (Sec. 21-4409)

Victims of domestic violence/sexual assault.- Effective January 1, 2007, an employer may not discharge or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to (Sec. 10, H. 2928, L. 2005, enacted May 24, 2006):

1. obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order or other injunctive relief to help ensure the health, safety or welfare of the victim or the victim's child or children;

2. seek medical attention for injuries caused by domestic violence or sexual assault;

3. obtain services from a domestic violence shelter, domestic violence program or rape crisis center as a result of domestic violence or sexual assault; or

4. make court appearances in the aftermath of domestic violence or sexual assault.

As a condition of taking time off for a purpose set forth just above, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless such advance notice is not feasible. Within 48 hours after returning from the requested time off, the employee shall provide documentation which may include, but is not limited to, that described just below to support taking time off for a purpose set forth just above (Sec. 10, H. 2928, L. 2005, enacted May 24, 2006).

When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within 48 hours after the beginning of the unscheduled absence, provides a certification to the employer in the form of any of the following (Sec. 10, H. 2928, L. 2005, enacted May 24, 2006):

1. a police report indicating that the employee was a victim of domestic violence or sexual assault;

2. a court order protecting or separating the employee from the perpetrator of an act of domestic violence or sexual assault, or other evidence from the court or prosecuting attorney that the employee has appeared in court; or

3. documentation from a medical professional, domestic violence advocate or advocate for victims of sexual assault, health care provider or counselor that the employee was undergoing treatment for physical or mental injuries or abuse resulting in victimization from an act of domestic violence or sexual assault.

To the extent allowed by law, the employer shall maintain the confidentiality of any employee requesting leave as described just above, as well as the confidentiality of any supporting documentation provided by the employee to the employer relating to a purpose set forth just above (Sec. 10, H. 2928, L. 2005, enacted May 24, 2006).

An employee may use any accrued paid leave or, if paid leave is unavailable to the employee, unpaid leave, not to exceed a total of eight days per calendar year, as time off for a purpose specified just above, unless a longer period of time is otherwise available to an employee under the applicable terms of employment or is provided by a collective bargaining agreement. The entitlement of any employee under this section shall not be diminished by any collective bargaining agreement term or condition (Sec. 10, H. 2928, L. 2005, enacted May 24, 2006).

NOTICE

Employers are required to post in a conspicuous place notices setting forth requirements for compliance with the Act Against Discrimination or other relevant information that the Human Rights Commission determines necessary to explain the Act (Sec. 44-1012).

DEADLINES

Anyone aggrieved by an alleged unlawful employment practice must file a charge with the Kansas Human Rights Commission within six months of occurrence, unless the alleged violation is a continuing practice of discrimination in which event it will be from the last act of discrimination (Sec. 44-1005).

TESTING

Employers may not use qualification standards, employment tests or other selection criteria that 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 job-related and consistent with business necessity (Sec. 44-1009, as amended by S. 22, L. 1999).

Employers must administer these tests in the most effective manner to ensure that, when the 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 the applicant or employee that the test purports to measure, rather than reflecting the applicant's or employee's impaired sensory, manual or speaking skills (Sec. 44-1009, as amended by S. 22, L. 1999).

See ¶17-8700 for genetic testing provisions.

ENFORCEMENT

A person aggrieved by an alleged unlawful employment practice may file a complaint with the Kansas Human Rights Commission within six months of occurrence, unless the alleged violation is a continuing practice of discrimination in which event it will be from the last act of discrimination. The commission itself may issue a complaint (Sec. 44-1005).

Any employer whose employees or some of whom, refuse or threaten to refuse to cooperate with the provisions of Kansas' fair employment practices law, may file with the commission a verified complaint asking for assistance by conciliation or other remedial action (Sec. 44-1005).

Investigation and conciliation.- If there is probable cause that the unlawful employment practice occurred, the Human Rights Commission will try to eliminate the effect of the alleged violation by means of conference and conciliation (Sec. 44-1005).

The employee, employer and commission have 45 days from the date the employer is notified in writing of a finding of probable cause to enter into a conciliation agreement signed by all parties. The parties may amend a conciliation agreement at any time before entering into the agreement. Upon agreement by the parties, the time for entering into an agreement may be extended. The members of the commission and its staff may not disclose what has transpired in the course of such endeavors (Sec. 44-1005).

Complaint and hearing.- If conciliation is not successful, the Human Rights Commission will prepare a written complaint and a hearing will be held (Sec. 44-1005).

At the conclusion of the hearing, if the presiding officer of the hearing finds an employer has engaged in or is engaging in any unlawful employment practice or unlawful discriminatory practice, the presiding officer will render an order requiring the employer to cease and desist from the unlawful practice and to take affirmative action, including but not limited to (Sec. 44-1005):

1. hire, reinstate, or upgrade the individual with or without back pay;

2. admit or restore to membership in any respondent labor organizations;

3. report as a manner of compliance;

4. pay an award for damages for pain, suffering and humiliation caused by the discrimination not to exceed $2,000.

Any state, county or municipal agency may pay an employee back pay if it has entered into a conciliation agreement for such purposes with the commission, and may pay back pay if it is ordered to do so by the commission (Sec. 44-1005).

Employee's right to sue.- Complaints filed with the Human Rights Commission on or after July 1, 1996, may be dismissed by the commission on its own initiative, and will be dismissed by the commission upon the written request of the employee, 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 filing. The commission will mail written notice to all parties of dismissal of a complaint within five days of dismissal.

Any such dismissal of a complaint constitutes final action by the commission which exhausts all administrative remedies under Kansas' fair employment practices law for the purpose of allowing subsequent filing of the matter in court by the employee, without the requirement of filing a petition for reconsideration (Sec. 44-1005).

WHO TO CONTACT

Contact the Human Rights Commission, 901 SW Jackson, Suite 568-S, Landon State Ofc., Bldg., Topeka, KS 66612-1258. Telephone: (785) 296-3206. Fax: (785) 296-0589. TTY: (785) 296-0245.

RECORDKEEPING

When a complaint or notice of investigation has been served, employers must preserve all personnel records relevant to the investigation until the complaint or investigation is finally adjudicated (Kan AdminRegs, Sec. 21-42-5).

POSTING

Employers are required to post in a conspicuous place notices setting forth requirements for compliance with the Act Against Discrimination or other relevant information that the Commission determines necessary to explain the Act (Sec. 44-1012).

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Kansas, Fair Employment Practices Law Summaries

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