Anti-discrimination Laws: Kansas

Transcription

1 Monica M. Fanning, Spencer Fane Britt & Browne LLP, with PLC Labor & Employment A Q&A guide to state anti-discrimination law for private employers in Kansas. This Q&A addresses Kansas laws prohibiting discrimination, harassment and retaliation. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Antidiscrimination Laws: State Q&A Tool). This is just one example of the many online resources Practical Law Company offers. To access this resource and others, visit practicallaw.com. OVERVIEW OF STATE ANTI-DISCRIMINATION LAW 1. What employment-related anti-discrimination laws exist in your state (include harassment and anti-retaliation laws as anti-discrimination laws)? For each anti-discrimination law, please state its citation and title (if applicable) and include information on: Which protected classes are covered. Which employers are affected (for example, size, type or any exceptions). Prohibited employment-related discriminatory conduct. Whether managers or supervisors can be held individually liable for discriminatory acts against employees. What entity administers and enforces the law. What is the statute of limitations for filing a claim. Kansas Act Against Discrimination: Kan. Stat to Protected Classes Covered The Kansas Act Against Discrimination (KAAD) law prohibits employment discrimination based on the following protected classes: Race. Color. Religion. National origin. Ancestry. Sex. Disability. Genetic information (Kan. Stat (a)(9) (2012)). (Kan. Stat (a)(1) (2012).) Prohibited discrimination based on sex includes discrimination against married women. Specifically, regulations by the Kansas Human Rights Commission (KHRC) prohibit employers from either: Firing a female employee who marries a coworker. Refusing to hire a qualified female employee because she is married to a company employee. (Kan. Admin. Reg (2012).) Affected Employers The KAAD covers: Any employer with four or more employees. Any person acting directly or indirectly for an employer. (Kan. Stat (2012).) Although outside the scope of this Q&A, the KAAD also covers: Labor organizations (Kan. Stat (b), (d) and (a)(2) (2012)). Employment agencies (Kan. Stat (a)(3) (2012)). Prohibited Conduct Kansas employers cannot, because of their membership in one or more of the above protected classes: Refuse to hire any person. Terminate any person. Discriminate against any person in wages or in other terms or conditions of employment (Kan. Stat (a)(1) (2012)). The KAAD also prohibits: An employer from conducting genetic screening or testing of applicants or employees (Kan. Stat (a)(9)(A) and (B) (2012)). Any person from aiding, abetting, inciting, compelling or commanding a person to engage in discrimination prohibited by the KAAD (Kan. Stat (a)(7) (2012)). Employers from making statements in job advertisements and applications that suggest any limitation, specification or discrimination with regard to the above-identified protected classes (Kan. Stat (a)(3) (2012)). Learn more about Practical Law Company practicallaw.com

2 Individual Supervisor Liability Although the KAAD is silent regarding individual supervisor liability, Kansas courts have consistently held that individual supervisors are not liable for discriminatory acts against employees under this Act (Gordon v. Compresults, LLC, 2013 WL (D. Kan.), citing Davidson v. MAC Equip., Inc., 878 F.Supp. 186, (D. Kan. 1995) and McCue v. State of Kansas Dept. of Human Resources, 938 F.Supp. 718, 726 (D. Kan. 1996)). Administration and Enforcement The KHRC administers and enforces the KAAD. Statute of Limitations An individual claiming discrimination under the KAAD must file an administrative charge with the KHRC within six months of: The alleged discrimination (Kan. Stat. 1005(i) (2012)). The last alleged discriminatory act, if continuing violations are alleged (Kan. Stat. Ann. 1005(i) (2012)). A claimant has 45 days to file a civil action in Kansas state courts after receiving a right-to-sue letter from the KHRC (Kan. Stat (a) (2012)). Although the KAAD does not contain its own statute of limitations, Kansas courts have held that Kansas general three-year limitations period for an action on a liability created by a statute set forth in Section (2) of the Kansas Statutes Annotated applies (Wagher v. Guy s Foods, Inc., 256 Kan. 300 (1994)). Subject to the administrative deadlines set forth above, a cause of action shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until sometime after the initial act (Kan. Stat (2012)). Damages The KAAD provides for: Compensatory damages, including: back pay; and front pay. Pain and suffering. Humiliation. (Kan.Stat (2012).) Although the KAAD provides for an award of damages for pain and suffering and humiliation that are incidental to the act of discrimination, these non-economic damages are capped at $2,000 (Kan. Stat (k) (2012)). Jury Trial A jury trial is available under the KAAD as long as a demand for a jury trial is made in accordance with Section (a) of the Kansas Statutes Annotated (see Wagher v. Guy s Foods, Inc., 246 Kan. 300 (1994) and Kan. Stat (b)(3) (2012)). Kansas Age Discrimination in Employment Act (KADEA): Kan. Stat to Protected Classes Covered The Kansas Age Discrimination in Employment Act (KADEA) prohibits employment discrimination against individuals aged 40 or older (Kan. Stat (a) and (2012)). Affected Employers The KADEA covers: Any employer employing four or more employees in the state of Kansas. The state and all its political subdivisions. (Kan. Stat (d) (2012).) Prohibited Conduct The KADEA prohibits employers from taking the following actions against older workers: Refusing to hire, employ, license or train those aged 40 or older. Terminating those aged 40 or older. Discriminating against employees aged 40 or older in: promotion; wages; or other terms, conditions or privileges of employment. Making statements in job advertisements or applications that suggest any limitation, specification or discrimination with regard to individuals aged forty (40) or older. It is not a discriminatory act for an employer to take action on the basis of age: If age is a bona fide occupational qualification. To observe the terms of a bona fide seniority system or bona fide benefit plan. (Kan. Stat (2012).) Individual Supervisor Liability Individual supervisors are not liable for discriminatory acts against employees under the KADEA (see Hall v. United Parcel Service, 2000 WL (D. Kan. 2000)). Administration and Enforcement The Kansas Human Rights Commission (KHRC) administers and enforces the KADEA. Statute of Limitations An individual claiming discrimination under the KADEA must file a charge with the KHRC within six months of: The alleged discrimination. The last alleged discriminatory act, if continuing violations is alleged. 2

3 A claimant has 45 days to file a civil action in Kansas state court after receiving a right-to-sue letter from the KHRC. (Kan. Stat (2012).) Although the KADEA does not contain its own statute of limitations, Kansas courts have held that Kansas general threeyear limitations period for an action on a liability created by a statute set out in Section (2) of the Kansas Statutes Annotated applies (Wagher v. Guy s Foods, Inc., 256 Kan. 300 (1994)). Subject to the administrative deadlines set out above, a cause of action is not deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until sometime after the initial act (Kan. Stat (b) (2012)). Discrimination Against Military Personnel Act: Kan. Stat Protected Classes Covered The Discrimination Against Military Personnel Act prohibits discriminating based on an individual s military status, defined as either: A member of the armed forces or National Guard on active duty. A member of an active reserve unit in the armed forces or National Guard. (Kan. Stat (a) (2012).) Affected Employers Any employer employing four or more employees in the state of Kansas is subject to the Act (Kan. Stat (b) (2012)). Prohibited Conduct Kansas employers generally cannot discriminate against a member of the military because of military status. An employer may not: Discriminate against a member of the military regarding: hiring; employment position; or status (Kan. Stat (b) (2012)). Terminate any member of the military because of the members performance of emergency military duty (Kan. Stat (a)(4) (2012)). Individual Supervisor Liability Individual supervisors are not liable for discriminatory acts against employees under this Act (seehall v. United Parcel Service, 2000 WL (D. Kan. 2000)). Administration and Enforcement Any person aggrieved by an alleged violation of this Act may bring a civil action in the district court of the county in which, either: The violation is alleged to have occurred. The alleged violator resides or transacts business. For each violation that the court finds has occurred, the court may award the plaintiff the greater of: Actual damages. $500. The court may also grant as relief any permanent or temporary injunction or restraining order, including an order enjoining the employer from engaging in that violation or ordering affirmative action as may be appropriate. The prevailing party is awarded court costs and reasonable attorneys fees (Kan. Stat (2012)). Statute of Limitations Although the Discrimination Against Military Personnel Act does not contain its own statute of limitations, Kansas courts have held that Kansas general three-year limitations period for an action on a liability created by a statute set forth in Section (2) of the Kansas Statutes Annotated (see Wagher v. Guy s Foods, Inc., 885 P.2d 1197 (Kan. 1994)). A cause of action is not deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until sometime after the initial act (Kan. Stat (b) (2012)). OVERVIEW OF STATE DISABILITY DISCRIMINATION LAW 2. If there is a state law prohibiting disability discrimination, please provide the following information: Who is considered disabled under the law? Does the law recognize temporary disabilities? Does the law recognize "regarded as" discrimination? Does the law protect alcohol and illegal drug users, and if so, to what extent? Does the law require reasonable accommodation of persons with disabilities? How does a person request reasonable accommodation and how must an employer respond? Please provide a brief overview of accommodations that courts in your jurisdiction have found to be reasonable versus not reasonable. Disability discrimination is prohibited by the Kansas Act Against Discrimination (KAAD) (Kan. Stat (2012)). 3

4 Disability Definition The KAAD prohibits discrimination against a disabled individual (Kan. Stat. 1009(a)(8)(C) (2012)). It is also unlawful under the KAAD for covered entities to discriminate based on an individual s relationship or association with an individual who has a known disability (Kan. Stat. 1009(a)(8)(D) (2012)). A person is disabled under the KAAD if any of the following conditions apply: The individual has a physical or mental impairment that substantially limits one or more major life activities. The individual has a record of an impairment that substantially limits one or more major life activities. The individual is regarded as having a physical or mental impairment that substantially limits one or more major life activity, whether or not there is an actual disability. (Kan. Stat (j)(1), (2) and (3).) For the major life activity of working to be substantially limited, the individual s must not only be unable to perform his job, but also a wide range of jobs (see Riss v. Goodyear Tire & Rubber Co., 2011 WL (D. Kan. 2011)). A medical condition that does not produce a substantial impairment is not covered by the KAAD (see Padilla v. City of Topeka, 238 Kan. 218 (1985)). Impairment under the KAAD includes at least: Any physiological disorders and conditions, cosmetic disfigurement, mental disorders and anatomical loss affecting one or more of the following systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine systems. Any mental, or psychological disorder, including: mental retardation; organic brain syndrome; emotional or mental illness; or specific learning disabilities. (Kan. Admin. Reg (h) (2012).) Temporary Disabilities The KAAD recognizes and covers some temporary disabilities, such as pregnancy and temporary illnesses otherwise meeting the definition of impairment (Kan. Admin. Reg (b) (2012)). Regarded As Discrimination The KAAD recognizes and prohibits discrimination against individuals who are regarded as have a sensory, mental or physical impairment, whether or not the disability actually exists (Kan. Stat (l) (2012)). Alcohol and Illegal Drug Users Psychoactive substance use disorders resulting from current illegal use of drugs is not considered a disability under the Act. The KAAD protects those who have successfully undergone or are undergoing rehabilitative treatment and are no longer engaged in the use of illegal drugs. (Kan. Stat (j) (2012) and Kan. Admin. Reg (b).) Kansas courts have not addressed whether alcoholism may be considered a disability under the KAAD. Under the Americans with Disabilities Act (ADA) (on which the KAAD is modeled), an alcoholic is not excluded from protection as an individual with a disability simply because of current alcohol use (see EEOC, Technical Assistance on the Employment Provisions (Title I) of the ADA, Alcoholism 8.4 (1992)). However, an employer may hold an alcoholic to the same qualification standards for employment and for job performance and behavior as it holds other employees (see Mauerhan v. Wagner Corp., 24 A.D. Cas. (BNA) 769, 2011 WL (10th Cir. 2011)). Duty to Provide Reasonable Accommodation The KAAD requires employers to reasonably accommodate qualified disabled individuals (Kan. Stat (a)(8)(E) and (F) (2012)). Requesting Reasonable Accommodation A disabled employee has the burden to initiate a request for reasonable accommodation. The employer s duty to accommodate is not triggered until the employer receives actual or constructive notice of the employee s disability. Once an employer receives notice of the disability and need for reasonable accommodation, the employer must take affirmative steps to determine the nature of the employee s limitations and how it might best accommodate them. To do this, it must focus on the essential functions of the position. The employee and employer must then exchange sufficient information about the employee s limitations and possible accommodations available to determine possible accommodation options. (Umholtz v. KS Dept. of Social and Rehabilitative Services, 2013 WL (D. Kan. 2013).) The employee need not disclose the full extent of their disability, only enough information about their relevant limitations for the employer to determine the range of accommodations available. Similarly, an employer must only request enough information to determine a proper accommodation for the disability. 4

5 The employer does not need to provide the employee s preferred reasonable accommodation, unless it is the only one that will accommodate the employee s limitations (Johnson v. Sedgwick County Sheriff s Dept., 2011 WL (D. Kan. 2011)). Reasonableness of Accommodation Reasonable is a subjective standard, and is not defined by any specific law. An employer is not required to hire or retain an individual who cannot perform his job with or without reasonable accommodation (Kan. Stat (b) (2012)). Kansas statutes suggest reasonable accommodations may, based on the particular facts of each case, include: 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. Providing qualified readers or interpreters. (Kan. Stat (k) (2012).) The KAAD is modeled after the ADA and, therefore, federal court decisions interpreting the ADA are persuasive authority in interpreting the KAAD (see Woods v. Midwest Conveyor Co., 231 Kan. 763 (1982)). Similarly, the Equal Employment Opportunity Commission (EEOC) reasonable accommodation guidelines are persuasive and not binding (see html). The EEOC suggests that job restructuring, leave, part-time or modified work schedules and reassignment to a vacant position are all forms of reasonable accommodation. OVERVIEW OF STATE SEXUAL HARASSMENT LAW 3. If there is a state law prohibiting work-place harassment, please provide the following information: Which protected classes are protected from harassment? Is sexual harassment prohibited and if so, how is sexual harassment defined? If sexual harassment is prohibited, are both quid pro quo and hostile work environment harassment prohibited? Is same-sex sexual harassment prohibited? Is an employer subject to vicarious liability for sexual harassment by their managers, supervisors, or other employees? Is an employer subject to vicarious liability for sexual harassment by non-employees? Workplace harassment is prohibited by the Kansas Act Against Discrimination (KAAD) (Kan. Stat (2012)). Because the KAAD is modeled aftertitle VII of the Civil Rights Act of 1964 (Title VII), federal cases interpreting Title VII are persuasive in interpreting claims brought under the KAAD (Baker v. Blue Cross Blue Shield of Kan., 2002 WL , at *2 (D.Kan. Jul.10, 2002)). Protected Classes Harassment of a person because of their membership in any of the protected classes covered by the KAAD is unlawful. Sexual Harassment Sexual harassment is a form of sex discrimination and is prohibited under the KAAD (Kan. Stat (a)(1) (2012)). It is not specifically defined by the KAAD, although case law defines quid pro quo sexual harassment as behavior by a supervisor or employer extorting or attempting to extort sexual favors or other sexual consideration in consideration for a job benefit or prevention of an adverse job action (Labra v. Mid- Plains Const., Inc., 32 Kan. App. 821 (2004)). Direct sexual harassment is defined as a supervisor or co-worker making unwanted sexual advances towards another individual. Hostile work environment sexual harassment is defined by case law to exist where unwelcome conduct unreasonably interferes or is intended to unreasonably interfere with an individual s working performance or otherwise creates an intimidating, hostile or offensive working environment (Labra, at 829). Prohibited Sexual Harassment Types Direct, quid pro quo, and hostile work environment harassment are all prohibited under the KAAD. Same-sex Sexual Harassment Same-sex sexual harassment is prohibited under the KAAD (Stevens v. Water District One of Johnson County, 561 F.Supp.2d 1224 (2008)). Vicarious Liability for Employee Sexual Harassment An employer is strictly liable for sexual harassment where an owner, manager, partner or corporate officer personally participated in the harassment. Where someone else perpetrated the harassment, the complaining employee must demonstrate that the employer both: Authorized, knew or should have known about the harassment. Failed to take reasonably prompt and adequate corrective action. (Debord v. Mercy Health Syst. of Kansas, 860 F.Supp.2d 1263 (D. Kan. 2012).) 5

6 Vicarious Liability for Non-employee Sexual Harassment An employer can be found liable for sexual harassment of an employee by a non-employee if the employer knows or should have known of the harassment and fails to take immediate and appropriate corrective action (EEOC v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011)). OVERVIEW OF STATE ANTI-RETALIATION LAW 4. Is there a state law prohibiting retaliation in your jurisdiction? If so, please include information on: What specific acts are protected, if any. How is retaliation defined? Whether an employer can be subject to vicarious liability for retaliatory conduct by an employee. Whether filing a worker's compensation claim in your jurisdiction is protected from retaliation. Workers Compensation Claims Kansas law prohibits discrimination against an employee in retaliation for the employee filing, or indicating an intent to file, a workers compensation claim (Bausman v. Interstate Brands Corp., 252 F.3d 1111 (10th Cir. 2001)). STATE PROTECTED CLASSES PARAGRAPH 5. Please provide a list of all state-specific protected classes in paragraph form that could be inserted into an employment-related agreement or policy in your jurisdiction. Race, color, religion, national origin, ancestry, sex, age, disability, genetic information and military status. For the links to the documents referenced in this note, please visit our online version at Protected Acts Retaliation is prohibited in Kansas under: The Kansas Acts Against Discrimination (KAAD). The Kansas Age Discrimination in Employment Act (KADEA). State laws, including those: prohibiting smoking in public places (Kan. Stat (f) (2012)); and protecting victims of domestic violence or sexual abuse (Kan. Stat (2012)). Defining Retaliation Employers are prohibited from taking an adverse employment action against an employee or applicant because of a legal right or privilege exercised by that individual (Kan. Stat (a) (4) and (2012)). This includes rights exercised in the following contexts: Workers compensation (Bausman v. Interstate Brands Corp., 252 F.3d 1111(10th Cir. 2001)). Smoking (Kan. Stat (f) (2012)). Victims of domestic violence or sexual abuse (Kan. Stat (2012)). Vicarious Liability An employer in Kansas can be held vicariously liable where it fails to take action against employees who treat other employees adversely: After the employee reports unlawful conduct. Where the employer should have known about the employee s unlawful conduct. (See Debord v. Mercy Health Syst. of KS, 860 F.Supp.2d 1263 (D. Kan. 2012).) For more information on trade secret laws, search for the following resources on our website. Practice Notes: Disability Accommodation under the ADA ( Harassment ( Responding to Equal Employment Opportunity Commission Charges ( Retaliation ( Romance in the Workplace ( Practical Law Company provides practical legal know-how for law firms, law departments and law schools. Our online resources help lawyers practice efficiently, get up to speed quickly and spend more time on the work that matters most. This resource is just one example of the many resources Practical Law Company offers. Discover for yourself what the world s leading law firms and law departments use to enhance their practices. To request a complimentary trial of Practical Law Company s online services, visit practicallaw.com or call