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. § 21-32-4 (2012).)
Affected Employers
The KAAD covers:
Any employer with four or more employees.
Any person acting directly or indirectly for an employer.
(Kan. Stat. § 44-1002 (2012).)
Although outside the scope of this Q&A, the KAAD also covers:
Labor organizations (Kan. Stat. §§ 1002(b), (d) and
44-1009(a)(2) (2012)).
Employment agencies (Kan. Stat. § 44-1009(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. § 44-1009(a)(1) (2012)).
The KAAD also prohibits:
An employer from conducting genetic screening or testing of
applicants or employees (Kan. Stat. § 44-1009(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. § 44-1009(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. § 44-1009(a)(3) (2012)).
OVERVIEW OF STATE
ANTI-DISCRIMINATION LAW
Kansas Act Against Discrimination: Kan. Stat. §§ 44-1001 to
44-1044
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. § 44-1009(a)(9) (2012)).
(Kan. Stat. § 44-1009 (a)(1) (2012).)
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
Anti-discrimination 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.
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.
Anti-discrimination Laws: Kansas
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 656886 (D. Kan.), citing Davidson v. MAC Equip., Inc., 878 F.Supp. 186, 187-88 (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. § 44-1021(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 60-512(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. § 60-512 (2012)).
Damages
The KAAD provides for:
Compensatory damages, including:
back pay; and front pay.
Pain and suffering. Humiliation.
(Kan .Stat. § 44-1005 (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. § 44-1005(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 60-238(a) of the Kansas Statutes Annotated (see Wagher v. Guy’s Foods, Inc., 246 Kan. 300 (1994) and Kan. Stat. § 44-1011(b)(3) (2012)).
Kansas Age Discrimination in Employment Act (KADEA): Kan.
Stat. §§ 44-1111 to 44-1121
Protected Classes Covered
The Kansas Age Discrimination in Employment Act (KADEA) prohibits employment discrimination against individuals aged 40 or older (Kan. Stat. §§ 44-1112(a) and 44-1113 (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. § 44-1112(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. § 44-1113 (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 554091 (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
Although the KADEA 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 out in Section 60-512(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. § 60-513(b) (2012)).
Discrimination Against Military Personnel Act: Kan. Stat. §
44-1125
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. § 44-1125(a) (2012).)
Affected Employers
Any employer employing four or more employees in the state of Kansas is subject to the Act (Kan. Stat. § 44-1125(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. § 44-1125(b) (2012)).
Terminate any member of the military because of the members
performance of emergency military duty (Kan. Stat. § 44-1126(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 554091 (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:
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. § 44-1127 (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 60-512(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. § 60-513(b) (2012)).
OVERVIEW OF STATE
DISABILITY DISCRIMINATION LAW
Disability discrimination is prohibited by the Kansas Act Against Discrimination (KAAD) (Kan. Stat. § 44-1009 (2012)).
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.
Anti-discrimination Laws: Kansas
“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. § 44-1002(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. § 44-1002(j) (2012) and Kan. Admin. Reg. § 21-34-1(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 1467571 (10th Cir. 2011)).
Duty to Provide Reasonable Accommodation
The KAAD requires employers to reasonably accommodate qualified disabled individuals (Kan. Stat. § 44-1009(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 632092 (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.
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. §§ 44-1002(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 3608682 (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. § 21-34-1(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. 21-32-6(b) (2012)).
(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 1627665, 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. § 44-1009(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).)
County Sheriff’s Dept., 2011 WL 2746716 (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. § 44-1006(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. § 44-1002(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 www.eeoc.gov/policy/docs/accommodation. 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
Anti-discrimination Laws: Kansas
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
Race, color, religion, national origin, ancestry, sex, age, disability, genetic information and military status.
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
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. § 21-6112(f) (2012)); and
protecting victims of domestic violence or sexual abuse (Kan. Stat. § 44-1132 (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. §§ 44-1009(a) (4) and 44-1132 (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. § 21-6112(f) (2012)).
Victims of domestic violence or sexual abuse (Kan. Stat. §
44-1132 (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).)
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.
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.
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 646.562.3405.
For more information on trade secret laws, search for the following resources on our website.
Practice Notes:
Disability Accommodation under the ADA
(http://us.practicallaw.com/9-503-9007)
Harassment
(http://us.practicallaw.com/9-502-7844)
Responding to Equal Employment Opportunity
Commission Charges
(http://us.practicallaw.com/9-503-3939)
Retaliation
(http://us.practicallaw.com/5-501-1430)
Romance in the Workplace
(http://us.practicallaw.com/0-502-6127)
For the links to the documents referenced in this note, please visit our online version at
