Printable Format44-1002. Definitions. When used in this act:
(a) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees, trustees in bankruptcy or receivers.
(b) "Employer" includes any person in this state employing four or more persons and any person acting directly or indirectly for an employer, labor organizations, nonsectarian corporations, organizations engaged in social service work and the state of Kansas and all political and municipal subdivisions thereof, but shall not include a nonprofit fraternal or social association or corporation.
(c) "Employee" does not include any individual employed by such individual's parents, spouse or child or in the domestic service of any person.
(d) "Labor organization" includes any organization which exists for the purpose, in whole or in part, of collective bargaining, of dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in relation to employment.
(e) "Employment agency" includes any person or governmental agency undertaking, with or without compensation, to procure opportunities to work or to procure, recruit, refer or place employees.
(f) "Commission" means the Kansas human rights commission created by this act.
(g) "Unlawful employment practice" includes only those unlawful practices and acts specified in K.S.A. 44-1009, and amendments thereto, and includes segregate or separate.
(h) "Public accommodations" means any person who caters or offers goods, services, facilities and accommodations to the public. Public accommodations include, but are not limited to, any lodging establishment or food service establishment, as defined by K.S.A. 36-501, and amendments thereto; any bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mortuary or cemetery which is open to the public; or any public transportation facility. Public accommodations do not include a religious or nonprofit fraternal or social association or corporation.
(i) "Unlawful discriminatory practice" means: (1) Any discrimination against persons, by reason of their race, religion, color, sex, disability, national origin or ancestry:
(A) In any place of public accommodations; or
(B) 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; and
(2) any discrimination against persons in regard to membership in a nonprofit recreational or social association or corporation by reason of race, religion, sex, color, disability, national origin or ancestry if such association or corporation has 100 or more members and: (A) Provides regular meal service; and (B) receives payment for dues, fees, use of space, use of facility, services, meals or beverages, directly or indirectly, from or on behalf of nonmembers.
This term shall not apply to a religious or private fraternal and benevolent association or corporation.
(j) "Disability" means, with respect to an individual:
(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(2) a record of such an impairment; or
(3) being regarded as having such an impairment.
Disability does not include current, illegal use of a controlled substance as defined in section 102 of the federal controlled substance act (21 U.S.C. § 802), in housing discrimination. In employment and public accommodation discrimination, "disability" does not include an individual who is currently engaging in the illegal use of drugs where possession or distribution of such drugs is unlawful under the controlled substance act (21 U.S.C. § 812), when the covered entity acts on the basis of such use.
(k) (1) "Reasonable accommodation" means:
(A) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) 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.
(2) A reasonable accommodation or a reasonable modification to policies, practices or procedures need not be provided to an individual who meets the definition of disability in K.S.A. 44-1002(j)(3), and amendments thereto.
(l) "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. An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that such individual has been subjected to an action prohibited under this act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. Subsection (j)(3) shall not apply to impairments that are transitory or minor. A transitory impairment is an impairment with an actual or expected duration of six months or less.
(m) "Major life activities" means:
(1) Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
(2) It also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
(n) "Genetic screening or testing" means a laboratory test of a person's genes or chromosomes for abnormalities, defects or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease or other disorders, whether physical or mental, which test is a direct test for abnormalities, defects or deficiencies, and not an indirect manifestation of genetic disorders.
History: L. 1953, ch. 249, § 2; L. 1961, ch. 248, § 2; L. 1963, ch. 279, § 2; L. 1965, ch. 323, § 2; L. 1970, ch. 192, § 1; L. 1972, ch. 194, § 2; L. 1974, ch. 209, § 2; L. 1975, ch. 264, § 1; L. 1991, ch. 147, § 2; L. 1992, ch. 91, § 1; L. 1999, ch. 32, § 1; L. 2012, ch. 48, § 1; July 1.
Revisor's Note:
Section was amended twice in 1991 session, see also 44-1002a.
Law Review and Bar Journal References:
Discrimination against Indians, Jerry L. Bean, 20 K.L.R. 468, 476, 479 (1972).
Private employer's denial of disability benefits for pregnancy leave, 16 W.L.J. 745, 753 (1977).
"Administrative Law: Judicial Review of No Probable Cause Determinations," Jan E. Montgomery, 18 W.L.J. 335, 341 (1979).
"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 212 (1979).
"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).
"Employee Drug Testing," Douglas L. Stanley, 61 J.K.B.A. No. 1, 19, 25 (1992).
"Countering Workplace Fear and Misapprehension Through Legal Protection: Options for the HIV-Positive Public Employee," Gary L. Fanning, Jr., 33 W.L.J. 186, 207 (1993).
"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, 368 (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).
"Disability Law: A New Era," David P. Calvert, J.K.T.L.A. Vol. 24, No. 2, 12 (2000).
"Title VII at 40: A Look Back," Elinor P. Schroeder, 73 J.K.B.A. No. 10, 18, 24 (2004).
Attorney General's Opinions:
Unlawful discriminatory practices; application to Rotary clubs. 87-96.
CASE ANNOTATIONS
1. Application of act to public schools; school board may not discriminate in employing teachers but is not required to transfer teachers to achieve integration of faculty. Londerholm v. Unified School District, 199 Kan. 312, 317, 320, 330, 332, 430 P.2d 188.
2. Subsections (h) and (i) cited; "place of public accommodation" contemplates such mercantile establishments as shops and stores as well as those enumerated. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 313, 532 P.2d 1263.
3. Referred to in holding act did not cover functions of police department in making arrests. Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, 251, 253, 255, 256, 544 P.2d 791.
4. Parochial school held not an "employer" under Kansas acts against discrimination. Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 307, 580 P.2d 1315.
5. Subpoena power of commission cannot be unreasonable or oppressive. Cessna Aircraft Co. v. Kansas Comm'n on Civil Rights, 229 Kan. 15, 17, 622 P.2d 124.
6. Applicant had job-related physical condition thus not "physically handicapped" hereunder. U.S.D. No. 259 v. Kansas Comm'n on Civil Rights, 7 Kan. App. 2d 319, 321, 640 P.2d 1291 (1982).
7. Myopia corrected to 20/20 vision not substantial disability; no violation in failing to hire as police officer. Padilla v. City of Topeka, 238 Kan. 218, 228, 708 P.2d 543 (1985).
8. 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 Kan. 137, 138, 755 P.2d 539 (1988).
9. Plaintiff must satisfy threshold burden of having "physical handicap" before asserting discrimination claim based on physical handicap. Andrews v. Jones Truck Lines, 741 F. Supp. 867, 871 (1990).
10. Sectarian corporation not included in definition of "employer"; exempt from act. Zion Lutheran Church v. Kansas Comm'n on Civil Rights, 16 Kan. App. 2d 237, 241, 242, 821 P.2d 334 (1991).
11. 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 Kan. App. 2d 581, 592, 856 P.2d 515 (1993).
12. Whether employee disability discrimination claim should be dismissed on summary judgment motion examined. Bernard v. Doskocil Companies, Inc., 861 F. Supp. 1006, 1013 (1994).
13. Whether the boy scouts is a public accommodation for KAAD (K.S.A. 40-4001 et seq.) purposes in religious discrimination claim examined. Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 191, 199, 210, 891 P.2d 385 (1995).
14. Summary judgment granted on discrimination claims where plaintiff failed to prove existence of a disability. Hutchings v. Kuebler, 5 F. Supp. 2d 1186, 1193 (1998).
15. Insurer was not an employer under KAAD (K.S.A. 44-1001 et seq.) for employment discrimination claim purposes. Nixon v. Northwestern Mut. Life Ins. Co., 58 F. Supp. 2d 1269, 1274 (1999).
16. Plaintiff could not sufficiently plead he had a "disability" under ADA or KAAD. Kinchion v. Cessna Aircraft Co., 504 F. Supp. 2d 1137, 1143 (2007).