Title 8 - Human Rights

8.10.010 Declaration of Policy

1. A.
   Rights Recognized - The right of an individual to be free from discrimination because of that individual’s race, color, religion, national origin, sex, Sexual Orientation, Gender Identity, age, disability, genetic information, marital status, familial status, or military status is hereby recognized. This right shall include, but not be limited to, any of the following:

   1. 1.
      The right to pursue and hold employment and the benefits associated therewith without unlawful discrimination.
   2. 2.
      The right to the full enjoyment of any of the services, advantages or privileges of any Place of Public Accommodation without unlawful discrimination.
   3. 3.
      The right to engage in property transactions, including obtaining housing for Rent or purchase, without unlawful discrimination.
   4. 4.
      The right to exercise any right granted under this Chapter without retaliation.
2. B.
   Protection - To protect these rights, it is hereby declared to be the purpose of this Chapter to prohibit discrimination and retaliation based upon Sexual Orientation and Gender Identity and to provide a local process for the acceptance, investigation and resolution of complaints of discrimination and retaliation relating to Sexual Orientation and Gender Identity arising hereunder. If discrimination and retaliation relating to Sexual Orientation and/or Gender Identity is prohibited by federal or state law(s), and such law(s) provide procedures for addressing complaints of such discrimination and retaliation, nothing shall prevent the City from referring an Aggrieved Individual to the appropriate federal or state procedure and/or federal or state agency.

(History:  Ord. HRC-3266 § 1, 2019)

Effective on: 1/1/1901

8.10.020 Definitions

The definitions contained within the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq., and amendments thereto, and Overland Park Municipal Code Section 1.04.010, and amendments thereto, shall apply to this Chapter unless a term is specifically defined herein. For purposes of this Chapter, certain terms shall be interpreted or defined as follows unless the context clearly indicates otherwise:

8.10.030 Unlawful Discriminatory Practices

In order to protect specific individuals within the city from discrimination on the basis of their Sexual Orientation or Gender Identity, it shall be a duty of each individual or entity doing business within the city to not commit the following Unlawful Discriminatory Practices:

1. A.
   Employment - It shall be an Unlawful Discriminatory Practice for an Employer to refuse to hire or employ, or to discharge from employment or to otherwise discriminate against an otherwise qualified Employee in compensation or in terms, conditions or privileges of employment, because of the Employee’s Sexual Orientation or Gender Identity. This Chapter shall not apply to a Religious Organization with respect to the employment of individuals performing work connected with the carrying on of the organization’s religious teaching, ministry, religious duties or practices, advancement of religion, or other religious activities.
2. B.
   Housing - It shall be an Unlawful Discriminatory Practice for an individual or entity to discriminate against any individual in the terms, conditions, or privileges of the sale or Rent of real property within the city including Rental Housing, or in the provision of services or facilities in connection therewith, because of an individual’s Sexual Orientation or Gender Identity, or to discriminate against any individual in such individual's use or occupancy of Rental Housing within the city because of the Sexual Orientation or Gender Identity of individuals with whom such individual associates. This provision shall not apply to the Rent of real property containing dwelling units occupied or intended to be occupied by no more than four persons or families living independently of each other, if the owner actually maintains and occupies one of such dwelling units as the owner's residence. Additionally, nothing in this Chapter shall prohibit:

   1. 1.
      A Religious Organization or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a Religious Organization, from limiting the sale, rental or occupancy of real property or Rental Housing which it owns or operates for other than a commercial purpose to individuals of the same religion or individuals who promote the religious principles for which it is established or maintained, or from giving preference to such individuals.
   2. 2.
      A Nonprofit Fraternal or Social Association/Corporation, which as an incident to its primary purpose or purposes provides real property or Rental Housing which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such real property or Rental Housing to individuals who are members or individuals who promote the principles for which it is established or maintained, or from giving preference to such individuals.
3. C.
   Public Accommodation - It shall be an Unlawful Discriminatory Practice for the owner, operator, lessee, manager, agent or Employee of any Place of Public Accommodation to refuse, deny or make a distinction, directly or indirectly, in offering its goods, services, facilities, privileges, advantages or accommodations to any individual because of their Sexual Orientation or Gender Identity. Nothing in this Chapter shall be interpreted to apply to a Religious Organization’s performance of a religious function, including but not limited to the:

   1. 1.
      provision of goods, services, facilities, privileges, advantages or accommodations related to the solemnization or celebration of a marriage, or
   2. 2.
      performance of its religious teachings, ministry, religious duties or practices, advancement of religion, or other religious activities.

(History:  Ord. HRC-3266 § 3, 2019)

Effective on: 1/1/1901

8.10.040 Interpretation

Nothing in this Chapter shall be construed to:

1. A.
   Prohibit an Employer from requiring an Employee, during the Employee's hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of federal, state, or local law.
2. B.
   Require an Employer to hire unqualified individuals or to retain Employees when there is a legitimate non-discriminatory or non-retaliatory reason to hire another candidate or terminate employment, or prevent any adverse action against an Employee that would have been taken regardless of the Employee’s Sexual Orientation or Gender Identity.
3. C.
   Prohibit an Employer from requiring all of its Employees, as a condition of employment, to utilize the Employer’s applicable established internal human resource procedure(s) to address any allegation of discrimination or retaliation in the workplace. The fact that an Employer requires an Employee to utilize the Employer’s applicable established internal human resource procedure(s) to address any allegation of discrimination or retaliation in the workplace shall not, in itself, be deemed a violation of this Chapter. However, an Employee may simultaneously file a complaint with the City as provided in this Chapter, and completion of the Employer’s procedures is not a prerequisite to filing a complaint with the City.
4. D.
   Require any person or entity subject to this Chapter to make changes requiring a building permit to any existing facility, except as otherwise required by law.
5. E.
   Prohibit an Employer or Place of Public Accommodation from posting signs for restrooms and dressing rooms based on gender.
6. F.
   Prohibit a Nonprofit Fraternal or Social Association/Corporation or Religious Organization from limiting membership as is calculated by the association/corporation or organization to promote the principles for which it is established or maintained.
7. G.
   Be construed or applied in a manner that violates any law or unlawfully infringes upon any rights under the First Amendment of the United States Constitution, Section 7 of the Kansas Constitution Bill of Rights, the Adoption Protection Act (K.S.A. 60-5322, and amendments thereto), or the Kansas Preservation of Religious Freedom Act (K.S.A. 60-5301 et seq., and amendments thereto).
8. H.
   Make it lawful to discriminate or retaliate against individuals on the basis of race, color, religion, national origin, sex, age, disability, genetic information, marital status, familial status, or military status. Such discrimination and retaliation is not addressed in this Chapter because federal and state laws consistently address unlawful discriminatory and retaliatory practices related to those characteristics and provide appropriate procedures for addressing complaints for such discrimination and retaliation.

(History:  Ord. HRC-3266 § 4, 2019)

Effective on: 1/1/1901

8.10.050 Enforcement

1. A.
   An Aggrieved Individual may file a written complaint with the City Clerk that the individual has been, or is being, subject to an alleged Unlawful Discriminatory Practice(s) as prohibited by this Chapter. The complaint may be filed personally or through an attorney (or if a minor, through the minor’s parent, legal guardian or attorney) and shall be completed on a form provided by the City. The complaint form shall state the names and contact information of the Aggrieved Individual, the individual(s) and/or entity/entities alleged to have committed the Unlawful Discriminatory Practice(s), a description of the alleged unlawful conduct, and all other information as may be required by the form provided by the City. The complaint form shall only be considered complete if all information required by the City’s form has been provided to the extent such information is reasonably available to the Aggrieved Individual.
2. B.
   The complaint form must be filed within sixty (60) Days of the alleged Unlawful Discriminatory Practice, unless the act complained of constitutes a continuing pattern or practice of discrimination, in which event it must be filed within sixty (60) Days of the last act of discrimination.
3. C.
   The complaint may be referred to an approved mediator for non-binding mediation at the request of the parties. The mediator shall either be a person agreed upon by the Aggrieved Individual and the Respondent or, if no such agreement can be reached within a reasonable time following the filing of the complaint, a person selected by the City Manager will serve as the mediator. Any fees charged by the mediator shall be split equally between the parties. If mediation is not successfully completed within sixty (60) Days of the referral, or a party chooses not to pursue mediation, the complaint shall be referred to the Investigator.
4. D.
   Upon receipt of a complete complaint, the Investigator shall notify the Respondent(s) of the complaint, providing sufficient details related to the complaint so the Respondent(s) may respond. The Investigator shall give the Respondent(s) thirty (30) Days to file a written answer to the complaint, and to provide any documentation or evidence related to the complaint. The Investigator may, at the request of Respondent(s), extend the answer period an additional thirty (30) Days. If the Respondent accused of violating the provisions of this Chapter is the City, the City will engage an independent Investigator who shall not otherwise be an Employee, agent, or contractor of the City.
5. E.
   Following the conclusion of the answer period, the Investigator may initiate an investigation period, requesting that the Aggrieved Individual and/or Respondent(s) provide additional information, documentation, statements or testimony as needed to facilitate the investigation of the complaint. This investigation period shall be concluded within a reasonable period of time following the submission of additional information, documentation, or testimony.
6. F.
   Upon conclusion of the investigation period, the Investigator shall forward all evidence and other information received during the investigation to the Law Department. The Law Department will make a determination whether probable cause exists that: (i) the Respondent(s) committed an Unlawful Discriminatory Practice, and (ii) imposition of a penalty pursuant to this Chapter:

   1. 1.
      Would not constitute an unlawful burden of a person's right to exercise of religion pursuant to Section 7 of the Kansas Constitution Bill of Rights or the Kansas Preservation of Religious Freedom Act (K.S.A. 60-5301 et seq., and amendments thereto), or an unlawful burden of a person’s freedom of speech, expression, or association (as protected by the First Amendment of the United States Constitution or the Kansas Constitution); or
   2. 2.
      If imposition of a penalty would constitute a burden, application of such burden to the person would be in furtherance of a compelling governmental interest and such application would be the least restrictive means of furthering that compelling governmental interest.
7. G.
   If the Law Department finds that probable cause does not exist, then the Law Department shall notify the Aggrieved Individual and the Respondent(s) within a reasonable period of time, and this notification shall be considered a final order and no further action shall be taken by the City.
8. H.
   If the Law Department finds probable cause does exist, the Law Department shall notify the Aggrieved Individual and Respondent(s) and request conciliation and settlement. If a party refuses to participate in conciliation and settlement, or if a settlement agreement is not executed within sixty (60) Days of the date of the finding of probable cause (unless such time is extended by the Law Department for good cause and with the agreement of all parties), the matter shall be referred to the Hearing Officer for review, who shall sit as an administrative judge for purposes of this Chapter.
9. I.
   Upon referral to the Hearing Officer, the Hearing Officer shall schedule a hearing on the complaint. The parties shall be given ten (10) Days’ written notice via certified mail of the date, time, and place of the hearing. At such hearing, the parties and the Law Department shall be entitled to call witnesses and to present such other evidence as appropriate. The hearing shall be conducted in accordance with such procedures as may be established by the Hearing Officer, but the rules of evidence used in courts of law need not be strictly enforced.
10. J.
    Any determination of the Hearing Officer that the Respondent(s) committed an Unlawful Discriminatory Practice shall be issued in writing within sixty (60) Days of the hearing, shall be based upon the preponderance of the evidence, and shall set forth the essential elements and facts of the determination. If the Hearing Officer finds that a civil violation of this Chapter has occurred, the Hearing Officer may impose a civil penalty upon the Respondent(s) in the amount of up to $1,000.00 for each violation. Each party is to bear their own attorneys’ fees, if any.
11. K.
    The filing of a complaint for the alleged violation of this Chapter or a response thereto shall in no way preclude any party from seeking other relief under state or federal law, including a private right of action arising from any breach of a duty owed to the class of persons protected by this Chapter.

(History:  Ord. HRC-3266 § 5, 2019) 

Effective on: 1/1/1901

8.10.060 Severability

Should any section, subsection, sentence, clause or phrase of this Chapter, or the application thereof to any person or circumstance, be declared to be unconstitutional or invalid or unenforceable, such determination shall not affect the validity of the remaining portions of this Chapter.

(History:  Ord. HRC-3266 § 6, 2019)

Effective on: 1/1/1901