44-1005. Complaints; investigation; proceedings; remedial orders; dismissal of certain complaints, when, procedure and effect.
44-1005
44-1005. Complaints; investigation; proceedings;remedial orders;dismissal of certain complaints, when, procedure and effect.(a) Any person claiming to be aggrieved by an alleged unlawful employmentpractice or by an alleged unlawful discriminatory practice, and who canarticulate a prima facie case pursuant to a recognized legaltheory of discrimination,may, personallyor by an attorney-at-law, make, sign and file with the commission averified complaint in writing, articulating the prima facie case, whichshall also state the name and address of theperson, employer, labor organization or employment agency alleged to havecommitted the unlawful employment practice complained of or the name andaddress of the person alleged to have committed the unlawful discriminatorypractice complained of, and which shall set forth the particulars thereofand contain such other information as may be required by the commission.
(b) The commission upon its own initiative or the attorney general may, inlike manner, make, sign and file such complaint. Whenever the attorneygeneral has sufficient reason to believe that any person as herein definedis engaged in a practice of discrimination, segregation or separation inviolation of this act, the attorney general may make, sign and file acomplaint. Any employer whose employees or some of whom, refuse or threaten torefuse to cooperate with the provisions of this act, may file with thecommission a verified complaint asking for assistance by conciliation or otherremedial action.
(c) Whenever any problem of discrimination because of race, religion, color,sex, disability, national origin or ancestry arises, or whenever the commissionhas, in its own judgment, reason to believe that any person has engaged in anunlawful employment practice or an unlawful discriminatory practice inviolation of this act, or has engaged in a pattern or practice ofdiscrimination, the commission may conduct an investigation without filing acomplaint and shall have the same powers during such investigation as providedfor the investigation of complaints. The person to be investigated shall beadvised of the nature and scope of such investigation prior to itscommencement. The purpose of the investigation shall be to resolve any suchproblems promptly. In the event such problems cannot be resolved within areasonable time, the commission may issue a complaint whenever theinvestigation has revealed a violation of the Kansas act against discriminationhas occurred. The information gathered in the course of the first investigationmay be used in processing the complaint.
(d) After the filing of any complaint by an aggrieved individual, by thecommission, or by the attorney general, the commission shall, within sevendays after the filing of the complaint, serve a copy on each of theparties alleged to have violated this act, and shall designate one of thecommissioners to make, with the assistance of the commission's staff,prompt investigation of the alleged act of discrimination. If thecommissioner shall determine after such investigation that no probablecause exists for crediting the allegations of the complaint, suchcommissioner, within 10 business days from such determination, shall cause tobe issued and served upon the complainant and respondent writtennotice of such determination.
(e) If such commissioner after such investigation, shall determine thatprobable cause exists for crediting the allegations for the complaint, thecommissioner or such other commissioner as the commission may designate, shallimmediately endeavor to eliminate the unlawful employment practice or theunlawful discriminatory practice complained of by conference and conciliation.The complainant, respondent and commission shall have 45 days from the daterespondent is notified in writing of a finding of probable cause to enter intoa conciliation agreement signed by all parties in interest. The parties mayamend a conciliation agreement at any time prior to the date of entering intosuch agreement. Upon agreement by the parties the time for entering into suchagreement may be extended. The members of the commission and its staff shallnot disclose what has transpired in the course of such endeavors.
(f) In case of failure to eliminate such practices by conference andconciliation, or in advance thereof, if in the judgment of the commissioneror the commission circumstances so warrant, the commissioner or thecommission shall commence a hearing in accordance with the provisions of theKansas administrative procedure act naming as parties the complainant and theperson, employer, labor organization, employment agency, realtor or financialinstitution named in such complaint, hereinafter referred to as respondent. Acopy of the complaint shall be served on the respondent. At least fourcommissioners or a presiding officer from the office of administrativehearings shall be designatedas the presidingofficer. The place of such hearing shall be in the county where respondent isdoing business and the acts complained of occurred.
(g) The complainant or respondent may apply to the presiding officer for theissuance of a subpoena for the attendance of any person or the production orexamination of any books, records or documents pertinent to the proceeding atthe hearing. Upon such application the presiding officer shall issue suchsubpoena.
(h) The case in support of the complaint shall be presented before thepresiding officer by one of the commission's attorneys or agents, or by privatecounsel, if any, of the complainant, and the commissioner who shall havepreviously made the investigation shall not participate in the hearing exceptas a witness. Any endeavors at conciliation shall not be received in evidence.
(i) Any complaint filed pursuant to this act must be so filed within sixmonths after the alleged act of discrimination, unless the act complainedof constitutes a continuing pattern or practice of discrimination in whichevent it will be from the last act of discrimination.Complaints filed with the commission may bedismissed by the commission on its own initiative, and shall be dismissed bythe commission upon the written request of the complainant, if the commissionhas not issued a finding of probable cause or no probable cause or taken otheradministrative action dismissing the complaint within 300 days of the filing ofthe complaint.The commission shall mail written notice to all parties of dismissal of acomplaint within five days of dismissal.Any such dismissal of a complaint inaccordance with this section shall constitute final action by the commissionwhich shall be deemed to exhaust all administrative remedies under the Kansasact against discrimination for the purpose of allowing subsequent filing of thematter in court by the complainant, without the requirement of filing apetition for reconsideration pursuant to K.S.A. 44-1010 and amendments thereto.Dismissal of a complaint in accordance with this section shall not be subjectto appeal or judicial review by any court under the provisions of K.S.A.44-1011 and amendments thereto. The provisions of this section shall not applyto complaints alleging discriminatory housing practices filed with thecommission pursuant to K.S.A. 44-1015 et seq. and amendments thereto.
(j) The respondent may file a written verified answer to the complaint andappear at such hearing in person or otherwise, with or without counsel, andsubmit testimony. The complainant shall appear at such hearing in person,with or without counsel, and submit testimony. The presiding officer or thecomplainant shall have the power reasonably and fairly to amend any complaint,and the respondent shall have like power to amend such respondent's answer. Thepresiding officer shall be bound by the rules of evidence prevailing in courtsof law or equity, and only relevant evidence of reasonable probative valueshall be received.
(k) If the presiding officer finds a respondent has engaged in or isengaging in any unlawful employment practice or unlawful discriminatorypractice as defined in this act, the presiding officer shall render an orderrequiring such respondent to cease and desist from such unlawful employmentpractice or such unlawful discriminatory practice and to take such affirmativeaction, including but not limited to the hiring, reinstatement, or upgrading ofemployees, with or without back pay, and the admission or restoration tomembership in any respondent labor organizations; the admission to and full andequal enjoyment of the goods, services, facilities, and accommodations offeredby any respondent place of public accommodation denied in violation of thisact, as, in the judgment of the presiding officer, will effectuate the purposesof this act, and including a requirement for report of the manner ofcompliance. Such order may also include an award of damages for pain, sufferingand humiliation which are incidental to the act of discrimination, except thatan award for such pain, suffering and humiliation shall in no event exceed thesum of $2,000.
(l) Any state, county or municipal agency may pay a complainant back pay ifit has entered into a conciliation agreement for such purposes with thecommission, and may pay such back pay if it is ordered to do so by thecommission.
(m) If the presiding officer finds that a respondent has not engaged in anysuch unlawful employment practice, or any such unlawful discriminatorypractice, the presiding officer shall render an order dismissing the complaintas to such respondent.
(n) The commission shall review an initial order rendered under subsection(k) or (m). In addition to the parties, a copy of any final order shall beserved on the attorney general and such other public officers as the commissionmay deem proper.
(o) The commission shall, except as otherwise provided, establish rules ofpractice to govern, expedite and effectuate the foregoing procedure and itsown actions thereunder. The rules of practice shall be available, upon writtenrequest, within 30 days after the date of adoption.
History: L. 1953, ch. 249, § 5;L. 1961, ch. 248, § 6;L. 1963, ch. 279, § 4;L. 1965, ch. 323, § 5;L. 1967, ch. 285, § 2;L. 1970, ch. 192, § 3;L. 1972, ch. 194, § 5;L. 1974, ch. 209, § 4;L. 1975, ch. 264, § 4;L. 1984, ch. 186, § 1;L. 1988, ch. 356 § 149;L. 1989, ch. 283, § 9;L. 1991, ch. 147, § 4;L. 1995, ch. 247, § 2;L. 2004, ch. 145, § 15; July 1, 2007.