Department: Legal
Staff Contact: Ron Shaver; Daniel Yoza
Subject: Consideration of Ordinance No. 19-77 adding Chapter 2.43 to the Olathe Municipal Code pertaining to Unlawful Discrimination.
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Item Description: Ordinance 19-77 prohibits discrimination on the basis of sexual orientation and gender identity in the areas of employment, housing, and public accommodations.
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Summary:
On July 16, 2019, the City Council received a report on an ordinance prohibiting unlawful discrimination (the “NDO”). The NDO prohibits discrimination in the City of Olathe on the basis of a person’s sexual orientation or gender identity in the areas of employment, housing, and public accommodations. Current state and federal laws protect people in Olathe against discrimination on the basis of age, race, religion, color, sex, disability, national origin, ancestry, marital status, familial status, and military status. The NDO is similar to other non-discrimination ordinances that have been adopted in other Kansas cities, including Fairway, Kansas City, Lawrence, Leawood, Lenexa, Manhattan, Merriam, Mission, Mission Hills, Overland Park, Prairie Village, Shawnee, Roeland Park, Westwood, and Westwood Hills.
The NDO includes general exemptions for educational institutions, governmental and law enforcement agencies, religious organizations, political organizations, and nonprofit fraternal, civic, or social associations. The NDO also includes an exemption from its employment discrimination provisions for employers with less than ten employees.
The NDO describes certain defenses to any allegation of an unlawful discriminatory practice and provides interpretations on otherwise lawful conduct in the context of employment, housing, and public accommodations. Nothing in the NDO is to be construed to prohibit an employer or public accommodation from posting signs for restrooms or dressing rooms based on gender or require any person to violate another person’s privacy in any restrooms, public shower spaces, or dressing rooms.
The NDO includes the City’s mediation and enforcement procedures. The City would receive complaints, initiate investigations of those complaints, attempt to mediate disputes, conduct hearings, and make findings as necessary. The maximum punishment for violating this ordinance is a $500 civil penalty. The City’s finding could be appealed to Johnson County District Court.
The substantive differences between the draft NDO presented as a report on July 16 and the attached NDO (Attachment A) are as follows:
First, on Page 6, new subsection (E)(6) is added to clarify that the NDO will not be construed to conflict with the Kansas Preservation of Religious Freedom Act (K.S.A. 60-5301 through 60-5305).
Second, on Page 7 and 8, language was added in subsections (E) through (G) to change several instances of the word “conciliation” with the word “mediation”. Language was also added to these subsections clarifying that the hearing referenced in the NDO is an administrative hearing. Other cities have similar language, and staff believes that these changes reflect common usage of these terms to clarify the intent of the NDO.
Third, on page 8, subsection (D) is added to create a presumption that an employer with an employment policy with protections similar to the protections in the NDO is in compliance with the employment provisions of the NDO.
An extensive volume of written and oral testimony pertaining to the NDO has been provided to the City Council through correspondence to the City Council and during the General Issues and Concerns of Citizens portion of each City Council Meeting in 2019. All of the written testimony submitted to the portal which was activated on the City’s website between July 15, 2019 and July 31, 2019 is also included in the agenda packet for this item as Attachment B.
As noted on the July 16, 2019 City Council agenda, no additional oral testimony pertaining to the NDO will be received or considered by the City Council at this meeting.
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Financial Impact:
Unknown; costs to enforce the NDO will depend upon whether any complaints are filed, the number of complaints filed, the extent and nature of the complaints and investigations thereafter, and whether findings are appealed.
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Action Needed:
Approve Ordinance No. 19-77 adding Chapter 2.43 to the Olathe Municipal Code pertaining to Unlawful Discrimination.
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Attachment(s):
Attachment A: Ordinance No. 19-77 - O.M.C. Chapter 2.43 - Unlawful Discrimination
Attachment B: Written testimony pertaining to the NDO submitted between July 15, 2019 and July 31, 2019