Kansas rights commission embracing broader definition of sex discrimination

TOPEKA — The Kansas Human Rights Commission Friday moved to begin accepting employment, housing and public accommodation complaints based on application of a U.S. Supreme Court decision that blocked employers from discriminating on the basis of sexual orientation and gender identity.

Ruth Glover, executive director of the state commission, said the commission’s board met to consider implications of the Bostock v. Clayton County decision affirming a redefinition of “sex” in the context of federal anti-discrimination law administered by the U.S. Equal Opportunity Employment Commission.

Glover said in an email to members of the Kansas Legislature the commission weighed the court’s employment directive and chose to apply it to the Kansas Act Against Discrimination. The commissioners went beyond employment issues by making a commitment to considering complaints on all derivatives of sex in the areas of public accommodation and housing.

“This is awesome. Oh, my gosh,” said Rep. Susan Ruiz, who is gay and is a Democrat representing a district in Kansas City, Kan.

She said the state commission’s decision brought into focus the need to pass language contained in House Bill 2130 and Senate Bill 84, which would have amended the state’s anti-discrimination law to include sexual orientation, gender identity and gender expression.

Neither bill gained traction in the past two legislative sessions. A committee hearing on the issue was planned in the House, but the COVID-19 pandemic cut short the 2020 session.

“It’s a huge milestone on the road to full LGBTQ equality in our state,” said Thomas Witt, executive director of Equality Kansas, said of the commission’s decision. “We still have quite a bit of work to do.”

It’s possible the commission’s unilateral regulatory action could be challenged on constitutional grounds or the Kansas Legislature could develop legislation to counter the commission.

In June, the U.S. Supreme Court held Title VII of the Civil Rights Act of 1964 prohibited employers from discriminating on the basis of sexual orientation and gender identity. The federal act prevents employers from using specific identifying qualities of a person, such as race, color, religion, national origin and sex, as a basis for making hiring or compensation decisions.

U.S. Supreme Court Justice Neil Gorsuch wrote for the six-justice majority that an employer who discharged a worker for being transgender or gay took action “for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Wichita attorney John Carmichael, who is a Democratic member of the Kansas House, said Kansas historically considered federal civil rights precedent as “extremely persuasive authority in the interpretation of Kansas law.”

“It is important that, absent clearly different legislative intent, Kansas law be applied uniformly and consistently with federal law,” he said. “To do otherwise subjects Kansas business and citizens to a patchwork of potentially conflicting laws.”