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UPDATE: On Oct. 12, the Wichita City Council voted 6-1 to pass the nondiscrimination ordinance. The council approved amendments to the measure proposed by Wichita’s Diversity, Inclusion and Civil Rights Advisory Board and rejected an amendment from City Council member Jared Cerullo to expand religious exemptions in the ordinance. This Twitter thread breaks down the council votes on the amendments and ordinance.
This article has been updated to reflect the most recent version of the nondiscrimination ordinance.
On Oct. 12, Wichita’s City Council will vote whether to enact a citywide nondiscrimination ordinance.
The ordinance, originally introduced in June, stalled over the last several months. Since then, City Council members have added a local enforcement provision and received community feedback through the city’s Diversity, Inclusion and Civil Rights Advisory Board. If the measure passes, Wichita will become the 20th municipality in Kansas with an ordinance that protects LGBTQ people.
Now that the nondiscrimination ordinance is coming back up for a vote, The Wichita Beacon compiled a list of frequently asked questions and answers about it.
Whom does it protect?
The ordinance protects people from discrimination based on age, color, disability, familial status, gender identity, genetic information, national origin or ancestry, race, religion, sex, sexual orientation, veteran status or any other factor protected by law. In some cases, it also protects against discrimination based on United States citizenship.
The ordinance also prohibits discrimination against the city’s contractors, subcontractors and employees based on the classifications above.
The ordinance protects against discrimination based on an individual’s actual or perceived sexual orientation and gender identity.
What are they protected from?
They are protected from discrimination in housing, employment and public accommodations.
Places of public accommodation include establishments in Wichita that offer products, services or a facility and are open to the general public. This does not include establishments operated by religious organizations, nonprofit fraternal or social associations, as well as other civic or political groups.
Is discrimination based on sexual orientation and gender identity already prohibited at the state and federal level?
Federal law does not protect against discrimination based on sexual orientation and gender identity in public accomodations.
Employment discrimination based on sexual orientation and gender identity is prohibited at the federal level after the U.S. Supreme Court’s landmark June 2020 decision in Bostock v. Clayton County. The decision ruled that discrimination against LGBTQ people in the workplace is discrimination based on sex, which is already illegal under Title VII of the Civil Rights Act of 1964. This law applies to businesses with more than 15 employees.
After the Supreme Court decision, the Kansas Human Rights Commission began accepting complaints of discrimination based on “LGBTQ and all derivates of ‘sex’” in employment, housing and public accommodations. This means sexual orientation and gender identity are protected in all three categories at the state level.
What about the other protected classes?
There are several other classes that Wichita’s nondiscrimination ordinance would protect that are not covered under federal or state law, according to Teresa Shulda and Emily Matta, two employment and labor lawyers at Foulston Siefkin LLP. These include veteran status and age in public accommodation and housing.
Is everyone who provides housing, employment and public accommodations required to follow these rules?
Most notably, religious organizations are exempt in several ways:
- An establishment operated by a religious organization is not considered a place of public accommodation.
- The ordinance does not apply to employment of individuals at religious organizations who do religious work.
- The ordinance would not apply to religious organizations that insist their employees “adhere to the tenets” of the organization as a condition of employment. (The council rejected this exemption when they approved the ordinance Oct. 12.)
- Religious organizations are permitted to limit their housing to individuals who promote their religious principles.
- The ordinance does not apply to a religious organization’s performance of a religious function, including marriage or religious teachings.
Nonprofit fraternal or social associations are similarly exempt from the ordinance in employment, housing and public accommodations.
The U.S. government and American Indian tribes are excluded from the employment section, as are businesses with fewer than four employees.
The housing section does not apply to owner-occupied rental property with no more than four people or families.
How is a discrimination complaint filed?
A person who believes they were discriminated against files a complaint with the city clerk’s office that details the alleged unlawful discrimination.
It must be filed within 180 days of the alleged discriminatory incident.
The complaint may be filed personally or through an attorney.
What happens after a complaint is filed?
There are two routes for a complaint to take.
First, the complainant and the person accused of discrimination can pursue out-of-court mediation. (When the ordinance was approved Oct. 12, language was included to assign costs of mediation to the city.)
If the complaint is not mediated successfully within 60 days of the referral — or if the complainant wants to skip mediation — then it is referred to an investigator. The investigator is appointed by the city manager and gathers information about the incident. (When the ordinance was approved Oct. 12, language was included for the council to create a pre-approved list of mediators the city manager can choose from.)
The investigator provides the evidence to the city’s Law Department, which decides whether probable cause exists that unlawful discrimination was committed.
If it finds probable cause, the complainant and the accused have another chance to settle outside of court.
If there is no settlement within 60 days, a Municipal Court judge holds a hearing. The judge decides within 60 days if unlawful discrimination was committed.
What happens if someone violates Wichita’s nondiscrimination ordinance?
The judge can impose a fine of up to $2,000 for each violation.
The judge can also authorize “reasonable educational requirements” to those found guilty of discrimination, potentially in the place of a civil penalty. (When the ordinance was approved Oct. 12, language was added that specified judges could also authorize community service.)
How are the city’s contractors, subcontractors and employees impacted?
All city contracts have to include provisions prohibiting discrimination in employment and in the performance of contracts on the basis of all protected classes.
All contractors have to include a similar provision in their subcontracts.
Does the ordinance require organizations to make changes to existing buildings?
No. The ordinance explicitly points out that it does not require any entity “to make changes requiring a building permit to any existing facility.”
Additionally, the ordinance does not prohibit an employer or public accommodation from posting signs for restrooms and dressing rooms based on gender.