Budget issues and school finance reform continue to dominate the 2015 Kansas legislative session. But two interesting employment-related bills have been introduced. The first would limit employers from obtaining and using criminal background information in making hiring and other employment decisions. The second proposed law would amend the Kansas Act Against Discrimination to expand the range of protected classifications to include sexual orientation and gender identity.
The Committee on Veterans, Military, and Homeland Security introduced House Bill 2343, titled "An Act relating to employment; concerning fair consideration for persons with a record of criminal convictions." The bill includes the following provisions:
- An employer may not conduct background checks on applicants unless it has made a good faith determination that the relevant position is of such sensitivity that a background check is warranted or if a background check is required by any federal or state law.
- All job announcements and position descriptions must contain the following information if the position requires a background check (unless otherwise required by law): "This position is subject to a background check for any convictions directly related to its duties and responsibilities. Only job-related convictions will be considered and will not automatically disqualify the candidate."
- Job applications may not inquire into an applicant's conviction history.
- An employer may not use records of an arrest not followed by a valid conviction, or sealed, dismissed, or expunged convictions.
- An employer may not inquire into or consider an applicant's conviction history until after the applicant has received a conditional offer. Prior to any conviction history check, the employer must send the applicant a conditional offer letter, notice of rights under this act, and a request for authorization to conduct a background check, if so required.
- If the employer is considering the conviction history of the applicant, the employer may only consider job-related convictions, except that if federal or state law requires that certain convictions are automatic bars to employment, then those convictions shall also be considered.
- If an employer makes an adverse decision based on information obtained from a criminal background check, it must inform the applicant or employee.
Individuals would be able to bring civil actions for violations, and recover damages, injunctive relief, attorneys fees, and costs.
In February, Governor Brownback issued an Executive Order rescinding rules that protected state workers from discrimination based on gender identity and sexual orientation. Former Governor Sebelius had implemented the rule in 2007, saying she did so to signal that Kansas was a tolerant state that wanted a diverse workforce and was "open for business." Governor Brownback said, in a written statement: "This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional 'protected classes' as the previous order did. Any such expansion of 'protected classes' should be done by the legislature."
A new house bill would provide such a legislative expansion. It would amend the Kansas Act Against Discrimination, which provides protection against discrimination in employment, housing, and public accommodations, to include sexual orientation and gender identity, in addition to existing protections based on race, religion, color, sex, disability, national origin, and ancestry. The existing exception for religious or private fraternal and benevolent associations or corporations would be maintained.
The bill defines "sexual orientation" to mean "actual, or perceived, male or female heterosexuality, homosexuality or bisexuality by inclination, practice or expression." "Gender identity" is defined as "having or expressing a self image or identity not traditionally associated with one's gender," but "shall not 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."
At this time neither of these bills appears to have much traction. We'll let you know if either of these bills makes any headway and keep you apprised of other legislative developments.