After flaws surface, Wichita rewrites an anti-discrimination ordinance passed two weeks ago
Wichita’s taking another crack at an anti-discrimination ordinance, after the most recent draft was hastily crafted and tentatively approved by the city council two weeks ago.
The new ordinance would replace an anti-discrimination law that mysteriously disappeared from the city code in 1999. This month’s version was almost immediately criticized for being too broadly written and for lacking procedural specifics, sparking a rewrite by proponents.
The new version is modeled on Overland Park’s ordinance and is much more detailed than the original Wichita version, which was based on a weaker Topeka ordinance that relies on state and federal authorities for enforcement.
The original Wichita ordinance combined the Topeka version with an enforcement protocol that was put together by LGBTQ advocates and the mayor only the weekend before it passed, a rushed effort mounted after complaints surfaced that the Topeka ordinance by itself was toothless.
Mayor Brandon Whipple, the council’s most outspoken proponent for an anti-discrimination ordinance, said he thinks the new version is a big improvement over the original Topeka core and the additions that were made on the fly.
He concedes there were holes in the ordinance that passed the council on a 4-3 vote June 15.
The most recent version of the ordinance completely reworks provisions for local enforcement, so complaints against government offices or private businesses can go to a municipal court judge for a decision on whether or not discrimination occurred. Those decisions will be subject to appeal to state courts.
The new version also drops mandatory penalties that escalated daily and could have run into hundreds of thousands of dollars in fines before a case was even decided.
The new model closes those gaps and incorporates needed definitions drawn from state and federal anti-discrimination law, Whipple said.
“The draft they came up with now, with the issues of the first draft that was passed (corrected), is amazing,” he said. “The one that we hope to move forward is I think much more substantial. It definitely gets us to where we want to be . . . it eliminates a lot of questions.”
The council will take the ordinance up again at its July 6 meeting.
‘Serious constitutional issues’
Earlier this week, The Eagle asked Jeffrey Jackson, a professor of constitutional law at Washburn University in Topeka, to evaluate the June 15 ordinance, and he deemed it vague and unworkable the way it was passed.
“While an anti-discrimination ordinance is a laudable goal, the one as drafted raises some serious constitutional issues,” Jackson said. “I think there are issues with vagueness and possibly due process.”
The biggest problem with the first ordinance was that it didn’t say who at City Hall would have authority to hear cases and render judgment.
Also, cases would only go to municipal court under two conditions: If the person who file a discrimination complaint requested a court hearing, or if a person found guilty of a violating the ordinance refused to pay the fine.
“If the city finds (a violation) they’ll fine you, but if you don’t pay it, they’ll take you to municipal court and there you get a chance (to defend yourself)? That seem odd,” Jackson said of the original plan. “There’s a due process issue only because it’s hard to tell what it does or how it works. The big issue is, who’s going to hear the case? It just seems like a very oddly drafted sort of thing.”
Jackson said the city would have had a better outcome on June 15 if it had approved a competing proposal that was also offered to the council but not seriously considered.
Dubbed the “Cadillac Plan” in the meeting, the competing proposal would have established a city Human Rights Commission to hear and rule on complaints.
Instead, the council went with the alternatively dubbed “Honda Plan,” which relied more heavily on the city attorney’s office to handle complaints and didn’t specify who would have the power to make a decision on whether discrimination occurred.
It couldn’t have been the City Council, Jackson said, because “they have no enabling legislation in that regard.”
“It looks like the problem really came in when they got rid of the Human Rights Commission stuff, which could be an agency of the city and could do these things, subject of course to judicial review,” he said.
Jackson could not be reached Friday to review the new draft of the ordinance.
A new proposal
Like the original ordinance, the new version generally bans discrimination based on a person’s “age, color, disability, familial status, gender identity, genetic information, national origin or ancestry, race, religion, sex, sexual orientation or military or veteran status.”
The ban on discrimination would apply to government services and contracting, housing, employment and all businesses of “public accommodation,” including hotels and motels, restaurants and retail stores.
But there are some key changes.
Consistent with federal and state law, religious organizations would be exempt and fraternal nonprofit associations would still be allowed to give their members favored treatment in group-operated housing.
Businesses would be able to keep gender-specific rest rooms and dressing rooms, to hire and fire employees for any reason except discrimination, and to require employees to adhere to reasonable standards of dress and personal grooming.
Businesses that require employee discrimination complaints to go through their human resources department would still be allowed to do that, but a parallel complaint could be filed with the city at the same time.
Also unlike the original ordinance, the process to file a discrimination complaint is spelled out in the new version.
A person who believes they’ve been discriminated against would be able to file a written complaint with the city clerk’s office.
For isolated acts, the complaint would have to be filed within 60 days of when the alleged discrimination occurred. Complaints alleging a ongoing pattern of discriminatory practice would have to be filed within 60 days of the last discriminatory act.
The plaintiff and defendant would be offered the chance to take their case to a mediator, either of their choice or one appointed by the city manager, to try to work out their differences. Mediation costs would be split equally between the two sides.
If mediation fails or one side opts not to participate, an investigator would be appointed to gather facts and statements from both sides. The investigator’s report would be forwarded to the city’s legal department.
If the legal department decides there is probable cause to believe a violation occurred, it could work with the parties to try to settle the case. If no settlement is reached in 60 days, the case would then be referred to a municipal judge who would act as a hearing officer.
The judge would hold a hearing and decide, within 60 days, whether a violation had occurred, and would have the discretion to order a fine of up to $2,000 for each discriminatory act.
In lieu of a fine, the judge could order “reasonable education requirements” to address the violation.
Either side could appeal the judge’s decision to state court.
If the rewritten ordinance is passed by the council, the city would start taking complaints on and after Sept. 1.
Ordinances generally have to be voted on twice for final passage. The second vote, called the “second reading” in city jargon, is usually a formality, and ordinances seldom undergo wholesale changes after the first vote.
“Feb. 3, when I asked legal to come up with a draft, I did say I thought Topeka was going to be the best one, because it was the last one passed,” he said.
Whipple said he was caught off guard when groups like Equality Kansas and the national Human Rights Council came out against it.
When the council approved the ordinance June 15, it was with the caveat, added by council member Brandon Johnson, that it come back as “unfinished business” for discussion, rather than the “consent agenda” where multiple routine and noncontroversial items are approved together with a single vote.
City Attorney Jennifer Magana told the council at the same meeting that they can make any changes they want between the first and second readings of an ordinance.
But on Friday, Whipple said that because the new ordinance is a top-to-bottom rewrite of the one that already passed, it will probably be treated as an original ordinance, with an initial vote on July 6 and a second consent agenda vote on July 13.
“It’s pretty much a substitute bill, if we’re talking in legislative terms,” he said.
This story was originally published June 27, 2021 at 4:09 AM.
CORRECTION: If Wichita’s new anti-discrimination ordinance is treated as an original ordinance, it could have an initial vote on July 6 and a second consent agenda vote on July 13. An earlier version of this story contained a wrong date.
