ORDINANCE NO. 070494
Amending Chapter 38, Code of
Ordinances, by repealing Section 38-1 and moving Sections 38-81, 38-82 and
38-83 and enacting in lieu thereof new Sections 38-1, 38-2, 38-3, 38-4, 38-5
and 38-6.
BE IT ORDAINED BY THE
COUNCIL OF KANSAS CITY:
Section 1. That
Chapter 38, Code of Ordinances of the City of Kansas City, Missouri, is hereby
amended by repealing Section 38-1 and moving Sections 38-81, 38-82 and 38-83
and enacting in lieu thereof new Sections 38-1, 38-2, 38-3, 38-4 38-5 and 38-6,
to read as follows:
Sec. 38-1. Definitions.
The following
words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a
different meaning:
Affirmative
action program means a positive program designed to ensure that a
good-faith effort will be made to employ applicants and to treat employees
equally without regard to their race, color, creed or religion, national origin,
sex, disability or age. Such program shall apply, where applicable, to the
following: recruitment and recruitment advertising, employment, employment
upgrading, promotion, demotion or compensation, other terms or conditions of
employment and selection for training, including apprenticeship; and shall
include goals, methodology and timetables for implementation of the
program.
Age
means an age of 40 or more years, except that it shall not be an unlawful
employment practice for an employer to require the compulsory retirement of any
person who has attained the age of 85 and who, for the two-year period
immediately before retirement, is employed in a bona fide executive or high
policymaking position, if such person is entitled to an immediate
nonforfeitable annual retirement benefit from a pension, profit sharing,
savings or deferred compensation plan, or any combination of such plans, of the
employer, which equals, in the aggregate, at least $344,000.00.
Certificate
of compliance means a written certificate issued within two calendar
years by the director or a current written certificate issued by an agency or
body charged with administration of a governmentally recognized affirmative
action program that any person named in such certificate is in compliance with
the terms of an affirmative action plan filed by such person with such agency
or body or with the director.
City
means the City of Kansas City, Missouri.
Commission
means the city human rights commission.
Complainant
means any person claiming injury by the alleged violation of RSMo ch. 213 or of
this chapter, including persons who believe they will be injured by a
discriminatory practice that is about to occur.
Complaint
means a verified written statement of facts and circumstances, including dates,
times, places and names of persons involved in any alleged violation of any
provision of RSMo ch. 213 or of this chapter.
Contract or
lease means any contract or lease to which the city shall be a
contracting party, except the following:
(1) Personal
services contracts.
(2) Emergency
requisitions for goods, supplies or services.
(3) Impressed
accounts in the nature of petty cash funds.
(4) Contract or lease, the cost of which will not exceed
$117,000.00, except contracts with any supplier or other contractor which does
an aggregate annual business with the city in excess of $117,000.00. Aggregate
annual business shall be measured by the amount of business done by the
supplier or other contractor with the city during the current city fiscal year
excluding purchases made on a city procurement card unless such purchases were
made off of a city contract.
Contracting
officer means the person designated to execute a contract on behalf
of the city or other public body.
Contractor
means any individual, partnership, corporation, association or other entity, or
any combination of such entities, who or which enters into a contract with the
city and who has twenty-five (25) or more employees exclusive of parents,
spouse or children of such contractor.
Covered
multifamily dwelling means a building consisting of four or more
units if the building has one or more elevators or a ground floor unit in a
building consisting of four or more units.
Department
means the department of human relations.
Director
means the director of the human relations department or their delegate.
Disability.
With respect to employment, a person with a disability is a person who is otherwise
qualified and who, with reasonable accommodation, can perform the essential
functions of the job in question. Generally, a person with a disability is any
person who:
(1) Has a physical or mental impairment which
substantially limits one or more major life activities;
(2) Has
a record of having such impairment; or
(3) Is
regarded as having such an impairment.
Dwelling
means any building, structure or portion thereof which is occupied as, or
designed or intended for occupancy as, a residence by one or more families, and
any vacant land which is offered for sale or lease for the construction or
location thereon of any such building, structure or portion thereof.
Employee
means any individual employed by an employer, but does not include an
individual employed by his parents, spouse or child or any individual employed
to render services as a domestic in the home of the employer.
Employer
includes any person employing six or more employees except that for the sole
purpose of the city's affirmative action program it shall mean any person
employing twenty-five (25) or more employees.
Employment
agency means any person, agency or organization, regularly
undertaking, with or without compensation, to procure opportunities for
employment or to procure, recruit, refer or place employees.
Familial
status means one or more individuals, who have not attained the age
of 18 years, being domiciled with:
(1) A parent or another person having legal
custody of such individual or individuals; or
(b) The designee of such parent or other person
having such custody, with the written permission of such parent or other person.
The protection afforded against
discrimination on the basis of familial status shall apply to any person who is
pregnant or is in the process of securing legal custody of any individual who
has not attained the age of 18 years. No provision in this chapter regarding
familial status shall apply to housing for older persons, as defined in section
3607 of title 42 of the United States Code Annotated.
Family
includes a single individual.
Franchise
holder means any individual, partnership, corporation, association or
other entity, or any combination of such entities, holding a franchise
hereafter granted or renewed by the city and who has twenty-five or more
employees exclusive of parents, spouse or children of such franchise
holder.
Labor
organization means any organization which exists for the purpose in
whole or in part of collective bargaining or for dealing with employers
concerning grievances, terms or conditions of employment, or for other mutual
aid or protection in relation to employment.
Parties.
The parties to any proceeding or hearing held pursuant to this chapter shall be
the city, the complainant and the respondent.
Performance
of work means the furnishing of any personal service, labor,
materials or equipment used in the fulfillment of a contractor's obligation
under a city contract.
Person
includes one or more individuals, corporations, partnerships, associations,
labor organizations, legal representatives, mutual companies, joint stock
companies, trusts, unincorporated organizations, trustees, trustees in
bankruptcy, receivers, fiduciaries and other organizations; except the term
"person" does not include any local, state or federal governmental
entity.
Public
accommodation means any place or business offering or holding out to
the general public goods, services, privileges, facilities, advantages or
accommodations for the peace, comfort, health, welfare and safety of the
general public, or providing food, drink, shelter, recreation or amusement,
including but not limited to:
(1) Any inn, hotel, motel or other establishment
which provides lodging to transient guests, other than an establishment located
within a building which contains not more than five rooms for rent or hire and
which is actually occupied by the proprietor of such establishment as his
residence.
(2) Any restaurant, tavern, cafeteria, lunchroom,
lunch counter, soda fountain or other facility principally engaged in selling
food for consumption on the premises, including but not limited to any such
facility located on the premises of any retail establishment.
(3) Any gasoline station, including all facilities
located on the premises of such gasoline station and made available to the
patrons thereof.
(4) Any motion picture house, theater, concert
hall, sports arena, stadium or other place of exhibition or entertainment.
(5) Any public facility owned, operated or managed
by or on behalf of this city or any agency or subdivision thereof, or any
public corporation; and any such facility supported in whole or in part by
public funds.
(6) Any establishment which is physically located
within the premises of any establishment otherwise covered by this definition
or within the premises in which is physically located any such covered
establishment, and which holds itself out as serving patrons of such covered
establishment.
(7) Any institution, association, club or other
entity that has over 250 members, provides regular meal service, and regularly
receives payment for meals, beverages, dues, fees, the use of its facilities or
services directly or indirectly from or on behalf of nonmembers in furtherance
of trade or business.
Rent
means to lease, sublease, let or otherwise grant for a consideration the right
to occupy premises not owned by the occupant.
Respondent
means any person against whom it shall be alleged by complaint or identified
during the course of an investigation that such person has violated, is
violating or is about to violate any provision of RSMo ch. 213 or this
chapter.
Sex.
The term "sex," as included in the prohibitions of this chapter,
shall include sexual harassment.
Sexual
orientation means actual or perceived heterosexuality, homosexuality
or bisexuality.
Subcontractor
means any individual, partnership, corporation, association or other entity, or
other combination of such entities, which shall undertake, by virtue of a
separate contract with a contractor that exceeds $117,000, to fulfill all or
any part of any contractor's obligation under a contract with the city, or who
shall exercise any right granted to a franchise holder, and who has twenty-five
or more employees exclusive of the parents, spouse or children or such
subcontractor.
Sec. 38-2. Discrimination
prohibited.
(a) It
shall be unlawful for any person to discriminate in employment, housing, the
financing of housing, the provision of brokerage services or the provision of
public accommodations, on account of race, religion, color, ancestry, national
origin, sex, marital status, handicap or familial status.
(b) For
purposes of this section, the following definitions shall apply:
(1) Familial status means one or more
individuals, who have not attained the age of 18 years, being domiciled
with:
a. A parent or another person having legal custody of
such individual or individuals; or
b. The designee of such parent or other person having
such custody, with the written permission of such parent or other person.
The protection afforded against
discrimination on the basis of familial status shall apply to any person who is
pregnant or is in the process of securing legal custody of any individual who
has not attained the age of 18 years. No provision in this chapter regarding
familial status shall apply to housing for older persons, as defined in section
3607 of title 42 of the United States Code.
(2) Person includes one or more
individuals, corporations, partnerships, associations, labor organizations,
legal representatives, mutual companies, joint stock companies, trusts,
unincorporated organizations, trustees, trustees in bankruptcy, receivers,
fiduciaries and other organizations.
(3) Public accommodation means any
place or business offering or holding out to the general public goods,
services, privileges, facilities, advantages or accommodations for the public
peace, comfort, health, welfare and safety of the general public, or providing
food, drink, shelter, recreation or amusement, including but not limited
to:
a. Any inn, hotel, motel or other establishment
which provides lodging to transient guests, other than an establishment located
within a building which contains not more than five rooms for rent or hire and
which is actually occupied by the proprietor of such establishment as his
residence.
b. Any restaurant, tavern, cafeteria, lunchroom, lunch
counter, soda fountain or other facility principally engaged in selling food
for consumption on the premises, including but not limited to any such facility
located on the premises of any retail establishment.
c. Any gasoline station, including all facilities
located on the premises of such gasoline station and made available to the
patrons thereof.
d. Any motion picture house, theater, concert
hall, sports arena, stadium or other place of exhibition or entertainment.
e. Any public facility owned, operated or managed
by or on behalf of this state or any agency or subdivision thereof, or any
public corporation; and any such facility supported in whole or in part by
public funds.
f. Any establishment which is physically
located within the premises of any establishment otherwise covered by this
section or within the premises in which is physically located any such covered
establishment, and which holds itself out as serving patrons of such covered
establishment.
g. Any institution, association, club or other
entity that has over 250 members, provides regular meal service, and regularly
receives payment for meals, beverages, dues, fees, the use of its facilities or
services directly or indirectly from or on behalf of nonmembers in furtherance
of trade or business.
Sec. 38-3. Affirmative action.
(a) Submission
of affirmative action program or certificate of compliance.
(1) Prior to entering into any contract with or receiving any
franchise from the City, the person shall submit in writing to the City a
certificate of compliance as defined in section 38-1 when requested by the
City. In no event shall a contractor receive its first payment under a city
contract prior to providing a certificate of compliance to the City.
(2) All contractors on city contracts shall require any
subcontractor that receives a subcontract totaling more than $117,000.00 to
have or obtain a certificate of compliance. A subcontractor may adopt a
contractor's affirmative action program to comply with the requirements of this
section.
(3) If a contractor's annual business with the City during the
current city fiscal year exceeds $117,000.00, the contractor shall comply with
the program requirements within ten working days of exceeding the $117,000.00
threshold.
(b) Review
of affirmative action programs by the Director.
(1) Certificates of compliance. In lieu of submitting an
affirmative action program to the Director for approval, a contractor or
subcontractor may submit a current certificate of compliance issued by any
agency or body charged with administration of a governmentally recognized
affirmative action program.
(2) Affirmative action programs. The Director shall
receive and review affirmative action programs submitted to him or her, and
shall approve or shall specify in writing any modification of the program
needed to make it conform to the requirements of this chapter. The Director's
review shall include:
a. Comparing the actual availability of minorities and women by
job groups/occupational titles with the actual utilization of minorities and
women by job groups/occupational titles;
b. Comparing permanent full-time employment of minorities and
women versus non-minorities and men;
c. Comparing the pay and benefit structure of minorities and
women versus non-minorities and men;
d. Ensuring the person has policies and procedures to prevent
harassment and an internal mechanism in place to address complaints.
(3) Length of certification. All affirmative action
certificates of compliance issued by the Director shall be valid for two years
from the date of issue as long as the person complies with all Human Relations
reporting requirements.
(4) Review of revocations by commission. If the Director
revokes a certificate of compliance, a person may appeal to the Human Rights
Commission (Commission) by filing with the Director within ten working days
after notice of the Director's revocation, a written request for review by the
Commission, stating the grounds of such appeal with specificity. The Director
shall forward to the chairperson and members of the Commission a copy of any
appeal. Failure to file a timely appeal shall constitute a waiver of the right
to appeal the Director's decision.
Sec. 38-4. Contract conditions.
(a) All
contracts hereafter executed by the City shall contain language requiring as a
condition thereof that all persons contracting with the City or contracting
with any public or private entity that receives 66% of its funding from the
City or receiving a franchise from the City or subcontractors of such
contractors or franchisees agree to refrain from any discriminatory employment
practice as defined in this chapter, that such persons agree to implement the
affirmative action program submitted in connection with such contract or
franchise, and that if a contractor shall fail, refuse or neglect to comply
with these contract conditions such failure shall be deemed a total breach of
the contract and such contract may be terminated, canceled or suspended, in whole
or in part, and such contractor may be declared ineligible for any further city
contracts for a period of one year.
(b) Director's
access to information. All contracts shall contain language to the effect that
all contractors and subcontractors agree to permit the Director of Human
Relations access, at all reasonable times, to all books, papers, records,
reports or accounts in possession of or under the control of such person, as
may be necessary to ascertain compliance with this division, and to furnish
such further information as may be required of such person within ten working
days of the date it is so requested in writing.
(c) On-site
audits. Director shall be authorized to conduct on-site audits of any
contractor and subcontractor. If the Director conducts an on-site audit, the
Director shall evaluate whether members of minority groups and women enjoy the
same level of decision making authority commensurate with their occupation.
Sec. 38-5. Enforcement of
contract conditions.
If the Director
shall find after investigation that a contractor or subcontractor has violated
contract provisions relating to discriminatory employment practices or
affirmative action, the Director shall bring a complaint before the Human
Rights Commission. The Commission shall hold a hearing in accordance with this
chapter. After rendition of the Commission's decision, the contracting officer
involved shall serve upon the respondent a copy of such order and decision. The
respondent shall have 30 days after delivery of the order and decision to
demonstrate to the Director willingness to comply with the terms and conditions
of such order, failing which the contracting officer shall proceed to cancel,
terminate or suspend the contract, or declare the contractor ineligible to receive
any city contract or franchise for a period of one year, as such order may
require. Willingness of the contractor to comply with such order shall be
evidenced by his or her written agreement to comply with the terms and
conditions set forth in the order.
Sec. 38-6. Escalation of
dollar limits.
At the beginning
of each City fiscal year, the monetary amounts specified in Code sections 38-1
shall automatically be adjusted and shall be announced by the City Manager to
reflect an increase equal to an increase in the consumer price index (all
items/all urban consumers/Kansas City, Missouri-Kansas) published by the United
States Department of Labor, Bureau of Labor Statistics Consumer Price Index for
all urban consumers to eliminate the effects of inflation on purchasing power.
Such monetary amount, as adjusted, shall be rounded upwards to the nearest
$1,000.00.
_____________________________________________
Approved
as to form and legality:
___________________________________
Brian
Rabineau
Assistant City Attorney