Harder v. Kansas Commission on Civil Rights, 49960

• Decision Date: 31 March 1979
• Docket Number: No. 49960,49960
• Citation: 592 P.2d 456,225 Kan. 556
• Parties: , 30 Fair Empl.Prac.Cas. (BNA) 958, 19 Empl. Prac. Dec. P 9159 Robert C. HARDER, Secretary of Social and Rehabilitation Services and William E. Richards, Director of Social Services, Appellees, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.
• Court: Kansas Supreme Court

Page 456

592 P.2d 456

225 Kan. 556, 30 Fair Empl.Prac.Cas. (BNA) 958,

19 Empl. Prac. Dec. P 9159

Robert C. HARDER, Secretary of Social and Rehabilitation Services and William E. Richards, Director of Social Services, Appellees, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant.

No. 49960.

Supreme Court of Kansas.

March 31, 1979.

Syllabus by the Court

1. Kansas Administrative Regulations when adopted, have the force and effect of law. (K.S.A. 77-425).

2. Kansas Administrative Regulations will be construed to operate prospectively unless a contrary intent is clearly indicated.

3. K.A.R. 21-32-6 granting insurance and sick leave benefits to public employees for pregnancy related disabilities first became effective November 16, 1972, and did not apply to pregnancy disabilities occurring prior to that date.

4. The denial of sick leave benefits for pregnancy related disabilities occurring in August, 1972, did not constitute a violation of K.S.A. 44-1009.

5. The trial court's determination that the complainant's termination of her employment with the Sedgwick County Social Welfare Board was voluntary and not the result of illegal discriminatory practices of the Board is supported by ample competent evidence.

Gary D. Jackson, of Kansas Commission on Civil Rights, Topeka, argued the cause; Arthur W. Solis, legal intern, and Roger Lovett, KCCR, Topeka, and Curt T. Schneider, Atty. Gen., were with him on the brief for appellant.

Robert R. Hiller, Jr., of Social and Rehabilitation Services, Wichita, argued the cause and was on the brief for appellees.

HOLMES, Justice:

This is an appeal by the Kansas Commission on Civil Rights (KCCR) from a decision of the district court of Sedgwick County concluding (1) that as a matter of law the exclusion of pregnancy from a public employer's sick leave plan did not constitute discrimination on the basis of sex and (2) that Mrs. Rutledge's resignation from employment did not constitute constructive termination.

The learned trial judge set forth his findings and conclusions in a memorandum decision as follows:

"There is truly no factual dispute in this matter with the exception of one issue, and so the following recitation of the facts of this matter are findings of the Court based on uncontroverted testimony and exhibits with exceptions as noted. Linda Sorrell, then Mrs. Rutledge, a female, commenced her employment with the Sedgwick County Social Welfare Board on September 13, 1971, and continued to be employed by that agency until November 30, 1972. Because of reorganization, that body is now included within the Kansas Department of Social and Rehabilitation Services. While an employee of the SRS, she became pregnant. Her testimony described that pregnancy as a 'planned child.' During the final month of pregnancy in August of 1972, she requested of her immediate supervisor that she be allowed to use sick leave because of the pregnancy. Her supervisor, Mrs. Edith Webb, stated to her that it was not the policy of the Department to make such an allowance, in fact the contrary was true. The Kansas Civil Services regulations Article 10-2019 (which was in effect at that time), provides:

'Sick leave with pay may be granted only for absence from duty because of the personal illness of the employee or legal quarantine. Pregnancy shall not be considered an illness.'

Upon denial of Mrs. Rutledge's request for sick leave, she was forced to use her annual leave. From August 14, 1972, through August 21, 1972, she used six (6) days of annual leave for this reason. After exhausting all of her annual leave by August 21, 1972, she took leave without pay from August 28, 1972 through September 25, 1972, at which time she resumed employment. The child, unfortunately, had a physical infirmity known as 'colic' and because of the difficulties involved in caring for the child, Mrs. Rutledge found it necessary to take leave without pay in order to rest. Mrs. Rutledge alleges that she was forced to resign because of her inability to take sick leave. The Court can find no factual basis of that allegation, and in fact, the obverse appears to be true that Mrs. Rutledge, in fact, resigned her position out of personal choice to both care for her child and accompany her husband to California.

"The pre-trial order filed in this matter December 8, 1977 in Paragraph I lists seven issues to be resolved. All seven are or proceed from the central issue of whether or not the policy regarding sick leave of the SRS is discriminatory as prohibited by K.S.A.1977 Supp. 44-1009(a)(1), which provides:

'It shall be an unlawful employment practice for an employer because of the race, religion, color, sex, physical handicap, national origin, or ancestry of any person, to refuse to hire to employ, or to bar or discharge from employment such person or to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment; or to limit, segregate, separate, classify, or make any distinction in regard to employees, or to follow any employment procedure or practice which in fact, results in discrimination, segregation or separation without a valid business motive.'

Only if it can be said that Mrs. Rutledge was discriminated against because of her sex, may the issue of damages be approached. It is unnecessary to approach the other issues because I conclude as a matter of law that Mrs. Rutledge was not discriminated against upon the basis of her sex.

"In my opinion, there are two cases which are both directly on point and conclusive and convincing as to their reasoning. They are, of course, Geduldig v. Aiello, 94 S.Ct. 2485, 417 U.S. 484, 41 L.Ed.2d 256, and General Electric Co. v. Gilbert, (429 U.S. 125) 94 S.Ct. 401, (50 L.Ed.2d 343). While Counsel for the Civil Rights Commission urges that these cases are both Title VII cases and involve insurance plans rather than sick leave provisions, the principles enunciated in both are obviously squarely on point. The wording of the Title VII Prohibition and that of our own Kansas Statute, while not identical, is identical in meaning and impact. The principles of the insurance coverage and annual leave, sick leave, etc. are extremely similar in that both provide a type of compensation when the employee is unable to work. Counsel for both sides have of course read both cases, but there is one particular section of Geduldig which is quoted in Gilbert, which in my judgment bears repetition:

'The California insurance program does not exclude anyone from benefit eligibility because of gender, but merely removes one physical condition pregnancy from the list of compensable disabilities. While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex based classification . . .'

'. . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the...