Kansas Gas and Elec. Co. v. Kansas Com'n on Civil Rights, 61162

• Decision Date: 19 February 1988
• Docket Number: No. 61162,61162
• Citation: 750 P.2d 1055,242 Kan. 763
• Parties: , 46 Fair Empl.Prac.Cas. (BNA) 149, 47 Empl. Prac. Dec. P 38,200, 56 USLW 2510 KANSAS GAS AND ELECTRIC COMPANY, Respondent-Appellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant, and Robert Williams, Complainant-Appellant.
• Court: Kansas Supreme Court

Page 1055

750 P.2d 1055

242 Kan. 763, 46 Fair Empl.Prac.Cas. (BNA) 149,

47 Empl. Prac. Dec. P 38,200, 56 USLW 2510

KANSAS GAS AND ELECTRIC COMPANY, Respondent-Appellee, v. KANSAS COMMISSION ON CIVIL RIGHTS, Appellant, and Robert Williams, Complainant-Appellant.

No. 61162.

Supreme Court of Kansas.

Feb. 19, 1988.

Syllabus by the Court

A company policy consistent with K.A.R. 21-32-6 affording leaves of absence as a matter of right to employees suffering disabilities resulting from pregnancy is considered and held not to constitute sex discrimination under K.S.A. 44-1009(a)(1) although company policies deny leaves of absence as a matter of right to male and female employees suffering other types of disabilities, all as is more fully set forth in the opinion.

Arthur W. Solis, Staff Atty., of Kansas Com'n on Civil Rights, Wichita, was on the briefs, for appellants.

Stanley E. Craven, of Spencer, Fane, Britt & Browne, Kansas City, Mo., and Mark A. Vining, of Kansas Gas and Elec. Co., Wichita, were on the brief, for respondent-appellee.

McFARLAND, Justice:

This is a sex discrimination action filed by Robert Williams under K.S.A. 44-1009(a)(1) wherein Williams contends the policies of his employer, Kansas Gas & Electric Co. (KG & E), allowing leaves of absence for female employees suffering from pregnancy-related disabilities but not allowing leaves of absence for male employees suffering work-related disabilities, are unlawful. The Kansas Commission on Civil Rights (KCCR) held in Williams' favor. On appeal, the district court held in favor of KG & E. The KCCR and Williams appeal from the decision of the district court.

Williams commenced his employment with KG & E on October 28, 1981. Three days later he injured his shoulder while at work breaking down truck tires. This accidental injury was not reported to KG & E for several months. In June 1982, Williams reinjured his shoulder at work and Williams applied for workers' compensation benefits. Surgery was necessary to repair the injury. Williams sought a leave of absence from KG & E to avoid termination, but the request was denied. On August 27, 1982, surgery was performed on Williams' shoulder. On September 10, 1982, Williams' physician sent a letter to KG & E which stated Williams would be released for work in eight weeks. In September 1982, Williams was terminated as he had used up his sick leave and was unable to return to work. In October 1982, Williams again requested a leave of absence which was denied.

In mid-December 1982, Williams was released by his physician and filed for unemployment compensation benefits. The workers' compensation claim was resolved on January 6, 1984, with Williams receiving a 15% work disability. On April 16, 1984, Williams returned to work for KG & E in the same position he previously held with seniority to be calculated as of the reinstatement date.

On January 28, 1983, Williams filed the sex discrimination complaint herein with the KCCR alleging KG & E's refusal to grant him a leave of absence constituted sex discrimination under K.S.A. 44-1009(a)(1), which provides in part:

"(a) It shall be an unlawful employment practice:

"(1) For an employer, because of the ... sex ... of any person ... to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment ... or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business motive."

K.A.R. 21-32-2, issued by the Commission, provides that it shall be an unlawful employment practice for an employer to discriminate between men and women with regard to fringe benefits. Fringe benefits include "medical, hospital, accident, life insurance and retirement benefits; profit sharing and bonus plans; leave and other terms, conditions and privileges of employment."

K.A.R. 21-32-6, also issued by the Commission, provides:

"(a) A written or unwritten employment policy or practice which excludes from employment applicants or employees because of pregnancy is prima facie discrimination.

"(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth and recovery therefrom, are for all job related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.

"(c) Where the termination of an employee who is temporarily disabled is caused by an employment policy under which insufficient or no leave is available, such termination is discriminatory if it has a disparate impact on employees of one sex and is not justified by business necessity.

"(d) Childbearing must be considered by the employer to be a justification for a leave of absence for female employees for a reasonable period of time. Following childbearing, and upon signifying her intent to return within a reasonable time, such female employee shall be reinstated to her original job or to a position of like status and pay without loss of service, credits, seniority or other benefits."

Kansas Administrative Regulations, when adopted, have the force and effect of law. Harder v. Kansas Comm'n on Civil Rights, 225 Kan. 556, Syl. p 1, 592 P.2d 456 (1979); K.S.A.1987 Supp. 77-425.

KG & E's sickness/injury allowance policy contains paragraph S20.502(2), which provides:

"An employee whose disability (for other than compensable accidents) prevents his return to duty at the expiration of the allowances provided in the above schedule will normally be terminated at the expiration of the period of scheduled allowances. Leave (without pay) may be extended when requested by the Department Head and with Executive approval. Procedures outlined under the Leave of Absence policy should be followed to extend employee status."

KG & E later adopted L10.104, which provides:

"Female employees who are qualified for sickness or injury allowance benefits are eligible at their election to a leave of absence (without pay) or to earned sick leave pay when medically unable to work because of pregnancy, provided other provisions of the sick leave policy are observed as required of all employees. This is six (6) weeks or less in most pregnancies. Female employees who intend to continue their KG & E employment and desire additional time off prior to and/or following childbirth or do not have sickness or injury benefits available will, upon request, be placed on a Leave of Absence without pay."

The evidence is uncontroverted that all male and female employees are treated equally by KG & E under S20.502(2).

Female employees qualified under L10.104 have a right to seek leaves of absence thereunder for pregnancy-related disabilities. Williams and the KCCR contend that the special provisions relative to pregnant employees constitute unlawful discrimination against male employees. We do not agree.

It is easy to mouth platitudes to the effect that employers should consider all employees as "its" and determine all employment policies on that basis. The extremists would declare that any deviation from this so-called ideal is unlawful. Such a position ignores the real world. Homo sapiens are either male or female. The role of bearing children falls on the female sex. As a result of our changing society, more than 50% of adult women of childbearing age work outside the home. For a variety of reasons, an...