(a) Any person claiming to be aggrieved by an alleged unlawful act or practice may by himself or herself or by his or her attorney at law, make, sign and file with the Committee a complaint in writing which shall state the name and address of the person alleged to have committed the unlawful act or practice and which shall set forth the particulars and contain such other information which may be required by the Committee. The Committee, upon its own initiative, may make, sign and file the complaint. An employer whose employees or some of whose employees refuse or threaten to refuse to cooperate with the provisions of this article may file with the Committee a complaint asking for assistance by conciliation or other remedial action. The information gathered in the course of an investigation may be used in processing the complaint.
(b) Whenever the Committee has, in its own judgment, or as a result of a complaint filed with it, reason to believe that any person, as defined in § 8-702, has engaged in an unlawful act in violation of this article or has engaged in a pattern or practice of discrimination, the Committee shall investigate such alleged, illegal act. If the Committee determines, after such investigation, that no probable cause exists for crediting the allegations of the complaint, it shall within five days from such determination cause to be issued and served upon the complainant written notice of such determination, and a copy of such notice shall be sent to the person against whom the complaint was made. If the Committee, after such investigation, determines that probable cause exists for crediting the allegations of the complaint, the Committee shall immediately endeavor by conference and conciliation to eliminate the alleged, unlawful act. The complainant, respondent and the Ad Hoc Equal Opportunity Committee shall have 45 days from the date the respondent is notified in writing of the finding of probable cause to enter into a conciliation agreement signed by all parties in interest. The parties may amend the conciliation agreement at any date prior to the time of entering into such agreement. Upon agreement by the parties, the time for entering into such agreement may be extended. The members of the Committee shall not disclose what has transpired in the course of such endeavor.
(c) In case of failure to eliminate such act or practices through conciliation, the Committee shall cause to be issued and served on the Mayor, in the name of the Committee, written notice together with a copy of such complaint as the same may have been amended and other Committee records as may be deemed pertinent, and the mayor shall then inform the Governing Body of such action. The Governing Body will then decide within 15 days whether or not to instruct the Ad Hoc Equal Opportunity Committee to cause to be served, in the name of the Committee, a written notice together with a copy of such complaint as the same may have been amended requiring the person, employer, labor organization, realtor or financial institution named in the complaint hereinafter referred to as “respondent,” to answer the charges of the complaint before a hearing examiner to be appointed by the Governing Body at a time not less than ten business days after the service of the notice, unless the respondent requests in writing and is granted a continuance by the Committee.
(1) The complainant or respondent may apply to the Ad Hoc Equal Opportunity Committee for the issuance of a subpoena for the attendance of any person or the production or examination of any books, records or documents pertinent to the proceedings at the hearing. Upon application, the Committee shall cause a subpoena to be issued under the provisions of § 8-704.
(2) A City Attorney or an attorney selected by the Committee shall present the cases brought before the hearing examiner.
(3) Any complaint filed pursuant to this article must be so filed within 12 months of the alleged act of discrimination unless the act complained of constitutes a continuing pattern or practice of discrimination, in which event it will be from the last act of discrimination.
(4) The respondent may file a written, verified answer to the complaint and appear at the hearing in person or otherwise, with or without counsel, and submit testimony. The complainant shall appear at the hearing in person, with or without counsel, and submit testimony. The hearing examiner or a complainant shall have the power, reasonably and fairly, to amend any complaint and the respondent shall have like power to amend his or her answer. The hearing examiner shall be bound by the rules of evidence of the prevailing courts of law or equity and only relevant evidence of reasonable probative value shall be received. Reasonable examination and cross-examination shall be permitted. All parties shall be afforded opportunity to submit briefs prior to adjudication. The testimony taken at the hearing shall be under oath and be recorded and transcribed at the request of either the respondent or complainant.
(d) The hearing examiner shall listen to all pertinent evidence presented by both the Committee and the respondent and shall, upon the conclusion of the hearing, make findings of fact and conclusions of law and issue orders based thereon. The rulings made by the hearing examiner shall be binding upon all parties.
(f) If upon all the evidence in the hearing, the hearing examiner shall find the respondent has engaged in or is engaged in any unlawful employment practice or other unlawful discriminatory practice as defined in this article, then the hearing examiner shall state the findings of fact and shall issue and cause to be served upon the respondent an order requiring the respondent to cease and desist from the unlawful employment practice or other unlawful discriminatory practice, and to take affirmative action including, but not limited to, the hiring, reinstatement or upgrading of employees, with or without back pay, and the admission or restoration of membership in any respondent labor organizations; the admission to and full and equal enjoyment of the goods, services, facilities and accommodations denied in violation of this article as in the judgment of the hearing examiner will effectuate the purposes of this article and including a requirement for a report of the manner of compliance.
(g) The copy of the order shall be delivered by certified mail, return receipt requested, in all cases, by the Committee to the complainant, to the respondent, to the City Attorney’s office, and other public officers as the Committee may deem proper.
(h) Any party being dissatisfied with any order or decision of the hearing examiner may within ten days from the date of the service of the order or decision apply for a rehearing in respect to any matter determined therein; the application shall be granted or denied by the hearing examiner within ten days from the date same shall be filed, and if the rehearing is not granted within ten days, it shall be taken as denied. If a rehearing is granted, the matter shall be determined by the hearing examiner within 30 days after the same shall be submitted. No cause of action arising out of any order or decision of the hearing examiner shall accrue in any court to any party unless the party shall make application for a rehearing as herein provided. The application shall set forth specifically the ground or grounds on which the applicant considers the order or decision to be unlawful or unreasonable. No party shall in any court urge or reply upon any ground not set forth in the application. No order made after a rehearing abrogating, changing or modifying the original order or decision shall have the same force and effect as an original order or decision.
(i) The Committee, the City Attorney, the complainant or the respondent may secure enforcement of any final order of the hearing examiner by the District Court of the county where the unlawful employment practice or unlawful discriminatory practice shall have occurred or where any person required in the order to cease and desist from an unlawful employment practice or unlawful discriminatory practice or to take any affirmative action resides or transacts business, through mandamus or injunction in appropriate cases, or by action to compel the specific performance of the order. The proceedings shall be initiated by the filing of a petition in court, together with a transcript of the record, upon the hearing before the hearing examiner and issuance of service of a copy of the petition as in civil actions. The Court shall have the power to grant temporary relief or restraining order as it deems just and proper and to make and enter upon the pleadings, testimony and proceedings an order or decree enforcing, modifying and enforcing as so modified or setting aside in whole or in part, the order of the hearing examiner.
(j) The Committee, City Attorney or any person aggrieved by an order made by the hearing examiner may obtain judicial review in the court by filing with the Clerk of the Court, within 30 days from the date of service of the order, a written appeal praying that the order be modified or set aside. The appeal shall certify that notice in writing of the appeal, with a copy of the appeal, has been given to all parties who appeared before the hearing examiner, at their last known address and to the Committee and the hearing examiner who presided at the hearing. The evidence presented to the hearing examiner, together with his or her findings and the order issued thereon, shall be certified by the hearing examiner to the District Court as its return. No order of the hearing examiner shall be superseded or stayed during the proceeding on the appeal unless the District Court shall so direct.
(k) The court shall hear the appeal by trial de novo with or without a jury, in accordance with the provisions of K.S.A. 60-238, and the court may, in its discretion, permit any party to submit additional evidence on any issue. The appeal shall be heard and determined by the court as expeditiously as possible. After hearing, the court may affirm the adjudication. If the adjudication is not affirmed, the court may set aside or modify it in whole or in part, or may remand the proceedings to the hearing examiner for further disposition in accordance with the order of the court.
(l) The copy of the testimony given at the hearing shall be available at all reasonable times to all parties for examination without cost and for the purpose of judicial review of the order. The review shall be heard on the record without requirement of printing.
(m) The jurisdiction of the District Court of the proper county shall be exclusive and its final order or decree shall be subject to review by the Supreme Court, as in other cases, upon appeal within 30 days of the filing of the decision.
(n) The Ad Hoc Equal Opportunity Committee shall, except as otherwise herein provided, establish rules of practice to govern, expedite, and effectuate the foregoing procedure and its own actions thereunder.
(Prior Code, § 8-705) (Ord. 1099, passed 4-1-1981)