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What A Short, Strange Trip It’s Been

Has it really only been a week since the Kansas House of Representatives passed House Bill 2453? Supporters said it simply protects religious liberty. Opponents countered that it sanctions discrimination against same-sex couples; allows police officers, fire fighters, and other government employees to refuse to provide basic or emergency services to tax payers; and imposes significant burdens on Kansas employers. A nationwide hullabaloo ensued.

House Bill No. 2453 is titled “an act concerning religious freedoms with respect to marriage.” Section 1 of the bill provides, “Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender: … Provide any services, accommodations, advantages, facilities, goods, or privileges … or provide employment or employment benefits, related to … any marriage, domestic partnership, civil union or similar arrangement.” The term “religious entity” is broadly defined to include: (1) any “religious corporation, association, educational institution or society;” (2) any entity “connected with” such a religious organization; or (3) “a privately-held business operating consistently with its sincerely held religious beliefs.”
Section 2 provides that individuals or religious entities that refuse to provide services, employment, or employment benefits “related to” any such relationship, because of their religious beliefs, are shielded from civil claims or government penal action. Section 2 also says that if an employee of any employer (even the government or a non-religious entity) invokes the right to decline to provide services the employee would otherwise have to provide per the employer’s policies, the employer would have to “promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer.” The bill does not define “undue hardship.” 
The House passed the bill by a 72-42 vote on February 12. But the bill appeared to be dead on arrival in the Senate. Senate President Susan Wagle (R-Wichita) and other Senate leaders held a press conference on February 14 to express concerns about the “practical impact” of the bill. Wagle denounced the provision that allows government employees to refuse to provide services, saying it would not be included in any version of the bill to be considered by the Senate.
Wagle also stated that the bill would hurt large and small businesses. “It actually overturns our current laws that represent at-will employment, in that an employer can hire and fire any individual for any reason,” she said. “The business community is just tremendously concerned about how this will affect the employer-employee relationship.” Wagle further explained that the bill would increase business costs by requiring employers to provide another employee to perform services if an employee refuses to serve customers because of religious objections. The Kansas Chamber of Commerce issued a statement pointing out the problems the bill presented for private businesses.
After the Senate press conference, some House members who voted for the bill began backtracking. One House member said that the bill is “so tainted now that it needs to go away.” His wish was granted on February 19, when Senate Vice President Jeff King (R-Independence) announced that the Senate was “not going to work the bill,” calling it “kaput.” It will be interesting to see if it reserfaces in some other form. 

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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