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Tuesday March 11, 2014

Kentucky Civil Rights Act
posted by Thomas A. Ebendorf

March 2014 is the 50th anniversary of the mass march on Frankfort in support of a state civil rights law.  This march of more than 10,000 people was led by Martin Luther King, Jr. and included baseballs Jackie Robinson, gospel singer Mahalia Jackson, and folk singers Peter, Paul and Mary.  The bill did not pass the 1964 session, but was resurrected and passed two years later in 1966.  This new state law prohibited discrimination in employment and places of public accommodation based on race, national origin, color and religion.  It was generally regarded as one of the best state anti-discrimination laws in the country and closely followed many of the provisions of the United States Civil Rights Act of 1964.  In 1968, Kentucky passed a Fair Housing Law prohibiting discrimination based on race, color, religion and national origin, and in 1972 the legislature amended the Kentucky Civil Rights Act to add coverage prohibiting employment discrimination based on sex and age between the ages of 40 and 65.  With this amendment, Kentucky added coverage equal to the Federal Civil Rights Acts.  Interestingly, the prohibitions against sex discrimination placed in the United States Civil Rights Act of 1964 were originally proposed by southern legislators who felt that by placing prohibition against sex discrimination in the federal law that the northern based labor unions would oppose the passage of the Act.  This failed strategy turned into one of the more significant provisions of the federal law and was later adopted by most states. 

The first real test of the Kentucky Civil Rights Act came in 1972 in the case of Whispering Hills Country Club v. Kentucky Commission on Human Rights, Ky., 475 SW2d 645 (1972).  The Whispering Hills Country Club was a privately owned and operated dance hall in south Louisville in the Whispering Hills Subdivision.  To gain admittance to this “country club” one had to pay a modest membership fee which would give the patron a membership card and entrance into the dance hall.  Lieutenant James Armstead, an African American officer stationed at Ft. Knox accompanied by several of his white co-workers attempted to gain admission on a Friday night.  He was politely but firmly refused with the explanation that the Whispering Hills Country Club was not a public dance hall but rather a private membership club and that the membership was not open to African Americans.  Lieutenant Armstead’s fellow white officers had no difficulty buying a membership card (i.e. cover charge) and obtaining entrance to this facility.  A subsequent complaint filed with the Kentucky Commission on Human Rights, the Administrative Agency for the Kentucky Civil Rights Act, resulted in a finding of illegal discrimination.  As part of the investigation the Commission sent teams of white and African American testers to the facility in an attempt to gain admission.  One of the testers, Gerald Neal, a University of Louisville student activist would later become a State Senator.  Senator Neal was denied admission and his experience bolstered the Commission’s finding that this facility was not a members only club but a public dance hall posing as a legitimate members only club.

Following an administrative hearing, the Commission ordered the Whispering Hills Country Club to open its doors to all without regard to race and this decision was appealed to the Kentucky Supreme Court with a claim that the Commission’s Administrative Hearings and Decisions violated the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and denied a de novo trial circuit court.  This claim was rejected and the Commission’s authority to investigate, make determinations, hold administrative hearings and issue court enforceable orders was upheld. 

Today, prohibitions against discrimination based on race, color, religion, national origin, sex, age and disability are accepted as the norm, not controversial and such behaviors are generally rejected as bad business practices.  Now the focus is on extending these legal protections to the area of sexual orientation.  If history is the teacher, these prohibitions will be added to the protected class.