Request By:
Honorable Ed W. Hancock
Deputy Secretary for Legal Affairs
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Martin Glazer, Assistant Attorney General
By letter dated June 28, 1979, you have requested an opinion of this office concerning the juxtaposition of various statutes both state and federal and executive orders dealing with discrimination in employment.
Specifically, you state that KRS 344.040 prohibits discrimination in employment because of an individual's race, color, religion, national origin, sex, or age between forty and sixty-five. By Executive Order No. 77-508 dated June 10, 1977, Governor Carroll required all state contracts for public works or for goods or services to contain provisions whereby the contractor agrees not to discriminate against employees or applicants for employment based on race, color, religion, national origin, sex or age between forty and sixty-five. You further state that this Executive Order was amended by Executive Order No. 77-831 to add handicap to the prohibited bases for discrimination. You further note that Congress by Public Law 95-256 extended the federal Age Discrimination in Employment Act to apply to ages between forty and seventy rather than forty to sixty-five. You also point out that Public Law 95-256 like KRS 344.040 does not require a contractual provision in public contracts regarding discrimination even though such in prohibited by statute. Also, 23 CFR Part 633, Subpart A, Appendix A, requires contract provisions regarding discrimination based on race, color, religion, sex or national origin in federal funded contracts. And, finally, you also note that the General Assembly, by Chapter 130 of the 1978 Acts, enacted KRS 45.550 through 45.640. This Act requires all publicly funded contracts to include certain provisions regarding discrimination based on race, color, religion, sex, age or national origin. You believe this Act appears to be patterned after the provisions of the Governor's Executive Order No. 77-508 and the federal regulation 23 CFR Part 633, Subpart A. However, the age limitation of forty to sixty-five provided for in the Executive Order was omitted so that there is no age limitation in the Act. You specifically ask the following question:
"Should publicly funded contracts contain the age provision as set out in the 1978 Acts or as set out in the Executive Order?"
We are not certain whether you mean the 1978 federal act or the 1978 Kentucky act dealing with the contracts.
The Kentucky act does not define age or the limitations of age. It does define contract contractor, contracting agency, subcontractor and the department. The federal act is geared to prohibit discrimination by the employer and the federal act does not deal with contracts per se. KRS Chapter 344 deals in part with discrimination in employment by the employer, but it is limited to age discrimination in employment between forty and sixty-five. In other words, the Commission on Human Rights has no authority, at this time, to handle a claim where there is age discrimination between sixty-five and seventy. Therefore, considering all these acts, regulations and executive orders in para materia, we believe it was the legislative intent in KRS Chapter 45.550 through 45.640 to prohibit discrimination as it existed under Kentucky law, that is, between forty and sixty-five years of age in contracts. Should an employer be covered by the federal law under the Age in Discrimination Act as amended in 1978, then it will be up to the federal government to enforce that portion of its act. The contract between the state agency and a contractor would only require that the contract provisions prohibit discrimination because of age (without specifying the age limits). If the employer (contractor) is covered by federal law, he will have to abide by the federal law.
You also state that it is not clear whether the 1978 act applies to construction contracts. You point out that KRS 45.560(1) states that the definition of "contract" includes construction. However, KRS 45.460(3) and 45.570 refer only to supplies, materials, services or equipment, and that KRS 45.600 requires the Department of Finance to administer the act, but that Department does not administer highway construction contracts awarded pursuant to KRS 176.070 to 176.110. Thus, your second question is:
"Does Chapter 130 of the 1978 Acts apply to highway construction contracts? "
Since KRS 45.560(1) defines contract as: "any binding legal relationship between the Commonwealth of Kentucky and a contractor for supplies and services including construction, or for the use of Commonwealth property in which the parties, respectively, do not stand in the relationship of employer and employee", it appears clear to us that the contract would include construction projects. It would seem that construction contractors would either have to furnish supplies, services, material, or equipment, in any case. KRS 45.570 requires that all contracts of contracting agencies of the Commonwealth, any county, city, town, school district, water district, hospital district or other political subdivision of the state shall include in every directly or indirectly publicly funded contract for supplies, materials, services or equipment certain provisions including a provision that the contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, age or national origin. KRS 45.600 requires any party not exempt by KRS 45.590 (which exemption excludes contracts under $250,000 or whose contractor employs less than eight employees or family members or relatives or who employs any persons having a direct ownership interest in the business) to submit to the contracting agency and the department [meaning the Department of Finance] a statement of intent to comply with the requirements of the Kentucky Civil Rights Act and other requirements.
Reading these sections in para materia, it appears clear that the Department of Finance is meant to be the umbrella monitor agency of seeing that the contracts contain provisions excluding discrimination and that the contractor complies with the terms which forbid discrimination even if the contracting agency happens to be a city, a town, a county, or political subdivision of the state.
Therefore, in answer to your second question, it appears that the General Assembly intended that Chapter 130 of the 1978 Acts does apply to highway construction contracts even though, ordinarily, the Department of Finance does not oversee highway construction contracts.
I trust this has answered the questions you have raised.