General Information About Employment Discrimination
Indiana is an "at will" employment state. This means that Indiana law gives employers wide latitude to make employment action related decisions. Employers may take many actions which may seem unfair, irrational or not based on good business practices, but these actions are often not illegal. It is important for an employee to gather as much information as possible before taking legal action in order to be sure that the potential claim is both legally and financially viable. For many reasons, frivolous employment lawsuits are not in anyone’s best interests. There are federal, state, and some city laws which govern legitimate claims and prohibit discrimination and harassment of employees on the basis of:
- national origin;
- age (40 and older);
- use of leave under the Family Medical Leave Act; and,
Employers are also prohibited from retaliating against employees who complain about discrimination or harassment:
- against themselves or others;
- regarding use of employee benefits;
- within the company or in any agency or court proceeding; or,
- who participate in any such proceedings or investigations.
Discrimination may occur:
- before employment begins (e.g., discriminatory hiring practices);
- during the employment relationship (e.g., discrimination in compensation, promotions, or other terms and conditions of employment); or
- at the end of employment (e.g., discriminatory discharge).
Federal and Indiana law also protect some whistleblowers who report illegal activity from retaliatory actions. In addition, Indiana law protects employees who exercise a statutory right, such as making a worker compensation benefits claim. Amy Ficklin DeBrota represents both employees and employers, especially those who are small to medium sized, with respect to all types of discrimination, harassment, whistleblowers and retaliation claims.
If Ms. DeBrota is unable to represent you, she will attempt to refer you to another lawyer who might be able to assist you. You should also consider attempting to resolve your employment situation through pre-litigation employment dispute mediation. Mediation is an efficient, cost-effective way to resolve your differences which allows you to have more control over the outcome of the situation.
Federal Laws Which Prohibit Employment Discrimination
Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits employment discrimination based on race, color, religion, sex, or national origin. Title VII's broad prohibitions against sex discrimination specifically cover:
- Sexual Harassment -- This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
- Pregnancy Discrimination -- Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
- Sex Discrimination -- Different treatment, opportunities, or employment conditions based upon the sex of the employee is prohibited.
The Equal Pay Act of 1963 ("EPA"), which protects against different pay based on gender for employees who perform substantially equal work for the same employer. The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of substantially similar skill, effort, and responsibility for the same employer, under similar working conditions:
- Employers may not reduce wages of either sex to equalize pay between men and women.
- The EPA may be violated where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
- A violation may also occur where a labor union causes the employer to violate the law.
The Age Discrimination in Employment Act of 1967 ("ADEA"), which protects individuals who are 40 years of age or older from discrimination based on their age specifically prohibits:
- statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification;
- discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and,
- denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
Title I and Title V of the Americans with Disabilities Act of 1990 ("ADA") and the Americans with Disabilities Act Amendments ("ADAA") prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government or employers who contract with the federal government; and,
The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination. The Act made major changes in the federal laws against employment discrimination which are enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for recovering attorneys' fees and the right to a jury trial.
The U.S. Equal Employment Opportunity Commission ("EEOC") enforces all of these laws and provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. Claims brought under these laws must be filed with the EEOC prior to initiating court proceedings.
In addition, 42 U.S.C. § 1981 prohibits race discrimination in the context of employment and other "contracts." 42 U.S.C. § 1983 prohibits discrimination by governmental entities. The Family Medical Leave Act guarantees qualifying employees medical leave and prohibits retaliatory action against employees who exercise their rights under the Act, or seek to do so. The False Claims Act and several other federal statutes and Indiana common law also protect some "whistleblowers" from retaliatory employment actions. The EEOC does not enforce these laws, so lawsuits under these statutes may be filed directly in court.
Prohibited Discriminatory Practices
Under Title VII, the ADA/ADAA, the ADEA, and 42 U.S.C. §§ 1981 and 1983, it is illegal to discriminate in any aspect of employment, including:
- hiring and firing;
- compensation, assignment, or classification of employees;
- transfer, promotion, layoff, or recall;
- job advertisements;
- use of company facilities;
- training and apprenticeship programs;
- fringe benefits;
- pay, retirement plans, and disability leave; or,
- other terms and conditions of employment.
Discriminatory practices under these laws also include:
- harassment on the basis of race, color, religion, sex, national origin, disability, or age;
- retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
- employment decisions based on stereotypes or assumptions about abilities, traits, or performance of individuals based on sex, race, age, religion, or ethnic group, or disability; and,
- denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
Employers and Other Entities Covered by Federal Discrimination Laws
Title VII and the ADA cover all private employers and governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training. The United States Supreme Court has not yet ruled on the issue of whether Title VII applies to state governments.
The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.
The EPA covers all employers who are covered by the federal wage and hour law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.
The FMLA applies to all employers with 50 or more employees at the location in question, or within a 75 mile radius thereof. An employee must have worked for one year for 1,250 hours total in order to qualify for leave. Title VII, the ADEA, and the EPA also cover the federal government. In addition, the federal government is covered by Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, which incorporate the requirements of the ADA. However, different procedures are used for processing complaints of federal discrimination. For more information on how to file a complaint of federal discrimination, contact the EEO office of the federal agency where the alleged discrimination occurred.
Strict Deadlines for Filing a Charge of Discrimination with the EEOC
All laws enforced by EEOC, except the EPA, require filing a charge with EEOC before a lawsuit may be filed in court. There are strict time limits within which charges must be filed:
- A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.
- This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. In Indiana, the deadline for most federal claims under the EEOC’s jurisdiction is 300 days. However, the filing deadline for age discrimination claims is 180 days.
- These time limits do not apply to EPA claims because under that Act employees do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated. Be advised that filing a claim for unequal wages based on sex with the EEOC does NOT toll the statute of limitations under the EPA.
Remedies Available if/when Discrimination is Proven
The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:
- back pay,
- front pay,
- reasonable accommodation; or
- other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).
Remedies also may include payment of:
- attorneys' fees,
- expert witness fees; and,
- court costs.
Compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against federal, state or local governments.
In cases concerning reasonable accommodation under the ADA/ADAA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.
The Indiana Civil Rights Commission May Handle a Charge Covered by State or Local Law
Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. Indiana has very few anti-discrimination laws. The agency charged with handling claims brought under these statutes is the Indiana Civil Right Commission. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Through the use of "work sharing agreements," EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that an employee’s rights are protected under both federal and state law.
If a charge is filed with a FEPA and is also covered by federal law, the FEPA "dual files" the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.
If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but ordinarily retains the charge for handling.
Under Indiana law:
- The Indiana Civil Rights Act only covers employers with six employees or more.
- Compensation to employees is limited to lost wages only, pursuant to the Indiana Civil Rights Act.
- Indiana common law provides compensatory and punitive damages recovery for wrongful termination cases, under some circumstances. Attorney fees are only available under Indiana law for claims of unpaid wages.
For More Information
If you are an employee who needs additional information about how these laws may apply to your situation, please complete a questionnaire for review by Ms. DeBrota. If you are an employer seeking legal advice about how to handle an employment situation which may fall under the federal or state law discussed above, please visit the Human Resources Counsel page for more information about our available services or submit a Human Resources Legal Counsel questionnaire.
The DeBrota Law Firm LLC provides this web site for informational purposes only. The information here does not constitute legal advice regarding your specific situation. The use of this site does not create an attorney-client relationship. Under some circumstances, further communication with our attorneys through the web site and email may not be considered as confidential or privileged. Please contact Ms. DeBrota or complete one of our contact forms if you wish to discuss the contents of this web site or your specific situation. Please note that Ms. DeBrota does charge a consultation fee for telephone or in office consultations.
"Law is not justice and a trial is not a scientific
inquiry into truth. A trial is the resolution of a dispute."
The DeBrota Law Firm LLC, an Indianapolis based employment law firm, provides mediation services, consultations and employee or employer litigation representation in central Indiana and throughout the state. Amy Ficklin DeBrota represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of employment contract, discrimination, equal pay, retaliation, whistleblower actions, as well as other types of employment related legal claims under federal and Indiana state law. She has special interest and experience in representing nurses, doctors, veterinarians and other health care professionals with their employment issues. Further, she provides consultations with small and medium sized employers who are interested in avoiding employment based lawsuits. Ms. DeBrota is not only a lawyer. She is also a registered Indiana mediator who is available to travel to or host mediations regarding employment disputes, personal injury claims, and general civil litigation. She has the legal knowledge and years of experience to allow her to effectively communicate with individuals who are experienced with the law, and with those for whom the legal system is unfamiliar, in order to help everyone concerned realize the benefits of an agreed settlement. Ms. DeBrota is a dedicated, effective Indiana employment law attorney and mediator based in Indianapolis, Indiana.
Family Medical Leave Act