General Information About Employment Discrimination

Employee Rights

Indiana is an "at will" employment state. This means that Indiana law gives employers wide latitude with regard to employment actions. Employers may take many actions which are unfair, irrational or not based on good business practices, but these actions are often not illegal. Unfortunately, the gap between what is unfair and what is illegal is often quite great. However, federal, state, and some local laws prohibit discrimination and harassment of employees on the basis of:

• race;
• gender;
• national origin;
• religion;
• age (40 and older); and,
• disability

Employers are also prohibited from retaliating against employees who complain about discrimination or harassment:

• against themselves or others;
• within the company or in any agency or court proceeding; or
• who participate in any such proceedings

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 claim or a claim for unpaid wages. Amy Ficklin DeBrota represents current, former and prospective employees across Indiana with respect to all types of discrimination, harassment, whistleblowers and retaliation. Ms. DeBrota also handles cases involving discrimination in housing and lending. Representation is available on an hourly fee basis. However, she also takes a limited number of cases on a contingency basis, with a reasonable initial retainer. This means that the bulk of the attorney fees are not paid unless we win a settlement or judgment for you. Flexible payment plans are available. Contact Ms. DeBrota by email or complete one of our consultation forms.

If Ms. DeBrota is unable to represent you regarding your employment related claims, 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 Regarding Employment Discrimination Questions and Answers

I. What Federal Laws 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;
• The Equal Pay Act of 1963 ("EPA"), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
• The Age Discrimination in Employment Act of 1967 ("ADEA"), which protects individuals who are 40 years of age or older;
• Title I and Title V of the Americans with Disabilities Act of 1990 ("ADA"), which 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; and,
• The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination

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 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.

II. What Discriminatory Practices Are Prohibited?

Under Title VII, the ADA, 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;
• recruitment;
• testing;
• 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

III. What Do These Laws Specifically Prohibit?

Title VII

Title VII prohibits not only intentional discrimination, but also practices that have the impact of discriminating based on race, color, national origin, religion, or sex.

National Origin Discrimination

• It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group
• A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA because verification must be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.

Religious Accommodation

• An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would be an undue hardship on the employer

Sex Discrimination

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

Age Discrimination in Employment Act

The ADEA's broad ban against age discrimination of those age 40 and older also 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

Equal Pay Act

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

Titles I and V of the Americans with Disabilities Act

The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:

Individual with a Disability

An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty, like walking, breathing, seeing, hearing, speaking, learning, and working.

Qualified Individual with a Disability

A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

Reasonable Accommodation

Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.

Prohibited Inquiries and Examinations

Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. However, an employer may ask about an applicant's ability to perform the job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Drug and Alcohol Use

Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.

The Civil Rights Act of 1991

The Civil Rights Act of 1991 made major changes in the federal laws against employment discrimination 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.

IV. Which Employers and Other Entities Are Covered by These 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.

V. What Are the Time Limits for Filing a Charge of Discrimination?

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. For ADEA charges, only state laws extend the filing limit to 300 days. In Indiana, the filing deadline for age discrimination claims is 180 days
• These time limits do not apply to EPA claims because under that Act persons 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

VI. What Agency Handles a Charge that is also Covered by State or Local Law?

Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. In Indiana that agency 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 a charging party'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
• The Indiana Civil Rights Act only covers employers with six employees or more

VII. When Can an Individual File an Employment Discrimination Lawsuit in Court?

If the action is pursuant to a state law, the action can be filed immediately in state court. If we file first with the EEOC, we must wait until we receive notice of the "right to sue" from the EEOC. A charging party must file a lawsuit within 90 days after receiving the"right to sue" notice from EEOC. Under Title VII and the ADA, a charging party also can request a notice of "right to sue" from EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving this notice. Under the ADEA, a suit may be filed at any time 60 days after filing a charge with EEOC, but not later than 90 days after EEOC gives notice that it has completed action on the charge.

Under the EPA, 42 U.S. §§ 1981 and 1983 and FMLA a lawsuit must be filed within two years of the discriminatory act. An EEOC charge need not be filed.

VIII. What Remedies Are Available When Discrimination Is Found?

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,
• hiring,
• promotion,
• reinstatement,
• 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

Under most EEOC-enforced laws, 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, 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.

Under Indiana law:

• 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

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 via email or complete one of our contact forms if you wish to discuss the contents of this web site or your specific situation.

"Law is not justice and a trial is not a scientific inquiry into truth. A trial is the resolution of a dispute."
Edison Haines

The DeBrota Law Firm LLC, an Indianapolis employment law firm, represents clients throughout Indiana, including all central Indiana counties and the cities of Indianapolis, Bloomington, Elkhart, Franklin, Kokomo, Lafayette, New Albany, Muncie, Terre Haute, Fort Wayne, South Bend, Richmond, Marion and Anderson. The DeBrota Law Firm LLC represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of contract, discrimination, equal pay, retaliation, whistleblower actions, as well as other types of employment related legal claims.

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