EEO - Discrimination: Indiana
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Stuart R. Buttrick, Susan W. Kline and Ryann E. Ricchio, Faegre Baker Daniels LLP
- The Indiana Civil Rights Law prohibits the same types of discrimination as federal law but applies to public employers and private employers with six or more employees. See Indiana Antidiscrimination Laws.
- Unlawful employment discrimination includes conditioning hiring, upgrading, promotion, tenure, demotion, transfer, layoff, termination, and rehiring decisions on a protected characteristic. See Discriminatory Practices.
- Employers may discriminate on the basis of sex when sex in a bona fide occupational qualification. See Sex Discrimination.
- Religious organizations are exempt from Indiana's definition of employer for purposes of the state's antidiscrimination laws. See Religious Discrimination.
- The Indiana Employment Discrimination Against Disabled Persons Act requires employers to provide reasonable accommodations to qualified individuals with a disability. See Disability Under the Indiana Employment Discrimination Against Disabled Persons Act.
- Employers must administer employment and medical tests in a manner that does not discriminate against individuals with disabilities. See Disability Under the Indiana Employment Discrimination Against Disabled Persons Act.
- The Indiana Age Discrimination Act prohibits discrimination against employees who are 40 to 74 years old. See Age Discrimination.
- Indiana has detailed administrative proceedings for discrimination complaints. See Administrative Proceedings.
- Employers cannot discriminate against job applicants or employees for off-duty tobacco use. See Smokers' Rights.
- Employers cannot discriminate against job applicants or employees based on lawful firearm possession. See Discrimination Based on Lawful Firearm Possession.
- Localities including Bloomington, Fort Wayne and South Bend have requirements pertaining to discrimination.See Local Requirements.
Indiana Antidiscrimination Laws
Taken together, the Indiana Civil Rights Law (ICRL), Age Discrimination Act, and Employment Discrimination Against Disabled Persons Act, prohibit employers from discriminating against or refusing to hire an individual on the basis of the following protected characteristics:
- Age (40-74);
- National Origin;
- Ancestry; or
- Status as a veteran.
Localities including Bloomington, Fort Wayne and South Bend have requirements pertaining to discrimination.See Local Requirements.
Employers covered by state and federal civil rights laws, including private employers, state and local governments, educational institutions, employment agencies and labor organizations with six or more workers must post an Equal Opportunity is the Law poster in a conspicuous manner, in a place accessible to employees.
It is unlawful to discriminate in the terms, conditions, or privileges of employment based on an employee's protected characteristic. Terms, conditions, or privileges of employment can include:
- Recruitment, advertising, and job application procedures;
- Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
- Rates of pay or any other form of compensation and changes in compensation;
- Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
- Leave of absence, sick leave, or any other leave;
- Fringe benefits available by virtue of employment, whether or not administered by the covered entity;
- Selection and financial support for training, including the following:
- Professional meetings, conferences, and other related activities;
- Selection for a leave of absence to pursue training; or
- An activity sponsored by a covered entity, including social and recreational programs.
Discrimination Under the Indiana Civil Rights Law
The Indiana Civil Rights Law (ICRL) mirrors Title VII in many respects and prohibits employers from discriminating against employees on the basis of race, religion, color, sex, age, disability, national origin, ancestry or status as a veteran. +Ind. Code § 22-9-1-3(l).
Unlike Title VII, however, which covers employers with 15 or more employees, the ICRL applies to employers with six or more employees within the state. Employment agencies and labor organizations also are subject to the ICRL. +Ind. Code § 22-9-1-3(h). The ICRL does not apply to nonprofit organizations formed exclusively for fraternal or religious purposes or schools, educational or charitable religious institutions. +Ind. Code § 22-9-1-3(h).
The prohibition against sex discrimination applies to all aspects of employment; however, it is not an unlawful employment practice for an employer, employment agency, or labor organization to maintain separate restrooms or to:
- Hire and employ employees;
- Classify or refer for employment;
- Classify for individuals for membership; and
- Admit or employ individuals in an apprenticeship, training, or retraining program
on the basis of sex where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the employee's particular business or enterprise. +Ind. Code § 22-9-1-3.
The ICRL does not expressly prohibit pregnancy discrimination. However, at the federal level, the Pregnancy Discrimination Act of 1978 extends Title VII protections against sex discrimination to prohibit discrimination on the basis of pregnancy, childbirth, or related medical conditions. Because Indiana often mirrors federal anti-discrimination law, it is a best practice for Indiana employers to regard the ICRL's prohibition against sex discrimination as also covering pregnancy, childbirth, and related medical conditions.
Indiana's antidiscrimination laws exclude from the definition of employer:
- Nonprofit corporations or associations organized exclusively for religious purposes; or
- Schools, educational, or charitable religious institutions that are owned, operated, or affiliated with a church or religious institution.
Therefore, these organizations are exempt from Indiana's antidiscrimination laws. Under the Indiana Employment Discrimination Against Disabled Persons Act, a religious corporation, association, educational institution, or society may give preference to individuals of a particular religion. The religious organization may also require employees to conform to the religious tenets of the organization. +Ind. Code § 22-9-5-22.
Disability Discrimination Under the Indiana Employment Discrimination Against Disabled Persons Act
The Indiana Employment Discrimination Against Disabled Persons Act (Act) prohibits discrimination against qualified disabled individuals. The Act is largely similar to the federal Americans with Disabilities Act and applies to employers with 15 or more employees. It requires employers, employment agencies and labor organizations to provide equal employment opportunities for qualified individuals with disabilities. +Ind. Code § 22-9-5-1 et seq.
Disabled or disability means the physical or mental condition of a person that constitutes a substantial disability that limits at least one major life activity of the individual and unrelated to the person's ability to engage in a particular occupation. +Ind. Code § 22-9-1-3 and +Ind. Code § 22-9-5-6. Individuals who have a record of disability or who are perceived as having a disability are also protected by the Act. +Ind. Code § 22-9-5-6 and +910 IAC 3-2-7. Individuals who are participating in, or have successfully completed a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs may be deemed disabled under the Act.
The Act excludes from the definition of disabled:
- Individuals who are currently engaged in the illegal use of drugs when the employer makes an employment decision on the basis of such use;
- Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
- Compulsive gambling, kleptomania, or pyromania;
- Psychoactive substance use disorders resulting from current illegal use of drugs; and
- Homosexuality and bisexuality.
A qualified individual with a disability is a person who satisfies the requisite skill, experience, education, and other job related requirements of his or her position and who, with or with reasonable accommodation, can perform the essential functions of the job position. +910 IAC 3-2-13. An individual is not qualified if individual's impairment poses a significant risk of substantial harm to the health and safety of the individual or to others and, the risk cannot be eliminated or reduced by a reasonable accommodation. +Ind. Code § 22-9-5-5 and +910 IAC 3-2-3.
Under Indiana law, reasonable accommodations include:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
- Job restructuring;
- Part-time or modified work schedules;
- Reassignment to a vacant position;
- Acquisition or modification of equipment or devices;
- Appropriate adjustment or modification of examinations, training materials or policies;
- The provision of qualified readers or interpreters, and
- Other similar accommodations for individuals with disabilities.
Employers are not required to provide an accommodation if the accommodation will impose an undue hardship, i.e., significant difficulty or expense, on the employer. +Ind. Code § 22-9-5-18 and +910 IAC 3-2-16. To determine whether an accommodation would cause an undue hardship, the following factors are to be considered:
- The nature and cost of the accommodation needed.
- With respect to facilities, the:
- Overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation;
- Number of employees employed at the facility or facilities;
- Effect on expenses and resources; or
- Impact otherwise of the accommodation upon the operation of the facility or facilities.
- The overall financial resources of the employer, the overall size of the employer's business with respect to the number of employees, and the number, type, and location of facilities.
- The type of operation or operations of the employer, including the composition, structure, and functions of the workforce of the entity, and the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
The Indiana Civil Rights Commission expressly prohibits employers from inquiring into:
- Whether an applicant is an individual with a disability; or
- The nature or severity of the applicant's disability.
Employers can, however, inquire into the applicant's ability to perform job-related functions and ask the applicant to describe how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. +910 IAC 3-3-11.
Generally, employers should administer employment tests in a nondiscriminatory manner. The Indiana Civil Rights Commission requires employers to administer tests to disabled job applicants and employees in a manner that will accurately reflect the skills, aptitude or whatever quality the test purports to measure. +910 IAC 3-3-8.
An employer may require job applicants and employees to have medical examinations after the applicant has received a conditional offer of employment. +910 IAC 3-3-11. Employers may condition an applicant's offer of employment on the medical examination if all applicants in the same job category are subject to the same requirement. Id. The medical examination need not be job-related or consistent with business necessity unless it has the effect of screening out employees with disabilities.
An employer may require job applicants to have medical examinations after the applicant has received a conditional offer of employment. +910 IAC 3-3-11. Employers may condition an applicant's offer of employment on the medical examination if all applicants in the same job category are subject to the same requirement. Id. The medical examination need not be job-related or consistent with business necessity unless it has the effect of screening out employees with disabilities.
Age Discrimination Under the Indiana Age Discrimination Act
The Indiana Age Discrimination Act (IADA) applies to employers with one or more employees; however, it does not cover employers that are subject to the federal Age Discrimination in Employment Act (ADEA), which covers employers with 20 or more employees. +Ind. Code § 22-9-2-1 et seq.
The IADA protects employees ages 40 to 74. Under the IADA, an employer cannot refuse to hire or rehire a job applicant, or terminate an employee, ages 40 to 74 because of the individual's age. +Ind. Code § 22-9-2-1.
Labor organizations cannot deny full and equal membership rights to any individual or fail or refuse to refer for employment or classify properly any member solely because of the individual's age. +Ind. Code § 22-9-2-3.
The IADA requires employers to retain true and accurate records of the ages of all employees. +Ind. Code § 22-9-2-6.
Indiana's antidiscrimination laws are enforced by the Indiana Civil Rights Commission. The Commission has the authority to conduct investigations to determine whether an employer has violated an employee's rights under the law. Both employees and the Commission can file complaints against an employer for alleged discriminatory actions.
Once a complaint has been filed, the employer must file an answer, that states in short and plain terms the employer's defenses to each claim. The employer must admit or deny all allegations in the complaint, or state that it lacks the knowledge or information sufficient to form a belief as to the truth of an allegation. In the employer fails to file an answer to the complaint within 20 days of service, the Commission will deem the failure as an admission to the truth of the allegations. +910 IAC 1-2-1 et seq.
After investigating a complaint, the investigator issues a finding of probable cause, no probable cause, or lack of jurisdiction, or an administrative dismissal of the complaint if in the public interest, e.g., if the charging party fails to cooperate with the investigation. Employers have a right to appeal a probable cause finding if they do so within 15 days after receipt of the finding. +910 IAC 1-3-1 et seq.
If there is a probable cause finding, the parties may attempt to conciliate and/or enter into a consent agreement. +910 IAC 1-3-3 and + 910 IAC 1-3-4. If that fails, a public hearing is scheduled by the Commission. In preparation for the hearing, the Commission may subpoena witnesses and documents. The parties may conduct discovery with the appropriate approval of the Commission. Discovery must be conducted pursuant to the Indiana Rules of Trial Procedure. +910 IAC 1-4-1 et seq. A charging party may also elect to have the case heard in state court. +Ind. Code 22-9-1-16. If the employer exhausts its administrative remedies, it may appeal the Commission's final order to the Court of Appeals of Indiana. +Ind. Code § 22-9-8-1.
The Commission must state its findings of fact after the hearing. If the Commission determines that an employer engaged in unlawful discriminatory conduct, the Commission may order the employer to:
- Cease and desist from the unlawful discriminatory action;
- Restore an employee's lost wages, salary or commissions;
- Post a notice to inform employees of Indiana's civil rights laws and the employer's compliance;
- Provide proof of compliance to the Commission at periodic intervals; and
- Show cause why any state licenses should not be revoked or suspended.
+Ind. Code 22-9-1-6. Neither the Indiana Civil Rights Law, the Age Discrimination Act, nor the Employment Discrimination Against Disabled Persons Act expressly provide for individual or supervisory liability.
Several cities in Indiana have city ordinances that prohibit discriminatory employment practices. These city ordinances generally protect the same characteristics as Indiana state law with the following exceptions:
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
Indiana makes it unlawful for an employer to refuse to hire a job applicant because of the applicant's use of tobacco products outside of work. +Ind. Code § 22-5-4-1. Employers cannot condition the terms of employment on an employee's off-duty tobacco use. +Ind. Code § 22-5-4-1. Employers may, however, offer financial incentives intended to reduce tobacco use. These incentives are related to the health benefits the employer provides to employees. +Ind. Code § 22-5-4-1. Churches and religious organizations are exempt from the law. +Ind. Code § 22-5-4-4. Applicants and employees have a private right of action against employers who violate the law and may seek injunctive relief, damages, costs and reasonable attorney's fees. +Ind. Code § 22-5-4-2.
Discrimination Based on Lawful Firearm Possession
An employer cannot condition terms of employment on an employee or job applicant's agreement to waive his or her right lawfully to own, possess, store, transport or use a firearm or ammunition. +Ind. Code § 34-28-8-1 et seq. Employers can regulate or prohibit the possession or carrying of a firearm by an employee during the course of his employment or while on the employer's premises, with the exception of the parking lot. With some exceptions, i.e. child care facilities, an employer's regulation of firearm possession cannot have the effect of prohibiting the employee from storing a firearm out of plain sight in the employee's locked vehicle. Employees have a private right of action against employers who violate the law and may seek injunctive relief, actual and punitive damages, costs and reasonable attorneys' fees.
Under Indiana's Minimum Wage Law of 1965, employers not subject to the minimum wage provisions of the federal Fair Labor Standards Act and with two or more employees are prohibited from discriminating between employees on the basis of sex by paying employees of one sex less than the rate at which the employer pays wages to employees of the other sex when both sexes perform jobs that require equal skill, effort, responsibility and are performed under similar working conditions. +Ind. Code § 22-2-2-4. Differences in pay may be made pursuant to:
- A seniority system;
- A merit system;
- A system which measures earnings by quantity or quality of production; or
- A differential based on any other factor other than sex.
If an employer is in violation of Indiana's equal pay provisions, the employer may not lower the wage of the higher-paid employees of one sex in order to come into compliance with the statute. +Ind. Code § 22-2-2-4.
Criminal Background Checks
Indiana employers are prohibited from conducting certain preemployment inquiries and are restricted in the types of information they can obtain from consumer reporting agencies and Indiana state courts with respect to background checks and criminal history, respectively. +2012 Bill Tracking IN H.B. 1033; +2012 Bill Text IN H.B. 1033.
Under the law, certain individuals may petition a court to restrict access to the individual's criminal records. The law applies to individuals who:
- Were charged with a crime, but not ultimately convicted due to a dismissal or acquittal;
- Had a conviction vacated; or
- Were convicted of a misdemeanor or certain Class D felonies that did not result in injury to a person, that occurred more than three years prior to the petition, and for which the individual satisfied any sentence or obligations imposed as a result of the conviction.
If a court grant's the individual's petition to restrict access to criminal records, the individual may legally represent in a preemployment inquiry or application that the individual has not been arrested or convicted of a felony or misdemeanor. Further, under the statute, covered employers will be prohibited from asking a job applicant about sealed and restricted criminal records.
Employers who violate this law by seeking access and information regarding sealed and restricted criminal records are subject to fines. The law does not specifically contain a private right of action for employees against employers who violate this law.
As a result, employers should be especially cautious when conducting preemployment inquiries, background checks and screenings and make sure that they do not run afoul of the requirements of this law and request information regarding sealed criminal records. Employers should make sure that all hiring managers and those who conduct interviews are aware of this law and proceed carefully during the hiring process.
Indiana employers are prohibited from discriminating against individuals based on veteran status. +Ind. Code § 22-9-10-9. An employer engages in veteran discrimination if it denies employment based on veteran status or if it uses a system that excludes the following individuals from equal opportunities:
- A veteran of the US Armed Forces;
- A member of the Indiana National Guard; or
- A member of the reserves.
The law applies to an employer who employs six or more workers.
Similar to the Indiana Civil Rights Law, the law designates the Indiana Civil Rights Commission to receive, investigate and attempt to resolve discrimination complaints. If it is determined that an employer has committed a discriminatory practice by failing to employ an individual based on his or her veteran status, relief may include placing the veteran in the employment position to which the veteran applied and compensatory and/or punitive damages. The law provides that an employer may have an affirmative defense to a discrimination claim if a qualification standard, test or selection criteria that tends to screen out, actually screens out or otherwise denies a job or benefit to a veteran with a disability is shown to be job-related and consistent with business necessity, and performance cannot be accomplished by reasonable accommodation. Additionally, the law still permits certain religious entities to give employment preference to individuals of a particular religion.
Employers subject to this law must provide applicants with a notice detailing its provisions concerning employment opportunities for veterans. The state will develop a model notice that an employer may use to comply with the law.
Under Indiana law, private employers are permitted to implement an employment policy providing preference to covered veterans over another qualified applicant or employee when it comes to decisions regarding hiring, promotion or retention. This hiring preference will not violate state or local equal employment opportunity laws. +2015 Ind. ALS 205. See Recruiting: Indiana. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.
Lactation/Breastfeeding Protections and Accommodations
A mother may breastfeed her child anywhere she has a right to be. +Ind. Code § 16-35-6-1.
Private employers in Indiana with 25 or more employees must provide a private location (other than a toilet stall) for an employee to express breast milk in privacy during any period away from the employee's assigned duties. An employer must provide a refrigerator or other cold storage space for keeping milk that has been expressed or allow the employee to provide their own portable cold storage device for keeping milk that has been expressed until the end of the work day to the extent possible. An employer is not liable for any harm caused by or arising from the expression of an employee's breast milk or storage of expressed milk that occurs on the employer's premises except in cases of willful misconduct, gross negligence or bad faith. +Ind. Code § 22-2-14-2.
Protective Order Discrimination
An Indiana employer may not terminate an employee because (1) the employee has filed a petition for a protective order for protection of the employee, whether or not the protective order has been granted; or (2) because of the actions of a person against whom the employee has filed a protective order. (I.C. § 22-5-7).
However, an employer is not prohibited from altering the location of employment of an employee, compensation or benefits, or terms or conditions of employment if the employer and employee have mutually agreed to the alteration.
Religious Freedom Restoration Act
On March 26, 2015, Indiana's Religious Freedom Restoration Act (IRFRA) was signed into law. (I.C. § 34-13-9) The IRFRA was amended shortly thereafter on April 2, 2015, and has an effective date of July 1, 2015. Under the Act as originally passed, a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, without demonstrating that application of the burden is (1) in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.
The April 2, 2015 amendment clarifies that the IRFRA does not authorize a provider to refuse to offer or provide employment, among other things, to any individual on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or U.S. military service, nor does it establish a defense to a civil or criminal prosecution for a provider's refusal to offer or provide employment on these bases. The term "provider" specifically excludes: (1) churches and other tax-exempt nonprofit religious organizations or societies, including affiliated schools; and (2) rabbis, priests, teachers, ministers, pastors, or designees of a church or other nonprofit religious organization or society when they are engaged in a religious or affiliated educational function of a church or religious organization or society. Thus, churches and other tax-exempt nonprofit entities may refuse to hire certain individuals if hiring would conflict with their religious beliefs and the decision is not "on the basis of" the individual's protected status.
This exception is broader than the ministerial exception under Title VII. Similarly, under Title VII an employee's request for accommodation must be based on a "sincerely held religious belief." However, the IRFRA defines "exercise of religion" more broadly as including "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."
Bloomington prohibits employers with six or more employees from discriminating against job applicants or employees on the basis of race, religion, color, sex, national origin, ancestry, sexual orientation, gender identity, disability, housing status or status as a veteran. Charitable organizations and religious institutions are exempt from the provision. Bloomington Municipal Code § 2.21.030(10).
Fort Wayne Discrimination
Fort Wayne prohibits employers with six or more employees from discriminating against job applicants or employees on the basis of ace, sex, color, religion, disability, ancestry, national origin, place of birth, age, or sexual orientation. Charitable organizations and religious institutions are exempt from the provision. City of Fort Wayne Code of Ordinances § 93.016.
Indianapolis Marion County Discrimination
The Consolidated City and County of Indianapolis/Marion, Indiana prohibits employers with six or more employees from discriminating against job applicants or employees on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service veteran status. Charitable organizations and religious institutions are exempt from the provision. Indianapolis-Marion County, Code of Ordinances § 581-103 and Indianapolis-Marion County, Code of Ordinances § 581-403.
South Bend Discrimination
South Bend prohibits employers with six or more employees from discriminating against job applicants or employees on the basis of race, color, sex, disability, national origin, ancestry, sexual orientation or gender identity. Charitable organizations and religious institutions are exempt from the provision. South Bend Municipal Code § 2-127.1.
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