Your Legal 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 city laws prohibit discrimination and harassment of employees on the basis of:
- national origin;
- age (40 and older); and,
Employers are also prohibited from retaliating against employees who complain about discrimination or harassment:
- against themselves or others;
- within the company, or an agency or court proceeding; or,
- who participate in any such proceedings.
Discrimination may occur:
- before employment begins (e.g., discriminatory hiring practices);
- during employment (e.g., discrimination in pay or promotions); 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.
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 (which do not require filing an EEOC charge), 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 and recruitment;
- training and apprenticeship programs;
- fringe benefits;
- pay, retirement plans, and disability or medical 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 Prohibit?
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.
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.
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
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 union contract 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.