Today's Indianapolis Star features a story by city beat reporter, Brendan O'Shaughnessy, which discusses penalties employers would face if they discriminated against a person because of their sexual orientation or identity upon the enactment of the HRO. Proposal 622 actually provides the same penalties an employer already faces for any other recognized ground of discrimination, such as race, religion or sex.
O'Shaughnessy states: "If a review board determines there has been discrimination, for example, an Indianapolis employer could end up in court, be ordered to pay legal costs and other expenses, or even lose its license under the proposal being considered." The article correctly distinguishes the proposal from those already in existence in other Indiana cities, such as Fort Wayne, under which any remedy is merely voluntary. However, it overstates the penalty provisions employers would face under Indy's HRO by implying that the employee could take the employer to court and recover attorney's fees and other costs as suggested by the article.
Under existing law and under Proposal 622, the remedy for the employee against whom the employer discriminated is stated as follows: "The restoration of the complainant's losses incurred as a result of discriminatory treatment, as the adjudication committee or hearing officer may deem necessary to assure justice." The specified remedy makes no gurantee of payment of attorney's fees and other costs to a prevailing employee.
It is also important to point out that Proposal 622 does not create a separate, private right of action a complainant can bring against his/her employer in court, apart from the complaint filed with the city's Equal Opportunity Advisory Board as the Star article implies. As is the case under existing law, any finding of the Board can be reviewed by the courts. However, Proposal 622 limits the right of review to the respondents (or the employers), thereby removing an existing right of employees under the law, which provides that a complaining employee, if not satisfied with the findings of the Board, can have the case reviewed by a court. The existing law reads, in part: "[F]indings of the board hereunder shall be subject to judicial review as provided in [the Administrative Adjudication Act (I.C. 4-21.5)."
Proposal 622 provides: "Any respondent who disagrees with a decision of the board (emphasis added). . . shall have the right to file a verified petition to the superior or circuit court of Marion County for a review of the board's decision. The petition for review must be filed within thirty (30) calendar days after the date of issuance of the written decision of the board. The City of Indianapolis shall be the sole defendant in the petition for review. Within thirty (30) calendar days after receipt of a summons, the city shall cause the board to file a true and complete copy of the transcript of the hearing with the court. The court, without jury, shall review the record and render its decision as in other administrative reviews. The clerk of the court shall send a copy of the court's decision to the respondent and to the division of equal opportunity, either of whom may appeal the court's decision. "
What this means is that an employer could appeal to a court to overturn an award in favor of the employee based upon the Board's failure to comply with the law, or if the employer can show the Board's decision was arbitrary and capricious. On the other hand, an employee can appeal a finding of the adjudication committee or a hearing officer to the Board but not to a court for review if the Board does not find in his/her favor. That provides a big advantage to the employer in these proceedings.
It is true that the Board could take an employer to court who refuses to comply with an order it renders with respect to a complaining party's complaint. The employee, however, is at the mercy of the Board to act on his/her behalf. Both federal and state civil rights laws allow the employee to take matters into his own hands after the administrative remedies are exhausted.
In contrast to Proposal 622, federal and state civil rights laws provide private rights of action, in addition to the administrative remedies, for discriminatory acts by employers, although neither currently covers sexual orientation or gender identity. In addition, a complaining party who prevails in an action brought under Title VII of the Civil Rights Act is entitled to recover attorney's fees and costs, in addition to other specific remedies or relief such as reinstatement, lost wages, other forms of compensatory damages and punitive damages. While the Board could award a complaining party attorney's fees under Proposal 622, it is strictly discretionary on its part. And, if it chose not award attorney's fees, the employee would not be able to appeal that decision to a court. An employer, however, could contest an awarding of attorney's fees to a reviewing court under Proposal 622.
Recovery of attorney's fees is critical in civil rights cases. It is not unusual for attorney's fees to exceed considerably the actual amount awarded as damages to an employee who is able to prove discrimination by the employer. If the employee is not able to fully recover the attorney's fees in such cases, a win could actually turnout to be a financial loser for the employee. Also, the certainty of attorney's fees in cases where discrimination is proven acts as an incentive to employment lawyers to accept these cases on a contingency basis. In the absence of a provision for attorney's fees, many employment lawyers are reluctant to accept such cases.
Proposal 622 actually weakens the existing rights an employee has under the law by removing language specifically making it unlawful for an employer to carry out retaliatory discharges of a complaining party or a witness for exercising his/her rights to file a complaint against an employer. It also creates a new criminal penalty against an employee for making a false claim of discrimination.
The Star article is right to point out that Proposal 622 will have some teeth in comparison to civil rights laws enacted in other communities. However, O'Shaughnessy's article does a disservice to the supporters of Proposal 622 by overstating the actual penalties employers are likely to face in the event of its enactment. In so doing, it may create undue misapprehensions on the part of employers.
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