Monday, December 26, 2005

Understanding Your Rights Under The HRO

Advance Indiana editor Gary R. Welsh, who practices employment law, has prepared the following summary of the protections afforded by Indianapolis’ new Human Rights Ordinance with respect to “sexual orientation” and “gender identity” to assist you in understanding your rights under this new law.

What constitutes a “discriminatory practice” under the HRO?

Any effort to exclude from, or failure or refusal to extend to any person equal opportunities in the treatment of any person with respect to employment, housing, education and public accommodations because of a person’s sexual orientation or gender identity constitutes a discriminatory practice under the new law.

A discriminatory practice would also apply to retaliation against a person because the person filed a complaint alleging discrimination under the HRO, or because the person testified or otherwise cooperated with the resolution of a complaint filed under the HRO.

With respect to housing, it is a discriminatory practice to attempt to present, dissuade or discourage a person from purchasing or renting real estate because of a person’s sexual orientation or gender identity. It also applies to conduct designed to create neighborhood unrest or to influence or induce a person to sale or lease their property because of sexual orientation or gender identity.

Who is covered by the term “sexual orientation”?

Contrary to popular opinion, the term covers more than gays and lesbians. It is defined to include an individual’s actual or perceived identity or practice as a bisexual person and a heterosexual person, as well as a lesbian woman or a gay male.

Who is covered by the term “gender identity”?

Any individual having or being perceived as having a gender-related self-identity, self-image, appearance, expression or behavior different from those characteristics traditionally associated with the person’s assigned sex at birth. The term would cover, but is not limited to, any person who has been diagnosed by a medical professional as having gender identity disorder. Also, a person who is discriminated against because of their appearance as a femine-looking man or a masculine-looking woman is protected by the term "gender identity."

Who must comply with the law?

Any business which employees 6 or more employees, employment agencies, labor organizations, any unit of local government or municipality, public schools, public facilities and private establishments (with respect to public accommodations) and real estate brokers, real estate sales persons, real estate owners, appraisers and lenders (with respect to housing opportunities).

Who is not covered by the law?

Businesses with fewer than 6 employees, not-for-profit fraternal, religious, education, and charitable organizations, including any schools, education, charitable or religious institutions affiliated with a church or religious institution. Any social clubs that are not operated for a profit and are not open to the public are exempt from the law. Also, with respect to housing, an owner-occupied boarding house or single family residence is exempt from the law.

How do I file a complaint if I believe I have been discriminated against because of my sexual orientation or gender identity?

A written complaint must be filed by a charging party with the Division of Equal Opportunity for the City of Indianapolis.

What must be included in the complaint?

The written complaint must include: (1) the name and address of the complaining party; (2) the name and address of the person against whom the complaint is being made; (3) the alleged discriminatory practice, along with a statement of the particulars; (4) the date and dates of the alleged discriminatory practice; (5) if it is a continuing discriminatory practice, the dates between which the alleged discriminatory practice occurred; (6) a statement as to whether any other civil or criminal complaints have been filed against the person alleged to have committed the discriminatory practice; and (7) a statement, if the complaint involves a discriminatory employment practice, that the employer has 6 or more employees. If you have witnesses who can assist with your complaint, you should also list their names and addresses. The complaint must be signed and verified by the complaining party before a notary public.

Who is the proper party to charge in your complaint?

If your complaint is based on employment discrimination, it should name your employer, the employment agency or the labor organization, as the case may be. If your discrimination is based upon housing, it should name the owner of the property, the real estate broker/sales agent, appraiser or lender, as the case may be. If it involves a public education institute, the board governing the school should be named. If your complaint is based on a public accommodation, the owner of the establishment should be named. If it involves a public facility, the governing body for the public facility should be named.

Where do I file my complaint?

The complaint must be filed with the City of Indianapolis, Division of Equal Opportunity, 200 E. Washington Street, City-County Building, Suite #1501, Indianapolis, Indiana 46204.

Is there a time limitation on the filing of a complaint?

Yes. You are required to file a complaint within 180 days of the date or dates of the alleged discriminatory practice. In the case of a continuing discriminatory practice, the complaint must be filed within 180 days of the most recent continuing discriminatory practice.

What happens after I file my complaint?

The Division of Equal Opportunity will commence an investigation of your complaint within 30 days. The agency will serve a copy of your complaint on the charged party, which may respond in writing to your complaint any time before the conclusion of any action taken with respect to your complaint. The agency is authorized to conduct discovery of the charged party, which can include interrogatories, request for production of documents and things, subpoenas, etc. as part of its investigation. The agency has 100 days to complete its investigation, which may be extended if more time is necessary to adjudicate your complaint. The agency has the authority to conciliate between the charging party and the respondent at any time during the investigation if the parties desire to resolve the complaint without reaching formal findings of fact and conclusions of law.

What happens when the investigation is concluded?

The Division will report its findings to a 3-member panel of the Equal Opportunity Board for review, indicating whether it believes reasonable cause exists for a finding of a discriminatory practice. A public hearing on the complaint may also be held upon 10 days’ written notice to the parties. If the 3-member panel believes reasonable cause exists for a finding of discrimination, it will prepare a report within 30 days setting forth its findings of facts and conclusions of law. If either party disagrees with the finding of the 3-member panel, it may appeal to the full Board, which has been reconstituted to include 14 members under the new law, with 8 members appointed by the mayor and 6 members appointed by the city-county council. The board is to be comprised of an equal number of Republicans and Democrats. The appeal to the full board must be made within 30 days. The Board will rule within 30 days on the appeal, unless more time is required, in which case it can take an additional 30 days.

What are my remedies if I have been discriminated against because of my sexual orientation or gender identity?

The agency is authorized to restore your “complete losses” as “necessary to assure justice.” It does not specifically authorize the agency to require the respondent to pay your attorney’s fees, although it may be necessary to award them if it is necessary to assure justice. It is not unusual for attorney’s fees to exceed the complaining party’s actual damages in these types of cases. In an employment action, your remedies could include back pay, reinstatement (if you’ve been fired), promotion, or hiring (if you were denied employment). Because the HRO does not specify different types of remedies available like the federal civil rights act, for example, does, it is less clear what a complainant can recover. In addition to the remedies for the individual, a business which is engaged in discriminatory practices can be barred from participating in contracting opportunities with the city and other governmental entities in Marion Co. Also, a licensed business, such as a bar, could have its license revoked or suspended as a result of engaging in a discriminatory practice.

Can I bring an action in court if I don’t like the outcome of my administrative complaint?

No. The HRO provides no private right of action for a complaining party if he/she is not satisfied with the outcome of his complaint. The Equal Opportunity Board, however, may take a respondent to court for failing to comply with an order of the Board. Also, a responding party has the right to ask the Marion Superior or Circuit Court to review a decision of the Board with which it disagrees as long as it acts within 30 days of the rendering of the final decision. A complainant may argue that the failure of the HRO to provide a similar right of review by the court for complainants is a violation of his/her constitutional right to due process under the equal protection clause and challenge it accordingly.

Do I need an attorney to file a complaint?

No. You are not required to be represented by an attorney in order to file a complaint. However, it is highly recommended that you at least consult with an attorney before filing a complaint on your own. An attorney can greatly assist you in presenting an actionable complaint before the agency.

Is there a penalty for filing a false complaint?

Yes. A person who files a false compaint of discrimination against a person may be charged with false reporting of a crime.

3 comments:

Lori said...

This was a great thing to do. I wondered about the process as I'm sure others have. Thanks!

kay said...

Gary—

Thanks so much for sharing your expertise. As someone who has experience the frustration of discrimination—in both an employment and educational setting —I'd like to know if you'd add a bit more detail concerning particulars such as: which party has burden of proof and type of burden; which standard of proof will be used; too, these same questions as applied to the provision in regard to false reporting and how/why this provision became part of the HRO ordinance.

Also, is it your opinion that employers will be able to evade the HRO ordnance using severance agreements,which in more instances than not, are adhesion contracts--I'm meaning contracts in which only one party holds all bargaining power.

Thanks again.

Advance Indiana said...

Kay,

Thank you for the comments. In the first instance, the complaining party has the burden of showing that the employer engaged in a discriminatory practice which adversely affected the employee in the particulars stated in his/her complaint. This can be shown by direct evidence (e.g., Your employer says to you, "I am firing you because you are a lesbian") or circumstantial evidence (e.g. conduct intended to make workplace hostile towards gays, or to create a disparate treatment of gays, which may be created from negative comments made by employers, supervisors and co-workers towards people because of their sexual orientation or gender identity). The evidence must prove discrimination by a preponderance of evidence standard (i.e., more than 50% likelihood that discrimination occurred).

If the employer is able to produce evidence that any adverse employment action was justifiable on a basis other than discrimination, such as continual tardiness, insubordination, etc., the burden shifts back to the employee to prove the reason given by the employer was not the true basis for the adverse employment decision or action. This is where the case often becomes difficult for the employee. The employer is usually smart enough to dirty up your personnel file in advance of an adverse employment action to justify its actions.

There are too many nuances to fully set forth here, but this should give you an idea.

Why the fales reporting provision? I'm not sure--other than it was written by a pro-employer law firm Ice Miller, and this was thought to be needed to discourage persons from filing false complaints. Because it involves a crime rather than a civil offense, the burden of proof is much greater (beyond a reasonable doubt). These would not be easy cases to prosecute in most cases--I can't imagine prosecutors wasting their time on this type of case.

Employers use severance agreements under existing civil rights laws to obtain full releases from ex-employees to avoid discrimination suits. I would expect the same to occur with the HRO. The employee has to weigh his/her likelihood of success with a complaint and the resulting remedy v. the benefit of the severance agreement.