Star Says Most Businesses See HRO As A Plus

REPORTER BACKTRACKS ON PENALTIES IMPOSED BY HRO

The Indianapolis Star’s Brendan O’Shaughnessy reports today that most businesses see passage of Proposal 622, the Human Rights Ordinance, as a plus for Indianapolis. O’Shaughnessy’s article also points out some serious weaknesses in the proposed ordinance after Advance Indiana took him to task last week for overstating the penalty provisions of the proposed law.

“Many business leaders in Indianapolis said they welcome the City-County Council's proposal to ban discrimination based on sexual orientation because it signals tolerance and that will help recruit new employees,” O’Shaughnessy wrote. He notes that most major companies doing business in Indianapolis have already adopted similar employment policies barring such discrimination, and that the Greater Indianapolis Chamber of Commerce supports the HRO.

Not all of the chamber’s members support it though. O’Shaughnessy cites BitWise Solutions’ CEO Ron Brumbarger, a chamber board member, as one such opponent. "I'm not trying to be discriminatory, but where does this stop?" Brumbarger asked. Brumbarger told O’Shaughnessy that “his viewpoint may not be politically correct, but some entrepreneurs just want government to stay out of the way.”

His views probably come as a shock to many people in Indianapolis’ technology community. Brumbarger has been at the forefront of working to make Indianapolis a more attractive place for high tech companies to locate. High tech companies have been viewed as leading the way in diversity to create a favorable environment for worker creativity. His backward-thinking on this issue may cause the high tech community to reconsider whether it wants him out front speaking on behalf of its businesses.

O’Shaughnessy’s article, importantly, corrects a misrepresentation in an earlier article he wrote, which suggested that employers could face tough penalties if they discriminated against gay employees, such as being taken to court and having to pay the employee’s attorney’s fees. Advance Indiana took O’Shaughnessy to task for overstating the penalty provisions of the HRO. He initially defended the story in an e-mail to Advance Indiana editor Gary R. Welsh. He said, “I stand by the story.” He indicated that he had been told by Aaron Haith, the council’s attorney, that the ordinance covered all attorney’s fees and court costs.

Today’s article backtracked considerably. He writes: “Some lawyers think the anti-discrimination proposal is too weak because penalties for discriminating do not specifically include significant fines or the right to go to court.” 'The ordinance does not provide any meaningful protections for anyone but the employer,' said Kevin Betz, a lawyer who specializes in civil rights cases. The proposal would allow people to complain only to the city's Equal Opportunity Advisory Board, he said, and would not let them collect attorney's costs. 'It is essentially a feel-good statement of policy with no teeth,' Betz said."

Kevin Betz touched on the main points we raised last week. Our concern was that the story on the pending ordinance created an undue misapprehension on the part of employers as to its true effect by overstating its penalty provisions.

The story also mentions that one business owner expressed his concern about the “potential of false discrimination claims.” O”Shaughnessy did not mention that the HRO, as proposed, would make it a crime to file a false complaint of discrimination with the city. That’s a pretty tough deterrent that has not been included in the law before.

In several ways, as we previously reported, the HRO actually makes the city’s civil rights law more pro-business than it has been in the past. Most notably, employees were able to ask a reviewing court to review a decision of the Equal Opportunity Advisory Board in the past. As proposed, only employers can challenge an order of the Board. The Board, however, can take a business to court to enforce an order it has imposed on it in response to an employee’s complaint.

Advance Indiana tips its hat to O’Shaughnessy for clarifying the misconceptions with which his earlier article left the Star’s readers.

Indiana Gets Low Marks On Employee Rights

Kevin Betz and Elizabeth Malloy, two local employment lawyers, co-author a story for Nuvo lamenting the lack of rights employees in Indiana have under state civil rights laws. Topping the list is the inability of employees to take their employers to court for discrimination if administrative relief is inadequate as permitted under the federal civil rights law. As the two described our toothless civil rights law:

Hoosier employees who want to bring a civil rights suit against their employer for discrimination face an insurmountable set of obstacles. To get a trial, the employee and the employer must agree in writing to submit the case to a judge. Most employers who have been accused of discrimination prefer to keep the matter out of court and refuse to consent to a trial. We were unable to find any case where an Indiana civil rights case has ever gone to trial under Indiana law. This is a testament to our State’s meaningless laws and the total void of any leadership in our State on this issue. Even if the employee can get the employer to consent, there is still no right to a jury trial. Even if the victim prevails in a trial before a judge or administrative proceeding, the damages are so limited it is a worthless undertaking.

Betz and Malloy describe an absurd state law which actually provides greater protections for smokers than employees who face discrimination, such as their right to practice the religion of their own choosing. As they describe it:

If an Indiana citizen is the victim of discrimination because he uses tobacco, he’s entitled to a full set of remedies: jury trial, complete damages, and attorney fees. However, if that same citizen becomes the target of discrimination based on race, religion, gender, or age, she has no right to a jury trial or meaningful remedies.

Legislators could work on legislation to ensure religious freedom to workers. Instead, Betz and Malloy write, "Indiana legislators are concerned about their own religious freedoms, but not those of the general public. The legislature is more concerned about protecting an individual’s right to smoke than protecting an individual who experiences discrimination." The pair note that Indiana was recently ranked 8th out of 8 midwestern states by a human rights organization for its overall treatment of its citizens, contributing to the flight of talent to other states:

Companies seeking to hire are fleeing to other states where the citizens are protected by better civil rights laws. Most civil rights lawyers in other states prefer to pursue cases under their states’ civil rights laws because the federal law is so inadequate. In Indiana, however, these inadequate federal laws are simply the only protection individuals have.

Betz' and Malloy's assessment of Indiana's employment laws really hit the nail on the head. Let's hope some of our legislators take notice and devote more attention to these matters instead of wasting taxpayer dollars to litigate a lawsuit about its own self-interest in having Christian only prayers in the General Assembly.

Lobby Commission Puts Director On Paid Leave

The Indiana Lobby Registration Commission has placed its executive director, Sarah Nagy, on paid leave, just as the Indiana General Assembly begins a new legislative session and is dealing with new lobbying and ethics-related laws enacted last year. The IBJ reports:

The Indiana Lobby Registration Commission placed its executive director and general counsel on paid leave Monday, the day before a busy filing day for the state's lobbyists.


Sarah Nagy, who has held the dual jobs for 14 years, said she was surprised to receive an e-mail on Martin Luther King Jr. Day notifying her that she was on administrative leave. She has since retained Indianapolis employment-law attorney Kevin Betz.

"I can't really comment on my administrative leave because I don't really understand it," she said. "I'm a little surprised by it, actually."

Nagy said she was hospitalized earlier this month for lupus-related complications and over the weekend submitted paperwork for a partial medical leave, but she said her current status is not voluntary. She'd intended to be in the office Tuesday to answer questions and receive paperwork from lobbyists as they met the annual registration deadline.

The commission sidelined Nagy after a trying period in which she and lobbyists struggled to interpret the ethics law passed in 2010 ahead of the General Assembly's current session. The law lowered the threshold at which lobbyists must report their spending, from $100 to $50, and banned them from taking leglislators on out-of-state junkets.

Other aspects of the law were confusing, Nagy said, and the commission needed to offer its interpretation before she could generate new forms and explain to lobbyists how to report their activity. One lobbyist, who declined to be named, agreed that the new rules were confusing but said the lack of guidance from Nagy was frustrating.

"I'm not authorized to act independent of the full commission," Nagy said. "So I empathize with every one of them," she said of the frustrated lobbyists.

Nagy said she had urged the commission to hold more meetings between Sept. 30 and a Nov. 1 deadline, but past Chairwoman Jan Abbs declined. The commission convened on Dec. 10 and finally settled some lingering questions, she said.

Members of the Commission overseeing Nagy are remaining mum on the reason for her being placed on leave.

Another Profile In Courage

Rep. Jeb Bardon (D-Indianapolis) earns a profile in courage for authoring HB 1716 to extend Indiana's civil rights laws to include protection from discrimination on the basis of sexual orientation or gender identiy. At least 17 other states and the District of Columbia have civil rights law that prohibit discrimination based on sexual orientation or gender identity. Bardon's legislation would conform state law coverage to Indianapolis' human rights ordinance and the state's equal employment opportunity policy for state employees as provided by executive order. The civil rights protections would extend to such things as public and private employment, public accommodations, government contracting, insurance coverage and housing.

Many people may be surprised to learn that Indiana's current civil rights law was enacted in the early 1960s before Congress enacted the Civil Rights Act of 1964. Former Indiana Gov. Matt Welsh (D) was instrumental in the passage of progressive civil rights laws. As Welsh wrote in his book "View From the Statehouse":

Indiana has a situation that cried for effective action, and my administration made significant progress at a time of deepening national concern over the developing racial conflict. In view of our reputation as the most northern of all southern states, or the most southern of all northern, this is saying a lot. Few states at that time could boast of both racial progress and racial peace, but the good sense of Hoosiers and effective action by public officials and concerned private citizens produced results. No millenium was reached, but step by step the cause of decency was advanced, without doing violence to the person, property, or rights of anyone, white or black.

Welsh was elected in 1960 when religious intolerance was running high in Indiana because of John F. Kennedy's presidential candidacy and his catholicism. Welsh wrote of the time, "Religious intolerance was particularly vicious in the same cities where the Klan had been strong in the 1920s." "The sheets may have been changed, but the minds had not," he added. Welsh bravely laid out his civil rights agenda at the Madame Walker Theater in Indianapolis prior to the 1960 election. "We must act now to provide employment on the basis of ability," he told the crowd of African-Americans, noting that many businesses in Indiana discriminated in employment. He went on to defeat his Republican opponent, Crawford Parker, by 23,000 votes while Nixon carried the state over Kennedy by more than 200,000 votes.

It is interesting to observe that Welsh's initiatives in advancing civil rights received bipartisan support in the legislature. He credited support from labor, the Indiana State Chamber of Commerce and even churches for success in civil rights progress. As he summed it up, "Indiana's record was the result of a statewide effort of a truly concerned community and is a fine testament to the basic goodness of our people."

What Rep. Bardon proposes to do with HB 1716 is in the spirit of what former Gov. Welsh described as the "basic goodness of our people." The bill will no doubt face stiff opposition from the religious right, which has fought the enactment of local ordinances in Indiana tooth and nail, sometimes with success. In all fairness, though, HB 1716 is more important for symobolic purposes than its legal reach. Indiana's civil rights law, compared to federal and other state laws, is relatively weak. As an Indianapolis employment lawyer, Kevin Betz, recently described it:

Hoosier employees who want to bring a civil rights suit against their employer for discrimination face an insurmountable set of obstacles. To get a trial, the employee and the employer must agree in writing to submit the case to a judge. Most employers who have been accused of discrimination prefer to keep the matter out of court and refuse to consent to a trial. We were unable to find any case where an Indiana civil rights case has ever gone to trial under Indiana law. This is a testament to our State’s meaningless laws and the total void of any leadership in our State on this issue. Even if the employee can get the employer to consent, there is still no right to a jury trial. Even if the victim prevails in a trial before a judge or administrative proceeding, the damages are so limited it is a worthless undertaking.

While Indiana was a bit of trailblazer in the area of civil rights in the early 1960s, very little has been done to enhance them over the past 40 years. Many employment lawyers will agree that, if you can't bring a claim under federal law, the state law claim is hardly worth the effort. I hope Indiana's business and labor community can unite in its support of HB 1716, even if they can't agree upon supporting a strengthening of the law for enforcement purposes.

Greg Garrison Lays Bare His Anti-Gay Bigoted Views

WIBC’s conservative morning talk-show host, Greg Garrison, served up a full plate of anti-gay bigoted ranting on his show today in response to the passage of Indianapolis’ Human Rights Ordinance by the city- county council last night. Garrison, an attorney by trade, dismissed any notion of the right to “equal treatment under the law” in his mouth-foaming exercise of misrepresenting the gay rights measure to his listeners.

Garrison repeatedly lambasted the HRO as the legal recognition of the “homosexual lifestyle” and “acts of sodomy,” ignoring the conclusion reached by every major medical organization in the nation that sexual orientation and gender identity are genetically or biologically determined. Garrison falsely asserted that businesses would have no right to judicial review of any findings of discrimination against a business by the city’s Equal Employment Advisory Board. In fact, the HRO specifically allows businesses but not employees the right to ask a court to review a decision of the Board.

The ill-informed talk-show host devoted most of his attention to the provisions of the HRO adding “gender identity” as a class entitled to protection from discrimination. Garrison argued that employers would be plagued by male workers showing up for work dressed as women and using the women’s bathroom, and that the employers would have no choice but to accept the employees’ cross-dressing lifestyle. In so arguing, Garrison completely exposed his complete ignorance of “gender identity”, believing that cross-dressing and gender identity are synonymous.

Curiously, Garrison accepted three successive phone calls from people who worked for businesses which had experienced male employees changing to the female gender. Each of the callers’ accounts matched names of persons (and the businesses for whom they worked) who testified before the Rules & Public Policy Committee hearings on the HRO. Advance Indiana does not believe each of these calls took place spontaneously; rather, it was a concerted effort by Garrison and his friends on the Christian right to appeal to his listeners’ fears and prejudices and to specifically target these citizen witnesses.

Outraged by Garrison’s bigoted ranting and distortions, Advance Indiana editor Gary R. Welsh sent a signed e-mail to Garrison, which read: “As an attorney, I am appalled at your complete ignorant and bigoted views on the Human Rights Ordinance. You are completely misrepresenting what the ordinance does. As is typically the case, you only have as guests people from the extreme right to express their views. People who can intelligently and thoughtfully speak on the other side of the issue are excluded from your show. When I took my oath as an attorney, I took an oath to uphold the U.S. and Indiana Constitutions, both of which ensure equality under the law. Apparently, that is something that has completely escaped you. You should be ashamed of what you are saying about this important civil rights law. I will gladly debate you in any forum any day on this issue.”

Within minutes of reading Welsh’s e-mail, Garrison referred to him derisively as “some guy who claims to be an attorney” and completely dismissed the views expressed in the e-mail. To further highlight his complete ignorance and insensitivity, Garrison sent Welsh an e-mail which read: “OH Gary, where to begin with you. Read the ordinance. The worm can is turned over here. Once again your emotional passion for this kind of crap has blinded you to the letter as well as spirit of those constitutions you so recklessly attempt to invoke. You will search in vain for a provision in either document that protects sodomy or other forms of homosexual behavior. Likewise, cross-dressing, using the ladies' restroom, etc, are not protected. You just wish they were, so you say if (sic) often enough--and castigate those who bother to read the documents--that eventually you can make yourself think it's there. Its (sic) not.”

Well Greg, where to begin with you. To begin with, the U.S. Supreme Court struck down as unconstitutional state laws criminalizing intimate sexual conduct between two persons of the same sex in the 2003 decision, Lawrence v. Texas, as a violation of a person’s right to due process under the 14th Amendment. The Reagan-appointed Justice Anthony Kennedy wrote the majority opinion in which he eloquently explained the constitutional issue: “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

Advance Indiana recommends that Garrison go back and take a few refresher courses in constitutional law before twisting it any further to conform to his anti-gay bigoted views. As a would-be respected member of the Indiana bar, he owes it to his profession and the public-at-large to accurately represent the rights we have as citizens under the Constitution. He is, after all, an officer of the court. We also recommend that he read the Human Rights Ordinance as have Welsh and local employment law expert Kevin Betz. He might actually learn something about what the law actually does. But then again, that would require Garrison to practice law--something he apparently doesn't do much of these days.

In a follow-up e-mail, Welsh offered to meet Garrison face-to-face on his show to debate the merits of the HRO. He also advised him that he had a gay friend who worked for WIBC who is frightened by his anti-gay bigoted views, and that Garrison makes him feel uncomfortable working in the same workplace.

Garrison, without referencing the follow-up e-mail, became very defensive at the suggestion of others e-mailing and calling into his show that he was being hateful or bigoted towards gay people. Garrison offered that he had known friends and business acquaintances who were gay, but they were all dead now, implying that they had all died of AIDS or other consequences of an “unhealthy lifestyle.”

Welsh’s offer to debate Garrison face-to-face live on his show has so far gone without a response from Garrison. And we don’t expect the phone to ring any time soon. He wouldn’t want to be confused by the true facts of the HRO.