tag:blogger.com,1999:blog-12703782.post113562149309788426..comments2024-03-25T13:42:25.771-05:00Comments on Advance Indiana™: Understanding Your Rights Under The HROGary R. Welshhttp://www.blogger.com/profile/15185079937305083438noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-12703782.post-1135829854236979242005-12-28T23:17:00.000-05:002005-12-28T23:17:00.000-05:00Kay,Thank you for the comments. In the first insta...Kay,<BR/><BR/>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).<BR/><BR/>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. <BR/><BR/>There are too many nuances to fully set forth here, but this should give you an idea.<BR/><BR/>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.<BR/><BR/>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.Gary R. Welshhttps://www.blogger.com/profile/15185079937305083438noreply@blogger.comtag:blogger.com,1999:blog-12703782.post-1135790634159500342005-12-28T12:23:00.000-05:002005-12-28T12:23:00.000-05:00Gary—Thanks so much for sharing your expertise. A...Gary—<BR/><BR/>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. <BR/><BR/>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. <BR/><BR/>Thanks again.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12703782.post-1135635209917761532005-12-26T17:13:00.000-05:002005-12-26T17:13:00.000-05:00This was a great thing to do. I wondered about the...This was a great thing to do. I wondered about the process as I'm sure others have. Thanks!Anonymousnoreply@blogger.com