Indiana law enables sexual harassment
Provisions in state civil rights code keep victims from having day in court
Indianapolis attorney John Haskin said he can think of at least 100 workplace sexual harassment claims that he had to turn away in the past 40 years.
Not because the misconduct wasn’t egregious.
But because buried in Indiana’s civil rights code are two provisions that keep sexual harassment victims from having their day in court.
One requires that an employer give consent to be taken to court. Yes, the employer must agree to be sued. The other provision prevents employees of very small businesses from suing their employers at all.
Federal civil rights law applies to workplaces with 15 or more employees, but for employees at small companies, Indiana’s code and similar laws across the country provide little to no protection against workplace sexual harassment, employment law experts said. Businesses can and do skirt the laws often, lawyers said.
“There should be some kind of remedy for unlawful acts that happen in the workplace,” Haskin said. “No one should be immune from responsibility.”
Business groups said such caveats in Indiana’s sex discrimination law are intended to protect start-up companies from lawsuits that could easily destroy a small business.
Haskin said his hands are tied, unable to help people who have been through unimaginable pain.
One woman he wanted to represent was propositioned for sex during and after a job interview, he said. The interviewer allegedly offered money to the woman, saying, “Everyone needs money for the holidays.” Another woman was harassed by coworkers, according to Haskin, and after she complained, she was fired.
An Indiana University professor who teaches sex harassment law said it is time for Indiana to change its 56-yearold statute.
“At this moment, the state is failing to properly investigate and remediate sexual harassment claims,” said Jennifer Drobac at the Robert H. McKinney School of Law. Unless a change in the law is made, she said, “this bad behavior will continue with no consequences.”
Though Title VII of the federal Civil Rights Act prohibits sex discrimination in the workplace, the federal courts apply only to workplaces with 15 or more employees, said James Ryan of the Equal Employment Opportunity Commission.
In Indiana, the state’s civil rights code governs businesses with six to 14 employees. Employers with five workers or fewer? They are not bound by law.
Doneisha Posey, a staff attorney at the Indiana Civil Rights Commission, explained the rationale behind the sixemployee minimum. Posey said that when a company has so few employees, few witnesses are likely to be able to corroborate claims of harassment.
Drobac called the law outdated and points to California’s Fair Employment and Housing Act, which applies state sex discrimination law to businesses with even one employee.
Tim Broderick, a labor law attorney, said he often receives complaints from workers at businesses with just two em- ployees. “As a practical matter, the typical scenario is a small shop that has one employee,” he said.
Employees at larger Indiana businesses do have recourse, but again limitations exist.
For one, a person who brings a harassment claim through state law can receive only lost wages, getting no chance of receiving punitive damages, legal experts said. Federal law allows compensatory and punitive damages with a maximum of $300,000 in overall damages.
Collecting under state law can prove difficult if a case can never be brought to court. Sexual harassment claims under Indiana statute require that “both the respondent and the complainant must agree in writing to have the claims decided in a court of law.”
The employer consent requirement has come under criticism by victims’ advocates for years.
Kathryn Olivier, an assistant U.S. attorney, wrote a law review article at IU McKinney law school that criticized the state’s code: “Indiana makes it nearly impossible for individuals to have their cases adjudicated by a judge in a court- room,” Olivier wrote in 2009. “Unlike the surrounding states of Michigan, Ohio, Kentucky, and Illinois, Indiana requires both parties to consent to a civil trial.
“Indiana should look to the civil rights laws of surrounding states and use these statutes to guide a revision of the Indiana Code,” Olivier wrote.
Ann-Marie Ahern, a Cleveland employment lawyer at McCarthy Lebit Crystal & Liffman, called the “consent” portion of Indiana’s law “horrible.”
Though Ohio requires that a company have four employees if someone wants to bring a claim, there is no requirement that a business provide written consent to be sued.
“The fact you don’t have the right to go immediately to court — I couldn’t imagine an employer would ever give consent to be sued,” Ahern said.
The Indiana Civil Rights Commission did not disclose how many companies have consented to go to court. Posey said there were 16 sex discrimination filings documented through the agency in 2016, the most recent numbers available. The agency found just cause in three of those cases. They are still being handled by the agency, she said.
Joseph Allman, an employment discrimination attorney who represents workers in claims against businesses in Indianapolis, said he finds it “breathtaking” that the nation is finally turning its eye to sexual harassment and assault issues.
“It shows there’s some sort of barrier that has been broken down to keep people from talking about this,” he said.
Drobac at IU said she hopes workplace culture will change when there is less tolerance and less secrecy regarding harassment at work.
“We have become numb to this type of predation,” Drobac said. “And we blame it on the women.
“It must end.”
Haskin said he is not hopeful that state law will change with the tide of public opinion. Lawmakers, he said, need lobbying pressure to amend the law.
“Plaintiffs’ attorneys don’t have the kind of economic resources to lobby our state legislatures for changes like that,” he said.