Citations Affected: IC 22-9; noncode.
Synopsis: Age discrimination. Transfers jurisdiction over age
discrimination proceedings from the commissioner of labor to the civil
rights commission. Prohibits certain actions by an employer, a labor
organization, or an employment agency relating to discrimination
against an individual at least 40 years of age. Provides exemptions.
Effective: July 1, 2004.
January 15, 2004, read first time and referred to Committee on Labor and Employment.
January 29, 2004, reported _ Do Pass.
A BILL FOR AN ACT to amend the Indiana Code concerning labor
and industrial safety.
lieu of adjudication.
(g) "Affirmative action" means those acts that the commission
determines necessary to assure compliance with the Indiana civil rights
law.
(h) "Employer" means the state or any political or civil subdivision
thereof and any person employing six (6) or more persons within the
state, except that the term "employer" does not include:
(1) any nonprofit corporation or association organized exclusively
for fraternal or religious purposes;
(2) any school, educational, or charitable religious institution
owned or conducted by or affiliated with a church or religious
institution; or
(3) any exclusively social club, corporation, or association that is
not organized for profit.
(i) "Employee" means any person employed by another for wages or
salary. However, the term does not include any individual employed:
(1) by his the individual's parents, spouse, or child; or
(2) in the domestic service of any person.
(j) "Labor organization" means any organization that exists for the
purpose in whole or in part of collective bargaining or of dealing with
employers concerning grievances, terms, or conditions of employment
or for other mutual aid or protection in relation to employment.
(k) "Employment agency" means any person undertaking with or
without compensation to procure, recruit, refer, or place employees.
(l) "Discriminatory practice" means:
(1) the exclusion of a person from equal opportunities because of
race, religion, color, sex, disability, national origin, or ancestry;
(2) a system that excludes persons from equal opportunities
because of race, religion, color, sex, disability, national origin, or
ancestry;
(3) the promotion of racial segregation or separation in any
manner, including but not limited to the inducing of or the
attempting to induce for profit any person to sell or rent any
dwelling by representations regarding the entry or prospective
entry in the neighborhood of a person or persons of a particular
race, religion, color, sex, disability, national origin, or ancestry;
or
(4) a violation of IC 22-9-5 that occurs after July 25, 1992, and is
committed by a covered entity (as defined in IC 22-9-5-4); or
(5) a violation of IC 22-9-2.1.
Every discriminatory practice relating to the acquisition or sale of real
estate, education, public accommodations, employment, or the
extending of credit (as defined in IC 24-4.5-1-301) shall be considered
unlawful unless it is specifically exempted by this chapter.
(m) "Public accommodation" means any establishment that caters
or offers its services or facilities or goods to the general public.
(n) "Complainant" means:
(1) any individual charging on his the individual's own behalf to
have been personally aggrieved by a discriminatory practice; or
(2) the director or deputy director of the commission charging that
a discriminatory practice was committed against a person other
than himself or a class of people, in order to vindicate the public
policy of the state (as defined in section 2 of this chapter).
(o) "Complaint" means any written grievance that is:
(1) sufficiently complete and filed by a complainant with the
commission; or
(2) filed by a complainant as a civil action in the circuit or
superior court having jurisdiction in the county in which the
alleged discriminatory practice occurred.
The original of any complaint filed under subdivision (1) shall be
signed and verified by the complainant.
(p) "Sufficiently complete" refers to a complaint that includes:
(1) the full name and address of the complainant;
(2) the name and address of the respondent against whom the
complaint is made;
(3) the alleged discriminatory practice and a statement of
particulars thereof;
(4) the date or dates and places of the alleged discriminatory
practice and if the alleged discriminatory practice is of a
continuing nature the dates between which continuing acts of
discrimination are alleged to have occurred; and
(5) a statement as to any other action, civil or criminal, instituted
in any other form based upon the same grievance alleged in the
complaint, together with a statement as to the status or disposition
of the other action.
No complaint shall be valid unless filed within one hundred eighty
(180) days from the date of the occurrence of the alleged
discriminatory practice.
(q) "Sex" as it applies to segregation or separation in this chapter
applies to all types of employment, education, public accommodations,
and housing. However:
(1) it shall not be a discriminatory practice to maintain separate
rest rooms;
(2) it shall not be an unlawful employment practice for an
employer to hire and employ employees, for an employment
agency to classify or refer for employment any individual, for a
labor organization to classify its membership or to classify or refer
for employment any individual, or for an employer, labor
organization, or joint labor management committee controlling
apprenticeship or other training or retraining programs to admit
or employ any other individual in any program on the basis of sex
in those certain instances where sex is a bona fide occupational
qualification reasonably necessary to the normal operation of that
particular business or enterprise; and
(3) it shall not be a discriminatory practice for a private or
religious educational institution to continue to maintain and
enforce a policy of admitting students of one (1) sex only.
(r) "Disabled" or "disability" means the physical or mental condition
of a person that constitutes a substantial disability. In reference to
employment, under this chapter, "disabled or disability" also means the
physical or mental condition of a person that constitutes a substantial
disability unrelated to the person's ability to engage in a particular
occupation.
(s) "Age" refers to the age of a person who is at least forty (40)
years of age.
the state travel policies and procedures established by the Indiana
department of administration and approved by the budget agency.
(c) Except as it concerns judicial review, the commission may adopt
rules under IC 4-22-2 to implement this chapter. article.
(d) The commission shall formulate policies to effectuate the
purposes of this chapter and make recommendations to agencies and
officers of the state or local subdivisions thereof to effectuate such
policies. The several departments, commissions, divisions, authorities,
boards, bureaus, agencies, and officers of the state or any political
subdivision or agency thereof shall furnish the commission, upon its
request, all records, papers, and information in their possession relating
to any matter before the commission.
(e) The commission shall receive and investigate complaints
alleging discriminatory practices. The commission shall not hold
hearings in the absence of a complaint. All investigations of complaints
shall be conducted by staff members of the civil rights commission or
their agents. All duties performed by an employee or agent
employed by the commission shall be performed in the public
interest.
(f) The commission may create such advisory agencies and
conciliation councils, local or statewide, as will aid in effectuating the
purposes of this chapter. The commission may itself, or it may
empower these agencies and councils to:
(1) study the problems of discrimination in the areas covered by
section 2 of this chapter when based on race, religion, color, sex,
age, handicap, national origin, or ancestry; and
(2) foster through community effort, or otherwise, good will
among the groups and elements of the population of the state.
These agencies and councils may make recommendation to the
commission for the development of policies and procedures in general.
Advisory agencies and conciliation councils created by the commission
shall be composed of representative citizens serving without pay but
with reimbursement for reasonable and necessary actual expenses.
(g) The commission may issue such publications and such results of
investigations and research as in its judgment will tend to promote
good will and minimize or eliminate discrimination because of race,
religion, color, sex, age, handicap, national origin, or ancestry.
(h) The commission shall prevent any person from discharging,
expelling, or otherwise discriminating against any other person because
he the person filed a complaint, testified in any hearing before this
commission, or in any way assisted the commission in any matter under
its investigation.
action as referred to in this chapter may be obtained under IC 22-9-8.
If no proceeding to obtain judicial review is instituted within thirty (30)
days from receipt of notice by a person that an order has been made by
the commission, the commission, if it determines that the person upon
whom the cease and desist order has been served is not complying or
is making no effort to comply, may obtain a decree of a court for the
enforcement of the order in circuit or superior court upon showing that
the person is subject to the commission's jurisdiction and resides or
transacts business within the county in which the petition for
enforcement is brought.
(m) If, upon all the evidence, the commission shall find that a
person has not engaged in any unlawful practice or violation of this
chapter, the commission shall state its findings of facts and shall issue
and cause to be served on the complainant an order dismissing the
complaint as to the person.
(n) The commission may furnish technical assistance requested by
persons subject to this chapter to further compliance with this chapter
or with an order issued thereunder.
(o) The commission shall promote the creation of local civil rights
agencies to cooperate with individuals, neighborhood associations, and
state, local, and other agencies, both public and private, including
agencies of the federal government and of other states.
(p) The commission may reduce the terms of conciliation agreed to
by the parties to writing (to be called a consent agreement) that the
parties and a majority of the commissioners shall sign. When signed,
the consent agreement shall have the same effect as a cease and desist
order issued under subsection (k). If the commission determines that a
party to the consent agreement is not complying with it, the
commission may obtain enforcement of the consent agreement in a
circuit or superior court upon showing that the party is not complying
with the consent agreement and the party is subject to the commission's
jurisdiction and resides or transacts business within the county in
which the petition for enforcement is brought.
(q) In lieu of investigating a complaint and holding a hearing under
this section, the commission may issue an order based on findings and
determinations by the federal Department of Housing and Urban
Development or the federal Equal Employment Opportunity
Commission concerning a complaint that has been filed with one (1) of
these federal agencies and with the commission. The commission shall
adopt by rule standards under which the commission may issue such an
order.
(r) Upon notice that a complaint is the subject of an action in a
federal court, the commission shall immediately cease investigation of
the complaint and may not conduct hearings or issue findings of fact or
orders concerning that complaint.
forth in IC 22-9-1-3(h).
Sec. 7. As used in this chapter, "employment agency" has the
meaning set forth in IC 22-9-1-3(k).
Sec. 8. As used in this chapter, "labor organization" has the
meaning set forth in IC 22-9-1-3(j).
Sec. 9. As used in this chapter, "person" has the meaning set
forth in IC 22-9-1-3(a).
Sec. 10. As used in this chapter, "public safety employee" means
an individual who is or applies to be any of the following:
(1) A member of a fire department (as defined in IC 36-8-1-8).
(2) A member of a police department (as defined in
IC 36-8-1-9).
(3) A state police officer.
(4) A county police officer.
(5) A correctional officer (as defined in IC 5-10-10-1.5).
(6) An excise police officer.
(7) A county police reserve officer.
(8) A city police reserve officer.
(9) A conservation enforcement officer.
(10) A town marshal.
(11) A deputy town marshal.
(12) A state university police officer appointed under
IC 20-12-3.5.
Sec. 11. (a) This subsection applies to an individual at least forty
(40) years of age. An employer shall not:
(1) discharge an individual;
(2) fail or refuse to hire an individual; or
(3) otherwise discriminate against an individual with respect
to the individual's compensation, terms, conditions, or
privileges of employment;
because of the individual's age.
(b) This subsection applies to an individual at least forty (40)
years of age. An employer shall not:
(1) limit, segregate, or classify employees in an way that
would deprive or tend to deprive an individual of employment
opportunities; or
(2) otherwise adversely affect the individual's status as an
employee;
because of the individual's age.
(c) An employer shall not reduce the wage rate of an employee
in order to comply with this chapter.
Sec. 12. (a) This section applies to an individual at least forty
(40) years of age.
(b) An employment agency shall not:
(1) fail or refuse to refer for employment or otherwise
discriminate against an individual because of the individual's
age; or
(2) classify or refer for employment an individual on the basis
of the individual's age.
Sec. 13. (a) This section applies to an individual at least forty
(40) years of age.
(b) A labor organization shall not:
(1) exclude or expel an individual from the membership of the
labor organization; or
(2) otherwise discriminate against an individual;
because of the individual's age.
(c) A labor organization shall not limit, segregate, or classify the
membership of the labor organization or classify or fail or refuse
to refer for employment an individual in any way that would:
(1) deprive or tend to deprive an individual of employment
opportunities;
(2) limit an individual's employment opportunities; or
(3) otherwise adversely affect an individual's status as an
employee or an applicant for employment;
because of the individual's age.
(d) A labor organization shall not cause or attempt to cause an
employer to discriminate against an individual because of the
individual's age.
Sec. 14. (a) It is unlawful for:
(1) an employer to discriminate against an employee or
applicant for employment;
(2) an employment agency to discriminate against an
individual; or
(3) a labor organization to discriminate against a member of
or an applicant for membership in the labor organization;
because the employee, applicant for employment, individual,
member, or applicant for membership has opposed a practice that
is prohibited by this chapter.
(b) It is unlawful for:
(1) an employer to discriminate against an employee or
applicant for employment;
(2) an employment agency to discriminate against an
individual; or
(3) a labor organization to discriminate against a member of
or an applicant for membership in the labor organization;
because the employee, applicant for employment, individual,
member, or applicant for membership has filed a complaint with
the commission or testified, assisted, or participated in an
investigation or a proceeding or litigation under this chapter.
Sec. 15. (a) This section applies to a preference, a limitation, a
specification, or discrimination based on age that would adversely
affect an individual at least forty (40) years of age.
(b) An employer, a labor organization, or an employment
agency shall not print or publish or cause to be printed or
published any notice or advertisement relating to:
(1) employment; or
(2) a classification or referral for employment;
indicating any preference, limitation, specification, or
discrimination based on age.
Sec. 16. Notwithstanding any of the prohibitions contained in
this chapter, an employer, an employment agency, or a labor
organization may do any of the following:
(1) Take any action otherwise prohibited under this chapter
if:
(A) age is a bona fide occupational qualification reasonably
necessary to the normal operation of the particular
employer, employment agency, or labor organization; or
(B) the differentiation is based on reasonable factors other
than age.
(2) If not prohibited by federal antidiscrimination law,
establish, maintain, observe the terms of, or comply with an
employee pension benefit plan, a defined benefit plan, a bona
fide employee benefit plan, or other pension, benefit, or
retirement plan.
(3) Observe the terms of a bona fide seniority system that is
not intended to evade the purposes of this chapter, except that
a bona fide seniority system must not require or permit the
involuntary retirement of an individual at least forty (40)
years of age because of the age of the individual.
(4) Discharge or otherwise discipline an individual for good
cause.
Sec. 17. Notwithstanding any of the prohibitions contained in
this chapter, the state, a political subdivision of the state, an agency
or instrumentality of the state, or a political subdivision of the state
may:
(1) fail or refuse to hire an individual as a public safety
employee; or
(2) discharge an individual from employment as a public
safety employee;
because of the individual's age.
Sec. 18. Notwithstanding any of the prohibitions of this chapter,
it is not a discriminatory practice to require the retirement of any
employee who:
(1) becomes sixty-five (65) years of age; and
(2) for the two (2) year period immediately before retirement,
is employed in a bona fide executive or high policy making
position;
if the compulsory retirement is not prohibited by federal
antidiscrimination law.
Sec. 19. The remedies available regarding complaints directed
against a covered entity under this chapter are limited to the
remedies provided under IC 22-9-1-6(k).