Citations Affected: IC 22-9.
Synopsis: Age discrimination. Transfers jurisdiction over age
discrimination proceedings from the commissioner of labor to the civil
rights commission (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.
Establishes procedures for filing an age discrimination complaint.
Provides specific remedies for an age discrimination violation for a
complaint filed with the commission or a circuit court. Repeals
provisions concerning the jurisdiction of the commissioner of labor
over age discrimination cases.
Effective: July 1, 2008.
January 8, 2008, read first time and referred to Committee on Labor and Employment.
A BILL FOR AN ACT to amend the Indiana Code concerning labor
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:
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;
(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 the director or deputy director of the commission
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;
of duties in behalf of the commission shall be paid in accordance with
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
(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, disability, 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
recommendations 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, disability, national origin, or
(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
(i) The commission may hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and require the production for examination of any books and papers relating to any matter under investigation or in question before the commission. The commission may make rules as to the issuance of subpoenas by individual commissioners. Contumacy or refusal to obey a subpoena issued under this section shall constitute a contempt. All hearings shall be held within Indiana at a location determined by the commission. A citation of contempt may be issued upon application by the commission to the circuit or superior court in the county in which the hearing is held or in which the witness resides or transacts business.
(j) The commission may appoint administrative law judges other than commissioners, when an appointment is deemed necessary by a majority of the commission. The administrative law judges shall be members in good standing before the bar of Indiana and shall be appointed by the chairman of the commission. An administrative law judge appointed under this subsection shall have the same powers and duties as a commissioner sitting as an administrative law judge. However, the administrative law judge may not issue subpoenas.
(k) The commission shall state its findings of fact after a hearing and, if the commission finds a person has engaged in an unlawful discriminatory practice, shall cause to be served on this person an order requiring the person to cease and desist from the unlawful discriminatory practice and requiring the person to take further affirmative action as will effectuate the purposes of this chapter, including but not limited to the power:
(A) (1) to restore the complainant's losses incurred as a result of
discriminatory treatment, as the commission may deem necessary
to assure justice; however, this specific provision when applied to
orders pertaining to employment shall include only wages, salary,
(B) (2) to require the posting of notice setting forth the public
policy of Indiana concerning civil rights and respondent's
compliance with the policy in places of public accommodations;
(C) (3) to require proof of compliance to be filed by the
respondent at periodic intervals; and
(D) (4) to require a person who has been found to be in violation
of this chapter and who is licensed by a state agency authorized
to grant a license to show cause to the licensing agency why
the license should not be revoked or suspended.
(l) Judicial review of a cease and desist order or other affirmative 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
(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.
covered entity; 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 who is 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. 16. (a) An individual may file:
(1) a complaint under IC 22-9-1-6 with the commission; or
(2) a complaint in circuit court;
alleging a violation of this chapter.
(b) A complaint filed under subsection (a) alleging a discriminatory practice in violation of this chapter must be filed not more than one (1) year after the alleged discriminatory practice ceases.
(c) An individual who has been injured by an action in violation of this chapter is eligible for:
(1) remedies under IC 22-9-1-6(k) if the claim is filed with the commission; or
(2) remedies including:
(A) a permanent or temporary injunction;
(B) a temporary restraining order;
(C) actual damages;
(D) punitive damages; and
(E) costs of the lawsuit, including reasonable attorney's fees;
if the claim is filed in a circuit court.
(d) A complaint filed in a circuit court under this chapter supersedes a complaint filed with the commission if both complaints allege the same violation. If an individual first files a complaint with the commission and later files a complaint in circuit court, the individual shall file a notice with the commission stating that the individual is withdrawing the complaint filed with the commission.