How Indiana law enables sexual harassment in the workplace

Indianapolis attorney John Haskin can think of at least 100 workplace sexual harassment claims that he had to turn away in the past 40 years.

Not because they weren'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 say. Businesses can and do skirt the laws often, lawyers say.

"There should be some kind of remedy for unlawful acts that happen in the workplace," Haskin told IndyStar at his Downtown office. "No one should be immune from responsibility."

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Business groups say such caveats in Indiana's sex discrimination law are intended to protect startup companies from lawsuits that could easily destroy a small business.

Haskin says his hands are tied to help people that he says have been through unimaginable pain.

One woman he wanted to represent was propositioned for sex during and after a job interview, he says. The interviewer then offered money to the woman, saying "everyone needs money for the holidays." Another woman was harassed by coworkers, and after she complained, she was fired.

An Indiana University professor who teaches sex harassment law says it is time for Indiana to change its 56-year-old 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."

'No legal recourse'

While Title VII of the federal Civil Rights Act prohibits sex discrimination in the workplace, the federal courts only apply 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 14 to six employees. Employers with five companies or fewer? They are not bound by any law at all.

"If a company doesn't have at least six employees, we can't do anything about a case," Haskin said. "It's unfortunate for those people."

He listed four cases that he had to turn away just in December based on the size of the businesses involved.

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Doneisha Posey, a staff attorney at the Indiana Civil Rights Commission, explained the rationale behind the six-employee minimum. Posey said that when a company has so few employees, few witnesses likely are able to corroborate claims of harassment.

"I think that’s what the legislature had in mind when they enacted our civil rights law," she told IndyStar.

Drobac calls 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 in Palo Alto, told IndyStar that he often receives complaints from workers at businesses with just two employees.

"As a practical matter, the typical scenario is a small shop that has one employee," he said.

Broderick said he prefers a state that protects all workers. "For an employee to have no alternative but to quit her job and have no legal recourse" seems unfair, he said.

A 'horrible' law

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 only receive lost wages with no chance of receiving punitive damages, legal experts say. Federal law allows compensatory and punitive damages with a maximum of $300,000 in overall damages.

And 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.”

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The employer consent requirement has come under criticism by victims' advocates for years.

Kathryn Olivier, now an assistant U.S. attorney, wrote a law review article while 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 courtroom," 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, is more blunt. She called the "consent" portion of Indiana's law "horrible."

While Ohio requires a company to have four employees 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 actually consented to go to court. However, Posey told IndyStar that there were 16 sex discrimination filings documented through the agency in 2016, the most recent numbers available. The agency has found just cause in three of those cases. They are still being handled by the agency, she said.

Kevin Brinegar, president and CEO of the Indiana Chamber of Commerce, cited another rationale for the law's limitations on sexual harassment claims. He said small businesses often are family businesses in which harassment is unlikely to happen.

Brinegar declined to discuss whether he thought the law should be changed.

A cultural shift

Hollywood producers such as Harvey Weinstein. Politicians such as Al Franken and Roy Moore. Media personalities such as Matt Lauer and Charlie Rose. Entertainers such as Kevin Spacey and Louis C.K. The list keeps growing.

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's pretty amazing,” he said. “It shows there's some sort of barrier that has been broken down to keep people from talking about this."

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With increased scrutiny on inappropriate sexual behavior in American workplaces, organizations such as the Indiana Coalition to End Sexual Assault have seen an increase in companies asking for sexual harassment and sexual assault training, a spokeswoman told IndyStar.

Drobac at IU said she is hopeful that 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."

But 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.

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.