What Was Proposed for Indiana's New Age Discrimination Law?

Thanks to Masson's Blog - HB 1014 - Age Discrimination

DIGEST OF HB 1014

IC 22-9-1-6


(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) to restore 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, or commissions;
(B) 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) to require proof of compliance to be filed by respondent at periodic intervals; and
(D) 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 his license should not be revoked or suspended.

Family and Medical Leave Act U.S. Department of Labor Final Rule

New from the U.S. Department of Labor, its FMLA, Final Rule:

"The revised Final Regulations (PDF) respond to over 4,600 public comments received in response to the Department’s February 2008 Notice of Proposed Rulemaking (NPRM) (PDF) , which proposed changes to the current FMLA regulations. The NPRM was developed in response to several U.S. Supreme Court and lower court cases invalidating portions of the current regulations, the passage of amendments to the FMLA included as Section 585(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), and a comprehensive review of the Department’s fifteen years of experience administering the FMLA, including two previous Department of Labor studies of the FMLA (in 1996 and 2001) and over 15,000 public comments received in response to a Request for Information (RFI) (PDF) published in the Federal Register on December 1, 2006, and summarized in the Department’s June 2007 Report on the RFI (PDF)."

The Final Regulations (PDF) implement two important new military family leave entitlements for eligible specified family members:

(1) Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member's active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and

(2) Up to 26 weeks of leave in a single 12-month period to care for a covered servicemember recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period.

The Final Regulations (PDF) will become effective on January 16, 2009.

You may also want to read Long Awaited FMLA Regulations Released from Jackson Lewis.

Employment Law: United State Supreme Court on Retaliation Claims

Last week, the United States Supreme Court stirred up employment law by allowing a retaliation claim in two federal employment law cases where the statutes did not specifically create any such lawsuit.

Jackson Lewis provides a short but succinct review of the case in Supreme Court Gives Green Light for Retaliation Claims Under Two Civil Rights Statutes:

"The ruling is significant because §1981 has a longer statute of limitations than Title VII and, unlike Title VII, contains no limitations on the amount of punitive and pain and suffering damages available to a plaintiff. In addition, a plaintiff must file a charge of discrimination with the EEOC prior to suing in federal court under Title VII within 300 days of the alleged discriminatory act. In contrast, under §1981, a plaintiff may file a lawsuit immediately, and has four years in which to do so."

Workforce Management's High Court Confirms Alternate Avenue for Retaliation Claims adds an interesting point:

It will not change the way retaliation cases are defended or significantly increase the damages awarded, said Sarah Kelly, a partner at Cozen O’Connor in Philadelphia.

“It’s the sort of decision that perpetuates and confirms what most lawyers thought the current law was,” she said. “The decision doesn’t have a big impact.”

But it does reinforce the image of the Supreme Court under Chief Justice John Roberts as a body that looks to the past when making its decisions.

“They don’t legislate from the bench, but rather they follow precedent,” said Ted Meyer, a partner at Jones Day in Houston. “This is typical of a fairly conservative court. They follow the law.”

On the other hand, Scotus Blog has a long, two-part review of the cases, Analysis: CBOCS v. Humphries and Gomez-Perez v. Potter and Continuing Analysis: CBOCS v. Humphries and Gomez-Perez v. Potter, Part II. The conclusion?

What to take away from these decisions?

First, I think that the Court has more or less established a general presumption that federal civil rights statutes prohibit retaliation whether they say so explicitly or not. Defendants hoping to avoid such liability will have to show some pretty clear indication of a contrary legislative intent; the fact that Congress elsewhere (or even in the same statute) prohibited retaliation explicitly, is unlikely to carry the day.

Second, I find the comparison between the tenor of Justice Breyer and Justice Alito’s opinions quite interesting. Breyer bends over backwards to emphasize that his opinion is grounded principally in stare decisis, even to the extent of almost seeming apologetic for having to follow questionable prior precedent. Justice Alito, on the other hand, mentions stare decisis only once, in a footnote. His opinion, in contrast, reads as if convinced that the decisions in Sullivan and Jackson were rightly decided and would be followed even setting aside respect for prior precedent.

All of which might make the Flawed Victory editorial from The Washington Post a bit more interesting.

"The law has been understood to protect African Americans from employment discrimination, but it makes no mention of retaliation. How, then, could the court and two of its most conservative justices justify giving Mr. Humphries the right to bring a retaliation lawsuit? Because of stare decisis -- a reluctance to overturn prior decisions of the court. The court in 1969 and again in 2005 inferred into law a prohibition against retaliation, concluding that if people were not protected from retaliation, they would be less likely to report discrimination. This makes sense; it's just not what the law says, as Justices Clarence Thomas and Antonin Scalia pointed out in their dissent. The chief justice, who appeared extremely skeptical of a broad interpretation of the law during oral argument, must have held his nose in deciding to respect established case law in this instance."

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Yet in a 6 to 3 majority opinion authored by Justice Alito, the court concluded that Congress must have meant to include a ban on retaliation. Justice Alito cited the fact that the law was updated after the court's 1969 decision that read into the 19th-century civil rights law a right to sue for retaliation. Justices Scalia and Thomas joined a dissent by Chief Justice Roberts, which noted that one reason lawmakers may not have included rights to a legal remedy for retaliation was that federal employees already had the right to file retaliation claims through the civil service system.

Protecting employees from retaliation makes sense, but it is not the province of judges to create such protections on the basis of their own beliefs of what is right or wrong, or even on the basis of their intuitive sense of what Congress meant to do or should have done. And those who today praise the outcome shouldn't be upset if in the future justices read into the law new principles that lead to results they may find less acceptable.