Tag Archives: discrimination

Pride In Indiana

Today is Pride Day in Indianapolis. The parade –which I always attend– will have well over 100 entrants, representing a wide variety of government agencies, educational institutions, churches and area businesses–a far cry from the few forlorn entries in the first such effort 25 years ago.

Among other things, Pride now celebrates the legal and social progress of the LGBTQ community, which has made great strides nationally over the last couple of decades. In Indiana, it will not surprise you to discover that such progress has been considerably more spotty; cities and towns have passed inclusive Human Rights ordinances, but the state as a whole is an embarrassment on this issue (as well as on so many others.)

The very different politics of cities and rural areas with respect to LGBTQ rights has recently been highlighted by the effort of Jim Merritt–a longtime legislator now running for Mayor of Indianapolis–to “cozy up” to the gay community, and to distance himself from his “perfect” anti-gay record in Indiana’s Statehouse. Our legislature has been gerrymandered to create districts dominated by rural voters, and Merritt has pandered accordingly.

He is not alone. Indiana’s legislature has stubbornly refused to pass an inclusive bias crime bill. Efforts to add four little words–sexual orientation and gender identity– to the list of protected categories in the state’s civil rights law have gone nowhere.

Two years ago, on this blog, I posted some revelatory statistics about the legal disabilities of LGBTQ Hoosiers. The laws that facilitated those statistics haven’t changed. Here’s a smattering of what I wrote then:

Approximately 133,000 LGBT workers in Indiana are not explicitly protected from discrimination under state law….  If sexual orientation and gender identity were added to existing statewide non-discrimination laws, 61 additional complaints of discrimination would be filed with the Indiana Civil Rights Commission each year. Adding these characteristics to existing law would not be costly or burdensome for the state to enforce.

Recent polling discloses that 73% of Indiana residents support the inclusion of sexual orientation as a protected class under Indiana’s existing civil rights law. That’s 73% in Very Red Indiana.

Major employers in the state have worked with civil rights and civil liberties organizations in an effort to add “four little words” to the list of categories protected under the state’s civil rights statute:  sexual orientation and gender identity. So far, the legislature has exhibited zero interest in doing so.

The public outrage over Pence’s RFRA led to a subsequent “clarification” (cough cough) that the measure would not override provisions of local Human Rights Ordinances that do proscribe discrimination on the basis of sexual orientation. A number of city councils around the state promptly added those protections to their Ordinances, which was gratifying.

The problem, as the research points out, is twofold: municipal ordinances in Indiana don’t have much in the way of “teeth.” They are more symbolic than legally effective. Worse, for LGBTQ folks who don’t live in one of those municipalities, there are no protections at all.

The result: Only 36% of Indiana’s workforce is covered by local non-discrimination laws or executive orders that prohibit discrimination based on sexual orientation and gender identity. And that discrimination occurs with depressing regularity.

– In response to the National Transgender Discrimination Survey, 75 percent of respondents from Indiana reported experiencing harassment or mistreatment at work, 30 percent reported losing a job, 21 percent reported being denied a promotion, and 48% reported not being hired because of their gender identity or expression at some point in their lives.

– Several recent instances of employment discrimination against LGBT people in Indiana have been documented in court cases and administrative complaints, including reports from public and private sector workers.

– Census data show that in Indiana, the median income of men in same-sex couples is 34 percent lower than that of men married to different-sex partners.

– Aggregated data from two large public opinion polls found that 79 percent of Indiana residents think that LGBT people experience a moderate amount to a lot of discrimination in the state.

Four little words. Why is that so hard?

Today, at the parade and the event itself, the community and its allies will celebrate the progress that has been made.

Monday morning,  opponents of bigotry need to go back to work.

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Follow The (Lack Of) Money

When conversations turn to questions about suspicious public policies, a favorite explanation is “well, follow the money.” The implication is that people who will benefit have “purchased”(or at least influenced) the policy in question.

We very rarely follow the lack of money, although underfunding government agencies and efforts is a time-honored way that lawmakers can pretend to be addressing issues that the public cares about–issues that they (or their donors or supporters) wish would go away.

This tactic is more obvious at the federal level, but it characterizes state politics as well. Recently, I attended a small meeting of professional women–including a few lawyers–who were concerned about the inadequacies of Indiana’s Civil Rights law and the state’s underfunding  of the Indiana Civil Rights Commission. The meeting was called after several attended a recent speech by a law school professor; she had enumerated the provisions of Indiana’s Civil Rights law that make it difficult or impossible to punish discriminatory behaviors–especially (but certainly not only) sexual harassment.

When I practiced law, the few discrimination cases I handled were filed with the EEOC–a federal agency. The EEOC has jurisdiction over workplaces with 15 or more employees. I was unaware that Indiana’s Commission has jurisdiction only over companies with 6 or more employees–if you are harassed or discriminated against in a workplace with 4 or 5 employees, or fewer, you are just out of luck. No remedy exists.

In cases of sexual harassment, even people who are “covered” under Indiana’s law have no incentive to bring a complaint, since our Commission can award only back pay–if the complainant was fired. No punitive or other damages, and thus no incentive for an employer to “straighten up and fly right.”

Not only that, but in order to have a case adjudicated in state court, the employer must agree to be sued. In writing. And religious employers (including religiously affiliated organizations like hospitals) are exempt. (Given the number of news stories about preachers who prey while they pray, I found this rather astonishing.)

A recent Law Review article put it bluntly:

Deviation from the administrative process is uncommon because the Indiana Code requires written consent from both parties before the civil suit commences. Nonetheless, in the unlikely event that a complainant obtains the respondent’s consent, another provision of the Indiana Code mandates that the case be tried by a judge, not a jury. Even if the employee wins the case, his damages are limited to “wages, salary, or commissions.” Furthermore, he cannot recover his attorney’s fees. Thus, the combined effect of these statutes unfairly biases state civil rights proceedings against complainants.

As appalling as I found these elements of Indiana’s law–inadequacies which evidently place us among the four least-protective states in the country–what really focused my attention on Indiana’s lack of commitment to nondiscrimination and fundamental fairness was the agency’s funding. The Commission is one of the most poorly funded state agencies, and its employees are among the most poorly compensated. If our state law were to be improved, and the Commission’s jurisdiction expanded, it simply wouldn’t have the capacity to hear the additional complaints. It can barely cope with its workload now.

What I learned at that meeting was that the persistent refusal of Indiana’s lawmakers to pass a hate crimes enhancement law is part of a larger pattern. Not only are we one of only five states without a hate crimes law, but previous efforts to add “four words and a comma” to our civil rights statute–to include sexual orientation and gender identity to the list of identities protected against discrimination–have also gone nowhere.

Our civil rights statute is among the four least protective in the country, and we significantly underfund the agency that is charged with enforcing the few protections we do offer.

Welcome to Indiana, the Mississippi of the North….

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The Eye of the Beholder

Yesterday, I posted about a recent court case that required a judge to define the limits of permissible discrimination.

In a very real way, however, discussion of that case and the merits of the contending arguments begged a couple of important preliminary questions: what is discrimination? when does the day-to-day practice of making choices—discriminating between possibilities A, B and C—cease being a reasonable activity we all engage in and become a socially destructive practice in which privileged people oppress those less powerful or advantaged?

Where does that line get drawn?

Recent research suggests that the general public is polarized around the answers to those questions, and that the polarization mirrors political affiliation.

The partisan lens through which many view the social and political world also impacts perceptions of discrimination: as the Public Religion Research Institute’s 2015 American Values Survey shows, Democrats and Republicans have a very different understanding of the nature of discrimination in the U.S. today—and who are the most likely targets of it.

Not surprisingly, Republicans are far less likely to see discrimination against historically marginalized groups than are Democrats. (Click through to see several interesting graphics representing responses to questions about discrimination from self-identified Republicans and Democrats, contrasted with responses from the general public overall.)

As the study’s authors note, the difference in perceived discrimination tells us a lot about the partisan differences in policy.

Overall, the pattern is clear: there is considerable daylight between those on the left and those on the right when it comes to perceptions of discrimination in America today. Perhaps then, it is not surprising that Democrats and Republicans have such divergent opinions on issues ranging from black Americans’ protesting unfair government treatment to legislation protecting gay, lesbian, bisexual, and transgender people from discrimination. If you don’t perceive discrimination against certain underrepresented groups or marginalized communities to be especially severe or widespread, then these protests and policy proposals might appear to be solutions in search of a problem. If, however, you believe that the discrimination against these groups is particularly severe, then such protests and policy demands are understandable and perhaps even a necessity.

A big part of our current political dysfunction is a reflection of the fact that conservatives and liberals occupy different realities.

Sort of reminds me of that old song, “Two different worlds….”

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Religious Organizations and Civil Rights

Every once in a while, a court decision provides a “teachable moment.” A recent case provides one such instance, in another clash of dogma and civil rights.

In Massachusetts, a Superior Court Judge has found a Catholic High School guilty of discrimination for withdrawing a job offer it had extended to one Matthew Barrett; the offer was withdrawn when Barrett listed his husband as his emergency contact on his employment forms, and the school became aware that he was in a same-sex marriage.

The job in question was food services manager.

The nature of the position at issue is important, because the Courts have long held that the Free Exercise clause of the First Amendment exempts religious organizations from civil rights laws inconsistent with their religious principles—that religious organizations may discriminate on the basis of their religious dogma— when the position being filled is religious in nature.

As a post to a Law Professors’ blog reported

The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school’s religious teachings. Judge Wilkins based his decision on several findings. Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett’s position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.

Law is all about drawing lines and making distinctions. We distinguish between killing in self-defense and murder, between free speech and harassment, and—as here— between discrimination necessary to the exercise of religious liberty and discrimination that exceeds that narrow category.

Where those lines get drawn is always subject to debate and dependent upon facts and evidence.

Here, the issue appears to be straightforward: should a religious organization be entitled to hire and fire non-religious support staff-–janitors, secretaries, cooks, food services managers—on the basis of compliance with the institution’s religious doctrine?

This case is likely to go to the U.S. Supreme Court.  As the Law Professors’ blog says, “stay tuned.”

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What America Got Right

President Obama made a speech in Kenya that has received very little attention, and that’s a shame, for many reasons. As Amanda Taub wrote at Vox,

While his remarks focused on Kenya, they might as well have been about the United States. And this is what was so striking about the speech: the degree to which Obama seemed to articulate a worldview, and thus a foreign policy, rooted in the lessons of America’s history of racial discrimination. Obama was offering not just a prescription for one African country, but a diagnosis of how discrimination and hatred can endanger any society — one he seems to have drawn from his experiences engaging with America’s domestic struggles during his presidency.

The speech focused upon the structural nature of discrimination and the fact that social attitudes–about the proper role of women, to take just one example–shape systems that operate to perpetuate rules and actions based on those assumptions even after majorities of citizens no longer hold them.

As important as it is to examine and address these discriminatory structures, it was the President’s other point that really struck me.

He reminded the audience that Martin Luther King Jr.’s famous dream was not just of an America without segregation, but of a world in which people would be judged by the content of their character, without prejudice or bigotry. “In the same way, people should not be judged by their last name, or their religious faith, but by their content of their character and how they behave. Are they good citizens? Are they good people?”

As I tell my students, one of America’s most striking departures from prior systems of government was this focus on behavior rather than identity. The rights of citizens were not to depend upon caste, religion, ethnic identity, or the other categories that determined  civic status in the old world; the new American philosophy (if not always the reality) held that citizens should be judged and treated as individuals, on the basis of their behavior, and not as members of favored or disfavored groups.

We have not always lived up to that standard, but the trajectory of American jurisprudence has been in that direction.

Ours is a view of citizenship and equality that is still rejected by many countries around the world–not to mention a distressing number of citizens here at home. As the President forcefully pointed out, however, basing rights on who people are rather than how they behave isn’t just morally wrong; it inflicts real damage on a society.

“When we start making distinctions solely based on status and not what people do, then we’re taking the wrong path and we inevitably suffer in the end.”

This emphasis on government’s obligation to treat people based upon their actions–not their wealth, not their religion, skin color, sexual orientation or gender– is at the core of what it means to be an American.

That principle–not our wealth or military power–is what is “exceptional” about America.

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