Navigating Charges of Disability Discrimination as a Business Owner
In Indiana, businesses who employ 15 or more employees must comply with the Indiana Civil Rights Law (Ind. Code §§ 22-9-5-1 – 22-9-5-27) and the Americans with Disabilities Act (42 U.S.C.S. §§ 12111 – 12117) regarding employees or potential employees with disabilities. When an employee believes that she has been discriminated against by her employer under these laws, she may file a charge of discrimination with the Indiana Civil Rights Commission (ICRC) and Equal Employment Opportunity Commission (EEOC). While no one likes to receive a notice of a charge of discrimination, these charges can often be addressed with little to no hardship on the part of the business owner. Here is a list of things to keep in mind when navigating a charge of discrimination:
Read the Notice Carefully and Pay Attention to Deadlines: When the ICRC or EEOC sends you a notice of charge of discrimination, this is your notice that an investigation has been initiated to determine whether there is probable cause that discrimination occurred. The notice will typically ask you to answer within a certain timeframe. Even if you believe you are not required to comply with Indiana Civil Rights Law or the ADA, never refuse to provide an answer to the commission within the timeframe. If you choose not to answer, the commission may assume that you accept the charges of your employee’s complaint and produce a legal order against you or compel information from you via subpoena.
Comply with the Commission’s Requests Throughout the Investigation: Typically, if you have provided an answer denying the charges against you, the commission will ask you to submit a position statement. This is your chance to tell your side of the story and explain why you have not violated civil rights law or the ADA. After receiving your position statement, the commission may send you other information requests to aid its investigation into probable cause. Typical information requests may include meeting minutes, employee personnel files, and employee policies. Respond to any requests by the commission within the requested timeframe.
Consider Mediation: Often, an employee of the commission may reach out to ask whether you are open to engaging in mediation with the complaining employee. Employer’s should be open to considering this request. Successful mediation results in a resolution of the charge and ends the commission’s investigation. This is a great way to address the charge without having to deal with an ongoing investigation that may take months to close. Further, mediations are confidential and not part of the public record. However, business owners should note that if they fail to comply with an executed agreement resulting from mediation, the commission may compel compliance by petition to a court of competent jurisdiction.
Keep All Relevant Documents: Do not dispose of any documents relevant to the investigation. Keeping documents sent to and between you and the commission in an organized fashion will allow you to keep tabs on the status of the investigation and alleviate any miscommunications that may happen during the course of the investigation. Also be sure to keep any mailing receipts of documents sent to the commission in case something goes wrong with their delivery.
DO NOT RETALIATE AGAINST THE EMPLOYEE: When an employee brings legal charges against a business owner, it is understandable that some tension may arise between the parties as a result. Refrain from terminating, demoting, or otherwise retaliating against the employee as a result of the charges against you. Even if the investigation comes out in your favor, this is an illegal act and may open you up to penalties or damages.
Finally, Consult with an Attorney: While the commission does not require you to be represented by an attorney to participate in an investigation into a discrimination charge, it is always a great idea to consult with one. Attorneys can alleviate your concerns regarding the investigative process and any effects it may or may not have on your business. Further, an attorney who understands the language of the Indiana Civil Rights Law and the ADA can assist you with the drafting of effective position statements and information requests to the commission. An attorney can also successfully guide you through any mediation process you may want to engage in. If you choose to navigate an investigation without an attorney, always be sure to read and respond to investigation documents and commission communications fully and carefully.