By Kevin W. Betz and Elizabeth A. Mallov
On this celebration of Martin Luther King’s birthday and this time of remembrance of Rosa Parks’ accomplishments, most Hoosiers likely believe that the historical struggle for civil rights is over and has resulted in firmly established laws and protections for individual rights in Indiana. In a grand symbolic gesture, Governor Mitch Daniels commanded the lowering of all state and national flags to half staff on the occasion of Rosa Parks’ death this past year, giving honor to the legacy of the mother of civil rights in this country. Governor Daniels, like many Indiana politicians, Republicans and Democrats alike—makes grand statements and gestures about his commitment to the historic civil rights battles of this nation and proclaims his belief about the enormous significance of individual rights for each Hoosier citizen. Indeed, every year on the day celebrating the birth of one of the greatest civil rights leaders in the history our nation, Indiana politicians speak about their alignment with Dr. King’s goals to further freedom and rights for the individual.
Yet when we look beyond these feel-good statements and symbolic gestures, there is a far different story about the reality of Indiana’s commitment to civil and individual rights. The bleak reality is that Indiana simply refuses to adopt the most basic laws passed by the federal government following the civil rights movement in the 1960s. It’s a largely untold and unknown story that boils down to this simple undeniable fact—Indiana as a State has few, if any, real civil rights protections for individuals, especially in comparison to other states, including neighboring states. Indiana’s leadership for the past fifty years has shunned, ignored, blocked, and thwarted any real civil rights for Hoosiers. You may hear from both Democrats and Republicans that Indiana has laws protecting civil rights of our citizens, but when even modestly scrutinized, these Indiana laws amount to nothing more than policy statements without a remedy. If not for the federal laws passed in 1964, no meaningful civil rights would exist at all in Indiana. State laws of Indiana still exist as if it were 1955 when Ms. Parks refused to give up her seat on a bus in Montgomery, Alabama to a white man. Our Hoosier leaders and politicians have simply refused to pass or propose any meaningful civil rights laws. Our State has failed to even adopt the modest federal civil rights legislation of 1964, which as a consequence prohibits Indiana citizens from using our own state court system to adjudicate civil rights cases.
SYMBOLISM OVER SUBSTANCE
A poignant example of our state leadership’s penchant for style over substance in civil rights recently played out. The Indiana General Assembly and the Speaker of the House claimed to be concerned about religious freedom—their right to invoke “Jesus Christ” in prayer at the beginning of daily sessions. They called it “intolerable” that a federal judge told them not to do so. Through this very-public battle over religious freedoms, many Hoosiers were likely misled into thinking our leaders were concerned about religious freedoms for all Hoosiers. However, the reality is that when it comes to religious freedoms for the individual citizens of Indiana in their workplaces, there are absolutely none. Our leaders insist on spending Hoosier tax dollars to fight for their own rights, but refuse to promote religious freedoms for the citizens of Indiana. These same politicians seemingly have never found this lack of religious rights at the workplace of most Hoosiers “intolerable” enough to even propose legislation to prohibit discrimination based on religion. This is the sad state of symbolism over substance for civil rights in Indiana.
It is also tragic, but true, that the only real individual rights legislation in Indiana’s recent history (1991), or at any time, was, of all things, to protect employees who use tobacco. The lesson we as a state teach our children in Indiana is that if you smoke tobacco, you have rights in Indiana; but if you lose your job based on your skin color, sex, religion, or age, Indiana refuses to protect you. Such a twist on the notion of civil rights puts Indiana in the appalling position of far more aggressively protecting citizens who use tobacco than in protecting citizens on the basis of race, gender, age, disability or religion. If an Indiana citizen is the victim of discrimination because he or she is a tobacco-user, s/he is entitled to a full set of remedies: jury trial, complete damages, and attorney fees. However, if that same citizen becomes the target of discrimination based on race, religion, gender, or age, rather than tobacco-use, s/he has no right to a trial without the employer’s consent, much less to a jury trial, and no right to meaningful remedies similar to a tobacco-user.
NO RECENT LEGISLATION
Despite the recent 16 years of Democratic leadership in the Governor’s office and in the Indiana House, no significant civil rights legislation was ever proposed, much less passed. Even with a Democrat in the Mayor’s Office and a Democratic majority on the City-County council, the tradition of symbolism over substance continues. The recently-passed civil rights legislation regarding sexual orientation provides for no effective remedies for the discrimination it purports to ban. On its face, the ordinance prohibits discrimination by employers on the basis of sexual orientation, race, religion, age, and gender. However, even if the employer blatantly violates the ordinance, the victim of the discrimination would be forced to pay out of pocket to defend his or her rights. The supposed remedies for such victims would hardly compensate for the ramifications of the discrimination, let alone for the costs of protecting one’s own rights. Most damming of all—the ordinance absolutely bars the individual from going to a court of law or having the case heard by a jury of peers. It’s as if the employer has more rights than the individual.
Although Indiana’s laws are feeble, Hoosiers may still pursue a civil rights case in federal court. Yet, the result of the absence of state civil rights is far more significant than one might think. For example, an African American who has a race discrimination case in Marion County is forced, by Indiana’s lack of civil rights, to go to federal court for relief. At first blush, this may sound fine, but the reality is that this person will likely face a jury consisting of the rural whites that predominately comprise the jury pool in federal court. Obviously, the jury pool in a Marion County State court contains more “peers” for a civil rights claimant from Marion County, and without state civil rights laws, the claimant in such a case is essentially denied a jury of his or her peers. According to the Journal of the American Bar Association, “[m]inority underrepresentation on federal juries is a consistent problem across the country.” Dreiling, Geri L., “Churning Up the Jury Pool,” ABA Journal, January 2005. Harvard University law professor Charles Ogletree agrees, stating that the problem of minority underrepresentation on juries is “particularly pervasive in federal court because of the prevalence of a much less diverse jury pool even though many of the districts are in communities where there is a fair amount of diverse populace.”
Moreover, to the best of our knowledge, the federal court covering Marion County has never had an African-American judge or magistrate in its entire approximately 200-year history. There are also numerous past and current African American judges and commissioners on the bench in Marion County. It is simply shameful that our own state court system cannot be used when discrimination occurs against Hoosier citizens. Our own leaders decry that a federal judge is even involved in their prayer issue, but these same politicians still force Hoosier citizens to go to federal court to bring discrimination claims.
INDIANA’S CIVIL RIGHTS HISTORY
Indiana was not always so out of step in the area of individual rights. From 1787 to approximately the mid-1800s, Indiana was somewhat of a leader in the civil rights movement. In 1787, people living in what we now call Indiana had legally recognized individual liberties, even though the federal Bill of Rights wouldn’t recognize these liberties for another four years. In 1851, Indiana’s Constitution expressly recognized the rights to life, liberty, and the pursuit of happiness, even though the federal Constitution does not include this language from the Declaration of Independence. To this day, the Indiana Constitution contains many citizen protections which are not similarly acknowledged in the federal Bill of Rights. According to an article by the Chief Justice of the Indiana Supreme Court, Randall T. Shepard, Indiana was also “an early and noteworthy participant in using its bill of rights to defend personal liberty” which included opposition to slavery.
CIVIL RIGHTS IN INDIANA TODAY
As has been borne out over the past 50 years, Indiana’s recent civil rights history is far less admirable. Rather than progressing as a leader among states to protect citizens, Indiana’s lawmakers have essentially stood back and offered many symbolic gestures, but nothing of substance. In 1961, what soon became the Indiana Civil Rights Commission (“ICRC”) was born. Over the next 15 years, Indiana slowly expanded protection to more Hoosier citizens by giving the ICRC jurisdiction over housing discrimination claims, gender discrimination claims, discrimination in credit claims, and claims involving discrimination on the basis of disability. Again, these laws provide no effective remedies, and no jury trial whatsoever.
Under Indiana laws, Hoosier employees who want to bring a civil rights suit under Indiana law against their employer for discrimination face an insurmountable set of obstacles. To get a trial, the employee and the employer must agree in writing to submit the case to a judge. Not surprisingly, most employers who have been accused of discrimination prefer to keep the matter out of court and refuse to consent to a trial. We were unable to find any case where an Indiana civil rights case has ever gone to trial under Indiana law. This is a testament to our state’s meaningless laws and the total void of any leadership in our state on this issue. Even if the employee can get the employer to consent, there is still no right to a jury trial. Finally, even if the victim prevails in a trial before a judge or administrative proceeding, the damages are so extremely limited as to make it a worthless undertaking. Thus, it is economically infeasible to even pursue such claims. The unfortunate, simple truth is that Indiana laws flatly deny the victims of workplace discrimination the opportunity to have a trial by jury or to meaningfully pursue a claim.
WEAK CIVIL RIGHTS LAWS HURT INDIANA
We may think that no one notices Indiana’s backwards civil rights practices, but many have taken notice. According to a recent report conducted by the Heartland Alliance for Human Needs and Human Rights, a service-based human rights organization, Indiana earned a D+ for its overall treatment of its own citizens, resulting in an overall ranking of 8th out of 8 in Midwestern states. The grading scale only involved eight Midwest states, which as a group are far less progressive than many East coast and West coast states, and still, Indiana came in last among the conservative Midwest eight. This report evaluated human rights in the Midwest according to the same scale used internationally. Indiana also won the title as the only state in the Midwest to actually receive an F in one of the human rights categories evaluated. As for employment issues, Indiana’s wage discrimination—the simple fact that a black man in Indiana earns less per hour than a white man in Indiana, and that a female earns less than a male in Indiana—earned Indiana a grade of C-. This report revealed yet another example of Indiana’s value of symbolism over substance. When the researchers evaluated the existence of laws and entities monitoring compliance with those laws, Indiana faired well. However, as discussed above, when researchers evaluated the depth, or substance, of these protections, Indiana received another F. The study found that in reality, Indiana laws lacked any depth.
After reading frightening statistics such as these, it is no surprise that the negative effects of discrimination impact more than just the direct victim of the discrimination. Indeed, Indiana is suffering from the effects of discrimination and from its own insufficient civil rights laws. This anti-individual rights policy of our state no longer is simply a liberal cause for angst. Because we now live in the Information Age and the Age of the Individual, the absence of individual protections also contributes to Indiana’s lower economic status and Indiana’s well-documented “brain drain,” leaving Indiana non-competitive for the economy of the future. High-tech companies not only seek tax breaks or locations next to interstates, but now primarily look for talented and highly skilled workers. Chief Executive Officers seek young, talented, sophisticated individuals. Indiana does everything short of slamming the door in the face of such individuals with its state laws. Indiana could solve this issue, in part, by merely passing laws similar to those in our neighboring states, but our leaders, Democrat and Republican alike, refuse to even seriously propose such legislation, apparently out of fear of the political fallout from what is perceived as an anti-business stance.
Our state leaders act as if the “brain drain” of young, talented individuals is some mystery. It’s actually simple economics for individuals. Indiana’s lack of progressive legislation over the past fifty years has imposed a human and economic price. In a recent study on the topic, Richard Florida, the Heinz Professor of Regional Economic Development and Director of the Software Industry Center at Carnegie Mellon University, concluded that talented employees seek diversity and openness, and more employers, consequently, will move to follow the talent to those states which foster such diversity. As noted in an article called “Discrimination Doesn’t Pay,” discussing alleged economic damage caused by legislation prohibiting discrimination, “one way to slow the brain drain is to keep [the state] from being seen as a provincial, discriminatory state.” Mark Miles, president and CEO of the Central Indiana Corporate Partnership, has also commented that people are the most valuable resource to businesses today. He observed, “New ideas and talented people attract jobs in today’s global, innovation-based economy, and central Indiana is on the verge of falling dangerously behind.” Businesses will go wherever the skilled people are. And where are the skilled workers? In diverse, open-minded communities, according to a plethora of recent studies. One such study, discussed in an article entitled, “Technology and Tolerance: The Importance of Diversity to High-Technology Growth,” concluded that “overall diversity is a strong indicator of a metropolitan area’s high-technology success.” The article noted that the statistical analysis supported the theory that social and cultural diversity attracts talent and stimulates high-tech growth.” Any “pro-business” justification for such anti-employee laws has long since passed. Remember, since 2000 alone Indiana has lost more than 100,000 jobs—a loss six times greater than the national average. Perhaps Indiana leaders should awaken to the fact that pro-business is also pro-individual.
INDIANA COMPARED TO NEIGHBORING STATES
These talented workers and the companies seeking to hire them are quickly fleeing to other states, including neighboring states, where the citizens are protected by significantly better civil rights laws. Indeed, most civil rights lawyers in other states prefer to pursue cases under their states’ civil rights laws because the federal law is so inadequate. In Indiana, however, these inadequate federal laws are simply the only protection individuals have. In Ohio, as well as other neighboring states, for example, victims of discrimination in employment on the basis of race, color, religion, sex or national origin can recover in their own state courts damages that include lost income and benefits, reinstatement, emotional distress damages, punitive damages, and attorney fees and costs. There are no caps on these emotional distress and punitive damages like those imposed under federal law. Unlike Indiana where damages are so limited that an individual claimant still faces a substantial loss emotionally and financially even after successfully pursuing a claim, Ohio law attempts to fully compensate the victim. An Ohio civil rights claimant can also seek a jury trial in his or her own state’s court system, unlike in Indiana State courts.
By all accounts, Indiana citizens, and particularly employees, also fare poorly in other individual rights areas such as worker’s compensation. The standard amount of compensation for a given injury in Indiana is sadly and pathetically less than the standard amount of compensation for the same injury in neighboring states. According to recent statistics from the US Chamber of Commerce’s Analysis of Worker’s Compensation Laws comparing compensation amounts in four Midwest states, Indiana provided by far the worst compensation for injuries of any of the four states evaluated. For example, an Indiana worker who loses a thumb on the job is compensated $11,200.00, whereas this same injury would merit $32,597.00 in Illinois, $34,020.00 in Ohio, and $37,700.00 in Michigan. If you lose your arm above the elbow on the job in Indiana, you would be compensated $60,500.00, whereas if you worked in Michigan, your compensation would be nearly one-hundred thousand dollars MORE than in Indiana—$156,020, to be precise. Clearly, the Michigan legislature wants to protect its own citizens and workers, whereas the Indiana legislature has apparently placed other concerns above the rights and safety of the workers who contribute to the Indiana economy. Again, has this alleged “pro-business” policy helped the Indiana economy? Just the opposite is true. Talented and smart young individuals are not ignorant of Indiana’s anti-individual and anti-employee reputation.
Perhaps these stark facts are disturbing to employees in Indiana. Perhaps even some employers are bothered by the state of workplace civil rights in Indiana. These facts, however, should disturb everyone in Indiana, including our leaders. Weak employee protections hurt Indiana as a whole—employers and taxpayers are hurt because qualified employees go to other states with broader employee protections, employees are hurt by the lack of protections, and the economy suffers while technology and other much-needed firms settle into other states with more attractive laws for workers. Employment discrimination and the lack of Indiana laws against such discrimination hurt everyone. As Indiana’s reputation for denying employees some of the basic protections against discrimination and other workplace rights offered in other states becomes more well-known, Indiana companies will face increased difficulty in attracting talented and qualified workers from other states.
For Indiana citizens, Dr. King’s dream is still not fulfilled. The reality is that Indiana’s leaders have rejected or ignored the civil rights movement that has led to progressive laws in the rest of our own country. It is time for Dr. King’s dream to become reality for the State of Indiana. Let us truly celebrate Dr. King’s legacy—not just with symbolic gestures made once a year on his birthday, but with the daily reality of real civil rights for Hoosiers. As Hoosiers, it’s at least a time to listen to Dr. King’s own words about the civil rights struggle. Here are a few appropriate words from him:
- “Injustice anywhere is a threat to justice everywhere.”
- “In the end, we will remember not the words of our enemies, but the silence of our friends.”
- “Our lives begin to end the day we become silent about things that matter.”
- “History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people.”
- “Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.”
- “The time is always right to do what is right.”