Be Careful What You Wish For . . .

By

Mike and Teresa Kendall

Everybody’s told somebody, “Be careful what you wish for because it might come true.”  The problem is nobody listened to anybody, especially in Hoosier politics.  Take the Religious Right for example.  They wished hard for the “Restoration of Religious Freedom Act.”  Well, they got what they wished for in the long session of the IGA this year.  Their Governor, Senate Leader, House Speaker, and the GOP wished to give them RFRA.  The Pols’ wish came true too.     

 

The intent of the Religious Right was RFRA would allow them to discriminate against LGBTs, and sue anybody tried to stop them.  The intent of our One-Party politicians was to make amends to the Religious Right, for skating on their attempt to ban gay marriages, by at least letting the Religious Right refuse to bake cakes for gay weddings with impunity.  But be careful what you wish for.

Within days the Governor’s reputation and political future was in free-fall.  Groups around the country were threatening to take their business elsewhere and businesses in Indiana were calculating how much money they’d and how many employees couldn’t recruit.  Outed by the nation, GOP leaders ‘put on a beard’ by pulling LGBTs out of RFRA’s clutches and ruminating one might wish to insert LGBT persons into the Indiana Civil Rights Act.  But be very careful what you wish for.  To their chagrin, the Right, the Righteous, and local governments now find themselves awash in a tsunami-like LGBT cultural revolution crested by a broad, formidable wave of prominent businesses, organizations, and community leaders.  Be very, very careful what you wish for.

 

This political tsunami is likely to get its wish to amend the ICRA to include LGBT persons as a category protected from discrimination in the 2016 IGA session.  But now it’s time for the LGBT community and its allies to “be very, very careful what you wish for!”  If your “wish” is merely to amend the state Act to secure the same rights in employment and contracts as persons protected from discrimination because of their “race, religion, color, sex, disability, national origin, and ancestry,” you will be ‘very, very sorry’ if that is your only wish and it comes true.        

The current ICRA is under the labor law section of the Indiana statutes.  Its stated purpose is to protect “unions, corporations, and business” from the horrible specter of “unfounded charges of discrimination” by minorities.  It also protects “educational institutions” with a Hoosier tradition of segregating or excluding women students (or men) from discrimination complaints.  (Here insert LGBTs?)  But wait.  It gets better.  The victim in Indiana can only sue in court if the employer is dumb enough to consent.  If he is dumb enough, you better check his and his law firm’s ties to the Judge.  You don’t get a jury trial, just a judge trial.  The only damage you get is “back pay.”  Indiana does not award damages for lost future income, severe emotional distress, physical pain and suffering, or intentional discrimination (punitive damages).  And good luck finding an attorney.  You can’t afford an hourly lawyer fee to only recover back pay, you can’t find a lawyer for a percentage of back pay, and the employer doesn’t have to pay attorney’s fees.  Moreover, Indiana does not order reinstatement unless you were fired for being a “U.S. military veteran.”     

 

Not to belabor the point, but if a LGBTs’ best day in the next session is mere inclusion in Indiana’s Civil Rights Act, their best day in Court is the epitome of a Pyrrhic victory.  For example:  Suppose you are a LGBT employee fired from a job earning $15 an hour, and out of work for six months.  Down $15,600 in back pay, you find a lawyer to represent you for 40% of your recovery.  She sues your employer, who kindly agrees to be sued in state court.  You draw a local judge who has no tacit knowledge of your former employer and his lawyer.  After two years of litigation and a court trial, the judge rules in your favor and awards you every dime of your back pay!  You or your employer pay the $3,600 owed for withholding taxes, you pay your lawyer $6,240 (40%) of the judgment, and you have over $5,000 left over for the psych you need from a total victory!            

 

A prominent Indianapolis attorney in the LGBT community, concentrating in Estate Planning, Probate, Adoptions, and Business and Employment Law, Barbara J. Baird, recently told me merely adding LGBTs to the protected classes of the Indiana Civil Rights Act “is just window dressing because the ICRA doesn’t provide a real remedy for the victims of discrimination.”  So fellow reformer, let us be very, very, very careful what we wish for.  The cost in political capital will be no higher, and the base of support for changes broader, by putting teeth in the Act as well as putting LGBTs in it.  All victims benefit by a right to a jury trial, future pay, damages for emotional distress and physical pain and suffering, back to work orders, and attorney’s fees. 

Now’s the time to make a new wish.  Be careful.