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What constitutes a hostile work environment in Indiana?

What constitutes a hostile work environment in Indiana?

Hostile work environment claims often involve sexual harassment, but not always.  A workplace may also be hostile based on race, sexual orientation, national origin, gender, age or some other form of discrimination. 

How do you prove a work environment is hostile?

In order to prove a hostile work environment, an employee must be able to demonstrate that the discrimination is, “severe and pervasive.” 

This has been the standard for in the United States since 1972, when the Supreme Court decided Rogers v EEOC.  “Mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII.” 

Rogers remains the law of the land in the US. However, every case must be examined on its own merits. 

If the conduct is so outrageous, it is possible that just one instance of discrimination could be sufficient to bring a claim and be compensated. 

What should you do if you think you’re a victim of a hostile work environment?

If you suspect a hostile work environment, it is important to seek out an attorney who practices in the area of employment law to get a consultation and be certain of your rights and responsibilities. 

It also makes a difference where the hostility is coming from.  Is it a co-worker or is it a manager who is discriminating?  If discrimination comes from a co-worker, it must be reported, so the company can take appropriate action against that employee. 

Suppose it is a manager that is creating a hostile work environment. In that case, he is acting on behalf of the employer, and it is more difficult for the company to deny that they knew about the behavior.

How do you know if the behavior is creating a hostile environment?

To determine whether the behavior is creating a hostile work environment the question to ask is, “whether the condition of employment is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

If you are still unsure, it’s best to contact a law firm in the state of Indiana about the workplace harassment you’ve experienced. They will be able to help you determine if it constitutes a ‘hostile work environment’.

Goodin Abernathy’s lawyers are well experienced in handling employment discrimination cases. Contact the office today for a free consultation.

Monon Trail Safety

Monon Trail Safety

A recent IndyStar article about a group of concerned citizens taking on a traffic study where the Monon Trail intersects 86th St., got me thinking about the disparities that riders experience when crossing the county line.   https://www.indystar.com/story/news/local/transportation/2022/07/15/cyclist-death-indinapolis-monon-intersection-traffic-study-crashes-indiana/10017676002/

Riders in Hamilton County are offered beautifully designed tunnels and bridges where the Monon Trail intersects with busy roads.  From the north beginning at SR 32, there is a well-designed bridge that allows riders safe passage over the busy state road.  As riders head south, there is another bridge over 146th St., and then they are tunneled under US 31, 126th and 116th Streets. Southbound trail riders are again tunneled under I-465 as they enter Marion County and the City of Indianapolis.

The next 4-lane road that the trail user will encounter is the infamous crossing at 86th St. in Nora.  At this location, 86th St. is a heavily travelled, divided 4-lane street, with numerous businesses on either side. Anyone who has experienced this crossing on a bicycle, or on foot, knows of the dangers.  There are fast moving cars on 86th St., who are not expecting a large pedestrian crossing, and there are cars turning in and out of shopping centers on both sides of 86th St.  Those drivers are often looking the other direction for cars, never looking to see if there might be a pedestrian trying to cross the street.  I, myself, have seen numerous close calls at this crossing.

A similarly dangerous intersection that was recently enhanced with a beautiful pedestrian bridge was where the Monon Trail crosses 38th St.  I am very familiar with this project, as it was just a mile or so from Goodin Abernathy LLP.  The bridge allows trail users to safely pass over 38th St. without the risk of getting hit by a car.  With the price of gas at all-time highs, and more people using the trails to commute to work, it is time to invest some of the Federal Government’s infrastructure money in to alternate forms of transportation.  If the City of Indianapolis is going to encourage people to use the Monon, they need to make it safe for its users.  Indianapolis is a world class city, and the Monon is a Hall of Fame trail.  In honor of Indy cycling advocate, Frank Radaker, let’s make it safe.

As an avid cyclist and frequent bike commuter from his home in Carmel to our office at 301 E. 38th Street, Chip Clark has experience representing cyclists who have been injured by the negligence of others.  If you or someone you know has been injured while cycling, call Chip for a free, no obligation, consultation.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445)

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445)

Despite bitter partisan divide in Washington, both the House and Senate recently passed H.R. 4445 which will effectively end the forced arbitration of sexual assault and sexual harassment cases. (Read here.)

What does this mean? Many employees may not even be aware that they signed an arbitration agreement when they accepted the offer from their employer. Often these clauses are buried in employment agreements, and employees have no knowledge or understanding of what they even mean. However, employers favor forced arbitration because it keeps them out of court. The effect of forced arbitration clauses is that they close the courthouse doors for many victims of sexual assault or harassment.

When a new client comes to me with a claim of sexual assault or harassment, one of the first things we want to know is whether they signed an arbitration agreement. If a victim is bound by an arbitration agreement, then we can’t file a public lawsuit. Arbitration agreements empower employers to make low ball offers to settle and insist on confidentiality. These agreements effectively take away a victim’s right to go public with the allegations and exposing the perpetrators.

Many defense lawyers are surmising that this will result in a huge increase in the number of lawsuits being filed by victims, and larger settlements because corporations are no longer going to be able to force victims into a confidential arbitration proceeding. The guaranty of confidentiality means less exposure and publicity for perpetrators and the corporations for which they work.

While it remains to be seen whether this will cause an increase in lawsuits, this can certainly be viewed as a win for victims of sexual assault and harassment. The law basically amends the Federal Arbitration Act to make it easier for victims to file suit in State or Federal Court despite having previously agreed to arbitrate those claims. Victims will now have the right to choose to file their claims in court, rather than being forced by their employers to arbitration, thus allowing their claims will be heard by a judge, not an arbitrator.

The effects of the new law go beyond just giving victims their “day in court.” This will now force employers to effectively address sexual assault and harassment in the workplace. Gone are the days of paying off victims and buying their silence with a confidentiality agreement. By shining the light of a public proceeding on a perpetrator, it may prevent them from finding any future victims.

If you are a victim of sexual assault or harassment in the workplace, you need to know your rights. Call one of our experienced employment law attorneys for a free consultation.

Employment Law Resources

Employment Law Resources

I often receive calls from potential clients who are confident that they have been victims of discrimination or harassment, or that they have been wrongfully terminated, yet they may not be aware of the legal meanings of those terms. The law protects employees from discrimination and harassment based on Race, Color, Sex, National Origin, Age (over 40), Disability, Pregnancy, and Genetic Information. To be clear, Indiana is an “at will” employment state. That simply means that most of us work at the will of our employers. Stated another way, we can be fired for any reason (or no reason at all) just not a discriminatory reason. For example, there is nothing illegal about an employer firing an employee based on the quality of his or her work. But, it would be illegal to fire an employee based on their race or age, or gender. Rare is the case where an employer will actually say, “I am firing you because you are too old.” Therefore, we might have to infer the reason, based on other factors. Does your boss suggest that you are too old for the job? Do they ask you questions like, “When are you going to retire?” These types of things might suggest that age was a factor in your termination, even though the employer’s stated reason for firing you was because of “poor work performance.”

There are some really good resources available, through the Equal Employment Opportunity Commission (“EEOC”), that explain what is meant by wrongful termination, and how those laws apply to employees. The EEOC is the federal agency that is charged with enforcing anti-discrimination laws in the United States. In fact, most discrimination claims must first be filed with the EEOC before you can file a lawsuit against the employer. This process is known as “exhausting your administrative remedies.” Below are some links to some very useful information as it pertains to different types of Discrimination and Harassment:

Age Discrimination: https://www.eeoc.gov/age-discrimination
Disability Discrimination: https://www.eeoc.gov/disability-discrimination
Race/Color Discrimination: https://www.eeoc.gov/racecolor-discrimination
Sex Discrimination: https://www.eeoc.gov/sex-based-discrimination
Pregnancy Discrimination: https://www.eeoc.gov/pregnancy-discrimination

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. For more information on what constitutes harassment, you can go to the EEOC’s site by clicking the link below:

Harassmenthttps://www.eeoc.gov/harassment

Another type of prohibited activity is Retaliation. To be illegal, the retaliation in the employment context must be related to a “protected activity.” For example, if you complained to your Human Resources department that you were being discriminated against based on sex, and then you were immediately fired for engaging in that protected activity, that would be considered retaliation. Below is some useful information to help you understand what types of retaliation are prohibited by employers: https://www.eeoc.gov/retaliation

Lastly, we often get calls about how to collect unpaid wages. If the amount is less than $6,000, the best way to collect those wages is by filing an Online Wage Claim with the Indiana Department of Labor (“IDOL”). Below is a link to the IDOL’s Online Wage Claim Form along with instructions for how to proceed. It the amount is greater than $6,000, we suggest that call us for a free consultation with one of our attorneys that is familiar with Indiana’s Wage Claim and Wage Payment Statutes.

Indiana Department of Labor Online Wage Claim Form: https://www.in.gov/dol/2734.htm

As always, contact me – Chip Clark – if you need representation or advice on any of these subjects.

 

Safety While Commuting on the Monon Trail

Safety While Commuting on the Monon Trail

It can be difficult sometimes to stay positive during the current COVID-19 crisis. However, experts recommend that it is not only good for our physical health, but also our mental health to get outside and exercise. With the decrease in motor vehicle traffic, many people are riding their bikes for exercise and enjoyment. In fact, the current pandemic has led to a tremendous surge in bicycle sales around the globe. If you have been shopping for a new bike lately you will know what I am talking about. We have a wonderful system of shared paths here in Central Indiana. As more and more people are using these paths, it is up to each of us to ensure that they are safe for all users and avoid personal and bicycle accidents or injuries whenever possible.

Passing safety on biking & walking trailsI have always enjoyed cycling, but had fallen away from the activity until recently. The pandemic has allowed me to renew my love for cycling, and I have used this as an opportunity to ride more frequently. I try to ride to work 2-3 days per week, as my schedule allows. With the Courts being closed to the public, and most hearings taking place via phone call or Zoom, I have not needed to wear a suit and tie every day. My current commute is about 25 miles round trip. This takes me about 1 hour each way, and I have found that my rides to and from work are a great way to relieve stress, enjoy the outdoors, and save a little money on gas.

Most of my commute is on shared paths, used by both cyclists and pedestrians, which allows me to avoid interaction with motor vehicles, for the most part. However, most of the accidents and close calls that I have observed were between two bicyclists or bicyclists and pedestrians.

The most common mishaps that I have observed can usually be narrowed down to 3 things: 1. Bicyclists riding too fast for the conditions; 2. Pedestrians who move suddenly out of their lane and in to the path of bicycle that they don’t know is approaching, and 3. Confusion between bicyclists and motorists at the intersections of shared paths and roadways.

I ride a relatively slow, fat-tired bike, with an average speed of 12-14 miles per hour. In my opinion, this is plenty fast for shared trails. To go faster than that in an area where pedestrians are walking is just a recipe for disaster. There are places on the Monon Trail, for example, where cyclists can go faster than that, but when there are crowds of people running and walking and crossing the trail, it is simply not safe.

The other danger that I have observed is cyclists overtaking pedestrians without warning them of their approach. In 2016, the Indiana Legislature removed the requirement at I.C. 9-21-11-8, that all bikes must be equipped with an audible signal device, that can be heard from a distance of 100 feet, such as a bell. I think this was a mistake. A simple bike bell is an easy way to alert others, particularly pedestrians, that you are passing them. In my experience, most pedestrians who walk on shared paths, appreciate the signal that a bike is approaching and will be passing them. Most pedestrians will usually give a hand signal that they heard the bell, and many will even say, “Thank you,” as I pass. Many people walk with their children and their pets. An audible bell gives them a heads up to keep their kids or their pets close as a bicycle passes.

Some pedestrians who are not as familiar with walking on shared paths may be startled by an audible bell. I have observed pedestrians jump upon hearing the bell, or quickly move out of the way. I have observed pedestrians turn suddenly, which can cause them to inadvertently move left and into the path of the cyclist. This can be dangerous. Just last week, I saw a runner, who had reached the point in her run where she was going to turn around and go the other direction. She quickly turned around just as a bicycle was overtaking her. The cyclist did not have a bell to alert his presence. The bell is only to alert pedestrians so that they know a bicycle will be passing on their left. It is not a call to get out of the way, or to even change your course in any way. If more cyclists used a bell, I believe pedestrians would be more attuned, and travel on our shared paths would be even safer. If you are walking on the trail, it is always a good idea to move to the right of the trail before stopping, and look both ways before crossing the trail and reversing direction.

Lastly, there is a lot of confusion about what motorists and cyclists are supposed to do when the shared path intersects with vehicular traffic. If you spend any time on Nextdoor, you will see raging debates about who should stop and when. Everyone needs to follow the rules of the road whether you be driving a car or riding a bicycle. All bikes and motor vehicles should heed the signs that pertain to them at each individual intersection. Bikes and pedestrians are required to stop and make sure the intersection is clear of vehicle traffic before proceeding. If there is a flashing yellow light, motorists need to be prepared to stop to allow pedestrians to cross. Usually, motor vehicle drivers will stop for a flashing yellow light if they see bikes or pedestrians waiting to cross. Always make sure it is safe to proceed before riding your bike across vehicular traffic.

If everyone takes a moment to make sure that their bike is functioning properly, and we all pay attention to the rules of the road, our great system of trails will be safer for everyone. Now get outside and ride your bike!

Chip Clark is a partner at Goodin Abernathy, LLP where he specializes in representing clients who have been injured in personal injury accidents. You can follow him on Instagram at @ChipClarkIndy