CHAPTER 5. EMPLOYMENT DISCRIMINATION AGAINST DISABLED PERSONS

IC 22-9-5
    Chapter 5. Employment Discrimination Against Disabled Persons

IC 22-9-5-1
"Auxiliary aids and services" defined
    Sec. 1. As used in this chapter, "auxiliary aids and services"includes the following:
        (1) Qualified interpreters or other effective methods of makingaurally delivered materials available to individuals with hearingimpairments.
        (2) Qualified readers, taped texts, or other effective methods ofmaking visually delivered materials available to individualswith visual impairments.
        (3) Acquisition or modification of equipment or devices.
        (4) Other similar services and actions.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-2
"Commerce" defined
    Sec. 2. As used in this chapter, "commerce" has the meaning setforth in Section 701 of the Civil Rights Act of 1964 (42 U.S.C.2000e).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-3
"Commission" defined
    Sec. 3. As used in this chapter, "commission" refers to the civilrights commission.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-4
"Covered entity" defined
    Sec. 4. As used in this chapter, "covered entity" means anemployer, an employment agency, a labor organization, or a jointlabor-management committee.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-5
"Direct threat" defined
    Sec. 5. As used in this chapter, "direct threat" means a significantrisk to the health or safety of others that cannot be eliminated byreasonable accommodation.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-6
"Disability" and "illegal use of drugs" defined; illegal drug users;sexual behavior
    Sec. 6. (a) As used in this chapter, "disability" means with respectto an individual:
        (1) a physical or mental impairment that substantially limits at

least one (1) of the major life activities of the individual;
        (2) a record of an impairment described in subdivision (1); or
        (3) being regarded as having an impairment described insubdivision (1).
    (b) As used in this subsection, "illegal use of drugs" means the useof drugs the possession or distribution of which is unlawful under theControlled Substances Act. The term does not include the use of adrug taken under the supervision of a licensed health careprofessional or another use authorized by the Controlled SubstancesAct (21 U.S.C. 812) or other provisions of federal law. For purposesof this chapter, an individual shall not be considered an individualwith a disability solely because the individual is currently engagingin the illegal use of drugs. However, this subsection does not excludeas an individual with a disability an individual who:
        (1) has successfully completed a supervised drug rehabilitationprogram and is no longer engaging in the illegal use of drugs orhas otherwise been rehabilitated successfully and is no longerengaging in the illegal use of drugs;
        (2) is participating in a supervised rehabilitation program andis no longer engaging in the illegal use of drugs; or
        (3) is erroneously regarded as engaging in the illegal use ofdrugs but is not engaging in the illegal use of drugs.
It is not a violation of this chapter for a person or other entitycovered by this chapter to adopt or administer reasonable policies orprocedures, including but not limited to drug testing, designed toensure that an individual described in subdivision (1) or (2) is nolonger engaging in the illegal use of drugs. Nothing in this sectionshall be construed to encourage, prohibit, restrict, or authorize testingfor the illegal use of drugs.
    (c) Notwithstanding subsection (b), an individual shall not bedenied health services or services provided in connection with drugrehabilitation on the basis of the current illegal use of drugs if theindividual is otherwise entitled to those services.
    (d) For purposes of this chapter, an individual shall not beconsidered an individual with a disability solely on the basis of thefollowing:
        (1) Homosexuality.
        (2) Bisexuality.
        (3) Transvestism, transsexualism, pedophilia, exhibitionism,voyeurism, gender identity disorders not resulting from physicalimpairments, or other sexual behavior disorders.
        (4) Compulsive gambling, kleptomania, or pyromania.
        (5) Psychoactive substance use disorders resulting from currentillegal use of drugs (as defined in section 12 of this chapter).
As added by P.L.111-1992, SEC.4. Amended by P.L.99-2007,SEC.187.

IC 22-9-5-7
"Discriminate" defined
    Sec. 7. As used in this chapter, "discriminate" includes the

following:
        (1) Limiting, segregating, or classifying a job applicant or anemployee in a way that adversely affects the opportunities orstatus of the applicant or employee because of the disability ofthe applicant or employee.
        (2) Participating in a contractual or other arrangement orrelationship that has the effect of subjecting a covered entity'squalified applicant or employee with a disability to thediscrimination prohibited by this chapter. Such relationshipincludes a relationship with:
            (A) an employment or a referral agency;
            (B) a labor union;
            (C) an organization providing fringe benefits to an employeeof the covered entity; or
            (D) an organization providing training and apprenticeshipprograms.
        (3) Utilizing standards, criteria, or methods of administration:
            (A) that have the effect of discrimination on the basis ofdisability; or
            (B) that perpetuate the discrimination of others who aresubject to common administrative control.
        (4) Excluding or otherwise denying equal jobs or benefits to aqualified individual because of the known disability of anindividual with whom the qualified individual is known to havea relationship or an association.
        (5) Not making reasonable accommodations to the knownphysical or mental limitations of an otherwise qualifiedindividual with a disability who is an applicant or employeeunless the covered entity can demonstrate that theaccommodation would impose an undue hardship on theoperation of the business of the covered entity.
        (6) Denying employment opportunities to a job applicant or anemployee who is an otherwise qualified individual with adisability if that denial is based on the need of the coveredentity to make reasonable accommodation to the physical ormental impairments of the employee or applicant.
        (7) Using qualification standards, employment tests, or otherselection criteria that screen out or tend to screen out anindividual with a disability or a class of individuals withdisabilities unless the standard, test, or other selection criteria,as used by the covered entity, is shown to be job related for theposition in question and is consistent with business necessity.
        (8) Failing to select and administer tests concerningemployment in the most effective manner to ensure that whenthe test is administered to a job applicant or an employee whohas a disability that impairs sensory, manual, or speaking skills,the test results accurately reflect the skills, aptitude, or otherfactor of the applicant or employee that the test purports tomeasure, rather than reflecting the impaired sensory, manual, orspeaking skills of the employee or applicant, except where those

skills are the factors that the test purports to measure.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-8
"Drug" defined
    Sec. 8. As used in this chapter, "drug" means a controlledsubstance (as defined in schedules I through V of Section 202 of theControlled Substances Act 21 U.S.C. 812).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-9
"Employee" defined
    Sec. 9. As used in this chapter, "employee" means an individualemployed by an employer.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-9.5
"Service animal" defined
    Sec. 9.5. As used in this chapter, "service animal" refers to ananimal trained as:
        (1) a hearing animal;
        (2) a guide animal;
        (3) an assistance animal;
        (4) a seizure alert animal;
        (5) a mobility animal;
        (6) a psychiatric service animal; or
        (7) an autism service animal.
As added by P.L.155-2009, SEC.6.

IC 22-9-5-10
"Employer" defined
    Sec. 10. (a) During the time beginning July 26, 1992, and endingJuly 25, 1994, as used in this chapter, "employer" means a personengaged in an industry affecting commerce that has at leasttwenty-five (25) employees for each working day in each of at leasttwenty (20) calendar weeks in the current or preceding year and anagent of the person.
    (b) After July 25, 1994, as used in this chapter, "employer" meansa person engaged in an industry affecting commerce that has at leastfifteen (15) employees for each working day in each of at leasttwenty (20) calendar weeks in the current or preceding year and anagent of the person.
    (c) The term described in subsections (a) and (b) does not includeany of the following:
        (1) The United States, a corporation wholly owned by thegovernment of the United States, or an Indian tribe.
        (2) A bona fide private membership club other than a labororganization that is exempt from taxation under Section 501(c)of the Internal Revenue Code.
As added by P.L.111-1992, SEC.4.
IC 22-9-5-11
"Employment agency" defined
    Sec. 11. As used in this chapter, "employment agency" has themeaning set forth in Section 701 of the Civil Rights Act of 1964 (42U.S.C. 2000e).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-12
"Illegal use of drugs" defined
    Sec. 12. As used in this chapter, "illegal use of drugs" means theuse of drugs the possession or distribution of which is unlawfulunder the Controlled Substances Act. The term does not include theuse of a drug taken under the supervision of a licensed health careprofessional, other uses authorized by the Controlled Substances Act(21 U.S.C. 812), or other provisions of federal law.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-13
"Industry affecting commerce" defined
    Sec. 13. As used in this chapter, "industry affecting commerce"has the meaning set forth in Section 701 of the Civil Rights Act of1964 (42 U.S.C. 2000e).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-14
"Labor organization" defined
    Sec. 14. As used in this chapter, "labor organization" has themeaning set forth in Section 701 of the Civil Rights Act of 1964 (42U.S.C. 2000e).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-15
"Person" defined
    Sec. 15. As used in this chapter, "person" has the meaning setforth in Section 701 of the Civil Rights Act of 1964 (42 U.S.C.2000e).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-16
"Qualified individual with a disability" defined
    Sec. 16. As used in this chapter, "qualified individual with adisability" means an individual with a disability who, with or withoutreasonable accommodation, can perform the essential functions ofthe employment position that the individual holds or desires. For thepurposes of this chapter, consideration shall be given to theemployer's judgment as to what functions of a job are essential, andif an employer has prepared a written description before advertisingor interviewing applicants for the job the description shall beconsidered evidence of the essential functions of the job.
As added by P.L.111-1992, SEC.4.
IC 22-9-5-17
"Reasonable accommodation" defined
    Sec. 17. As used in this chapter, "reasonable accommodation"includes the following:
        (1) Making existing facilities used by employees readilyaccessible to and usable by individuals with disabilities.
        (2) Job restructuring, part-time or modified work schedules,reassignment to a vacant position, acquisition or modificationof equipment or devices, appropriate adjustment ormodification of examinations, training materials or policies, theprovision of qualified readers or interpreters, and other similaraccommodations for individuals with disabilities.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-18
"Undue hardship" defined; factors
    Sec. 18. (a) As used in this chapter, "undue hardship" means anaction requiring significant difficulty or expense when considered inlight of the factors set forth in subsection (b).
    (b) In determining whether an accommodation would impose anundue hardship on a covered entity factors to be considered includethe following:
        (1) The nature and cost of the accommodation needed underthis chapter.
        (2) The:
            (A) overall financial resources of the facility or facilitiesinvolved in the provision of the reasonable accommodation;
            (B) number of persons employed at the facility or facilities;
            (C) effect on expenses and resources; or
            (D) impact otherwise of the accommodation upon theoperation of the facility or facilities.
        (3) The overall financial resources of the covered entity, theoverall size of the business of a covered entity with respect tothe number of employees, and the number, type, and location offacilities.
        (4) The type of operation or operations of the covered entity,including the composition, structure, and functions of theworkforce of the entity, and the geographic separateness,administrative, or fiscal relationship of the facility or facilitiesin question to the covered entity.
As added by P.L.111-1992, SEC.4. Amended by P.L.21-1995,SEC.144.

IC 22-9-5-19
Prohibition against discrimination
    Sec. 19. A covered entity may not discriminate against a qualifiedindividual with a disability because of the disability of thatindividual in regard to any of the following:
        (1) Job application procedures.
        (2) The hiring, advancement, or discharge of employees.        (3) Employee compensation.
        (4) Job training.
        (5) Other terms, conditions, and privileges of employment.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-20
Medical examinations and inquiries; permissibility and scope;disclosures; use of results
    Sec. 20. (a) The prohibition against discrimination in section 19of this chapter includes medical examinations and inquiries. Exceptas otherwise provided by this section, a covered entity may notconduct a medical examination or make inquiries of a job applicantas to whether the applicant is an individual with a disability or as tothe nature or severity of a disability.
    (b) A covered entity may make preemployment inquiries into theability of an applicant to perform job related functions.
    (c) A covered entity may require a medical examination after anoffer of employment has been made to a job applicant and before thecommencement of the employment duties of the applicant and maycondition an offer of employment on the results of that examinationif:
        (1) all entering employees are subjected to the examinationregardless of disability;
        (2) information obtained regarding the medical condition orhistory of the applicant is collected and maintained on separateforms and in separate medical files and is treated as aconfidential medical record, except that:
            (A) supervisors and managers may be informed regardingnecessary restrictions on the work or duties of the employeeand necessary accommodations;
            (B) first aid and safety personnel may be informed, whenappropriate, if the disability might require emergencytreatment; and
            (C) government officials investigating compliance with thischapter shall be provided relevant information on request;and
        (3) the results of the examination are used only in accordancewith this chapter.
    (d) A covered entity may not require a medical examination andmay not make inquiries of an employee as to whether the employeeis an individual with a disability or as to the nature or severity of thedisability, unless the examination or inquiry is shown to be jobrelated and consistent with business necessity.
    (e) A covered entity may conduct voluntary medicalexaminations, including voluntary medical histories, that are part ofan employee health program available to employees at that work site.A covered entity may make inquiries into the ability of an employeeto perform job related functions. Information obtained under thissubsection is subject to the requirements of subsection (c)(2) and(c)(3).    (f) A covered entity may not interfere, directly or indirectly, withthe use of an animal that has been or is being specially trained as aservice animal.
    (g) A covered entity may not refuse to permit an employee witha disability to keep a service animal with the employee at all timesin the place of employment.
As added by P.L.111-1992, SEC.4. Amended by P.L.155-2009,SEC.7.

IC 22-9-5-21
Qualification standards, tests, or criteria; defense to discriminationcharges; direct threat to health and safety
    Sec. 21. (a) It may be a defense to a charge of discriminationunder this chapter that an alleged application of qualificationstandards, tests, or selection criteria that screen out or tend to screenout or otherwise deny a job or benefit to an individual with adisability has been shown to be job related and consistent withbusiness necessity, and performance cannot be accomplished byreasonable accommodation, as required under this chapter.
    (b) As used in subsection (a), qualification standards may includea requirement that an individual shall not pose a direct threat to thehealth or safety of other individuals in the workplace.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-22
Employment preference; religious organizations; educationalinstitutions; conformity to religious tenants
    Sec. 22. (a) This chapter does not prohibit a religious corporation,an association, an educational institution, or a society from givingpreference in employment to individuals of a particular religion toperform work connected with the carrying on of activities by thatcorporation, association, educational institution, or society.
    (b) Under this chapter, a religious organization may require thatall applicants and employees conform to the religious tenets of theorganization.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-23
Food handling job assignment; denial to person having infectiousor communicable disease; validity of other food handlingprovisions
    Sec. 23. (a) In any case in which an individual has an infectiousor communicable disease that:
        (1) is transmitted to others through the handling of food;
        (2) is included on the list developed by the Secretary of Healthand Human Services under 42 U.S.C. 12113; and
        (3) constitutes a significant risk to the health or safety of othersthat cannot be eliminated by reasonable accommodation;
a covered entity may refuse to assign or continue to assign theindividual to a job involving food handling.    (b) Nothing in this chapter shall be construed to preempt, modify,or amend any statute, rule, or ordinance applicable to food handlingthat is designed to protect the public health from individuals whopose a significant risk to the health or safety of others that cannot beeliminated by reasonable accommodation pursuant to the listpublished by the Secretary of Health and Human Services under 42U.S.C. 12113.
As added by P.L.111-1992, SEC.4.

IC 22-9-5-24
Alcohol and illegal use of drugs; prohibitions; requisites; testing
    Sec. 24. (a) A covered entity may do the following:
        (1) Prohibit the illegal use of drugs and the use of alcohol at theworkplace by all employees.
        (2) Require that employees shall not be under the influence ofalcohol or be engaging in the illegal use of drugs at theworkplace.
        (3) Require that employees behave in conformance with therequirements established under the Drug-Free Workplace Actof 1988 (41 U.S.C. 701 et seq.).
        (4) Hold an employee who engages in the illegal use of drugs orwho is an alcoholic to the same qualification standards foremployment or job performance and behavior that the entityholds other employees, even if the unsatisfactory jobperformance or behavior is related to the drug use or alcoholismof the employee.
        (5) With respect to federal regulations regarding alcohol and theillegal use of drugs, require that:
            (A) employees comply with the standards established in theregulations of the United States Department of Defense ifthe employees of the covered entity are employed in anindustry subject to those regulations, including complyingwith regulations, if any, that apply to employment insensitive positions in the industry, in the case of employeesof the covered entity who are employed in those positions(as defined in the regulations of the United StatesDepartment of Defense);
            (B) employees comply with the standards established in theregulations of the United States Nuclear RegulatoryCommission if the employees of the covered entity areemployed in an industry subject to those regulations,including complying with regulations, if any, that apply toemployment in sensitive positions in the industry, in the caseof employees of the covered entity who are employed inthose positions (as defined in the regulations of the UnitedStates Nuclear Regulatory Commission); and
            (C) employees comply with the standards established in theregulations of the United States Department ofTransportation if the employees of the covered entity areemployed in a transportation industry subject to those

regulations, including complying with regulations, if any,that apply to employment in sensitive positions in theindustry, in the case of employees of the covered entity whoare employed in those positions (as defined in theregulations of the United States Department ofTransportation).
    (b) For purposes of this chapter, a test to determine the illegal useof drugs shall not be considered a medical examination.
    (c) Nothing in this chapter shall be construed to encourage,prohibit, or authorize the conducting of drug testing for the illegaluse of drugs by job applicants or employees or making employmentdecisions based on the test results.
    (d) Nothing in this chapter shall be construed to encourage,prohibit, restrict, or authorize the otherwise lawful exercise byentities subject to the jurisdiction of the United States Department ofTransportation of authority to:
        (1) test employees in, and applicants for, positions involvingsafety sensitive duties for the illegal use of drugs and for onduty impairment by alcohol; and
        (2) remove those persons who test positive for illegal use ofdrugs and on duty impairment by alcohol under subdivision (1)from safety sensitive duties in implementing subsection (c).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-25
Posting notices; provisions of chapter
    Sec. 25. Each employer, employment agency, labor organization,or joint labor-management committee covered under this chaptershall post notices in a format accessible to applicants, employees,and members describing the applicable provisions of this chapter, inthe manner prescribed by Section 711 of the Civil Rights Act of 1964(42 U.S.C. 2000e-10).
As added by P.L.111-1992, SEC.4.

IC 22-9-5-26
Complaints against covered entities; remedies; limitation
    Sec. 26. The remedies available regarding complaints directedagainst a covered entity under this chapter are limited to the remediesprovided under IC 22-9-1-6(k).
As added by P.L.111-1992, SEC.4. Amended by P.L.1-1993,SEC.188.

IC 22-9-5-27
Rules implementing chapter; conforming to federal rules
    Sec. 27. The commission shall adopt rules under IC 4-22-2 tocarry out this chapter. These rules must not be in conflict with theprovisions of the federal rules adopted under the employmentdiscrimination provisions of the federal Americans with DisabilitiesAct (42 U.S.C. 1211 et seq.).
As added by P.L.111-1992, SEC.4.