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 making
aurally delivered materials available to individuals with hearing
impairments.
(2) Qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals
with 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 set
forth 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 civil
rights 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 an
employer, an employment agency, a labor organization, or a joint
labor-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 significant
risk to the health or safety of others that cannot be eliminated by
reasonable 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 respect
to 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 in
subdivision (1).
(b) As used in this subsection, "illegal use of drugs" means the use
of drugs the possession or distribution of which is unlawful under the
Controlled Substances Act. The term does not include the use of a
drug taken under the supervision of a licensed health care
professional or another use authorized by the Controlled Substances
Act (21 U.S.C. 812) or other provisions of federal law. For purposes
of this chapter, an individual shall not be considered an individual
with a disability solely because the individual is currently engaging
in the illegal use of drugs. However, this subsection does not exclude
as an individual with a disability an individual who:
(1) has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs or
has otherwise been rehabilitated successfully and is no longer
engaging in the illegal use of drugs;
(2) is participating in a supervised rehabilitation program and
is no longer engaging in the illegal use of drugs; or
(3) is erroneously regarded as engaging in the illegal use of
drugs but is not engaging in the illegal use of drugs.
It is not a violation of this chapter for a person or other entity
covered by this chapter to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in subdivision (1) or (2) is no
longer engaging in the illegal use of drugs. Nothing in this section
shall be construed to encourage, prohibit, restrict, or authorize testing
for the illegal use of drugs.
(c) Notwithstanding subsection (b), an individual shall not be
denied health services or services provided in connection with drug
rehabilitation on the basis of the current illegal use of drugs if the
individual is otherwise entitled to those services.
(d) For purposes of this chapter, an individual shall not be
considered an individual with a disability solely on the basis of the
following:
(1) Homosexuality.
(2) Bisexuality.
(3) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders.
(4) Compulsive gambling, kleptomania, or pyromania.
(5) Psychoactive substance use disorders resulting from current
illegal 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 an
employee in a way that adversely affects the opportunities or
status of the applicant or employee because of the disability of
the applicant or employee.
(2) Participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity's
qualified applicant or employee with a disability to the
discrimination prohibited by this chapter. Such relationship
includes a relationship with:
(A) an employment or a referral agency;
(B) a labor union;
(C) an organization providing fringe benefits to an employee
of the covered entity; or
(D) an organization providing training and apprenticeship
programs.
(3) Utilizing standards, criteria, or methods of administration:
(A) that have the effect of discrimination on the basis of
disability; or
(B) that perpetuate the discrimination of others who are
subject to common administrative control.
(4) Excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to have
a relationship or an association.
(5) Not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee
unless the covered entity can demonstrate that the
accommodation would impose an undue hardship on the
operation of the business of the covered entity.
(6) Denying employment opportunities to a job applicant or an
employee who is an otherwise qualified individual with a
disability if that denial is based on the need of the covered
entity to make reasonable accommodation to the physical or
mental impairments of the employee or applicant.
(7) Using qualification standards, employment tests, or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test, or other selection criteria,
as used by the covered entity, is shown to be job related for the
position in question and is consistent with business necessity.
(8) Failing to select and administer tests concerning
employment in the most effective manner to ensure that when
the test is administered to a job applicant or an employee who
has a disability that impairs sensory, manual, or speaking skills,
the test results accurately reflect the skills, aptitude, or other
factor of the applicant or employee that the test purports to
measure, rather than reflecting the impaired sensory, manual, or
speaking 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 controlled
substance (as defined in schedules I through V of Section 202 of the
Controlled 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 individual
employed 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 an
animal 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 ending
July 25, 1994, as used in this chapter, "employer" means a person
engaged in an industry affecting commerce that has at least
twenty-five (25) employees for each working day in each of at least
twenty (20) calendar weeks in the current or preceding year and an
agent of the person.
(b) After July 25, 1994, as used in this chapter, "employer" means
a person engaged in an industry affecting commerce that has at least
fifteen (15) employees for each working day in each of at least
twenty (20) calendar weeks in the current or preceding year and an
agent of the person.
(c) The term described in subsections (a) and (b) does not include
any of the following:
(1) The United States, a corporation wholly owned by the
government of the United States, or an Indian tribe.
(2) A bona fide private membership club other than a labor
organization 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 the
meaning set forth 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 22-9-5-12 "Illegal use of drugs" defined
Sec. 12. As used in this chapter, "illegal use of drugs" means the
use of drugs the possession or distribution of which is unlawful
under the Controlled Substances Act. The term does not include the
use of a drug taken under the supervision of a licensed health care
professional, 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 of
1964 (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 the
meaning set forth 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 22-9-5-15 "Person" defined
Sec. 15. As used in this chapter, "person" has the meaning set
forth 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 a
disability" means an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that the individual holds or desires. For the
purposes of this chapter, consideration shall be given to the
employer's judgment as to what functions of a job are essential, and
if an employer has prepared a written description before advertising
or interviewing applicants for the job the description shall be
considered 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 readily
accessible to and usable by individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or
modification of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations 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 an
action requiring significant difficulty or expense when considered in
light of the factors set forth in subsection (b).
(b) In determining whether an accommodation would impose an
undue hardship on a covered entity factors to be considered include
the following:
(1) The nature and cost of the accommodation needed under
this chapter.
(2) The:
(A) overall financial resources of the facility or facilities
involved 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 the
operation of the facility or facilities.
(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to
the number of employees, and the number, type, and location of
facilities.
(4) The type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of the entity, and the geographic separateness,
administrative, or fiscal relationship of the facility or facilities
in 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 qualified
individual with a disability because of the disability of that
individual 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 19
of this chapter includes medical examinations and inquiries. Except
as otherwise provided by this section, a covered entity may not
conduct a medical examination or make inquiries of a job applicant
as to whether the applicant is an individual with a disability or as to
the nature or severity of a disability.
(b) A covered entity may make preemployment inquiries into the
ability of an applicant to perform job related functions.
(c) A covered entity may require a medical examination after an
offer of employment has been made to a job applicant and before the
commencement of the employment duties of the applicant and may
condition an offer of employment on the results of that examination
if:
(1) all entering employees are subjected to the examination
regardless of disability;
(2) information obtained regarding the medical condition or
history of the applicant is collected and maintained on separate
forms and in separate medical files and is treated as a
confidential medical record, except that:
(A) supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the employee
and necessary accommodations;
(B) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency
treatment; and
(C) government officials investigating compliance with this
chapter shall be provided relevant information on request;
and
(3) the results of the examination are used only in accordance
with this chapter.
(d) A covered entity may not require a medical examination and
may not make inquiries of an employee as to whether the employee
is an individual with a disability or as to the nature or severity of the
disability, unless the examination or inquiry is shown to be job
related and consistent with business necessity.
(e) A covered entity may conduct voluntary medical
examinations, including voluntary medical histories, that are part of
an employee health program available to employees at that work site.
A covered entity may make inquiries into the ability of an employee
to perform job related functions. Information obtained under this
subsection is subject to the requirements of subsection (c)(2) and
(c)(3).
(f) A covered entity may not interfere, directly or indirectly, with
the use of an animal that has been or is being specially trained as a
service animal.
(g) A covered entity may not refuse to permit an employee with
a disability to keep a service animal with the employee at all times
in 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 discrimination
charges; direct threat to health and safety
Sec. 21. (a) It may be a defense to a charge of discrimination
under this chapter that an alleged application of qualification
standards, tests, or selection criteria that screen out or tend to screen
out or otherwise deny a job or benefit to an individual with a
disability has been shown to be job related and consistent with
business necessity, and performance cannot be accomplished by
reasonable accommodation, as required under this chapter.
(b) As used in subsection (a), qualification standards may include
a requirement that an individual shall not pose a direct threat to the
health 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; educational
institutions; conformity to religious tenants
Sec. 22. (a) This chapter does not prohibit a religious corporation,
an association, an educational institution, or a society from giving
preference in employment to individuals of a particular religion to
perform work connected with the carrying on of activities by that
corporation, association, educational institution, or society.
(b) Under this chapter, a religious organization may require that
all applicants and employees conform to the religious tenets of the
organization. As added by P.L.111-1992, SEC.4.
IC 22-9-5-23 Food handling job assignment; denial to person having infectious
or communicable disease; validity of other food handling
provisions
Sec. 23. (a) In any case in which an individual has an infectious
or communicable disease that:
(1) is transmitted to others through the handling of food;
(2) is included on the list developed by the Secretary of Health
and Human Services under 42 U.S.C. 12113; and
(3) constitutes a significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation;
a covered entity may refuse to assign or continue to assign the
individual 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 handling
that is designed to protect the public health from individuals who
pose a significant risk to the health or safety of others that cannot be
eliminated by reasonable accommodation pursuant to the list
published by the Secretary of Health and Human Services under 42
U.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 the
workplace by all employees.
(2) Require that employees shall not be under the influence of
alcohol or be engaging in the illegal use of drugs at the
workplace.
(3) Require that employees behave in conformance with the
requirements established under the Drug-Free Workplace Act
of 1988 (41 U.S.C. 701 et seq.).
(4) Hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for
employment or job performance and behavior that the entity
holds other employees, even if the unsatisfactory job
performance or behavior is related to the drug use or alcoholism
of the employee.
(5) With respect to federal regulations regarding alcohol and the
illegal use of drugs, require that:
(A) employees comply with the standards established in the
regulations of the United States Department of Defense if
the employees of the covered entity are employed in an
industry subject to those regulations, including complying
with regulations, if any, that apply to employment in
sensitive positions in the industry, in the case of employees
of the covered entity who are employed in those positions
(as defined in the regulations of the United States
Department of Defense);
(B) employees comply with the standards established in the
regulations of the United States Nuclear Regulatory
Commission if the employees of the covered entity are
employed in an industry subject to those regulations,
including complying with regulations, if any, that apply to
employment in sensitive positions in the industry, in the case
of employees of the covered entity who are employed in
those positions (as defined in the regulations of the United
States Nuclear Regulatory Commission); and
(C) employees comply with the standards established in the
regulations of the United States Department of
Transportation if the employees of the covered entity are
employed in a transportation industry subject to those
regulations, including complying with regulations, if any,
that apply to employment in sensitive positions in the
industry, in the case of employees of the covered entity who
are employed in those positions (as defined in the
regulations of the United States Department of
Transportation).
(b) For purposes of this chapter, a test to determine the illegal use
of 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 illegal
use of drugs by job applicants or employees or making employment
decisions based on the test results.
(d) Nothing in this chapter shall be construed to encourage,
prohibit, restrict, or authorize the otherwise lawful exercise by
entities subject to the jurisdiction of the United States Department of
Transportation of authority to:
(1) test employees in, and applicants for, positions involving
safety sensitive duties for the illegal use of drugs and for on
duty impairment by alcohol; and
(2) remove those persons who test positive for illegal use of
drugs 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 chapter
shall post notices in a format accessible to applicants, employees,
and members describing the applicable provisions of this chapter, in
the 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 directed
against a covered entity under this chapter are limited to the remedies
provided 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 to
carry out this chapter. These rules must not be in conflict with the
provisions of the federal rules adopted under the employment
discrimination provisions of the federal Americans with Disabilities
Act (42 U.S.C. 1211 et seq.). As added by P.L.111-1992, SEC.4.
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 making
aurally delivered materials available to individuals with hearing
impairments.
(2) Qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals
with 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 set
forth 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 civil
rights 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 an
employer, an employment agency, a labor organization, or a joint
labor-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 significant
risk to the health or safety of others that cannot be eliminated by
reasonable 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 respect
to 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 in
subdivision (1).
(b) As used in this subsection, "illegal use of drugs" means the use
of drugs the possession or distribution of which is unlawful under the
Controlled Substances Act. The term does not include the use of a
drug taken under the supervision of a licensed health care
professional or another use authorized by the Controlled Substances
Act (21 U.S.C. 812) or other provisions of federal law. For purposes
of this chapter, an individual shall not be considered an individual
with a disability solely because the individual is currently engaging
in the illegal use of drugs. However, this subsection does not exclude
as an individual with a disability an individual who:
(1) has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs or
has otherwise been rehabilitated successfully and is no longer
engaging in the illegal use of drugs;
(2) is participating in a supervised rehabilitation program and
is no longer engaging in the illegal use of drugs; or
(3) is erroneously regarded as engaging in the illegal use of
drugs but is not engaging in the illegal use of drugs.
It is not a violation of this chapter for a person or other entity
covered by this chapter to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in subdivision (1) or (2) is no
longer engaging in the illegal use of drugs. Nothing in this section
shall be construed to encourage, prohibit, restrict, or authorize testing
for the illegal use of drugs.
(c) Notwithstanding subsection (b), an individual shall not be
denied health services or services provided in connection with drug
rehabilitation on the basis of the current illegal use of drugs if the
individual is otherwise entitled to those services.
(d) For purposes of this chapter, an individual shall not be
considered an individual with a disability solely on the basis of the
following:
(1) Homosexuality.
(2) Bisexuality.
(3) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders.
(4) Compulsive gambling, kleptomania, or pyromania.
(5) Psychoactive substance use disorders resulting from current
illegal 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 an
employee in a way that adversely affects the opportunities or
status of the applicant or employee because of the disability of
the applicant or employee.
(2) Participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity's
qualified applicant or employee with a disability to the
discrimination prohibited by this chapter. Such relationship
includes a relationship with:
(A) an employment or a referral agency;
(B) a labor union;
(C) an organization providing fringe benefits to an employee
of the covered entity; or
(D) an organization providing training and apprenticeship
programs.
(3) Utilizing standards, criteria, or methods of administration:
(A) that have the effect of discrimination on the basis of
disability; or
(B) that perpetuate the discrimination of others who are
subject to common administrative control.
(4) Excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to have
a relationship or an association.
(5) Not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee
unless the covered entity can demonstrate that the
accommodation would impose an undue hardship on the
operation of the business of the covered entity.
(6) Denying employment opportunities to a job applicant or an
employee who is an otherwise qualified individual with a
disability if that denial is based on the need of the covered
entity to make reasonable accommodation to the physical or
mental impairments of the employee or applicant.
(7) Using qualification standards, employment tests, or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test, or other selection criteria,
as used by the covered entity, is shown to be job related for the
position in question and is consistent with business necessity.
(8) Failing to select and administer tests concerning
employment in the most effective manner to ensure that when
the test is administered to a job applicant or an employee who
has a disability that impairs sensory, manual, or speaking skills,
the test results accurately reflect the skills, aptitude, or other
factor of the applicant or employee that the test purports to
measure, rather than reflecting the impaired sensory, manual, or
speaking 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 controlled
substance (as defined in schedules I through V of Section 202 of the
Controlled 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 individual
employed 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 an
animal 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 ending
July 25, 1994, as used in this chapter, "employer" means a person
engaged in an industry affecting commerce that has at least
twenty-five (25) employees for each working day in each of at least
twenty (20) calendar weeks in the current or preceding year and an
agent of the person.
(b) After July 25, 1994, as used in this chapter, "employer" means
a person engaged in an industry affecting commerce that has at least
fifteen (15) employees for each working day in each of at least
twenty (20) calendar weeks in the current or preceding year and an
agent of the person.
(c) The term described in subsections (a) and (b) does not include
any of the following:
(1) The United States, a corporation wholly owned by the
government of the United States, or an Indian tribe.
(2) A bona fide private membership club other than a labor
organization 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 the
meaning set forth 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 22-9-5-12 "Illegal use of drugs" defined
Sec. 12. As used in this chapter, "illegal use of drugs" means the
use of drugs the possession or distribution of which is unlawful
under the Controlled Substances Act. The term does not include the
use of a drug taken under the supervision of a licensed health care
professional, 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 of
1964 (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 the
meaning set forth 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 22-9-5-15 "Person" defined
Sec. 15. As used in this chapter, "person" has the meaning set
forth 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 a
disability" means an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that the individual holds or desires. For the
purposes of this chapter, consideration shall be given to the
employer's judgment as to what functions of a job are essential, and
if an employer has prepared a written description before advertising
or interviewing applicants for the job the description shall be
considered 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 readily
accessible to and usable by individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or
modification of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations 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 an
action requiring significant difficulty or expense when considered in
light of the factors set forth in subsection (b).
(b) In determining whether an accommodation would impose an
undue hardship on a covered entity factors to be considered include
the following:
(1) The nature and cost of the accommodation needed under
this chapter.
(2) The:
(A) overall financial resources of the facility or facilities
involved 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 the
operation of the facility or facilities.
(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to
the number of employees, and the number, type, and location of
facilities.
(4) The type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of the entity, and the geographic separateness,
administrative, or fiscal relationship of the facility or facilities
in 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 qualified
individual with a disability because of the disability of that
individual 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 19
of this chapter includes medical examinations and inquiries. Except
as otherwise provided by this section, a covered entity may not
conduct a medical examination or make inquiries of a job applicant
as to whether the applicant is an individual with a disability or as to
the nature or severity of a disability.
(b) A covered entity may make preemployment inquiries into the
ability of an applicant to perform job related functions.
(c) A covered entity may require a medical examination after an
offer of employment has been made to a job applicant and before the
commencement of the employment duties of the applicant and may
condition an offer of employment on the results of that examination
if:
(1) all entering employees are subjected to the examination
regardless of disability;
(2) information obtained regarding the medical condition or
history of the applicant is collected and maintained on separate
forms and in separate medical files and is treated as a
confidential medical record, except that:
(A) supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the employee
and necessary accommodations;
(B) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency
treatment; and
(C) government officials investigating compliance with this
chapter shall be provided relevant information on request;
and
(3) the results of the examination are used only in accordance
with this chapter.
(d) A covered entity may not require a medical examination and
may not make inquiries of an employee as to whether the employee
is an individual with a disability or as to the nature or severity of the
disability, unless the examination or inquiry is shown to be job
related and consistent with business necessity.
(e) A covered entity may conduct voluntary medical
examinations, including voluntary medical histories, that are part of
an employee health program available to employees at that work site.
A covered entity may make inquiries into the ability of an employee
to perform job related functions. Information obtained under this
subsection is subject to the requirements of subsection (c)(2) and
(c)(3).
(f) A covered entity may not interfere, directly or indirectly, with
the use of an animal that has been or is being specially trained as a
service animal.
(g) A covered entity may not refuse to permit an employee with
a disability to keep a service animal with the employee at all times
in 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 discrimination
charges; direct threat to health and safety
Sec. 21. (a) It may be a defense to a charge of discrimination
under this chapter that an alleged application of qualification
standards, tests, or selection criteria that screen out or tend to screen
out or otherwise deny a job or benefit to an individual with a
disability has been shown to be job related and consistent with
business necessity, and performance cannot be accomplished by
reasonable accommodation, as required under this chapter.
(b) As used in subsection (a), qualification standards may include
a requirement that an individual shall not pose a direct threat to the
health 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; educational
institutions; conformity to religious tenants
Sec. 22. (a) This chapter does not prohibit a religious corporation,
an association, an educational institution, or a society from giving
preference in employment to individuals of a particular religion to
perform work connected with the carrying on of activities by that
corporation, association, educational institution, or society.
(b) Under this chapter, a religious organization may require that
all applicants and employees conform to the religious tenets of the
organization. As added by P.L.111-1992, SEC.4.
IC 22-9-5-23 Food handling job assignment; denial to person having infectious
or communicable disease; validity of other food handling
provisions
Sec. 23. (a) In any case in which an individual has an infectious
or communicable disease that:
(1) is transmitted to others through the handling of food;
(2) is included on the list developed by the Secretary of Health
and Human Services under 42 U.S.C. 12113; and
(3) constitutes a significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation;
a covered entity may refuse to assign or continue to assign the
individual 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 handling
that is designed to protect the public health from individuals who
pose a significant risk to the health or safety of others that cannot be
eliminated by reasonable accommodation pursuant to the list
published by the Secretary of Health and Human Services under 42
U.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 the
workplace by all employees.
(2) Require that employees shall not be under the influence of
alcohol or be engaging in the illegal use of drugs at the
workplace.
(3) Require that employees behave in conformance with the
requirements established under the Drug-Free Workplace Act
of 1988 (41 U.S.C. 701 et seq.).
(4) Hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for
employment or job performance and behavior that the entity
holds other employees, even if the unsatisfactory job
performance or behavior is related to the drug use or alcoholism
of the employee.
(5) With respect to federal regulations regarding alcohol and the
illegal use of drugs, require that:
(A) employees comply with the standards established in the
regulations of the United States Department of Defense if
the employees of the covered entity are employed in an
industry subject to those regulations, including complying
with regulations, if any, that apply to employment in
sensitive positions in the industry, in the case of employees
of the covered entity who are employed in those positions
(as defined in the regulations of the United States
Department of Defense);
(B) employees comply with the standards established in the
regulations of the United States Nuclear Regulatory
Commission if the employees of the covered entity are
employed in an industry subject to those regulations,
including complying with regulations, if any, that apply to
employment in sensitive positions in the industry, in the case
of employees of the covered entity who are employed in
those positions (as defined in the regulations of the United
States Nuclear Regulatory Commission); and
(C) employees comply with the standards established in the
regulations of the United States Department of
Transportation if the employees of the covered entity are
employed in a transportation industry subject to those
regulations, including complying with regulations, if any,
that apply to employment in sensitive positions in the
industry, in the case of employees of the covered entity who
are employed in those positions (as defined in the
regulations of the United States Department of
Transportation).
(b) For purposes of this chapter, a test to determine the illegal use
of 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 illegal
use of drugs by job applicants or employees or making employment
decisions based on the test results.
(d) Nothing in this chapter shall be construed to encourage,
prohibit, restrict, or authorize the otherwise lawful exercise by
entities subject to the jurisdiction of the United States Department of
Transportation of authority to:
(1) test employees in, and applicants for, positions involving
safety sensitive duties for the illegal use of drugs and for on
duty impairment by alcohol; and
(2) remove those persons who test positive for illegal use of
drugs 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 chapter
shall post notices in a format accessible to applicants, employees,
and members describing the applicable provisions of this chapter, in
the 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 directed
against a covered entity under this chapter are limited to the remedies
provided 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 to
carry out this chapter. These rules must not be in conflict with the
provisions of the federal rules adopted under the employment
discrimination provisions of the federal Americans with Disabilities
Act (42 U.S.C. 1211 et seq.). As added by P.L.111-1992, SEC.4.
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 making
aurally delivered materials available to individuals with hearing
impairments.
(2) Qualified readers, taped texts, or other effective methods of
making visually delivered materials available to individuals
with 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 set
forth 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 civil
rights 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 an
employer, an employment agency, a labor organization, or a joint
labor-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 significant
risk to the health or safety of others that cannot be eliminated by
reasonable 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 respect
to 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 in
subdivision (1).
(b) As used in this subsection, "illegal use of drugs" means the use
of drugs the possession or distribution of which is unlawful under the
Controlled Substances Act. The term does not include the use of a
drug taken under the supervision of a licensed health care
professional or another use authorized by the Controlled Substances
Act (21 U.S.C. 812) or other provisions of federal law. For purposes
of this chapter, an individual shall not be considered an individual
with a disability solely because the individual is currently engaging
in the illegal use of drugs. However, this subsection does not exclude
as an individual with a disability an individual who:
(1) has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs or
has otherwise been rehabilitated successfully and is no longer
engaging in the illegal use of drugs;
(2) is participating in a supervised rehabilitation program and
is no longer engaging in the illegal use of drugs; or
(3) is erroneously regarded as engaging in the illegal use of
drugs but is not engaging in the illegal use of drugs.
It is not a violation of this chapter for a person or other entity
covered by this chapter to adopt or administer reasonable policies or
procedures, including but not limited to drug testing, designed to
ensure that an individual described in subdivision (1) or (2) is no
longer engaging in the illegal use of drugs. Nothing in this section
shall be construed to encourage, prohibit, restrict, or authorize testing
for the illegal use of drugs.
(c) Notwithstanding subsection (b), an individual shall not be
denied health services or services provided in connection with drug
rehabilitation on the basis of the current illegal use of drugs if the
individual is otherwise entitled to those services.
(d) For purposes of this chapter, an individual shall not be
considered an individual with a disability solely on the basis of the
following:
(1) Homosexuality.
(2) Bisexuality.
(3) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders.
(4) Compulsive gambling, kleptomania, or pyromania.
(5) Psychoactive substance use disorders resulting from current
illegal 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 an
employee in a way that adversely affects the opportunities or
status of the applicant or employee because of the disability of
the applicant or employee.
(2) Participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered entity's
qualified applicant or employee with a disability to the
discrimination prohibited by this chapter. Such relationship
includes a relationship with:
(A) an employment or a referral agency;
(B) a labor union;
(C) an organization providing fringe benefits to an employee
of the covered entity; or
(D) an organization providing training and apprenticeship
programs.
(3) Utilizing standards, criteria, or methods of administration:
(A) that have the effect of discrimination on the basis of
disability; or
(B) that perpetuate the discrimination of others who are
subject to common administrative control.
(4) Excluding or otherwise denying equal jobs or benefits to a
qualified individual because of the known disability of an
individual with whom the qualified individual is known to have
a relationship or an association.
(5) Not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee
unless the covered entity can demonstrate that the
accommodation would impose an undue hardship on the
operation of the business of the covered entity.
(6) Denying employment opportunities to a job applicant or an
employee who is an otherwise qualified individual with a
disability if that denial is based on the need of the covered
entity to make reasonable accommodation to the physical or
mental impairments of the employee or applicant.
(7) Using qualification standards, employment tests, or other
selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with
disabilities unless the standard, test, or other selection criteria,
as used by the covered entity, is shown to be job related for the
position in question and is consistent with business necessity.
(8) Failing to select and administer tests concerning
employment in the most effective manner to ensure that when
the test is administered to a job applicant or an employee who
has a disability that impairs sensory, manual, or speaking skills,
the test results accurately reflect the skills, aptitude, or other
factor of the applicant or employee that the test purports to
measure, rather than reflecting the impaired sensory, manual, or
speaking 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 controlled
substance (as defined in schedules I through V of Section 202 of the
Controlled 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 individual
employed 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 an
animal 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 ending
July 25, 1994, as used in this chapter, "employer" means a person
engaged in an industry affecting commerce that has at least
twenty-five (25) employees for each working day in each of at least
twenty (20) calendar weeks in the current or preceding year and an
agent of the person.
(b) After July 25, 1994, as used in this chapter, "employer" means
a person engaged in an industry affecting commerce that has at least
fifteen (15) employees for each working day in each of at least
twenty (20) calendar weeks in the current or preceding year and an
agent of the person.
(c) The term described in subsections (a) and (b) does not include
any of the following:
(1) The United States, a corporation wholly owned by the
government of the United States, or an Indian tribe.
(2) A bona fide private membership club other than a labor
organization 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 the
meaning set forth 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 22-9-5-12 "Illegal use of drugs" defined
Sec. 12. As used in this chapter, "illegal use of drugs" means the
use of drugs the possession or distribution of which is unlawful
under the Controlled Substances Act. The term does not include the
use of a drug taken under the supervision of a licensed health care
professional, 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 of
1964 (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 the
meaning set forth 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 22-9-5-15 "Person" defined
Sec. 15. As used in this chapter, "person" has the meaning set
forth 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 a
disability" means an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that the individual holds or desires. For the
purposes of this chapter, consideration shall be given to the
employer's judgment as to what functions of a job are essential, and
if an employer has prepared a written description before advertising
or interviewing applicants for the job the description shall be
considered 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 readily
accessible to and usable by individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification
of equipment or devices, appropriate adjustment or
modification of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar
accommodations 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 an
action requiring significant difficulty or expense when considered in
light of the factors set forth in subsection (b).
(b) In determining whether an accommodation would impose an
undue hardship on a covered entity factors to be considered include
the following:
(1) The nature and cost of the accommodation needed under
this chapter.
(2) The:
(A) overall financial resources of the facility or facilities
involved 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 the
operation of the facility or facilities.
(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to
the number of employees, and the number, type, and location of
facilities.
(4) The type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of the entity, and the geographic separateness,
administrative, or fiscal relationship of the facility or facilities
in 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 qualified
individual with a disability because of the disability of that
individual 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 19
of this chapter includes medical examinations and inquiries. Except
as otherwise provided by this section, a covered entity may not
conduct a medical examination or make inquiries of a job applicant
as to whether the applicant is an individual with a disability or as to
the nature or severity of a disability.
(b) A covered entity may make preemployment inquiries into the
ability of an applicant to perform job related functions.
(c) A covered entity may require a medical examination after an
offer of employment has been made to a job applicant and before the
commencement of the employment duties of the applicant and may
condition an offer of employment on the results of that examination
if:
(1) all entering employees are subjected to the examination
regardless of disability;
(2) information obtained regarding the medical condition or
history of the applicant is collected and maintained on separate
forms and in separate medical files and is treated as a
confidential medical record, except that:
(A) supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the employee
and necessary accommodations;
(B) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency
treatment; and
(C) government officials investigating compliance with this
chapter shall be provided relevant information on request;
and
(3) the results of the examination are used only in accordance
with this chapter.
(d) A covered entity may not require a medical examination and
may not make inquiries of an employee as to whether the employee
is an individual with a disability or as to the nature or severity of the
disability, unless the examination or inquiry is shown to be job
related and consistent with business necessity.
(e) A covered entity may conduct voluntary medical
examinations, including voluntary medical histories, that are part of
an employee health program available to employees at that work site.
A covered entity may make inquiries into the ability of an employee
to perform job related functions. Information obtained under this
subsection is subject to the requirements of subsection (c)(2) and
(c)(3).
(f) A covered entity may not interfere, directly or indirectly, with
the use of an animal that has been or is being specially trained as a
service animal.
(g) A covered entity may not refuse to permit an employee with
a disability to keep a service animal with the employee at all times
in 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 discrimination
charges; direct threat to health and safety
Sec. 21. (a) It may be a defense to a charge of discrimination
under this chapter that an alleged application of qualification
standards, tests, or selection criteria that screen out or tend to screen
out or otherwise deny a job or benefit to an individual with a
disability has been shown to be job related and consistent with
business necessity, and performance cannot be accomplished by
reasonable accommodation, as required under this chapter.
(b) As used in subsection (a), qualification standards may include
a requirement that an individual shall not pose a direct threat to the
health 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; educational
institutions; conformity to religious tenants
Sec. 22. (a) This chapter does not prohibit a religious corporation,
an association, an educational institution, or a society from giving
preference in employment to individuals of a particular religion to
perform work connected with the carrying on of activities by that
corporation, association, educational institution, or society.
(b) Under this chapter, a religious organization may require that
all applicants and employees conform to the religious tenets of the
organization. As added by P.L.111-1992, SEC.4.
IC 22-9-5-23 Food handling job assignment; denial to person having infectious
or communicable disease; validity of other food handling
provisions
Sec. 23. (a) In any case in which an individual has an infectious
or communicable disease that:
(1) is transmitted to others through the handling of food;
(2) is included on the list developed by the Secretary of Health
and Human Services under 42 U.S.C. 12113; and
(3) constitutes a significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation;
a covered entity may refuse to assign or continue to assign the
individual 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 handling
that is designed to protect the public health from individuals who
pose a significant risk to the health or safety of others that cannot be
eliminated by reasonable accommodation pursuant to the list
published by the Secretary of Health and Human Services under 42
U.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 the
workplace by all employees.
(2) Require that employees shall not be under the influence of
alcohol or be engaging in the illegal use of drugs at the
workplace.
(3) Require that employees behave in conformance with the
requirements established under the Drug-Free Workplace Act
of 1988 (41 U.S.C. 701 et seq.).
(4) Hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for
employment or job performance and behavior that the entity
holds other employees, even if the unsatisfactory job
performance or behavior is related to the drug use or alcoholism
of the employee.
(5) With respect to federal regulations regarding alcohol and the
illegal use of drugs, require that:
(A) employees comply with the standards established in the
regulations of the United States Department of Defense if
the employees of the covered entity are employed in an
industry subject to those regulations, including complying
with regulations, if any, that apply to employment in
sensitive positions in the industry, in the case of employees
of the covered entity who are employed in those positions
(as defined in the regulations of the United States
Department of Defense);
(B) employees comply with the standards established in the
regulations of the United States Nuclear Regulatory
Commission if the employees of the covered entity are
employed in an industry subject to those regulations,
including complying with regulations, if any, that apply to
employment in sensitive positions in the industry, in the case
of employees of the covered entity who are employed in
those positions (as defined in the regulations of the United
States Nuclear Regulatory Commission); and
(C) employees comply with the standards established in the
regulations of the United States Department of
Transportation if the employees of the covered entity are
employed in a transportation industry subject to those
regulations, including complying with regulations, if any,
that apply to employment in sensitive positions in the
industry, in the case of employees of the covered entity who
are employed in those positions (as defined in the
regulations of the United States Department of
Transportation).
(b) For purposes of this chapter, a test to determine the illegal use
of 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 illegal
use of drugs by job applicants or employees or making employment
decisions based on the test results.
(d) Nothing in this chapter shall be construed to encourage,
prohibit, restrict, or authorize the otherwise lawful exercise by
entities subject to the jurisdiction of the United States Department of
Transportation of authority to:
(1) test employees in, and applicants for, positions involving
safety sensitive duties for the illegal use of drugs and for on
duty impairment by alcohol; and
(2) remove those persons who test positive for illegal use of
drugs 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 chapter
shall post notices in a format accessible to applicants, employees,
and members describing the applicable provisions of this chapter, in
the 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 directed
against a covered entity under this chapter are limited to the remedies
provided 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 to
carry out this chapter. These rules must not be in conflict with the
provisions of the federal rules adopted under the employment
discrimination provisions of the federal Americans with Disabilities
Act (42 U.S.C. 1211 et seq.). As added by P.L.111-1992, SEC.4.
