Chapter 2.95
HUMAN RELATIONS AND DISCRIMINATION
Sections:
2.95.010 Human relations commission.
2.95.020 Discriminatory practices.
2.95.040 Complaints of discriminatory practices.
2.95.010 Human relations commission.
A. Establishment and Membership.
1. To assist in the elimination of discrimination in Whitestown, there is hereby created a commission to be known as the Whitestown human relations commission.
2. The commission shall consist of five members, not more than three of whom may be members of the same political party. The members shall be appointed by the town council president with the approval of the town council.
3. Initial terms shall be staggered such that two commissioners shall be appointed for an initial term of three years, two commissioners shall be appointed for an initial term of two years, and one commissioner shall be appointed for an initial term of one year, and until a successor has been appointed and qualified.
4. All subsequent terms shall be for a period of three years and until a successor has been appointed and qualified.
5. All members of the commission shall be residents of Whitestown, or a property owner within Whitestown and who also resides within Boone County. Appointments should be made in a manner that promotes that the commission membership is broadly representative of the community in regard to race, religion, beliefs, national origin, gender, background, and/or abilities.
6. Members of the commission serve at the pleasure of the town council, and may be removed for any reason that the town council considers appropriate in its discretion.
B. Officers.
1. The commissioners shall elect one of its members to serve as chairman, and may also elect such other officers from its membership as the commission deems appropriate.
2. The town council shall appoint an executive director for the commission, which may but is not required to be an employee of the town in other capacities. The commission may appoint the executive director or higher designee to serve as secretary to the commission. In such an event, the executive director/commission secretary shall not be required to meet the qualifications for membership on the commission, and shall not be compensated for the services as commission secretary other than the salary established for the position of executive director by the town council.
C. Powers and Duties.
1. The commission shall have only those powers which are conferred herein and which are permitted to be exercised by a human relations commission under the applicable provisions of Indiana law, including the power to:
a. Investigate and conciliate complaints of prejudice or discriminatory practices;
b. Subpoena and compel the attendance of witnesses or production of pertinent documents and records;
c. Administer oaths and examine witnesses;
d. Make findings and recommendations;
e. Institute actions for appropriate legal or equitable relief in a circuit or superior court;
f. Refer to the appropriate governmental entity those complaints which cannot be conciliated by the commission;
g. Employ other staff personnel as approved by the town council;
h. Adopt rules and regulations to conduct its business and its meetings; and
i. Conduct programs and activities to carry out the purposes of the Whitestown human relations commission provided for in this chapter within the Whitestown community.
2. The commission shall hold regular meetings, and other meeting as called by the elected chairman or three commissioners.
3. The commission shall endeavor to keep itself fully informed concerning the studies and findings of private organizations with respect to the practices falling within the commission’s purpose.
4. The commission shall render an annual report of its activities to the town council, and shall render such other additional reports as the town council may from time to time request. The reports should describe the investigations and conciliation proceedings it has conducted, the outcome of such proceedings, the progress made and any other work performed, and achievement toward the elimination of discrimination.
D. Responsibilities.
1. The commission is charged to study the relationship between persons of various races, sexes, creeds, abilities and nationalities within the town and to advise and assist the various town departments in matters involving relationships between such groups to the end that prejudice, intolerance, bigotry, and discrimination will be eliminated in Whitestown;
2. The commission is charged to identify and recommend ways to eliminate discrimination based upon race, religion, beliefs, color, sex, sexual orientation, disability, national origin, ancestry, or veteran status in education, employment, public accommodations and housing;
3. The commission is charged to study, investigate and recommend action in regard to any condition having an adverse effect upon relations between persons of various races, genders, creeds, abilities and nationalities;
4. The commission is charged to institute and conduct educational and other programs intended to promote the equal rights and opportunities of all persons;
5. The commission is charged to solicit the cooperation of the various racial, ethnic, disability, rights, and religious groups within the community in order to improve the quality of communications and understanding within the community; and
6. The commission is charged to stimulate private and governmental departments and agencies to develop and foster meaningful programs in support of the objectives and purposes of the Whitestown human relations commission. [Ord. 2015-06 § 1]
2.95.020 Discriminatory practices.
A. Discriminatory practices are prohibited and declared to be unlawful.
B. “Discriminatory practices” for purposes of this chapter means:
1. The exclusion of a person from equal opportunities because of race, religion, beliefs, color, sex, sexual orientation, disability, national origin, ancestry, or status as a veteran;
2. A system that excludes persons from equal opportunities because of race, religion, beliefs, color, sex, sexual orientation, disability, national origin, ancestry, or status as a veteran; or
3. The promotion of racial segregation or separation in any manner, including but not limited to the inducing of or attempting to induce for profit any person to sell or rent any dwelling by representations regarding the entry or prospective entry in the neighborhood of a person or persons of a particular race, religion, belief, color, sex, sexual orientation, disability, national origin, ancestry, or status as a veteran.
C. It is not a discriminatory practice under this chapter:
1. To maintain separate restrooms or dressing rooms for men and women; or
2. For any employer to hire employees or for an employment agent to classify or refer to employment of any individual on a basis that is a bona fide occupational requirement reasonably necessary for the normal operation or purposes of that particular business or enterprise.
D. Nothing in this chapter shall be interpreted to require any person to grant preferential treatment to any individual or any group because of the race, color, religion, beliefs, disability, sex, sexual orientation, national origin, ancestry, or veteran status of the individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, beliefs, disability, age, sexual orientation, sex, sexual orientation, national origin, ancestry, or veteran status employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in any apprenticeship or other training program, in comparison with the total number or percentage of persons of that race, color, religion, beliefs, disability, age, sexual orientation, sex, national origin, ancestry, or veteran status in the town, or in any contiguous area, or in the available work force. [Ord. 2015-06 § 2]
2.95.030 Jurisdiction.
A. WMC 2.95.020 shall apply within the territorial limits of Whitestown, with respect to any discriminatory practice occurring with such territory limits and which relates to:
1. Acquisition of real estate;
2. Employment;
3. Education; or
4. Public accommodations.
B. This chapter shall not apply to persons, entities, or activities over which Whitestown does not have jurisdiction or which is otherwise exempt or protected under applicable state or federal law.
C. This chapter shall not apply to any not-for-profit corporation or association organized exclusively for fraternal or religious purposes, or to any school, education, charitable, or religious institution owned or controlled by, or affiliated with, a church or religious institution, nor any exclusively social club, corporation, or association that is not organized for profit and is not in fact open to the general public.
D. This chapter shall not apply to the rental of rooms in a boarding house or rooming house or single-family residential unit; provided, however, that the owner of the building unit actually maintains and occupies a unit or room in the building as his or her residence and, at the time of the rental, the owner intends to continue to so occupy the room therein for an indefinite period subsequent to the rental. [Ord. 2015-06 § 3]
2.95.040 Complaints of discriminatory practices.
A. Complaint Procedure.
1. A complaint charging that any person has committed a discriminatory practice prohibited by this chapter may be filed with the commission at its office by:
a. Any person claiming to be aggrieved by a discriminatory practice; or
b. The director or a commissioner who believes that a discriminatory practice has occurred.
2. The complaint shall be accepted as filed if:
a. It is verified under oath and notarized;
b. It states the full names and addresses of the complainant and of the person aggrieved by the alleged discriminatory practice;
c. It states the full name and address of the respondent;
d. It states the alleged discriminatory practice;
e. It states the acts or omissions of the respondent alleged to constitute the discriminatory practice with reasonable particularity of the facts and circumstances sufficient to sustain the charge;
f. It states the date of the alleged discriminatory practice; and
g. It includes a statement listing all other known actions, whether private, civil, or criminal, instituted before any other corporation, person, body, administrative agency, commission, department, or court, whether state or federal, based upon the same grievance alleged in the complaint, with a statement as to the known status or disposition of the other action.
3. The complaint may be amended by the complainant at any time prior to the notice of the hearing, and may be withdrawn at any time. Notice of any amendment or withdrawal shall be given to the respondent.
4. The complaint must be filed within 90 days after the date of the alleged discriminatory practice.
5. Any person that may file a complaint with the Indiana Civil Rights Commission concerning any of the matters alleged in such complaint shall seek relief from the Indiana Civil Rights Commission and may not file a complaint under this chapter. The executive director or commission may refer any complaint to the Indiana Civil Rights Commission for proceedings in accordance with the State Civil Rights Act (IC 22-9-1-1 et seq.).
6. Upon notice that a complaint is subject to an action before the Indiana Civil Rights Commission or in any federal or state court or agency, the executive director and commission shall immediately cease investigation of the complaint and may not conduct hearings, or issue findings or orders, concerning the complaint.
7. A complaint may not be filed arising from employment unless such employee has first utilized all internal complaint procedures, remedial measures, and investigatory procedures available through the employer’s written policies and procedures.
8. The director shall cause a copy of the complaint to be mailed by certified or registered mail to the respondent at his last known residential address or his last known place of employment within 10 days from the date of filing of the complaint. Respondent may file a written response to the complaint at any time prior to the commencement of the hearing.
9. All action taken, and information relative to a specific complaint obtained by the commission from the time of the filing of a complaint until the issuance of notice or hearing, shall be confidential, and shall not be made public, except as otherwise required by law.
10. It is unlawful for any person to willfully file a complaint alleging a violation of this chapter with knowledge that the complaint is false in any material respect. A violation of this subsection constitutes the false reporting of a crime.
B. Investigation Procedure. Within 30 days after receipt of a complete complaint, the director shall initiate an investigation of the alleged discriminatory practice charged in the complaint. The investigation may be made by staff members or consultants of the commission and may include but shall not be limited to informal conferences or discussions with any party allegedly involved in or familiar with the alleged discriminatory practice or practices. The staff members or consultants who conduct an investigation shall not communicate their opinion or recommendation to the commissioners who may ultimately hear the complaint.
If, following submission of the final investigative report, the director determines in his/her discretion that there is no probable cause to believe that a violation of this chapter has occurred, the complaint shall be dismissed and the complainant and respondent notified of the dismissal.
If, following submission of the final investigative report, the director determines in his/her discretion that there is probable cause to believe that the allegations made in the complaint are true and if true would constitute a discriminatory practice under this chapter, a finding of probable cause may be issued and the complainant and respondent shall be notified of such finding. In the event that a probable cause finding is issued, the parties shall be given the opportunity to conciliate as set forth below.
C. Conciliation Procedure.
1. After the director has determined that the complaint should be heard, then the chairman shall instruct the director or his staff to endeavor to eliminate the alleged discriminatory practice or practices by conference, conciliation, and persuasion. Any agreement resulting from this conference, conciliation, or persuasion shall be written. In the event an agreement is entered into, all further proceedings relative to the alleged discriminatory practice as to any respondent who entered into such an agreement shall immediately terminate and be dismissed.
2. The terms of any agreement shall be made a part of the records of the commission. However, if parties to the agreement request that the agreement be confidential, the agreement shall be confidential to the extent permitted by applicable law. The commission may institute legal proceedings to enforce the agreement as provided in this chapter.
3. A commissioner may be assigned to assist and participate as needed in any efforts by the director, staff, or parties to conciliate. Any commissioner or staff member who participates in the conciliation process shall not communicate their opinions, discussions, or recommendations to the commissioners who ultimately hear the complaint if an agreement is not reached. Any commissioner assigned to or participating in the conciliation process shall not participate in the hearing or order relating to the complaint.
4. Nothing said or done during endeavors at conciliation shall be used as evidence in any subsequent proceedings. Nothing stated in any conciliation or affirmative action agreement shall be interpreted as an admission by any provisions of this chapter.
D. Hearings, Findings, and Decisions.
1. In the event the executive director finds that a complaint should be heard and the conciliation procedures do not result in a resolution to the complaint, an adversary public hearing of the issues raised in the complaint shall be held. The chairman or a vice-chairman from the commission shall preside over the hearing.
2. The chairman shall cause to be served upon the respondent and the complainant, by certified mail or registered mail, written notice of the time, date, and place of the hearing as required by IC 5-3-1-1 et seq.
3. The parties may appear at the hearing in person and by counsel. Testimony at the hearing shall be made under oath and recorded. The hearing shall be conducted in a manner fairly calculated to provide a full hearing of the evidence and to allow the commission to reach a decision.
4. The burden of proof shall be on complainant to prove his case by clear and convincing evidence.
5. The complainant and the respondent shall be parties to the proceedings held pursuant to this subsection. Any person who is indispensable to a complete determination or settlement of matters raised in the complaint may be joined as a party upon motion of any party.
6. The parties shall be permitted to call such witnesses, and to offer such evidence and exhibits, as are relevant and material to the issues raised in the complaint.
7. Parties desiring a transcript of the hearing shall be furnished such a copy at their own expense.
E. Orders of the Commission.
1. Findings and orders of the commission shall be by majority vote of all appointed commissioners.
2. If, from clear and convincing evidence, the commission finds that the respondent has violated the provisions of this chapter, the commission shall issue its findings and orders in writing and cause a copy to be served on the parties by certified or registered mail. Orders of the commission entered pursuant to this subsection may include any or all of the following provisions, and the authority to order and require the following actions is hereby granted to the commission:
a. That the respondent cease and desist from any discriminatory practice.
b. That the respondent pay actual damages, not to exceed $1,000.00 and as permitted by applicable law; provided, that to award damages the commission must find an intent by the respondent to cause harm to the complainant through the discriminatory practice.
3. If the commission does not find clear and convincing evidence that the respondent has violated the provisions of this chapter, it shall state its findings and serve written copy thereof upon the parties and dismiss the complaint. An order of the commission entered pursuant to this subsection may include, and the authority to order and require the following is hereby granted to the commission: That the complainant pay actual damages, not to exceed $1,000.00 and as permitted by applicable law; provided, that to award damages the commission must find an intent by the complainant to cause harm to the respondent through the filing of the complaint.
F. Judicial Review. Judicial review of any order entered by the commission shall be available as provided by law.
G. Other Remedies. Nothing in this chapter shall affect any person’s right to pursue any and all rights and defenses available in any other local, state, or federal forum. [Ord. 2015-06 § 4]