Arrest Record Discrimination Laws in Indiana

Federal employment law does not explicitly prohibit employers from considering arrest records in hiring or employment decisions. However, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Americans with Disabilities Act (ADA) to prevent discrimination when arrest record policies have a disparate impact on protected classes such as race or national origin.

Under federal law, employers covered by Title VII (15 or more employees) cannot use arrest records in ways that disproportionately exclude individuals based on race, color, religion, sex, or national origin. The EEOC guidance recognizes that arrest records are often more prevalent among certain racial groups, making blanket policies problematic. However, the federal government does not categorically prohibit arrest record inquiries.

Federal remedies include back pay, front pay, compensatory damages, and attorney's fees. The EEOC enforces federal law, and employees in Indiana may file federal charges at the Indianapolis EEOC office. The federal statute of limitations is 180 days to file with the EEOC in Indiana (a non-deferral state for some claims), though deferral states extend this to 300 days.

Indiana Code § 22-9-2-1 provides state-level protection against discrimination based on arrest records that is stronger than federal baseline protections in some respects. Indiana law states that no employer shall discharge, refuse to hire, or otherwise discriminate against an employee or applicant because of an arrest record, unless the arrest record is directly related to the particular job or position sought.

Indiana's statute covers employers of all sizes, not just those with 15 or more employees as required under federal Title VII. This means even small employers in Indiana cannot discriminate based on arrest records if the arrest is unrelated to job duties. However, Indiana distinguishes sharply between arrest records and conviction records: employers have broader discretion to consider convictions, particularly if they are recent or job-related.

The Indiana Civil Rights Commission, established under Indiana Code § 34-28-2-1, enforces this prohibition. State law requires that discrimination claims be filed within 180 days of the alleged violation, matching federal timelines but applied to all employers regardless of size. Indiana's approach provides broader coverage than federal law because it applies the arrest record protection to employers of any size, whereas Title VII applies only to employers with 15 or more employees.

Under Indiana law, employers may ask about arrests only if they can demonstrate a legitimate business reason directly tied to job performance or safety. The burden is on the employer to justify why an arrest—rather than a conviction—is relevant to the position. State law provides remedies including reinstatement, back pay, front pay, compensatory damages for emotional distress, and attorney's fees.

Indiana law permits employers to consider arrest records in limited circumstances. First, if the arrest is directly related to essential job functions or public safety duties, an employer may lawfully consider the arrest. For example, a daycare center may consider arrests for child abuse; a bank may consider arrests for fraud or theft.

Second, the statute of limitations defense applies: if an arrest occurred many years ago and is no longer job-relevant, the employer has a stronger defense. However, Indiana courts have held that mere passage of time does not automatically make an arrest irrelevant without additional context about the job.

Third, at-will employment principles still apply in Indiana—employers can terminate employees for legitimate, non-discriminatory reasons unrelated to arrest records. The protection is narrow: it prevents discrimination solely because an arrest occurred, not all adverse employment actions against employees with arrest histories.

Fourth, employers may defend against discrimination claims if they can show a substantial relationship between the arrest and the specific job duties or essential functions. For instance, a conviction or arrest for violence may be relevant to a position involving vulnerable populations. The burden rests with the employer to prove this nexus.

Finally, conviction records (as opposed to arrests) receive far less protection under Indiana law. Employers have greater latitude to consider convictions, particularly if recent, though the FCRA and EEOC guidance still apply to conviction inquiries to prevent disparate impact.

Step 1: Document the discrimination. Keep records of all job postings, application materials, interview notes, and communications mentioning your arrest or the employer's inquiry about your arrest history. Save copies of rejection letters, emails from the employer, and witness statements from colleagues who heard discriminatory comments. Document the timeline: when you applied, when you were interviewed, when you were rejected or terminated, and when the arrest record was discussed. Create a written summary while details are fresh, noting specific statements made by managers or HR personnel.

Step 2: Attempt internal complaint if feasible. Review your employer's employee handbook for anti-discrimination or grievance policies. Submit a written complaint to HR or your manager describing the discriminatory action and citing the employer's own anti-discrimination policy. Request a response in writing. Keep copies of everything you submit. This step demonstrates you gave the employer a chance to remedy the violation and strengthens your future claim by showing you followed internal processes. However, if you reasonably fear retaliation, you may proceed directly to filing an external charge.

Step 3: File with the Indiana Civil Rights Commission. Visit the ICRC website at www.in.gov/civil-rights or call (317) 232-2600 to request a charge form or file online. You must file within 180 days of the discriminatory action. Provide your name, contact information, employer name and address, date of the alleged violation, a detailed description of what happened and how the arrest record was used against you, the names of witnesses, and documentation (job posting, rejection letter, email, etc.). The ICRC will assign an investigator and notify the employer of your charge.

Step 4: The investigation process. The ICRC investigator will contact the employer and request a written response to your allegations. The investigator may interview you, the employer, and witnesses. This process typically takes 60 to 180 days depending on case complexity and investigator workload. You will receive updates on investigation progress. The ICRC will issue a probable cause determination: either probable cause that discrimination occurred, or no probable cause. If probable cause is found, the parties may attempt conciliation; if conciliation fails, the case may be referred to the Indiana Civil Rights Commission for a hearing before an administrative law judge.

Step 5: Consider consulting an employment attorney. Contact an attorney if the ICRC issues a probable cause finding and you want to pursue a hearing or settlement, if the employer retaliates against you for filing, or if you are terminated after filing a charge. An employment law attorney can represent you before the ICRC, negotiate settlements, and advise on remedies. Initial consultations are often free or low-cost. Look for attorneys licensed in Indiana with employment discrimination experience.