ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Raymond J. Hafsten, Jr. Deborah B. Trice
Indianapolis, Indiana Karen R. Orr
Lafayette, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 79S05-0508-CV-354
MICHAEL B. MONTGOMERY,
Appellant (Plaintiff below),
v.
THE BOARD OF TRUSTEES OF
PURDUE UNIVERSITY,
Appellee (Defendant below).
_________________________________
Appeal from the Tippecanoe Superior Court, No. 79D01-0305-CT-36
The Honorable Randy Williams, Judge Pro Tempore
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 79A05-0411-CV-591
_________________________________
June 29, 2006
Boehm, Justice.
We hold that units of state government with twenty or more employees are subject to the
federal Age Discrimination in Employment Act and therefore are not governed by the Indiana
Age Discrimination Act. We also hold that there is no private civil damage remedy under the
Indiana Age Discrimination Act.
Facts and Procedural History
Purdue University employed Michael Montgomery from 1973 until he was terminated in
2002 at the age of 57 or 58. In May 2003, Montgomery sued Purdue’s Board of Trustees (“Pur-
due”) in Tippecanoe Superior Court alleging that the Indiana Age Discrimination Act (“IADA”)
“creates a public policy exception to employment at will” and that Montgomery’s termination
was because of his age and therefore in violation of the Act.
Purdue moved to dismiss the complaint for failure to exhaust administrative remedies and
failure to state a claim upon which relief can be granted. The trial court entered judgment on the
pleadings for Purdue without indicating the basis for its judgment. The Court of Appeals af-
firmed, concluding that Montgomery’s complaint failed to state a claim. Montgomery v. Bd. of
Trs. of Purdue Univ., 824 N.E.2d 1278, 1282-83 (Ind. Ct. App. 2005). We granted transfer. 841
N.E.2d 181 (Ind. 2005).
I. “Employers” under the Indiana Age Discrimination Act
The IADA prohibits discrimination by “employers” on the basis of age. A “governmen-
tal entity which is subject to the federal Age Discrimination in Employment Act” (“ADEA”), 29
U.S.C. § 621, et. seq., is specifically excluded from the definition of “employer” in Indiana’s act.
Ind. Code § 22-9-2-1 (2004). The parties agree that Purdue is a “governmental entity.” Accord-
ingly, if Purdue is “subject to” the ADEA, the trial court properly concluded that Montgomery
had no claim under the IADA.
The parties agree that Purdue meets the statutory definition of “employer” under the
ADEA, 1 and is required to comply with the ADEA’s substantive provisions. In this sense, Pur-
due is plainly “subject to” the ADEA. Montgomery argues, however, that there is no private
civil remedy against a state agency under the ADEA and therefore Purdue, admittedly an arm of
the State, is not “subject to” the ADEA as that term is used in the IADA. Specifically, Mont-
gomery argues that Purdue is not “subject to” the federal ADEA: because (1) the Eleventh
Amendment shields state agencies from private actions for monetary damages under the ADEA
and (2) enforcement of the ADEA against state agencies through other mechanisms is “rarely
1
“Employer” includes “a State or political subdivision of a State and any agency or instrumentality of a
State or a political subdivision of a State, and any interstate agency.” 29 U.S.C. § 630(b) (2000).
2
pursued” and “meaningless.” For the reasons explained below, we conclude that Purdue and
other arms of Indiana government are subject to the ADEA and therefore are not “employers”
subject to the IADA.
A. ADEA Enforcement Mechanisms and Remedies
The ADEA has two primary enforcement mechanisms. Under the Fair Labor Standards
Act (“FLSA”) provisions incorporated by reference into the ADEA, the Equal Employment Op-
portunity Commission (“EEOC”) can bring suit on behalf of an aggrieved individual for injunc-
tive and monetary relief. 29 U.S.C. § 626(b). The incorporated FLSA provisions, in concert
with section 626(c) of the ADEA, also authorize private civil actions “for such legal or equitable
relief as will effectuate the purposes of this Act.” Id. at § 626(b), (c). A private civil action may
not be commenced until 60 days after a charge of discrimination has been filed with the EEOC, 2
and if the EEOC exercises its discretion to bring suit, no private suit may be brought unless the
aggrieved individual has already filed a private action. Id. at § 626(c)(1), (d). Whether the
plaintiff is a private individual or the EEOC, if a trial court finds a violation of the ADEA, the
statute authorizes the court to “grant such legal or equitable relief as may be appropriate” includ-
ing without limitation “judgments compelling employment, reinstatement or promotion, or en-
forcing the liability for amounts owing to a person” as a result of a violation of the Act. Id. at §
626(b). Liquidated damages are payable only for willful violations of the Act. Id.
B. The Eleventh Amendment
The Eleventh Amendment to the Constitution of the United States provides:
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.
2
In jurisdictions where a state or local agency is authorized to “grant or seek relief” under state law pro-
hibiting age discrimination in terms similar to the federal ADEA (called a “deferral” agency), a charge
must be filed with both the EEOC and the state/local agency. 29 U.S.C. §§ 626(d), 633(b). In such in-
stances, the charge must be filed with the EEOC within 300 days of the alleged discriminatory act. Id. at
§ 626(d)(2). In jurisdictions that do not have a state or local agency charged with enforcing state law pro-
hibiting age discrimination in terms similar to the federal ADEA, a charge must be filed with the EEOC
within 180 days of the alleged act of discrimination. Id. at § 626(d)(1). The EEOC considers Indiana to
be in the (d)(1) category. See Indianapolis EEOC District Office website,
.
3
This Amendment was adopted in 1798 in response to Chisholm v. Georgia, 2 U.S. 419 (1793),
which upheld a common law action for assumpsit brought by two South Carolinians against the
State of Georgia to collect a revolutionary war debt. Georgia had refused to appear, claiming
that federal courts could not hear suits against a sovereign State, but the Supreme Court affirmed
a default judgment for the plaintiffs.
Recent Supreme Court precedent has made clear that the Eleventh Amendment has a
broader reach than merely stripping federal courts of jurisdiction over claims against one State
by citizens of another. Rather, the Amendment reflects the constitutional principle that a State
may not be sued in federal court without its consent whether the suit is brought by a foreign citi-
zen, a citizen of another state, or the state’s own citizens. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 98 (1984) (“the principle of sovereign immunity is a constitutional
limitation on the federal judicial power established in Art. III”). This doctrine applies to federal
legislation that is grounded in the Commerce Clause or any of Congress’ other enumerated Arti-
cle I powers. See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727 (2003). More-
over, Alden v. Maine, 527 U.S. 706, 754 (1999) established that Congress may not subject un-
consenting States to suit in a state court under legislation passed pursuant to Congress’ Article I
powers. Thus, even though there may be concurrent state and federal court jurisdiction over
claims asserting rights under a federal statute, a State may not be sued in either federal or state
court without its consent under a federal statute grounded in Article I powers. The Court ex-
plained that states’ Eleventh Amendment immunity is a “convenient shorthand but something of
a misnomer, for sovereign immunity of the States neither derives from, nor is limited by, the
terms of the Eleventh Amendment.” Id. at 713. Instead, that immunity stems from “the structure
of the original Constitution itself” which incorporated the traditional understanding that a sover-
eign was not subject to suit without its consent. Id. at 728. The Alden majority explained that
until Chisholm, “the Constitution was understood, in light of its history and structure, to preserve
the States’ traditional immunity from private suits. As the [Eleventh] Amendment clarified the
only provisions of the Constitution that anyone had suggested might support a contrary under-
standing, there was no reason to draft with a broader brush.” Id. at 724. Thus, though the Elev-
enth Amendment speaks only of states’ immunity from suit in federal court, the “original consti-
tutional design” which the Amendment acted “to restore” embraced the fundamental structural
4
principle that unconsenting states are shielded from private suits under federal law in their own
courts as well as in the federal courts. Id. at 722.
Congress’ Article I powers cannot support a claim against a State because the sovereign
immunity reflected in the Eleventh Amendment trumps “antecedent provisions of the Constitu-
tion.” Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 66 (1996) (internal quotations omitted). Con-
gress may, however, abrogate unconsenting States’ sovereign immunity by exercising its power
under Section 5 of the Fourteenth Amendment which authorizes Congress to enforce the provi-
sions of the Fourteenth Amendment by “appropriate legislation.” See, e.g., Hibbs, 538 U.S. at
726. In Kimel v. Florida Board of Regents, 528 U.S. 62, 91 (2000), however, the Court con-
cluded that the ADEA was not an exercise of Congress’ power under Section 5 of the Fourteenth
Amendment and therefore the provisions of the ADEA authorizing state employees to sue their
state employers in federal or state court for monetary damages violated the Eleventh Amend-
ment. Purdue and Montgomery agree that Kimel precludes a claim for monetary damages under
the ADEA by state employees against their unconsenting state employers.
Indiana has not consented to suit under the ADEA by enacting the IADA. As we explain
more fully in Part II of this opinion, the IADA, though prohibiting discrimination in employment
in terms similar to the ADEA, does not authorize aggrieved employees to bring private civil ac-
tions against their employers. Moreover, even if the IADA authorized private civil actions
against state agencies, it would not constitute consent to suit by private individuals under the
ADEA. Waiver of Eleventh Amendment sovereign immunity by the states must be express, un-
equivocal and voluntary. Edelman v. Jordan, 415 U.S. 651, 673 (1974). It must be done “by the
most express language or by such overwhelming implications from the text as [will] leave no
room for any other reasonable construction.” Id. (internal quotations omitted). The IADA con-
tains no express and unequivocal language by which Indiana consents to suits for damages
brought by aggrieved state employees under the federal ADEA. 3
3
See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir. 2002) (Texas’ waiver of sovereign
immunity under the Texas Labor Code did not constitute a waiver of Eleventh Amendment immunity for
claims brought in federal court under Title I of the Americans with Disabilities Act (“ADA”) because the
Texas Labor Code contained no “clear and unequivocal” waiver with respect to the ADA or federal
court.); Lopez v. Police Dep’t of the Commonwealth of Puerto Rico, 247 F.3d 26, 29 (1st Cir. 2001)
(Puerto Rico’s disability discrimination law had not waived Puerto Rico’s Eleventh Amendment immu-
5
C. State Agencies as “Subject to” the ADEA
Montgomery argues that state employers such as Purdue are not “subject to” the ADEA
because they are shielded from private suits for monetary damages by the Eleventh Amendment
and because other enforcement mechanisms are not “meaningful.” Purdue concedes that absent
consent by the State, the Eleventh Amendment bars private litigants from seeking monetary
damages from state agencies under the ADEA. Purdue argues that state agencies are nonetheless
“subject to” the ADEA because employees can obtain injunctive relief against state agencies.
Moreover, the EEOC, as an arm of the federal government, is not subject to the Eleventh
Amendment and can seek both monetary and non-monetary remedies against state agencies.
See, e.g., Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001); State Police
for Automatic Ret. Ass’n v. DiFava, 317 F.3d 6, 12 (1st Cir. 2003).
In support of his contention that the ADEA provides no meaningful remedy, Montgom-
ery notes that the EEOC’s decision to bring a legal action for monetary or injunctive relief on
behalf of an aggrieved individual is discretionary. He argues that the EEOC “rarely” exercises
this discretion citing annually published statistics comparing the number of substantiated admin-
istrative charges and the number of those charges the EEOC chooses to pursue in court. We find
this argument unpersuasive. Whether the enforcement mechanism is vigorous or not, there is no
question that the ADEA’s substantive requirements apply to Purdue and other state agencies. All
taxpayers are subject to the Internal Revenue Code even if less than two percent are subject to
audit. Even if we assume lax or nonexistent enforcement, state employers are similarly “subject
to” the ADEA. Moreover, the remedial provisions of the ADEA place the EEOC in a central
role. The “statutory structure [of the ADEA] plainly gives the EEOC the dominant role in en-
forcing the ADEA” and “ADEA private lawsuits therefore are secondary in the statutory scheme
to administrative remedies and suits brought by the [EEOC].” EEOC v. Pan Amer. World Air-
nity from suit under the ADA: “While [Puerto Rico] prohibits employment discrimination on the basis of
disability in a similar fashion as the ADA, there is no specific language indicating that Puerto Rico in-
tends to make itself subject to damages suits in federal court for disability-based employment discrimina-
tion.”). Compare Holliday v. WSIE 88.7 FM Radio Station, 2005 U.S. Dist. LEXIS 32725, at *10 (S.D.
Ill. Dec. 7, 2005) (Illinois consents to suits for damages under the federal ADEA where state law (745
ILCS 5/1.5(a)) provides “An employee . . . aggrieved by any conduct or action or inaction of the State
that would constitute a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et
seq., as amended, if committed by an employer covered by that Act may bring an action under the Age
Discrimination in Employment Act of 1967 against the State in State circuit court or federal court.”).
6
ways, Inc., 897 F.2d 1499, 1505 (9th Cir. 1990). As a result, state agencies subject to EEOC en-
forcement are “subject to” the ADEA as that term is used in the IADA.
Montgomery also contends that private lawsuits seeking injunctive relief against state
employers do not provide a “meaningful” remedy for violations of the ADEA and therefore state
employers are not “subject to” the ADEA. Montgomery first argues that the Eleventh Amend-
ment bars not only claims for money damages, but also private civil actions for injunctive relief
against the State. This is technically correct, but under the doctrine announced in Ex Parte
Young, 209 U.S. 123 (1908), the Eleventh Amendment does not shield state officials from pri-
vate lawsuits seeking declaratory and injunctive relief. This has been found by at least some
federal courts to allow private injunctive action under the ADEA. See, e.g., DiFava, 317 F.3d at
12 (“Neither Kimel, nor the Eleventh Amendment jurisprudence, prevents individuals . . . from
obtaining injunctive relief against a state based upon the ADEA pursuant to Ex Parte Young”).
And several post-Kimel cases hold that the Eleventh Amendment does not bar private actions for
injunctive relief, including reinstatement, against state officials. 4 Montgomery cites Miranda v.
University of Maryland, 2005 U.S. Dist. LEXIS 3944 (S.D. Md. Feb. 9, 2005), where the federal
district court dismissed the plaintiff’s ADEA claims for injunctive relief. The court noted that
although Ex Parte Young allows a suit seeking injunctive or declaratory relief against state offi-
cials for prospective equitable relief from ongoing violations of federal law, the “only defendant
Miranda sued was the University of Maryland, College Park. Consequently, the Ex Parte Young
exception is inapplicable.” 2005 U.S. Dist. LEXIS 3944, at *20. Miranda does not exempt the
ADEA from the Ex Parte Young doctrine. It merely establishes that aggrieved employees who
want to pursue that remedy must identify the correct defendant (state officials as opposed to the
State itself) in their pleadings.
Finally, Montgomery argues that private action to compel equitable reinstatement by state
officials is a “meaningless” and “illusory” remedy because the decision whether to grant rein-
statement is within the discretion of the trial judge and is based on equitable considerations such
4
See Meekison v. Voinovich, 2003 U.S. App. LEXIS 12545, at **3-4 (6th Cir. June 18, 2003); Galli v.
Morelli, 2003 U.S. Dist. LEXIS 15138, at *3 (S.D. Ohio Aug. 20, 2003); Vizcarrondo v. Bd. of Trs. of
Univ. of Puerto Rico, 139 F. Supp. 2d 198, 202 (D.P.R. 2001); Gill v. Pub. Employees Ret. Bd., 90 P.3d
491, 502 (N.M. 2004); Molnar v. Klammer, 2005 Ohio App. LEXIS 6227, at **43-44 (Ohio Ct. App.
Dec. 23, 2005).
7
as the availability of positions. See Price v. Marshall Erdman & Assoc., Inc., 966 F.2d 320, 325-
26 (7th Cir. 1992). At bottom, this is an argument that state employers are not “subject to” the
ADEA because a court may find other factors to outweigh the requested relief. This is a risk
with any enforcement scheme. It does not render the law a nullity to say that it may not accom-
plish all that some plaintiffs think desireable.
In sum, the ADEA’s substantive protections for state employees are enforceable through
private actions for injunctive relief and direct enforcement by the EEOC. If the law imposes
standards of conduct on state employers, they are “subject to” it. The fact that some remedies
may be constitutionally barred does not change this result. Accordingly, we hold that state em-
ployers, including Purdue, are “government entities” “subject to” the federal ADEA. We there-
fore also hold that they are not statutory “employers” under section 1 of Indiana’s Age Discrimi-
nation Act and affirm the trial court and Court of Appeal’s dismissal of Montgomery’s IADA
wrongful dismissal claim under Trial Rule 12(B)(6).
II. Civil Lawsuits Under the Indiana Age Discrimination Act
Montgomery’s suit for money damages under the IADA fails for a second reason. The
IADA does not expressly authorize aggrieved employees to bring civil actions for monetary
damages against their employers. Montgomery acknowledges this, but nonetheless urges this
Court to recognize a private civil action under Frampton v. Central Indiana Gas Company, 260
Ind. 249, 253-54, 297 N.E.2d 425, 428 (1973). Purdue responds that recognition of a new excep-
tion to the doctrine of employment-at-will is best left to the General Assembly and that recogni-
tion of an exception here would ignore the existing administrative complaint process expressly
adopted in the IADA.
Section 2 of the IADA declares that it is “an unfair employment practice” and “against
public policy to dismiss from employment, or to refuse to employ or rehire, any person solely
because of his age if such person has attained the age of forty (40) years and has not attained the
age of seventy (70) years.” I.C. § 22-9-2-2 (2004). 5 Sections 5, 6, and 7 set out an informal ad-
ministrative process for investigating and resolving charges of discrimination under the Act.
5
The upper age limit of the protected class was raised from sixty-five to seventy in 1979. See P.L. 206 §
3 (1979).
8
Section 5 requires the Commissioner of Labor to receive and investigate all charges of discrimi-
nation under the Act. If the Commissioner makes a preliminary determination that the employer
is engaging in unfair employment practices, under section 6, the Commissioner is required to at-
tempt to eliminate these practices by “informal methods of conference, conciliation and persua-
sion.” If voluntary compliance cannot be obtained, the Commissioner may issue a complaint and
hold a hearing at which the employer may present evidence and examine witnesses. I.C. § 22-9-
2-6. If the Commissioner determines that unfair practices were committed, the Commissioner is
required to state findings of fact. Id. Under section 7, if the Commissioner concludes that no
probable cause exists to support the charges, the Commissioner must state findings of fact in
writing and issue an order dismissing the complaint. Neither the Commissioner, nor the ag-
grieved employee, is expressly authorized under the statute to take judicial action if the charge of
discrimination is substantiated. No authority has directly addressed what remedies are available
to aggrieved employees under the IADA. Our research reveals only six cases in which state or
federal courts have addressed the IADA, only five of which are relevant here. On two occasions
federal district courts have concluded that the IADA provides no private right of action to an ag-
grieved employee, 6 and two other federal cases and a state case have ruled on motions for sum-
mary judgment, dismissal, or to correct errors without addressing the question of remedies. 7
Indiana generally follows the employment-at-will doctrine that permits both the employer
and the employee to terminate the employment at any time for a “good reason, bad reason, or no
reason at all.” See, e.g., Cantrell v. Morris, 2006 Ind. LEXIS 514, at *13 (Ind. June 21, 2006);
Sample v. Kinser Ins. Agency, Inc., 700 N.E.2d 802, 805 (Ind. Ct. App. 1998). There are limits
to this doctrine, however. Frampton held that an employee who has been terminated for filing a
worker’s compensation claim may sue for damages. 260 Ind. at 253-54, 297 N.E.2d at 428. And
McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390, 393 (Ind. 1988), upheld a
wrongful discharge claim for damages by a truck driver who alleged he was fired for refusing to
violate Illinois state weight limits. These cases have been generalized to the proposition that an
6
See Hague v. Thompson Distribution Co., Inc., 2005 U.S. Dist. LEXIS 7509, at *21 (S.D. Ind. 2005);
Helman v. AMF, Inc., 675 F. Supp. 1163, 1164-65 (S.D. Ind. 1987).
7
See Town of S. Whitley v. Cincinnati Ins. Co., 724 F. Supp. 599, 605 (N.D. Ind. 1989); Keitz v. Lever
Bros. Co., 563 F. Supp. 230, 235 (N.D. Ind. 1983); Pierce v. Fort Wayne Bd. of Pub. Safety, 155 Ind.
App. 348, 351, 292 N.E.2d 857, 859 (1973), trans. denied.
9
employee who has been fired for exercising a statutory right or for refusing to violate the law has
a claim for wrongful discharge. Ind. Legal Encyclopedia, Employment § 45 (West 2001).
Montgomery advances several arguments in support of recognition of an age discrimina-
tion exception to employment-at-will. First, he argues that the General Assembly intended to
authorize private civil actions because section 2 of the IADA declares that age discrimination in
employment violates public policy. General expressions of public policy do not support new ex-
ceptions to the employment-at-will doctrine. See McClanahan, 517 N.E.2d at 393. Moreover,
the legislative history of the IADA does not support Montgomery’s argument that the General
Assembly intended to create a private cause of action for monetary damages under the IADA.
As originally enacted in 1965, section 1 of the IADA defined “employer” to include persons em-
ploying one or more individuals, labor organizations, and the state and all its political subdivi-
sions. Various religious, fraternal, and social groups were expressly excluded from the definition
of “employer.” 1965 Ind. Acts ch. 368, § 1. The federal ADEA was enacted two years later in
1967. It defined “employer” as those with twenty-five or more employees. 8 The United States,
corporations wholly owned by the United States, and States and their political subdivisions were
expressly excluded from the definition of “employer” in the original version of the ADEA. Pub.
L. No. 90-202, § 11(b) (1967).
In 1974, amendments to the ADEA lowered the threshold number of employees for pri-
vate employers from twenty-five to twenty and for the first time applied the ADEA to state and
federal governmental units. Pub. L. No. 93-259, § 28(a)(1)-(2) (1974). No minimum number of
employees was set for a governmental entity but a minimum of twenty has been supplied by
court decision. Thus, states and their political subdivisions, like their counterparts in the private
sector, are not covered “employers” under the ADEA unless they employ at least twenty em-
ployees for twenty weeks in the current or preceding calendar year. See Palmer v. Ark. Council
on Econ. Educ., 154 F.3d 892, 896 (8th Cir. 1998); EEOC v. Monclova Township, 920 F.2d 360,
363 (6th Cir. 1990); Kelly v. Wauconda Park Dist., 801 F.2d 269, 273 (7th Cir. 1986).
8
The ADEA defines “person” as “one or more individuals, partnerships, associations, labor organiza-
tions, corporations, business trusts, legal representatives, or any organized group of persons.” 29 U.S.C. §
630(a) (2000). As originally enacted in 1967, “employer” was defined as “a person engaged in an indus-
try affecting commerce who has twenty-five or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year” and any agent of such person. Pub. L.
No. 90-202, § 11(b) (1967).
10
In 1979 the Indiana General Assembly amended the IADA to introduce the provision
relevant in this case, excluding from “employer” any “person or governmental entity which is
subject to” the ADEA. P.L. 206 § 3 (1979). After 1979 the IADA applied only to employment
relationships not governed by the federal ADEA, i.e. public and private employers with fewer
than twenty employees. See Town of S. Whitley, 724 F. Supp. at 603 (The purpose of the IADA
is “to provide coverage only where a plaintiff cannot proceed under the federal act.”).
The General Assembly’s decision in 1979 to continue to provide protection under the
IADA to employees working for small public and private employers does not suggest a desire to
provide these employees the same remedies for unlawful discrimination as are afforded by the
ADEA. First, since its enactment in 1965, the IADA has never expressly provided for enforce-
ment through private judicial action. By contrast, the ADEA, from its inception in 1967, has
specifically provided for judicial enforcement by both private litigants and the United States.
The ADEA exemption of employers with fewer than twenty employees expressed a policy that
the cost of complying with the ADEA and defending against ADEA suits would be excessively
burdensome for small businesses. Morelli v. Cedel, 141 F.3d 39, 45 (2d Cir. 1998) (reasons for
ADEA’s minimum employee requirement include “the burdens of compliance and potential liti-
gation costs, the protection of intimate and personal relations existing in small businesses, [and]
potential effects on competition and the economy . . .”). (internal quotations omitted). We think
a fair reading of the IADA demonstrates a similar concern. Since 1965 the IADA has never ex-
pressly provided for private judicial enforcement, and has relied instead on administrative meth-
ods of resolution. We see nothing in the Indiana legislation to suggest that only the small em-
ployers to which it now applies should be subject to civil litigation to greater extent than the
ADEA provides for larger employers. To the contrary, this enforcement scheme seeks to strike a
balance between protection of employees and legitimate concerns of small businesses by limiting
its enforcement mechanisms to those set forth in the statute.
We find Montgomery’s remaining arguments equally unpersuasive. The Indiana Civil
Rights Law (“ICRL”), Indiana Code sections 22-9-1-1 through 22-9-1-18, prohibits discrimina-
tion in employment on the basis of race, religion, color, sex, disability, national origin or ances-
try and applies to most private and public employers in Indiana. I.C. §§ 22-9-1-2, 22-9-1-3. The
ICRL expressly authorizes civil suits by private litigants and sets out procedural prerequisites to
11
bringing suit not unlike those provided by the federal ADEA. I.C. §§ 22-9-1-16, 22-9-1-17.
Montgomery argues that the General Assembly intended to create an exception to employment-
at-will because the IADA, unlike the ICRL, places no restrictions on civil actions by individual
employees. To the contrary, we think the IADA’s silence as to civil remedies, in contrast with
the ICRL, reflects the General Assembly’s intentional decision to provide a separate scheme for
age discrimination. Discrimination is subject to broader remedies if it is based on race, religion,
color, sex, disability, national origin or ancestry, all of which are addressed in the ICRL. Indeed,
the ICRL had been in place for four years when the IADA was enacted. Age was not simply
added to the list of classes protected by the ICRL. We think this legislative history is persuasive
evidence that the General Assembly chose to combat age discrimination primarily through ad-
ministrative remedies rather than the broader remedies afforded by the ICRL.
Montgomery also urges this Court to recognize an exception to employment-at-will based
on Kimel. He cites the following passage:
State employees are protected by state age discrimination statutes, and may re-
cover money damages from their state employers, in almost every State of the Un-
ion.* Those avenues of relief remain available today, just as they were before this
decision.
528 U.S. at 91-92. The asterisk calls to an unnumbered footnote citing statutes from many states,
including Indiana Code section 22-9-2-1, et seq. Montgomery argues that this footnote estab-
lishes that the IADA creates a private cause of action for monetary damages against state em-
ployers. As Montgomery acknowledges, the Kimel footnote is dicta addressing a provision of
Indiana state law. It is not binding on this Court, and for the reasons given above we find no pri-
vate money damage remedy is available under the IADA.
Finally, Montgomery argues that without recognition of a private civil action, the IADA
is “meaningless” because the Commissioner of Labor has no judicial enforcement powers under
the IADA. The Commissioner of Labor is authorized to resolve allegations of discrimination
through informal conciliation. We leave for another day determination whether the IADA also
provides for judicial enforcement by the Commissioner of Labor under any circumstances. To-
day we hold only that whether broader enforcement mechanisms should be conferred upon pri-
12
vate litigants is a policy judgment, and any change in that aspect of the IADA’s remedial scheme
must come from the General Assembly.
Conclusion
We conclude that Purdue is subject to the ADEA and is therefore exempt from the IADA,
and also that the IADA does not provide for private civil actions. For these reasons, the trial
court properly dismissed Montgomery’s complaint for wrongful dismissal under the IADA for
failure to state a claim. The judgment of the trial court is affirmed.
Shepard, C.J., Dickson and Sullivan, JJ. concur.
Rucker, J., dissents with separate opinion.
13
Rucker, J., dissenting.
I respectfully dissent. Mr. Montgomery is ensnarled in a trap that can best be
1
characterized as a “Catch-22.” He was fired from his job because of his age and seeks relief
under Indiana’s Age Discrimination Act. The majority says he is entitled to no such relief
because his remedy is with the Federal Act. But Kimel teaches that persons like Mr.
Montgomery must seek relief under state statutes. Indeed Kimel itself identified Indiana as
among a majority of states in which “employees are protected by state age discrimination
statutes, and may recover money damages from their state employers . . . .” Kimel v. Fla. Bd. of
Regents, 528 U.S. 62, 91 (2000). So here we have an employee fired because of age but in effect
has no remedy, according to today’s opinion, despite both state and federal legislation designed
to protect employees fired because of age. Certainly the legislature could not have intended the
result reached in this case.
1
A “Catch-22” is generally understood as a no-win situation or paradox. The title of a novel, the term
referred to a fictional Air Force rule which regarded a pilot who continued to fly combat missions without
asking for relief as insane and therefore exempt from flight duty, but deemed the pilot sane enough to
continue flying as soon as he did make such a request. This paradox inspired one of the novel’s
characters to proclaim, “That’s some catch, that Catch-22.” Joseph Heller, Catch–22 46 (1961).
1