The U.S. Court of Appeals for the Seventh Circuit reaffirmed the Indiana attorney general’s independence in a recent decision in an employment discrimination suit against the former attorney general of Indiana. The former attorney general had been present at a party held on the final day of the legislative session and allegedly verbally and physically harassed four female legislative staff members. Those women filed a federal suit alleging various federal claims against the former attorney general and against the state (as their employer). The state argued that it was not their employer because it had no right to hire and fire legislative staff—that was only within the power of the legislature. The Seventh Circuit agreed, holding “The State of Indiana as a whole could not oblige the House or Senate to reinstate or raise the salary of any legislative aide. That power belongs to the legislature. The State of Indiana as an entity, by contrast, is managed by the Governor and represented in court by the Attorney General, neither of whom has any control over legislative decisions.”
The plaintiffs argued that the state should be a defendant because the Indiana legislature is not the attorney general’s employer and cannot control him. The Seventh Circuit noted that employers can be liable for failing to protect employees from discrimination by third parties, and that in this case, the legislature could have taken some action against the attorney general, either by making him leave the party or by removing him from office by impeachment. The court then noted, “The Governor of Indiana does not possess any kind of control over an Attorney General; in Indiana, as in many other states, the Attorney General is directly elected and is not answerable to the Governor. . . The Supreme Court of Indiana has, and used, some indirect control by suspending Hill’s law license, but no one thinks that this makes the Supreme Court either plaintiffs’ employer or Hill’s employer, or otherwise would justify naming the state’s judicial branch as a defendant.” DaSilva v. Indiana, 30 F.4th 671 (7th Cir. 2022).