Susan E. Park

Dough A. Werth

Published November/December 2021

The Idaho Human Rights Act needs attention. The Idaho Legislature has not made a meaningful amendment to the act since 2005, when it expanded protections for persons with disabilities.[1] It has neglected to update the IHRA after landmark federal enactments such as the Pregnancy Discrimination Act of 1978, the Civil Rights Act of 1991, the Lilly Ledbetter Fair Pay Act of 2009, and the Americans with Disabilities Act Amendments Act of 2008. The statutory disconnect created by this legislative lapse has magnified the importance of how courts apply federal case law to the IHRA, particularly in light of the act’s stated purpose found in Section 67-5901(1), Idaho Code:

[t]o provide for execution within the state of the policies embodied in the federal Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended, and Titles I and III of the Americans with Disabilities Act.

Section I of this article explores the different approaches of federal and state courts in applying federal law to IHRA claims. Federal courts now hold, almost uniformly, that the IHRA is to be interpreted “identically” to parallel federal anti-discrimination acts^[2] – a simplistic formula that becomes less and less defensible as the state and federal statutory language diverges. Idaho courts have not gone that far; they look to federal law “for guidance” and, to varying degrees depending upon the legal issue involved, will scrutinize the text of the IHRA before resting upon interpretations of federal law to decide the state issue.^[3]

The section respectfully suggests that the federal approach is the product of an uncritical reading of Idaho case law and the words of Section 67-6501(1) and ignores clear statutory differences between Idaho and federal anti-discrimination laws. We then show how Idaho Supreme Court opinions look beyond Section 67-5901(1) to the similarities and differences of the operative text of the federal acts and the IHRA before deciding whether federal case law should be applied to the IHRA.

In Section II, we examine “policies embodied” statutes found within the human rights acts of other states. We show how these statutes reflect states’ strong interest in maintaining the federal “deferral status” of their agencies that enforce anti-discrimination laws and suggest that a similar interest underlies Section 67-5901(1).

Section III discusses ambiguities created by the use, or absence, of the phrase “as amended” in reference to the three federal acts listed in Section 67-5901(1). Then, in Section IV, we look at the possible limitations the concept of dynamic incorporation may place upon applying the policies embodied in federal law pursuant to Section 67-5901(1).

Last, in Section V, we look at the enforcement powers of the Idaho Human Rights Commission, including its lack of any subpoena power, and recommend that the Idaho Legislature strengthen those powers and update the IHRA to correct the shortcomings we describe in this article. Our discussion leads to the inevitable conclusion that revisions to the IHRA are long overdue.

Section I: Idaho and Federal Courts’ different approaches to applying Federal Law to the IHRA

In cases involving anti-discrimination claims under both federal statutes and the IHRA, the Ninth Circuit Court of Appeals and Idaho federal district courts will first review the substantive legal issues involved with the federal claims. Only then do they turn to the IHRA claims, many times disposing of them with statements such as these: “[l]egal analysis under the IHRA is identical to the analysis under Title VII”[4] or “[we] interpret the standards for disability [discrimination] under the ADA and the IHRA identically.”[5] At times these courts have even relegated their discussion of the IHRA to a single sentence footnote.[6]

“Idaho Courts have not held that the IHRA and parallel federal anti-discrimination acts are to be construed identically.”

Idaho courts have taken a different approach. They eschew the identical construction language used by federal courts and instead look to federal law “for guidance.” Since 1991, at least nine Idaho Supreme Court opinions have reviewed issues under the IHRA and stated that interpretations of federal law are to be used as a guide. Some of those courts have reached an interpretation of the IHRA that is different from federal law based upon textual differences.^[7] Idaho courts have not held that the IHRA and parallel federal anti-discrimination acts are to be construed identically.

This point is illustrated by Stout v. Key Training Corp., where the Idaho Supreme Court addressed the question of whether attorney fees could be awarded under the IHRA.^[8] Section 67-5908(3) provides that “if the court finds that unlawful discrimination has occurred, its judgment shall specify an appropriate remedy or remedies therefor” and adds that “[s]uch remedies may include, but are not limited to” the remedies listed by the statute. Attorney fees are not among the listed remedies in the IHRA; Title VII differs because it specifically provides for awards of attorney fees.

After acknowledging that the legislative intent of Section 67-5901(1) is to look “to federal law for guidance when interpreting the Idaho Human Rights Act,” the Stout court rejected the argument that attorney fees should be allowed under the IHRA simply because they are allowed under Title VII. In doing so, the court examined pertinent language of the state and federal statutes and observed:

“The federal Civil Rights Act specifically provides for attorney fees while the Idaho Human Rights Act does not. Furthermore, the federal Civil Rights Act provision allowing for an award of attorney fees had been enacted long before the Idaho Human Rights Act remedy provision. Yet, the Idaho legislature chose not to include attorney fees in its remedy provision.”^[9]

The court concluded from the absence of an attorney fee provision in the IHRA that the Idaho Legislature did not intend to allow attorney fees, writing: “when the legislature intends to provide for an award of attorney fees, it does so. It is reasonable, then, to infer that the legislature did not intend the expense of enforcement to fall under the I.C. § 67-5908(3) statutory remedial provision.”^[10]

In another case, Fowler v. Kootenai County,the Idaho court refused to follow Ninth Circuit case law directing that the “reasonable person” standard in sexual harassment cases be described as a “reasonable woman” or “reasonable man” standard depending on the gender of the victim.[11] In a third case, O’Dell v. Basabe, the court reviewed whether front pay was a permissible remedy under the IHRA by stating that “we refer first to the language of the statute itself”[12] and “are guided in our interpretation of the Idaho statute by federal law.”[13] In the end, the court followed federal law and concluded that front pay was allowed under the IHRA; however, it did so only after carefully examining the text of the IHRA.

The analysis of O’Dell v. Basabe is instructive in another way because it reiterates, in the context of Section 67-5901(1), the basic rule of statutory construction that courts will first look to the language of the statute being applied and only inquire into legislative intent if that language is found to be ambiguous. Extrapolating upon this, a strong argument can be made that the Idaho legislature’s failure to add to the IHRA the expanded definition of “sex” found in the Pregnancy Discrimination Act, or the broadened definition of “disability” in the Americans with Disabilities Act Amendments Act, or the damages provisions of the Lilly Ledbetter Fair Pay Act, or many other significant amendments to federal law, means that those federal amendments should not be implied from the IHRA if its text, as it now reads, is deemed to be clear and unambiguous.^[14] Federal courts that conclude the IHRA and comparable federal acts are to be interpreted identically ignore this rule of statutory construction.

We suggest further that the decisions of federal courts and, at times, Idaho courts are founded upon an uncritical reading of Idaho case law and Section 67-5901(1). To demonstrate this point, consider the following language from O’Dell v. Basabe, which is the genesis of the prevailing view regarding the legislative intent behind Section 67-5901(1):

“This Court has previously determined that the legislative intent reflected in I.C. § 67–5901 allows our state courts to look to federal law for guidance in the interpretation of the state provisions. Hoppe v. McDonald, 103 Idaho 33, 644 P.2d 355 (1982); Bowles v. Keating, 100 Idaho 808, 606 P.2d 458 (1979).”[15]

This description of the law was inaccurate and incomplete at the time O’Dell v. Basabe was decided. First, Hoppe v. McDonald does not mention Section 67-5901(1). Second, in Bowles v. Keating, the first Idaho case referring to Section 67-5901(1) and the case repeatedly cited to support the prevailing view quoted above, is a plurality decision. Its only mention of Section 67-5901(1) is found in a specially concurring opinion where Justice Bistline commented that Title VII case law should be used “to fashion standards” under the IHRA. He added, somewhat oddly, that “[t]his serves to relieve our district courts of the burden of forging new law in this delicate area”^[16] and then opined that using Title VII case law “appears to further the legislative intention as expressed in I.C. § 67-5901.”^[17]

The two-justice plurality opinion does not mention Section 67-5901(1). Rather, in determining to follow federal interpretation of Title VII as set forth in McDonnell Douglas Corp. v. Green,[18] the opinion simply states that “[w]e therefore adhere to and are guided by the quantum of proof and standards promulgated in discrimination cases arising under Title VII.”[19] Subsequent cases have ignored the fact that Justice Bistline’s statements in Bowles v. Keating should be considered mere dictum, rather than an expression of a broad proposition of law regarding whether and how federal law should guide interpretation of the IHRA.

We turn now to Section 67-5901(1) and its language providing that the IHRA’s purpose is “[t]o provide for execution” of the “policies embodied” in the three federal anti-discrimination acts it lists. What this language does not say is important. It does not expressly state that the provisions of federal law and the IHRA are to be construed identically, or, even implicitly, that courts may ignore statutory differences in their construction of the act. Nor does it expressly incorporate by reference federal law.

If the legislature had intended to do more than make a statement of general policy or purpose in Section 67-5901(1), or to incorporate by reference federal law in whole cloth, it would have done so. It could have used language similar to that of the Idaho Competition Act, which provides clearly that “[t]he provisions of this chapter shall be construed in harmony with federal judicial interpretations of comparable federal antitrust statutes and consistent with this chapter’s purposes.”[20] Looking critically at the language of Section 67-5901(1), about the most that can be said is that it expresses a policy preference favoring, but not directing, construction of the IHRA in a manner similar to comparable federal statutes.

Section II: “Policies Embodied” Statutes reflect states’ strong interest in maintaining the deferral status of their FEPAs        

Idaho is not the only state with a “policies embodied” clause in its human rights law. At least six other states use the same language.^[21] In some of these states, their purposes clause also expresses a strong interest in maintaining the deferral status under Title VII and the other civil rights statutes of their agencies enforcing anti-discrimination laws. In the context of Title VII, the term “deferral status” refers to Section 706 of Title VII, which requires that before the EEOC can file a charge of discrimination, that charge must first be deferred to the relevant state agency (referred to as a Fair Employment Practices Agency, or “FEPA”).

This allows the state to resolve charges of employment discrimination under its own laws in lieu of federal enforcement. However, this deferral of charges to a state only occurs when the FEPA “has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto. . . . ”^[22]

Tennessee’s purposes clause states that it is to “[p]rovide for execution within Tennessee of the policies embodied in” various federal acts and also to “[a]ssure that Tennessee has appropriate legislation prohibiting discrimination in employment, public accommodations and housing sufficient to justify the deferral of cases” by the relevant federal agencies that administer the applicable law.^[23] Texas law expresses this purpose in a different way. First, after providing for the execution of the policies of comparable federal statutes, it states a purpose to “identify and create an authority that meets the [deferral agency] criteria under [Title VII and the ADEA].”^[24]

Purposes clauses like those of Tennessee and Texas express a specific legislative intent for the state to maintain its deferral status under applicable federal laws. It is reasonable to conclude that maintaining federal deferral status is likewise an important, though tacit, purpose behind the “policies embedded” language of Section 67-5901(1). In fact, although consistency with federal law is touted by federal and state courts as the intent behind this clause, when the IHRA was first adopted it described a purpose to “make uniform,” not Idaho and federal law, but “the laws of those states that enact this act.”[25]

Although the minimum standards that FEPAs must meet to maintain deferral status are not arduous, if their state laws do not prohibit the discriminatory practice under federal law and their enforcement powers are weak, the EEOC need not accord “substantial weight” to their factual findings, increasing the likelihood of subsequent EEOC review.^[26] Additionally, FEPA deferral states must be certified by the EEOC and evaluated for continued certification every three years,^[27] so it is in a deferral state’s interest to have laws that provide similar protections to those of the federal statutes.

Finally, most FEPAs have work-sharing agreements with the EEOC whereby they are compensated for the EEOC charges they process together with a dual-filed state claim.^[28] This creates another interest of deferral states to have laws patterned after federal law—to maintain the state’s working (and paying) relationship with the EEOC or other federal agency. These deferral status interests likely say more about the legislative intent behind Section 67-5901(1) than anything else.

Section III: The “As Amended” language of Section 67-5901(1) creates further ambiguity

The purposes of Section 67-5901(1) extend to policies embodied in the Civil Rights Act of 1964 “as amended” and in the ADEA “as amended.” However, the legislature did not add this “as amended” language after the ADA. This creates even more ambiguities in the existing language of the purposes clause. It is not at all clear whether the legislature intended Idaho law to embody the policies found in these federal statutes before they were amended, after they were amended, or both, or if it intended an altogether different treatment of the ADA. This ambiguity can be demonstrated through an analysis of significant amendments to Title VII and the ADA.

In 1976, the U.S. Supreme Court held, in General Electric Co. v. Gilbert,that the prohibition of discrimination on the basis of sex did not include pregnancy discrimination.^[29] In 1978, Congress enacted the PDA to amend Title VII’s definition of discrimination of “because of . . . sex” so that it included discrimination on the basis of pregnancy, thus effectively overturning General Electric.^[30] Twenty years later, in 2007, the Supreme Court held in Ledbetter v. Goodyear Tire & Rubber Co. that the statute of limitations in a discrimination claim based upon unequal pay began to run on the date the employer made its initial discriminatory wage decision, and did not reset upon the issuance of each subsequent paycheck.^[31] In response, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which amended Title VII to specify that the statute of limitations began to run anew with each discriminatory paycheck.^[32]

At the time of both of these Supreme Court decisions, and the resulting amendments to Title VII, the relevant language of Title VII provided that employers were prohibited from discriminating against any individual with respect to the person’s “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”^[33] The IHRA closely mirrored the language of Title VII, providing at that time, as it does today, that employers may not discriminate against a person “because of, or on a basis of, race, color, religion, sex or national origin.”^[34] However, the “as amended” language of the purposes clause in the IHRA was not added until 1982—four years after the PDA was enacted, and twenty-seven years before Lilly-Ledbetter became law.[35]

The ADA was enacted in 1990.^[36] Its history, including its amendments, took a similar path, involving Congressional redirection after U.S. Supreme Court decisions that were viewed unfavorably. In 2009, in response to two U.S. Supreme Court interpretations of the ADA perceived to narrow the rights of disabled persons,^[37] Congress passed the Americans with Disabilities Act Amendments Act (ADAAA) to make clear its intention that the ADA was intended to be inclusive and apply broadly.^[38]

Although Idaho added “handicap” as a protected class in employment to the IHRA in 1988,^[39] and changed the word “handicap” to “disability” in 1994^[40] (four years after the ADA was enacted), it was not until 2005, fifteen years after the ADA was adopted, that the Idaho legislature added the ADA to the list of federal acts set forth in Section 67-5901(1).^[41] Significantly, the legislature did not add “as amended” to its reference to the ADA in Section 67-5901(1). However, it did add language referencing amendments to the ADA in other sections of the Code. For example, Section 39-8606, Idaho Code, which applies to facilities accessibility, refers to the ADA “and amendments thereto.”^[42]

In light of this history, the current impact of the “as amended” language (or its absence) in the IHRA purposes clause is difficult to ascertain. In 1978 when the PDA was enacted, the purposes clause did not include the “as amended” language; thus, it would seem that under Stout, the only possible interpretation of Idaho law, as it existed in 1978, was that the policies embodied in the PDA were not included in the purpose expressed in Section 67-5901(1).

However, later in 1982, when the legislature added “as amended” to the purposes clause, one could argue that the legislature intended to execute the policies of Title VII, including the policies embodied in any amendments to Title VII that were in effect at the time. Thus, under this argument, the policies of the PDA prohibiting discrimination on the basis of pregnancy would have become part of the IHRA purposes. However, even then, an open question would remain as to whether the IHRA could prohibit pregnancy discrimination because an act’s purposes clause generally does not have the same legal effect as its operative language.

But what can be concluded about subsequent amendments to Title VII, such as the Lilly Ledbetter Act? Does the language “as amended” apply both retroactively to previous amendments and proactively to subsequent ones? The answers to these questions are not at all clear.

Furthermore, although it strains credulity to assume that the legislature intentionally omitted the “as amended” language from the ADA, and that it intended for Idaho law to only embody the policies underlying the ADA at the time it was enacted in 1990, that is indeed what Stout suggests. Applying the logic of the Stout decision, we must assume that if the legislature had intended the IHRA to give effect to policies embodied in the ADA as amended, it would have added that language. It did not, which may mean that the ADAAA does not apply in Idaho.

If the IHRA does not include those important amendments of the ADAAA, then, with respect to ADA claims, it is possible the EEOC might no longer consider the IHRC to be a FEPA. This would mean that the IHRC would have no authority to accept dual-filed EEOC charges brought under the ADA.^[43] The fact that other Idaho statutes referencing the ADA include language showing a clear intent to include subsequent amendments only muddies this situation further.

Section IV: Idaho law likely precludes Section 67-5901(1)’s dynamic incorporation of federal law

The legal concept of dynamic incorporation creates another wrinkle in the question of whether the IHRA, as currently written, can incorporate substantive amendments to federal law within the IHRA through the “as amended” language of Section 67-5901(1). Dynamic incorporation refers to the situation where a statute expressly incorporates another law, usually from a foreign jurisdiction, in a manner that subsequent amendments to the incorporated law automatically become part of the incorporating statute without further legislative action.^[44] The incorporation is considered to be “dynamic” because it is ongoing and is not limited to the text of the incorporated law at the time of incorporation.

Under Idaho law, dynamic incorporation may prohibit incorporation of amendments to federal law through the purposes clause of the IHRA. The Idaho Supreme Court, in Idaho Sav. & Loan Ass’n v. Roden, recognized that “all legislative power is vested in the Legislature of the State of Idaho” and that the legislature “cannot delegate its authority to another government or agency in violation of our Constitution.”^[45]

Roden addressed a federal statute requiring that savings and loan associations insure their accounts with a particular federal agency. However, the federal agency, as a condition of insuring accounts, required the associations to conform to the rules and regulations of a particular federal board, including future amendments to the pertinent federal code.^[46] The Idaho Supreme Court found this to be an unlawful delegation of the lawmaking power of the Idaho legislature.^[47]

 An agency or an official may be lawfully delegated authority “to ascertain the existence of the facts or conditions mentioned in the act upon which the law becomes operative.”^[48] A 1979 Attorney General opinion explains the difference between this fact-finding and unlawful delegation this way:

 [T]he rule which has developed in Idaho regarding delegation to other public bodies is that delegation is permissible where the legislature establishes the standard or defines the limits by which rulemaking or factfinding may be judged. However, it is impermissible for the legislature to delegate to another public body the power to set the standard itself. The rule has also been analyzed as a distinction between the delegation of legislative functions and executive functions.^[49]

The “as amended” situation presented by the IHRA does not involve fact-finding, but instead, if viewed expansively, would be a delegation of pure legislative functions to the Congress. As such, it is unlikely that the vague “policies embodied” and “as amended” language of Section 67-5901(1) can incorporate the operative text of federal statutes that have no parallel in the IHRA because this goes a step beyond merely to looking to federal law for guidance.

Strengthening the IHRC’s enforcement powers would advance the IHRA’s purposes

One final area where the IHRA could stand some updating is in the powers given to the IHRC to enforce the purposes and anti-discrimination provisions of the Act. Unlike similar agencies in many states across the country^[50] and many other Idaho agencies, the IHRA lacks all the tools necessary to conduct a thorough investigation. The Commission cannot hold hearings or take testimony, issue orders, or compel responses to interrogatories. The Commission also lacks subpoena power or even the authority to request a subpoena from a court. Attempts to add the subpoena power to the IHRC have been numerous, yet unsuccessful.^[51]

Without such authority, employers have no obligation to provide IHRC investigators any information related to a legitimate claim of employment discrimination. The Commission’s only true enforcement power is to file a court action. However, its litigation resources are limited. Such weak enforcement powers increase the likelihood that legitimate cases of employment discrimination are left unsubstantiated or are left to the federal EEOC to resolve.

Opponents of granting the IHRA proper enforcement power appear to base their opposition on a largely unsubstantiated fear of agency overreach into employers’ businesses.^[52] Judicial approval of all requested subpoenas would easily allay this concern, speculative as it may be. Moreover, the legislature has granted subpoena power to numerous other state agencies without any apparent objectionable impact on Idaho companies.

At least twenty-seven other agencies or governing bodies within the state have the power to issue subpoenas, or to request that a court do so. These include Idaho’s Department of Environmental Quality, Department of Finance, Department of Insurance, Department of Lands, the Board of Tax Appeals, Department of Water Resources, and even the Idaho Potato Commission. The perceived possible negative consequences of granting these agencies this authority to investigate claims has apparently not come to pass; if it had, then the Legislature likely would have revoked this authority. There does not appear to be any legitimate reason for denying the IHRC those same tools.

Conclusion

In sum, the current iteration of the IHRA is, in many respects, ambiguous, confusing, and out of date. It does not provide courts, practitioners, Idaho companies, or their employees with enough guidance to understand the scope of the anti-discrimination laws that apply in this state.

It is high time for the legislature to act by clarifying the purposes clause and other text of the IHRA, closing the textual gap that now exists between the IHRA and parallel federal statutes as a consequence of decades of neglect, and strengthening the enforcement powers of the IHRC so that the IHRA and federal anti-discrimination laws—and the important purposes and policies they embody—can be effectively executed within Idaho.

In sum, the current iteration of the IHRA is, in many respects, ambiguous, confusing, and out of date.

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Endnotes

[1] 2005 Idaho Sess. Laws, Ch. 278.

[2] See, e.g., Ward v. Sorrento Lactalis, Inc., 392 F. Supp. 2d 1187, 1190 n.1 (D. Idaho 2005).

[3] See, e.g., Frogley v. Meridian Joint Sch. Dist. No. 2, 155 Idaho 558, 564, 314 P.3d 613, 619 (2013) (“The legislative intent reflected in I.C. § 67–5901 allows our state courts to look to federal law for guidance in the interpretation of the state provisions.”).

[4] Gonzalez v. Simplot Meat Prod., L.L.C., No. CIV 04-627-BLW-LMB, 2006 WL 8446144, at *2 (D. Idaho Mar. 9, 2006).

[5] Ward v. Sorrento Lactalis, Inc., 392 F. Supp. 2d 1187, 1190 n.1 (D. Idaho 2005).

[6] Rau v. United Parcel Serv., Inc., No. 1:12-CV-00194-BLW, 2013 WL 3947147, at *9, n.3 (D. Idaho July 31, 2013).

[7] See, e.g., Ostrander v. Farm Bureau Mut. Ins. Co. of Idaho, 123 Idaho 650, 653, 851 P.2d 946, 949 (1993); Foster v. Shore Club Lodge, Inc., 127 Idaho 921, 925–26, 908 P.2d 1228, 1232–33 (1995); Fowler v. Kootenai Cty., 128 Idaho 740, 743, 918 P.2d 1185, 1188 (1996); Stout v. Key Training Corp., 144 Idaho 195, 197, 158 P.3d 971, 973 (2007); Mackay v. Four Rivers Packing Co., 145 Idaho 408, 413, 179 P.3d 1064, 1069 (2008); Patterson v. State, Dep’t of Health & Welfare, 151 Idaho 310, 318, 256 P.3d 718, 726 (2011); Frogley v. Meridian Joint Sch. Dist. No. 2, 155 Idaho 558, 564, 314 P.3d 613, 619 (2013); Hatheway v. Bd. of Regents of Univ. of Idaho, 155 Idaho 255, 263, 310 P.3d 315, 323 (2013); Mendez v. Univ. Health Servs. Boise State Univ., 163 Idaho 237, 242–43, 409 P.3d 817, 822–23 (2018).

[8] 144 Idaho 195, 158 P.3d 971 (2007).

[9] Id. at 197–98, 158 P.3d at 973–74.

[10] Id. at 198, 158 P.3d at 974.

[11] 128 Idaho 740, 744, 918 P.2d 1185, 1189 (1996).

[12] 119 Idaho 796, 810, 810 P.2d 1082, 1096 (1991).

[13] Id. at 811, 810 P.2d at 1097.

[14] Justice Scalia applied this rationale in Oncale v. Sundowner Offshore Servs., Inc., in holding the plain meaning of the word “sex” is not restricted to women, and that Title VII’s prohibition of discrimination “because of . . . sex” protects men as well as women even if the Congress in 1964 may not have intended that result. 523 U.S. 77 (1998).

[15] 119 Idaho at 811, 810 P.2d at 1097.

[16] Id. at 816, 810 P.2d at 1102.

[17] Id. at 812, 810 P.2d at 1098.

[18] 411 U.S. 792 (1973).

[19] 100 Idaho at 812, 606 P.2d at 462

[20] I.C. § 48-102(3). See also, I.C. § 63-3004(1), where the Idaho legislature annually amends the definition of “Internal Revenue Code” to include the latest iteration of the federal tax code.

[21] See, e.g., Tenn. Code § 4-21-101(a)(2); La. Stat. § 51:2231(A); KY Rev Stat § 344.020 (2015); GA Code § 8-3-200 (2016); 25 O.S. 1971 § 1101 [25-1101](b); TX Lab Code § 21.001 (2019).

[22] 42 U.S.C. § 2000e-5(c).

[23] Tenn. Code § 4-21-101(a). Similar language is found in La. Stat. § 51:2231(A).

[24] TX Lab Code § 21.001 (2019).

[25] 1969 Idaho Sess. Laws, Ch. 249, § 1.

[26] 29 C.F.R. § 1601.21(3).

[27] 29 C.F.R.§ 1601.78.

[28] 42 U.S.C. §2000e-5(f)(2).

[29] 429 U.S. 125 (1976).

[30] 42 U.S.C. §§ 2000e, et seq.

[31] 550 U.S. 618 (2007).

[32] Pub. L. No. 111-2, 123 Stat. 5 (2009).

[33] 42 U.S.C. § 2000e 2(a)(1).

[34] I.C. § 67-5904.

[35] 1982 Idaho Sess. Laws, Ch. 83, § 1.

[36] 42 U.S. Code § 2000a, et seq.

[37] Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. William, 534 U.S. 184 (2002).

[38] Pub. Law. No. 110-325 (S 3406) September 25, 2008. The specifics of the ADAAA are complex and beyond the scope of this article.

[39] I.C. §§ 67-5902(15); 67-5909 (subsequently repealed in 1994). 1988 Idaho Sess. Laws, Ch. 225.

[40] I.C. §§ 67-5901(2); 67-5902(15); 67-5909, 1994 Idaho Sess. Laws, Ch. 268 §§.

[41] I.C. § 67-5901. 2005 Idaho Sess. Laws, Ch. 278, § 1.

[42] See also I.C. § 61-1302 (defining individuals who are “communications-impaired” and referring to the ADA “or regulations promulgated pursuant thereto).”

[43] 29 C.F.R. § 1601.13(a)(2) (“A jurisdiction having a FEP agency without jurisdiction over the statutory basis alleged in the charge (e.g., an agency that does not have enforcement authority over sex discrimination) is equivalent to a jurisdiction having no FEP agency.”).

[44] See Jim Rossi, Dynamic Incorporation of Federal Law, 77 Ohio St. L.J. 457, 460 (2015); Eric A. Johnson, Dynamic Incorporation of the General Part: Criminal Law’s Missing (Hyper)Link, 48 U.S.C. L.R. 1831 (2015).

[45] 82 Idaho 128, 134, 350 P.2d 225, 228–29 (1960) (referring to Art. III, § 1 of the Idaho Constitution, which vests the legislative power in the senate and house of representatives).

[46] Id. at 134, 350 P.2d at 228.

[47] See also Boise Redevelopment Agency v. Yick Kong Corp., 94 Idaho 876, 885, 499 P.2d 575, 584 (1972). But see, Rossi, Dynamic Incorporation of Federal Law, 77 Ohio St. L.J. at 460 (“This form of ‘dynamic incorporation’ of federal law is commonplace in state legislation as well as in state administrative agency rulemaking. It produces many benefits for state lawmaking, including promoting uniformity, efficiency, flexibility, and reinforcing coordination between state and federal regulation.”).

[48] State v. Kellogg, 98 Idaho 541, 543, 568 P.2d 514, 516 (1977).

[49] 1979 Idaho Op. Atty Gen. 149.

[50] See, e.g., Alaska (AS § 18.80.060); Arizona (A.R.S. § 41-1403); Florida (F.S.A. § 760.06); Illinois (775 ILCS 5/7-101); Kentucky (KRS § 336.060); Maine (5 M.R.S.A. § 4612); Nebraska (Neb.Rev.St. § 48-1007); Utah (Utah Code 34A-5-104(4)(a)); Washington (RCW 49.60.140).

[51] See, e.g., Jerry Schifferdecker, Idaho Human Rights Commission to Request Broader Investigative Powers, Idaho Statesman, Oct. 18, 1969 (“The Idaho Human Rights Commission resolved Friday to seek from the next legislature broader investigative and subpoena powers to permit more complete investigation of civil rights complaints.”); Civil Rights Expansion Suggested, Idaho Statesman, Feb. 7, 1970 (“The commission has recommended changes in the law to grant it subpoena powers and civil injunctive powers.”); Idaho Senate Rejects Stronger Rights Panel, Idaho Statesman, March 1, 1972); Rod Sandeen, ‘Rights’ Proposal Criticized, Idaho Statesman, March 7, 1975 (“Director Charles Nicholas told the House State Affairs Committee the problems in the commission lie in underfunding and a lack of subpoena power.”); Ken Miller, Idaho Human Rights Commission, Realtors Group Consider Legislation, Idaho Statesman, Jan. 17, 1999 (“The Idaho Human Rights Commission and the state’s real estate agents have agreed to explore legislation that could give the commission limited subpoena power to investigate housing discrimination.”).

[52] See, e.g., Bills Face Death, Idaho Statesman, Jan. 22, 1982 (Quoting then-Rep. Skip Smyser, R-Parma: “The state shouldn’t be in the business of filing suit against its businessmen.”); Miller, Idaho Human Rights Commission, (“IACI argued such power could allow rummaging through sensitive corporate records based only on scant allegations in job-bias cases.”).