Author: rmccaw

Elizabeth Finley

Published November/December 2021

The role of Latino immigrants in Idaho dates back to the early 1900’s when, after the Mexican Revolution, people from Mexico began immigrating to working in mines and agriculture, and building railroads.[1]   Today, agriculture is the largest contributor to Idaho’s economy and accounts for 20% of the state’s gross state product.[2]  The success of Idaho’s agricultural industry depends on crops being effectively planted, watered, and harvested, and without the help of seasonal migrant and immigrant farmworkers this would be impossible.[3]

In 2018, 85% of Idaho’s Latino population, were of Mexican descent.[4] Some farmworkers immigrate permanently, bringing their families with them.[5]  Their children attend school and become part of the fabric of the community.[6]  Yet, after years of building the Idaho agriculture industry, the children of Latino immigrants and seasonal migrant workers are still struggling to attain equality in education.[7]

Words from Chief Justice Warren Sixty-four years ago, Chief Justice Warren wrote “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”[8]

This article will address the history of educational desegregation based on language proficiency and federal education law before looking at a current complaint against an Idaho school district which shows that segregated instruction exists in Idaho and fails to provide the educational equality guaranteed under the law.

Desegregation Cases

The earliest school desegregation case took place nearly a century ago in Lemon Grove California, a small suburban district outside of San Diego.[9]  In the summer of 1930, the all-white PTA and school board decided to build a separate and segregated school for the Latino students. And insisted that the Latino students attend this school while the white students were allowed to remain at the regular school.[10]

In Alvarez v. Owen the parents of the Latino children argued that the school board was attempting to segregate their children by not allowing them to attend the same school as their white peers, even though 95% of the students were American citizens.  They argued that the board had “no legal right to exclude [. . . the Mexican children] from receiving instruction upon an equal basis [. . .].”[11]  The California Superior Court agreed, noting that the Latino children were lawfully entitled to receive equal instruction as the white children under California law.[12]  The court demanded an immediate reinstatement of the children.[13]

Early Latino desegregation cases such as Lemon Grove, laid the foundation that equality in education was fundamental to equality in the nation.[14]  But, it would take two decades until the Supreme Court would rule on segregation in education.[15]  In Brown v. Board of Education the Supreme Court held that separate but equal educational facilities violate the Equal Protection Clause of the Fourteenth Amendment.[16]

In 1981, the Fifth Circuit held that when a school failed to provide adequate Language Instruction Educational Programs (LIEP) it discriminated against students whose native language was not English. [17]  And a year later, in Plyler v. Doe, the Supreme Court held that denying a public elementary or secondary education to an undocumented person violated the Equal Protection Clause of the Fourteenth Amendment.[18]

Thus, under the law, schools must offer equal educational opportunity to all students regardless of race, national origin, or citizenship status; and they must accommodate those students not fluent in English such that those students are able to learn on equal footing as their English-speaking peers.

Words from Justice Brennan Justice Brennan wrote for the majority: “In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of government barriers presenting unreasonable obstacles to advancement on the basis of individual merit.” [19]

Federal Education Law

Congress solidified the ban on racial discrimination in schools with the Civil Rights Act of 1964 and acknowledged that limited English language proficiency was a barrier to equal educational access with the  Bilingual Education Act in 1968.[20]  Then, in 1974 Congress passed the Equal Educational Opportunities Act (EEOA) providing that “no state can deny equal educational opportunity on the basis of gender, race, color, or national origin through intentional segregation by an educational institution.”[21] 

It provides that intentional segregation includes failing to remove language barriers that prevent participation by non-native speakers, essentially mandating that schools accommodate students by providing adequate resources for students who do not speak English.[22]  By including language barriers as intentional segregation the EEOA brought English Learner (EL) students under the wing of Brown.[23]

Federal education law gives discretion to states to implement educational policy.[24]  This light touch in many ways is ideal as it allows states and local school districts to respond to needs on a local level.[25]  State and local educational institutions are able to set curriculum, providing that the curriculum comply with equal protection and civil rights laws.[26]  The constitution granted the Legislative branch the power to make law and the Judicial branch the power to say what the law is.[27]  Ultimately though, the state agency regulates the school districts and the local school districts are entrusted to implement procedures that comply with the law.

Wilder School District: A Case Study for the EEOA

In January of 2021, Idaho Legal Aid Services filed a complaint on behalf of four Wilder community members against the Wilder School District with the U.S. Department of Education Office for Civil Rights.[28]  The complaint alleges, in part, violations of (1) Title VI of the Civil Rights Act of 1964 and its implementing regulations, (2) the Equal Education Opportunities Act of 1974, and (3) the English Language Acquisition, Language Enhancement, and Academic Achievement Act, Title III, Part A of the Elementary and Secondary Act of 1965.[29]

Wilder School District (WSD) is a small, majority-Latino district in southwestern Idaho. Agriculture is the primary industry in the area and employs many of the Latinos who live there. In 2020, 69% of Wilder’s 506 total students were Latino, making it the district with the largest percentage of Latino students in the state.[30]  English Language Learners (ELL), comprise a third of students at WSD.[31]  Under Title VI of the Civil Rights Act all Idaho districts are required to provide appropriate education to students whose primary language is not English.[32]

The Complaint and Declarations filed in support of the complaint provides the following timeline and allegations:

In 2016, WSD began using a new program known as “Personalized Learning.”  This program made iPads the sole means of instruction for all students in all grades, including ELL students.  After the program’s inception it became apparent to the parents of ELL students that the program was not working well for their children.  A group of WSD parents, students, and concerned residents began to advocate on behalf of ELL students.  The group worried that WSD was not providing adequate instruction to ELL students.  The students could not teach themselves independently and needed significant help from teachers.  But teachers who voiced concern or offered individual assistance to students were told that they would be looking for work elsewhere if their efforts continued.

During the fall of 2017, about a dozen middle school and high school students were identified as needing ELL instruction and services.   Shortly after the start of the school year a newly hired PE teacher was also designated as the district’s ELL teacher.  The teacher taught PE in the morning and afternoon but was allotted little or no time to provided ELL instruction.

During the spring of 2018, the staff was notified that students were not receiving legally mandated ELL services.  In response, the district directed a classroom aid to assume some of the PE teacher’s PE duties.  Students then began to receive some ELL instruction.  During the second semester, however, the teacher was placed on leave and the district did not replace her.  All ELL instruction ceased.

During the fall of 2018, the district did not renew the previous ELL/PE teacher’s contract and the ELL students received no testing or instruction.  The elementary level ELL students were sent to “speak English” with a classroom aid and the middle and high school students were told to buddy up with bilingual students so that the bilingual students could tutor ELL students.  Once more, a classroom aid with no ELL certification or instructional experience was supposed to mentor these students.

Also, 7^th to 12^th grade students identified as ELL were required to spend a certain number of minutes on the “Imagine Learning” (IL) iPad app, an app designed specifically for pre-K to 6^th grade students to improve reading skills.  No out loud work was done with the program, it was strictly read-and-click.  ELL designated students were pulled from class two or three times per week and spent about 20 minutes working with the program and a classroom aid.  The only assistance students received with speaking or listening skills was from a classroom aid who had no teaching certification in any subject, let alone ELL.  There was no writing component to the IL literacy program.  When students needed to write in English, they were instructed to use the Google Translate app to translate their Spanish words to English.

Additionally, the superintendent appointed an elementary school teacher as the ELL coordinator and said that she had provided the necessary ELL training to the WSD staff.  The administration sent false emails to the staff regarding these training sessions.  However, the coordinator did not provide any ELL training at any point that year.  Teachers who attempted to speak out about what was happening were threatened with losing their jobs.

Eventually, the parents received an audience with the school board and were able to voice their concerns.  The school board did not help the parents, instead it berated them for bringing their concerns forward.

The parents then investigated the school board election process.  The written WSD policy requires the district to file a notice for the nomination and election of school district board members in the newspaper.  WSD failed to provide notice as required by the policy; the only notice given to the community was on a single bulletin board at the City Hall.  The last election had taken place in 2005.

The parents then took their concerns to the State Department of Education.  At the time the State Superintendent, Sheri Ybarra, was running for reelection in the Republican primary against the WSD superintendent, Jeff Dillon.  The State Superintendent refused to investigate the complaint, citing a conflict of interest to her reelection campaign. She then referred the parents’ complaint back to the WSD Board.  After the return of the complaint to the WSD board the WSD superintendent discovered the names of the individuals who lodged the complaint.  Students and parents allege that Dillon retaliated against them by taking recess away, revoking privileges, and threatening expulsion of students and deportation of immigrant parents.

By the end of the 2018-19 school year, many of the veteran WSD teachers had quit or been forced out because they had raised concerns about the IL program and 70% of the remaining teachers in WSD were not credentialed in the subjects they were teaching. Student test scores are illustrative of this effect, with only 20% of K-3 students scoring proficient on a fall reading test, fewer than 20% of high school students scoring proficient in math, and only 48% proficient in English language arts.[33]

The EEOA Applied

The Equal Educational Opportunities Act of 1974 provides in part that “[n]o state shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by [. . .] the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional program.”[34]

 An “individual” denied an equal educational opportunity may bring a civil action in federal court “against such parties, and for such relief, as may be appropriate.”[35]  To be successful, a plaintiff must satisfy four elements: (1) the defendant must be an educational agency, (2) the plaintiff must face language barriers impeding her equal participation in the defendant’s instructional programs, (3) the defendant must have failed to take appropriate action to overcome those barriers, and (4) the plaintiff must have been denied equal educational opportunity on account of her race, color, sex, or national origin.[36]

First, WSD is an educational agency and a Title I school district that receives federal funding; therefore, it must comply with the EEOA.[37]  Second, the students are not able to read, speak, listen, and write at a level that will allow for them to understand instruction given in English to a degree necessary to participate equally in educational activities.

The third element of the EEOA test, requiring a showing that the defendant failed to take “appropriate action to overcome those barriers” requires that the educational agency make a “genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students.”[38]  The “appropriate action” language of the statute gives state and local educational agencies latitude in developing programs that would meet the requirements of the EEOA.  The Department of Education (DOE) Office of Civil Rights (OCR) applies an analysis devised by the court in Castañeda v. Pickard to determine if a district has complied with the appropriate action requirements of the EEOA.[39]

First, the school must use a sound method “informed by educational theory and recognized by experts,” to teach students.  Second, the school’s programs and practices must be “reasonably calculated to implement effectively the educational theory adopted by the school.”  Third, the program must produce results that language barriers are “actually being overcome.”[40]

Idaho interprets the first criteria to require that a Language Instruction Educational Program be based upon a sound theory and approach that is proven effective in increasing language proficiency.[41]  WSD was using IL as its sole means of instruction for the ELL students.   The program did not include a listening, speaking, or writing component. Even if IL is found to be a sound method in ELL instruction, without a speaking, listening, or writing element it is likely not compliant with state or federal regulations.

The second prong provides that the program be implemented with sufficient resources, staff, and space.[42]  The US DOE has offered guidance that districts have an obligation to provide necessary staff and if the district provides formal qualifications for that staff, the staff must be qualified or working towards qualification; moreover, a district cannot indefinitely allow staff without qualifications to teach students with limited English proficiency.[43]

Idaho law requires that teachers “shall be required to have a certificate issued under authority of the state board of education, valid for the service being rendered [. . .].”[44] Moreover, under Castañeda “the use of Spanish speaking aids may be an appropriate interim measure, but such aids cannot [. . .] take the place of qualified bilingual teachers.”[45]

In WSD, there were no qualified ELL teachers for at least three school years.  In 2017, after receiving a noncompliance notice, WSD employed an ELL teacher, but placed her on administrative leave mid-way through the second semester in 2017 and never replaced her.  The only individualized instruction provided to the students was by a classroom aid without a teaching certificate or an ELL certificate.  The teacher WSD assigned to be the ELL supervisor in November of 2018 was certified in Social Studies and Spanish, not ELL.  He was never trained in ELL instruction.  The only professional development WSD offered was when the ELL coordinator (also not ELL certified) sent an email referring him to an ELL website and instructing him to train himself.[46]

By the end of the 2018-19 school year many of the veteran teachers had left the district and 70% of the remaining teachers were not certified to teach the subjects they were teaching.   Idaho Law requires that persons who are employed to serve in any elementary or secondary school in the capacity of teacher, are required to have a certificate issued under authority of the state board of education.[47]

The third prong of Castañeda states that if the program fails to produce results showing language barriers are actually being overcome, it fails to constitute appropriate action.[48]  Even if the program was implemented in good faith and with sound expectation for success, unless the outcome was a success, the program would not constitute appropriate action.[49] In Castañeda, the program was inadequate in part because the testing of the ELL students was inadequate.[50]

WSD failed to test to measure the program’s progress. Purportedly an entry test existed, however, when the ELL supervisor asked to see the test, he was refused.[51] Thus, there was no baseline to establish performance which could then be used to measure progress.  Even if an entry test existed, WSD took no subsequent measures to determine progress. Also, no exit testing existed to establish when and if a student had become English Language Proficient. The lack of testing shows that WSD provided no way of establishing if the program was working.  Therefore, WSD has failed to show that actual barriers are being overcome under the third prong of Castañeda.

The fourth requirement of the EEOA speaks to the denial of equal educational opportunities on account of a person’s race, color, sex, or national origin.  The court has interpreted the final element of the EEOA to require only a showing of denial of equal opportunity based on race, color, sex, or national origin.[52]   Here the complainants have established that the students could not engage meaningfully with IL because they are Spanish speaking Latinos.  This is grounds for denial of equal opportunity on race and national origin.

Conclusion

The situation in Wilder, while likely illegal and oppressive, is not uncommon in Idaho.[53]  A 2020 investigation into the academic achievement gap between Latino students and white students based on standardized test scores shows disturbing results.[54]  Out of 56 districts, 42 had an achievement gap greater than 15%.[55]  Many of these districts are located in southern Idaho rural communities where the majority of the Latino population is concentrated.[56]

It has been well over half a century since the landmark decision in Brown v. Board of Education, yet Idaho has not honored the intent of the ruling, or subsequent laws passed, to ensure equal educational opportunities for minority students.  State and local educational agencies have failed minority students.  This failure is most pronounced in Idaho’s rural districts, the same districts which rely heavily on migrant and immigrant workers to ensure their prosperity.  It is long past time for Idaho to fulfill its obligation and provide equal educational opportunities for minority students.

“The situation in Wilder, while likely illegal and oppressive, is not uncommon in Idaho.”

---

Endnotes

¹ Nicole Foy, ‘We do not like the Mexican.’ Racist chapter of Idaho history revealed by new research, Idaho Statesman (Dec 21, 2019), https://www.idahostatesman.com/news/northwest/idaho/history/article238330788.html

[2] Idaho State Department of Agriculture https://agri.idaho.gov/main/about/about-idaho-agriculture/

[3] Rick Naerebout, Immigrants are vital to Idaho’s dairy industry, Idaho State JournalApril 23,2021.  https://www.idahostatejournal.com/freeaccess/immigrants-are-vital-to-idahos-dairy-industry/article_a2ba3496-d9ff-5ad1-bad4-001fa0a3b6bf.html 

[4] As defined by the Idaho department of Labor in Hispanic Profile Data Book 5^th edition, Idaho Commission on Hispanic Affairs,pg. 39, 55.

[5] Id. at 55

[6] Id. at 110-111

[7] Sami Edge & Nicole Foy, Little accountability for school asked to improve Latino achievement gaps. Idaho ed news.org, Feb. 9, 2020.  https://www.idahoednews.org/news/in-high-achievement-gap-schools-plans-for-improvement-are-all-over-the-board/

[8] Brown v. Board of Education, 347 U.S. 483, 493 (1954).

[9] K.L. Bowman, The New Face of School Desegregation, 50 Duke L.J. 1751 (2001).

[10] Robert R. Alvarez, Jr. The Lemon Grove Incident, The journal of San Diego historical society quarterly, Spring 1986, vol. 32, no. 2.  https://sandiegohistory.org/journal/1986/april/lemongrove

[11] Id.

[12]Alvarez v. Owen, No. 66625 (Cal. Sup. Ct. San Diego County filed Apr. 17, 1931).

[13] Id.

[14] Robert R. Alvarez, Jr. The Lemon Grove Incident, The journal of San Diego historical society quarterly, Spring 1986, vol. 32, no. 2.  https://sandiegohistory.org/journal/1986/april/lemongrove .

[15] Brown, 347 U.S. 483.

[16] Id. at 495.

[17] Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981).

[18] Plyler v. Doe, 457 U.S. 202, 210 (1982).

[19] Id. at 222.

[20] Civil Rights Act of 1964, § 7, 42 U.S.C. § 2000e; Bilingual Education Act, 20 U.S.C. § 880b.

[21] The Equal Educational Opportunities Act of 1974, 20 U.S.C.S. § 1703(f).

[22] Id.

[23] ELL students in Idaho are classified according to the Federal government definition as described in the Elementary and Secondary Education Act (ESEA) Section 3201(5). 

[24] U.S. Department of Education, the federal Role in Education, Overview.https://www2.ed.gov/about/overview/fed/role.html

[25] Id.

[26] Idaho content standards English Language Arts/Literacy Manual, pg. 3  https://idahoansforlocaleducation.com/wp-content/uploads/2019/07/ELA-2018.pdf

[27] U.S Const. art. I, § 1and Marbury v. Madison, 5 U.S. 137 (1803)

[28] Plaintiff’s Complaint, E.D., C.D., J.D., and J.C., v. Wilder School District.  Jan. 27, 2021.  https://www.idahoednews.org/news/families-file-discrimination-complaint-against-wilder-school-district/

[29] Id. and 42 U.S.C. §2000d, 34 CFR Part 100, and 28 C.F.R. § 42.104 (b)(2), and 20 U.S.C. §1703(f), 20 U.S.C. §6801

[30]  Id.

[31] Id.

[32] Idaho State Department of Education State EL & Title III Program.  https://www.sde.idaho.gov/federal-programs/el/files/program/manual/2020-2021-Mini-Manual-State-EL-and-Title-III.pdf

[33] Sami Edge and Nicole Foy, Families file federal civil rights complaint against Wilder district, Idaho Ed News.Org (Jan. 28, 2021)01/28/2021. 

[34] 20 U.S.C. § 1703(f).

[35] Id. § 1706.

[36] See 20 U.S.C. § 1703(f) and § 1720(a) (defining “educational agency”). 

[37] 20 U.S.C. § 1703(f) and Idaho State Department of Education State EL & Title III program.

[38] Castaneda, 648 F.2d 989, 1011 (5th Cir. 1981).

[39] Internal Department of Ed OCR memo: developing programs for English Language Learners: OCR Memorandum, dated 9/27/1991.

[40] Id.

[41] As laid out by the Idaho State EL & Title III Mini Manual

[42] As laid out by the Idaho State EL & Title III Mini Manual

[43] Internal Department of Ed OCR memo: developing programs for English Language Learners: OCR Memorandum, dated 9/27/1991.  https://www2.ed.gov/about/offices/list/ocr/ell/september27.html

[44] Idaho Code §33-1201

[45] Castaneda, 648 F.2d at 1013.

[46]  Plaintiff’s Complaint, E.D., C.D., J.D., and J.C., v. Wilder School District.

[47] Idaho Code § 33-1201.

[48] Castaneda, 648 F.2d at 1010.

[49] Id.

[50] Id. at 1014

[51] Plaintiff’s Complaint, E.D., C.D., J.D., and E.C., v. Wilder School District, Declaration of CH, pg. 3

[52] Issa v. School District of Lancaster, 847 F. 3d 121, 139  (2017)

[53] Erik Johnson, of Idaho Legal Aid services, attorney for complainants provided that, the DOE is in the process of deciding whether they have jurisdiction over the WSD case.  In the meantime, how many more Latino students in need of ELL instruction are marginalized by the lack of an appropriate program at WSD.  The school with the largest percentage of Latino students in the Idaho has not had an appropriate ELL program for the past 5 years and counting.  

[54] Idaho EdNews Staff, Latino Listening Project wins Education Writers fellowship (Nov. 1, 2019) https://www.idahoednews.org/news/latino-listening-project-wins-education-writers-fellowship

[55] Sami Edge, Maps illustrate learning disparities between white and Latino students (Jan. 3, 2020)  https://www.idahoednews.org/news/maps-illustrate-learning-disparities-between-white-and-latino-students

[56] Id.

Bobbi K. Dominick

Published November/December 2021

Across the country, debates about “critical race theory” (CRT) are raging in legislatures, school boards and organizations, and in diverse locales.  While it may seem like a “passing fad,” or cultural hot button issue, diversity practitioners and leaders should pay close attention. Now is the time to reexamine the most effective, and defensible, strategies that will continue to advance diversity despite these cultural debates.

What is Critical Race Theory?

“Critical race theory” is a tool, traditionally used in academia, to analyze historical racism and its impact on institutions and systems, not individual discrimination.[1]  Critics have re-defined the term and used it to attack a wide variety of what they view as social ills.[2] These critics seek to characterize the study of racism as discrimination against Whites. The debates are accusatory and divisive. Critics have characterized the theory as “un-American.”[3] Those CRT critics are waging a battle to eradicate it in schools, organizations, and places where CRT does not really exist.  In its broadest sense, these opponents of CRT equate it with diversity. Because of this debate, CRT has been villainized and attacked at the highest levels of government.[4] The debate has, and may continue to, impact diversity initiatives.

How Has the Controversy Over CRT Impacted Diversity Initiatives?

Many organizations advance diversity in numerous ways, including through diversity committees, or establishing recruiting, promotion, retention, and training policies that promote diversity.  Organizations also mandate supervisory or employee training that promotes respectful treatment and prohibits discriminatory behavior. Some of these training programs (also required to protect against discrimination claims) include topics like privilege, bias, and similar issues.

The first real impact of the CRT debate took aim at these diversity training programs.  Former President Trump took up the CRT banner and issued Executive Order (EO) 13950 on September 22, 2020.[5] That order prohibited federal agencies and contractors from conducting training containing purported CRT concepts.

Agencies, organizations, and practitioners had to immediately decide what actions might violate the order. While there is still controversy over exactly what should and should not be taught in diversity training,[6] certain topics seemed to be prohibited by the EO.  For example, one expert theorized that the following changes were likely required under the EO:[7]

Terms like “white privilege” should be “scrubbed” from training language. Teaching about privilege is one way that diversity trainers have tried to demonstrate that hidden privilege may hamper inclusion efforts. For example, trainers might talk about advantages some have had, and how race, gender, or other factors might have influenced situations, as a way to help learners recognize that privilege may result in a form of subtle bias.

Training around unconscious or implicit bias was apparently prohibited by the EO. Unconscious bias training, while some view it as potentially ineffective,[8] had become a staple of many diversity trainers.  As humans, we all have inherent biases that derive from the way our brains take “shortcuts,” and perceive the world around us, based on who we are, how we were raised, influences we have been subjected to, etc.  These biases help us to live and function every day.[9] Some implicit biases could cause us to behave in ways that are prejudicial to other humans, whether because of the way they look, the class they belong to, or our presumptions about how they will behave.  While there is some question about whether we can “train away” implicit bias, the first step, and the one included in many types of diversity training, is to make everyone in a workplace aware that implicit bias exists and invite people to explore and examine their own biases.  As people become aware, they may take steps to avoid problem behaviors, like assuming that a person of color will act or think a certain way.

Unconscious bias training, while some view it as potentially ineffective,[8] had become a staple of many diversity trainers.

Nearly immediately, diversity experts reported that the EO was having an impact on whether they could deliver meaningful diversity training in federal agency and contractor settings.[10]

Lawsuits challenged this EO[11] in the fall of 2020.[12] In one case, the court granted a nationwide injunction preventing enforcement of EO 13950.[13].  One suit alleged that agencies were prevented from effectively addressing “harms, privileges, and disadvantages associated with systemic discrimination and implicit biases.”[14]

On January 20, 2021, President Biden issued an Executive Order rescinding the prior EO.[15]  While this was a relief for federal diversity experts, it also meant that legal questions about the impact of the CRT debate on diversity training were never resolved.

Systemic discrimination has existed in our history and this debate has shone a critical light on some of our national legal history around discrimination, including the Dred Scott decision, where the U.S. Supreme Court concluded that Blacks “had for more than a century before” the Constitution’s adoption “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”[16]  Other reported decisions from our early legal history reveal outdated notions of racial and gender superiority.[1

While court cases over the last century have subsequently disavowed the discriminatory attitudes reflected in these opinions, members of the protected groups have sometimes continued to face societal discrimination and are still often subjected to hostile work environments.  A quick reading of the most recent news briefs issued by the Equal Employment Opportunity Commission will demonstrate that individual workplace discrimination remains alive and well.[18]

Efforts by organizations over the last few decades to eliminate such discriminatory attitudes have included the creation of diversity, equity, inclusion, and belonging (DEIB) initiatives that create a respectful workplace for all and encourage all workers to eliminate bias in their interactions with co-workers.  Those efforts were in doubt, and challenged, by EO 13950, which prohibited any type of training that would cause individuals to feel “discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” 

The events of the fall of 2020, and the continued raging debate over CRT, demonstrates that there is a potential for the controversy to significantly change the way that diversity initiatives are created and implemented. 

Continued Debate Around CRT Will Reach Organizations and Associations

In 2021, efforts to use CRT as a basis for state legislation began in earnest.  In most cases, the focus was upon allegations that CRT was taught in public schools.  Many legislatures, including Idaho, passed legislation prohibiting such teaching.[19]

In addition, organizations of various sizes have been rocked by controversy related to diversity and inclusion, as debates over race and discrimination continue.[20]

Christopher Rufo, a principal proponent of “banning” CRT in schools, the military, and organizations, has taken aim at several large organizations (including Disney, American Express, Bank of America, Verizon)[21] which support, and train on, diversity and inclusion, labelling them as “CRT proponents.” Legislators have begun openly advocating that “diversity, equity, inclusion” are new terms for CRT.[22]

What Should Organizations, Including Legal Organizations, Do About CRT and Diversity?

Many research studies show that diversity makes good business sense.[23] This is especially true when organizations focus on recruiting diverse candidates, or training to encourage respectful workplaces, but also most often when business goals are tied to inclusivity and diversity.[24] In the legal profession, one effort is spearheaded by Diversity Lab, which seeks to boost diversity through innovation, data, and behavioral science.  Several Idaho firms (multistate) have been recognized for their efforts in promoting inclusion and diversity by receiving a Diversity Lab Mansfield Rule 4.0 certification. (Holland & Hart; Perkins Coie; Stoel Rives).[25]

Idaho, in particular, is less diverse than other legal markets.  But the most recent census figures tell us that some parts of Idaho are becoming more diverse,[26] so Idaho legal organizations must examine their hiring, promotion, and inclusion practices if we are to welcome diversity. The most recent Bar survey on diversity of race/ethnicity (from 2016) reveals that the Bar remains overwhelmingly White, measured at 94.21%.[27]

Idaho firms should look to some of the suggestions in the next section if diversity is a desired value for the Bar[28] and for individual organizations we serve.

How Should Diversity Practitioners Respond to the CRT Debate?

The concern for diversity practitioners is that continuation of the CRT debate could eventually impact diversity initiatives within workplaces.  Employees who follow the debate could challenge or question the content of diversity training or practices. Efforts to hire diverse candidates could be challenged, by arguments that such efforts adversely impact a particular race (white), and thus are themselves discriminatory. Practitioners should anticipate such debates, and those who advise organizations should encourage critical examination of hiring, promotion, and training practices to assure that the practices used are sound and defensible.

Here are some examples of where the CRT arguments might impact legal practice:

Disparate impact discrimination claims. At least one federal judge has pointed to CRT as a reason for eliminating the disparate impact theory of racial discrimination.[29] If organizations use any sort of statistical analysis to make changes, based on an assumption that practices may be adversely impacting a particular class of people, they should closely examine whether the analysis is defensible.

Reverse discrimination claims. The debate suggests that practices which promote diversity are perceived by some as having a discriminatory impact on Whites. We may see a rise in claims that an organization’s efforts to increase diversity are a form of reverse discrimination.

How Should Organizations Respond?

Organizations, including legal organizations, should also closely examine their diversity practices, to assure that the practices are serving their intended purpose, and are effective. Here are some examples:

Effectiveness and content of training. Many organizations have implemented training around a respectful workplace and diversity.  Those training programs are needed, and may be helpful, but some programs may stray too far, using techniques and practices that are not proven to be effective, and may be counterproductive.  Many organizations may include discussions of privilege and of implicit bias. 

Those are important to include if the goal is to raise awareness, but the way the issues are presented is important, and follow-up is important.[30]  Those topics are not designed to be a “one and done” in practice, but many organizations use them in that way.  Training may be most effective if the concepts are incorporated into leadership systems, leadership training, and business goals. In addition, the research may show that training, and behavior expectations, for behaviors like bullying, disrespect, and incivility may have a better outcome for diversity.[31]

Hiring and promotional practices. Use of techniques to encourage benchmarks for considering potential candidates that meet diversity criteria can help increase diversity within hiring and promotional classes.  But care must be used to assure that candidates are not favored solely based on their diversity, lest reverse discrimination claims arise.

Business goals that include diversity and inclusion lens. Research has consistently shown that diversity increases within an organization, and is most effective, only when DEIB efforts are intertwined within the business goals of the organization.

Employ techniques to interrupt implicit bias within organizations.Experts have identified many different kinds of techniques to assure that diverse candidates have a level playing field when it comes to hiring, legal assignments and development, promotion, etc. Many of those techniques in the legal field are detailed in an ABA report. [32]

There are many other areas where critical examination, research, and discussion may be necessary to assure that the legal profession,[33] legal organizations, and the organizations we advise, are encouraging diversity and inclusion in ways that are truly effective.  The current cultural debates over CRT should not deter an increased focus on assuring opportunity for all.

BIO

Bobbi K. Dominick is a sole practitioner in the employment law arena through conducting workplace investigations, respectful workplace training, and providing expert testimony in the area of discrimination and harassment prevention. She is an author of nationally published books Preventing Harassment in a #MeToo World (2018) and Investigating Harassment & Discrimination Complaints (2003). 

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Endnotes

[1]  Jacey Fortin, Critical Race Theory: A Brief History, N.Y. TIMES, July 27, 2021, https://www.nytimes.com/article/what-is-critical-race-theory.html?searchResultPosition=2

[2] Such critics are numerous, but they include The Legal Insurrection Foundation, which has made CRT a showpiece of their cultural attacks, see https://criticalrace.org/, and Christopher Rufo, who has championed the theory that CRT is evil and must be eliminated, see https://christopherrufo.com/the-truth-about-critical-race-theory/.

[3] See, for example, Joy Pullman, It’s Critical Race Theory That Is Un-American, Not Laws Banning It, THE FEDERALIST,  located at https://thefederalist.com/2021/07/07/its-critical-race-theory-that-is-un-american-not-laws-banning-it/.

[4] See, e.g., Charles M. Blow, Demonizing Critical Race Theory, N.Y. TIMES, June 13, 2021, https://www.nytimes.com/2021/06/13/opinion/critical-race-theory.html?searchResultPosition=1

[5] The EO is no longer in official federal documents but is archived at https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/

[6] See, e.g., Ilana Redstone, Diversity Training and Divisiveness:  A Real Problem That Needs a Better Solution, FORBES, October 15, 2020 https://www.forbes.com/sites/ilanaredstone/2020/10/15/its-time-to-fix-diversity-training-part-1/?sh=36219f09da04 and Ilana Redstone, This is Why Diversity Programming Doesn’t Work, FORBES, November 18, 2020, https://www.forbes.com/sites/ilanaredstone/2020/11/18/this-is-why-diversity-programming-doesnt-work/?sh=7da8298566d5.

[7]  Kenneth Hein, Legal Expert Unpacks What Trump’s Executive Order on Diversity Training Means for Agencies, September 29, 2020, THE DRUM, https://www.thedrum.com/news/2020/09/29/legal-expert-unpacks-what-trump-s-executive-order-diversity-training-means-agencies

[8] See, e.g., Michelle M. Duguid & Melissa C. Thomas-Hunt, Condoning Stereotyping? How awareness of stereotyping prevalence impacts expression of stereotypes, J. Applied Psychology, 2005, https://content.apa.org/doiLanding?doi=10.1037%2Fa0037908.

[9] See Project Implicit, located at https://implicit.harvard.edu/implicit/

[10] Jessica Guynn, ’It’s Already Having a Massive Effect’ Corporate America Demands Trump Rescind Executive Order on Diversity, USA TODAY (October 9, 2020) https://www.usatoday.com/story/money/2020/10/09/trump-rescind-diversity-racism-executive-order/5939538002/

[11] National Urban League v. Trump, Case 1:20-cv-03121 (D.C.D.C. 10.29.20) https://d12v9rtnomnebu.cloudfront.net/paychek/1_-_Complaint.pdf

[12] See, e.g., National Urban League above.

[13] Santa Cruz Lesbian and Gay Community Center et. al v. Trump et. al., Case No. 5:2020cv07741 (N.D. Cal. 12/22/2020) https://law.justia.com/cases/federal/district-courts/california/candce/5:2020cv07741/368312/80/

[14] Santa Cruz, paragraph 4.

[15] Located at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/

[16] Dred Scott v. Danford, 60 U.S. 393, 404-407(1857).

[17] See Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 590 (1823) (referring to Native Americans as “fierce savages, whose occupation was war and whose subsistence was drawn chiefly from the forest”); Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) (noting that Chinese people are “a race so different from our own that we do not permit those belonging to it to become citizens of the United States”); Hernandez v. Texas, 347 U.S. 475, 479-80 (1954) (noting that Mexican-American children were in segregated schools, restaurants had signs saying ‘No Mexicans Served,’” and that “[o]n the courthouse grounds . . . , there were two men’s toilets, one unmarked, and the other marked ‘Colored Men’ and ‘Hombres Aqui’ (‘Men Here’)”). See also Bradwell v. Illinois, 83 U.S. 130 (1872) (Supreme Court refusing to recognize a woman’s right to practice as an attorney, citing “a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state” and that the “paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother.” Cases also reflect past societal contempt for the LGBTQ community, as noted in Bowers v. Hardwick, 478 U.S. 186 (1986).

[18] Located at https://www.eeoc.gov/newsroom/search

[19] See Idaho Code §33-138.

[20] Elizabeth A. Harris, In Literary Organizations, Diversity Disputes Keep Coming, NEW YORK TIMES, August 30, 2021,https://www.nytimes.com/2021/08/30/books/diversity-literary-rwa-scbwi.html

[21] See Rufo’s Twitter feed at https://twitter.com/realchrisrufo. Rufo also tweeted that he is working on a series “exposing” CRT in “America’s Fortune 100 companies.”  https://twitter.com/realchrisrufo/status/1430626870450540544. Rufo’s attack on organizations can be found in various articles,  https://www.city-journal.org/verizon-critical-race-theory-training?wallit_nosession=1 (Verizon);   https://christopherrufo.com/bank-of-amerika/ (Bank of America) and https://www.city-journal.org/bank-of-america-racial-reeducation-program?wallit_nosession=1;  https://nypost.com/2021/08/11/american-express-tells-its-workers-capitalism-is-racist/. (American Express)

[22] See tweet at https://twitter.com/MikeLoychik/status/1431387748984836097

[23] See, e.g., Diversity Wins: How Inclusion Matters, MCKENZIE & COMPANY (May 19, 2020) located at https://www.mckinsey.com/featured-insights/diversity-and-inclusion/diversity-wins-how-inclusion-matters

[24] Also see, e.g., Together Forward at Work: The Journey to Equity and Inclusion, SHRM (Summer 2020) located at https://prodtfw.wpengine.com/wp-content/uploads/2020/08/20-1412_TFAW_Report_FNL_Pages_V2.pdf

[25] See explanation of the criteria and list of qualifying firms here: https://www.diversitylab.com/mansfield-rule-4-0/

[26]  For example, the 2020 Census indicates that Boise’s White population is now only 62% of the total population, a reduction of 32% in the last 30 years. See https://www.washingtonpost.com/nation/interactive/2021/racial-makeup-census-diversity/?geoid=16001002319.

[27] Statistics drawn from 2016 Idaho State Bar Membership Survey, located at https://isb.idaho.gov/wp-content/uploads/2016_isb_membership_survey.pdf. That survey is five years old (a new survey may be planned for 2021) but it indicates that most other ethnic/racial categories hover around +1% of the attorney population. Statistics regarding diversity in the legal profession can be found here: https://www.americanbar.org/groups/diversity/resources/goal3-reports/demographic_trends_in_the_legal_profession/.

[28]  For example, recent studies of EEO-1 reports in large corporations indicated deep underrepresentation of Black and Hispanic representatives in the legal industry. See Jessica Guynn and Jayme Fraser,  This is America: Black and Hispanic workers are still not getting a fair shake at work, USA TODAY (September 3, 2021) https://www.usatoday.com/story/opinion/2021/09/03/black-hispanic-employees-corporate-diversity-george-floyd/5715025001/

[29] See Rollerson v. Bravo River Harbor Navigation District of Brazoria County Texas, Case No. 20-4027 (5^th Cir. 7/29/2021); see also Debra Cassens Weiss, Federal appeals judge criticizes disparate impact theory; are his opinions op-ed columns? ABA JOURNAL (August 5, 2021) https://www.abajournal.com/news/article/federal-appeals-judge-criticizes-disparate-impact-theory-are-his-opinions-op-ed-columns

[30] See, e.g., Joelle Emerson, Don’t Give Up on Unconscious Bias Training-Make It Better, HARVARD BUSINESS REVIEW, April 28, 2017, https://hbr.org/2017/04/dont-give-up-on-unconscious-bias-training-make-it-better

[31] See, e.g., Lim, S., & Cortina, L., Interpersonal mistreatment in the workplace: The interface and impact of general incivility and sexual harassment. JOURNAL OF APPLIED PSYCHOLOGY, 90(3), 483-496 (2005). http://dx.doi.org/10.1037/0021-9010.90.3.483

[32]   Many techniques for interrupting bias are included in an ABA report titled You Can’t Change What You Can’t See,  ABA Commission on Women in the Profession.  That report is available only for purchase at https://www.americanbar.org/products/ecd/ebk/358942050/. See also tools located at https://biasinterrupters.org/toolkits/orgtools/.

[33] Beyond the scope of this article is a discussion of what the Idaho State Bar itself can do to encourage diversity, such as promoting civility and fair treatment.  Some Bar organizations have adopted ethical rules in this area, but Idaho has yet to do so. See letter from Chief Justice Roger Burdick, Idaho State Bar Advocate, 61 ADVOCATE 17 (2018). https://heinonline.org/HOL/P?h=hein.barjournals/adisb0061&i=853.

Kayla M. Steinmann

Published November/December 2021

It should be no surprise that youth mental health in America is at an all-time low. During the pandemic, youths faced social isolation and loneliness. They lost parents and loved ones and were exposed to other traumas such as food insecurity and homelessness. Critical developmental needs went unmet as children were isolated from friends and missing out on typical school activities and milestones. Even pre-pandemic, data indicated that our youth were struggling with increased rates of depression, thoughts of suicide, and self-harm.[1]

Screening data indicates that the population most impacted by the COVID-19 crisis was youths aged 11-17 years old.[2] Now, still in the midst of the ongoing global pandemic, a new analysis suggests that depression and anxiety in youth has doubled compared to pre-pandemic levels, likely instigating a global mental health crisis in youths.[3]

It is in response to this crisis that two Idaho nonprofits have come together to develop support for youth mental health. DisAbility Rights Idaho (“DRI”) is Idaho’s designated protection and advocacy system, with federal and state authority to monitor any facility or service provider in the state providing care or treatment to individuals with disabilities, or to investigate incidents of abuse and neglect of individuals with disabilities.[4] The Idaho Federation of Families (the “Federation”) provides direct family support services for parents and caregivers of youth with mental health challenges and serves youth through programs that focus on peer support and advocacy. Together, these organizations have created a Youth Rights Series as an ongoing resource for Idaho’s youth.

Current State of Youth Mental Health in Idaho

The data in Idaho is bleak. In 2020, Mental Health America ranked Idaho 48^th in the nation for youth mental health.[5] The national nonprofit ranked the 50 states and the District of Columbia based on seven measures including youth with at least one major depressive episode (“MDE”) in the past year, youth with an MDE who did not receive mental health services, and students identified with emotional disturbances for an individualized education program.[6]

Idaho ranked 50^th for youth with at least one MDE in the past year with 16.22 percent of Idaho youth experiencing an MDE in 2020.[7] The data shows that Idaho youths have been significantly impacted over the past 24 months and Idahoans must build a better support system that equips youth with tools necessary to develop into thriving young adults.

“It is more important than ever to start having conversations about mental health and destigmatizing mental health with youth.”

DRI’s Youth Unit

DRI’s 2020 organizational restructuring now means it has a dedicated youth unit, as well as an adult unit, to address the needs of Idahoans with disabilities. The youth unit focuses on a range of critical issues affecting Idaho’s youth, such as addressing the use of restraint and seclusion in public schools and representing families in Medicaid Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) denials. However, most of the youth unit’s work entails protecting the rights of children in residential treatment facilities in Idaho through periodic monitoring and investigations.

Idaho has 25 licensed Children’s Residential Treatment Facilities (“CRTF”).[8] Children in these facilities come from all over the country for a variety of reasons but mainly to receive intensive support for serious emotional and behavioral problems. Deficiencies, abuses, and rights violations are widespread in CRTFs.[9] Some CRTFs are turning million-dollar profits while vulnerable children are physically and sexually abused in their care.[10] As atrocities come to light, states are responding by passing legislation to increase regulation of CRTFs, taking steps to bring kids home from out-of-state placements, and shifting funds to community-based services that better serve youth.[11]

Research and logic both affirm that youth are best served when at home in their communities.[12] DRI believes it is essential to avoid out-of-home placement whenever wrap-around, community-based care could meet the needs of the child and the child’s family. Part of keeping Idaho’s children safe from the abuses of residential treatment means emphasizing preventative care and helping children access mental health treatment in their own communities.

DRI and the Federation seek to Empower Youth to be their own Advocates

The collaboration between DRI and the Federation seeks to address youth access to mental health care from the youth’s perspective. The intention of the Youth Rights Series is to increase youth access to mental health services by educating youth directly on their rights and mitigating some of the hesitations they may have that are fueled by lack of knowledge or misinformation. Studies indicate that the top three most common barriers to youth seeking and accessing professional help for mental health problems are (1) limited mental health knowledge, (2) social stigma and embarrassment, and (3) inability to trust confidentiality in therapeutic relationships.[13]

Teenagers may be unaware of the circumstances under which they can access treatment on their own. They may be unaware of confidentiality standards in sessions and avoid needed therapies because they are afraid of getting in trouble with their parents.[14] Through this series, DRI and the Federation work together to improve young people’s knowledge of mental health problems and available support, including what to expect from professionals and services.

The series features Natalie Perry, the Federation’s youth move coordinator interviewing Kayla Steinmann, DRI’s youth unit attorney and the author of this article, on the legal perspectives that affect Idaho youths’ ability to access mental health services. Together they dissect Idaho and federal laws in a youth-friendly format and encourage youths to access treatment. The project thus far has taken on the subjects of confidentiality in mental health sessions and accessing mental health treatment. Young people can take an active role in seeking help, particularly as they age, and the Youth Rights Series aims to equip them with the knowledge they need to take that control into their own hands.

Idaho needs to mitigate the sustained mental health effects of COVID-19 and prioritize recovery planning now. It is more important than ever to start having conversations about mental health and destigmatizing mental health with youths. If you know youth in your life who would benefit from increased awareness of these issues, invite them to check out the series on either the Federation’s or DRI’s websites or YouTube channels.

Other Idaho organizations concerned with increasing education and awareness of youth mental health issues are the National Alliance on Mental Illness Idaho, Idaho Parent Network for Children’s Mental Health, and Empower Idaho. It is incumbent upon all of us to teach our children that it is okay to ask for help.

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Endnotes

[1] See The State of Mental Health in America 2019, Mental Health Am., 5 (2018) https://mhanational.org/sites/default/files/2019%20MH%20in%20America%20Final_0.pdf; 2020 Mental Health in America – Youth Data, Mental Health Am., https://mhanational.org/issues/2020/mental-health-america-youth-data (last visited Oct. 5, 2021).

[2] 2021 Policy Institute: Addressing Youth Mental Health Needs in Schools, Mental Health Am., https://mhanational.org/2021-policy-institute-addressing-youth-mental-health-needs-schools (last visited Oct. 5, 2021).

[3] Sarah Molano, Youth depression and anxiety doubled during the pandemic, new analysis finds, CNN Health (Aug. 10, 2021), https://www.cnn.com/2021/08/10/health/covid-child-teen-depression-anxiety-wellness/index.html.

[4] See 42 U.S.C. § 10805.

[5] See 2020 Mental Health in America – Youth Data, Mental Health Am., https://mhanational.org/issues/2020/mental-health-america-youth-data (last visited Oct. 5, 2021).

[6] Id. (full data set includes: (1) youth with at least one MDE in the past year, (2) youth with a substance use disorder in the past year, (3) youth with a severe MDE, (4) youth with an MDE who did not receive mental health services, (5) youth with a severe MDE who received some consistent treatment, (6) children with private insurance that did not cover mental or emotional problems, and (7) students identified with emotional disturbances for an individualized education program).

[7] Id.

[8] Children’s Residential Programs Provider List, Idaho Dep’t of Health and Welfare, https://publicdocuments.dhw.idaho.gov/WebLink/DocView.aspx?id=2675&dbid=0&repo=PUBLIC-DOCUMENTS&cr=1 (last visited Oct. 5, 2021).

[9] See Position Statement 44: Residential Treatment for Children and Adolescents with Serious Mental Health and Substance Use Conditions, Mental Health Am., https://www.mhanational.org/issues/position-statement-44-residential-treatment-children-and-adolescents-serious-mental-health (last visited Oct. 5, 2021).

[10] Hannah Rappleye et al.,  A profitable ‘death trap’: Sequel youth facilities raked in millions while accused of abusing children, NBC News (Dec. 16, 2020), https://www.nbcnews.com/news/us-news/profitable-death-trap-sequel-youth-facilities-raked-millions-while-accused-n1251319.

[11] Shut Down Sequel: Progress Report, Nat’l Juv. Just. Network, 4 (2020) http://www.njjn.org/uploads/digital-library/ShutDownSequelProgressReport_April2021.pdf.

[12] Id. at 7.

[13] Amelia Gulliver et al., Perceived barriers and facilitators to mental health help-seeking in young people: a systematic review, BMC Psychiatry (2010) https://doi.org/10.1186/1471-244X-10-113.

[14] Id.

15. Note: DisAbility Rights Idaho (DRI) is the Protection and Advocacy System for the State of Idaho. This article was made possible by funding support from SAMHSA, U.S. Administration for Community Living, Department of Health and Human Services and DOE-Rehabilitation Services Administration. These contents are solely the responsibility of DRI and does not represent the official views of any federal grantor. 100% of this article was paid for with federal funds.

Courtney R. Holthus

Published November/December 2021

On October 31, 2016, the Diversity Section and the Idaho State Bar lost one of its promising members, Jennifer King, to suicide. As the fifth anniversary of her passing approaches, I wanted to take this opportunity on behalf of the Diversity Section to honor her by sharing information and resources to help those who may be feeling hopeless, overwhelmed, depressed, or even in crisis as we continue to trudge through life in the midst of COVID-19.

Jennifer was an active member of the Diversity Section and our Love the Law! Program. I will always remember her sweet, kind demeanor and warm smile. I wouldn’t say we were close friends, but we would see each other numerous times throughout the year. Each time we would talk about our jobs, our career aspirations, and our personal and professional struggles. I distinctly remember her telling me why she wanted to be lawyer: because she wanted to help and serve others. She had a big heart and truly valued our Section’s mission to promote inclusivity and equality in the law.

I think back often to our last interactions. I’ve read and re-read the last email correspondence we had. I honestly had no idea that she was depressed, let alone to the point of taking her own life. I will always wish I could have done something to help her, which is why I have decided to write this article. Perhaps the following information, the organizations, the phone numbers, may help someone else who is struggling during this time.

According to the Idaho Department of Health and Welfare, Idaho had the fifth highest suicide rate in the United States in 2018.[1]

While Idaho’s suicide rate dropped in 2019,[2] it rose again in 2020, with preliminary reports indicating that approximately 427 Idahoans were lost to suicide last year.[3]  COVID-19 has certainly taken its toll. Data collected by Mental Health America in its 2021 The State of Mental Health in America report found that more people are reporting frequent thoughts of suicide and self-harm than ever before in their screenings, as the number of people looking for help with anxiety and depression has “skyrocketed.”[4] Our young people are struggling too—the report stated that “throughout the COVID-19 pandemic youth ages 11-17 have been more likely than any other age group to score for moderate to severe symptoms of anxiety and depression.”[5]

I work for a public interest law firm that serves Idahoans with disabilities, including those with mental illness, and I can personally attest to the fact that many of those who are calling our office looking for legal and advocacy assistance are in crisis. In this past year alone, I have had to assess more calls where an individual has threatened suicide than in all of my nine and a half years of employment at DisAbility Rights Idaho combined.

Even if by some miracle, you have managed to survive this past year unscathed by the uncertainty, isolation, and stress that COVID-19 has created, chances are the co-workers in your firm, opposing counsel, or even the clients you serve have not fared as well. As these difficult times continue, many of us may find ourselves susceptible to vicarious or secondary trauma or compassion fatigue. Such conditions resemble post-traumatic stress disorder and can be “caused by being indirectly exposed to someone else’s trauma.”[6] You should note that direct exposure to clients experiencing trauma is not the only way to be affected by secondary trauma. It can also develop from listening to others recount a traumatic event or working with others who are dealing with secondary trauma.[7]

On a positive note, there are multiple resources available – many of which are free of charge – to assist you, your coworkers, and your employees in combating the effects that the trauma events surrounding us may have. The Idaho State Bar has an entire webpage dedicated to attorney well-being and has established an Attorney Well-Being Task Force to help the legal profession in Idaho.[8] The website features a list of resources including educational courses, toolkits, websites, articles, blogs, reports, and even podcasts to help you in improving your well-being and developing a more trauma responsive practice.[9] Organizations such as the National Center on Law and Elder Rights (NCLER) and the Tahirih Justice Center have also developed materials specific to trauma-informed lawyering,[10] including best practices for adapting trauma-informed lawyering during the COVID-19 pandemic.[11]

Although the list is not exhaustive, in the following you will find multiple resources to help those who may be struggling or on the verge of a mental health crisis. Right now, as you read these words, there are clients, colleagues, friends, and family who may need this information. You may even need this information. Please share this information with those you think may need it. Reach out. Check in with those you have not been in contact with for a while.  Use these resources if you need them. Just please, please do not give up. There is hope and there is help.

Idaho State Bar Attorney Well-Being Resources & Task Force https://isb.idaho.gov/member-services/programs-resources/attorney-well-being-resources/ Idaho Lawyer Assistance Program Call: (208) 891-4726 24-Hour Hotline: (866) 460-9014 https://isb.idaho.gov/member-services/programs-resources/lap/ Idaho Suicide Prevention Hotline Call: (800) 273-8255 Text: (208) 398-4357 https://www.idahosuicideprevention.org/ National Suicide Prevention Lifeline Call: 1-800-273-8255 https://suicidepreventionlifeline.org/ Lifeline Chat https://suicidepreventionlifeline.org/chat/ En español: 1-888-628-9454 COVID Help Now Line Call or Text (986) 867 – 1073 Toll Free (866) 947 – 5186 https://ioem.idaho.gov/covidhelpnow/ If you are aware of an individual with a disability who may need legal or advocacy assistance, please have them call DRI at 1-800-632-5125 or visit www.disabilityrightsidaho.org.[12]

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Endnotes

[1] Idaho Department of Health and Welfare, Suicide Prevention, available at https://healthandwelfare.idaho.gov/services-programs/behavioral-health/about-suicide-prevention.

[2] Rachel Cohen, Idaho’s Suicide Rate Dropped in the Year Before the Pandemic, Boise State Public Radio, (March 1, 2021, 6:13 AM), available at https://www.boisestatepublicradio.org/news/2021-03-01/idahos-suicide-rate-dropped-in-the-year-before-the-pandemic#stream/0.

[3] Get Healthy Idaho, Suicide Deaths That Occurred in Idaho, Published July 29, 2021, available at https://www.gethealthy.dhw.idaho.gov/idaho-vdrs.

[4] Mental Health America, 2021 The State of Mental Health America, available at https://mhanational.org/issues/state-mental-health-america.

[5] Id.

[6] American Bar Association, “Understanding Secondary Trauma: A Guide for Lawyers Working with Child Victims”, September 10, 2015, available at: https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-34/september-2015/understanding-secondary-trauma–a-guide-for-lawyers-working-with/.

[7] Id.

[8] Idaho State Bar, Attorney Well-Being Resources, available at https://isb.idaho.gov/member-services/programs-resources/attorney-well-being-resources/.

[9] Id.

[10] National Center on Law & Elder Rights, Trauma-Informed Lawyering, available at https://ncler.acl.gov/Files/Trauma-Informed-Lawyering.aspx.

[11] Tahirih Justice Center, A Guide – Adapting Trauma-Informed Lawyering Best Practices During the COVID-19 Pandemic, https://www.tahirih.org/wp-content/uploads/2020/03/Pro-Bono-Guidance-COVID-19_V3.pdf.

[12] Disability Rights Idaho (DRI) is the Protection and Advocacy System for the State of Idaho. This article was made possible by funding support from SAMHSA, U.S. Administration for Community Living, Department of Health and Human Services and DOE-Rehabilitation Services Administration. These contents are solely the responsibility of DRI and does not represent the official views of any federal grantor. 100% of this article was paid for with federal funds.

McKay Cunningham

Latonia Haney Keith

Published November/December 2021

This April, HB 377 was signed into law. The new law aims to ban critical race theory in Idaho public schools.[1] President Trump had previously issued an executive order excluding from federal contracts any diversity training interpreted as containing “Divisive Concepts.”[2] Among the content considered “divisive” was critical race theory.

The debate, both nationally and in Idaho, reveals confusion about critical race theory, which generally provides that racism is a social construct ingrained in American life and laws. Critical race theory is not diversity training but “a practice of interrogating the role of race and racism in society.”[3]

As former law professors and current college educators, we agree with the American Bar Association’s Human Rights magazine, which characterizes the theory as “acknowledging that the legacy of slavery, segregation, and the imposition of second-class citizenship on Black Americans and other people of color continue to permeate the social fabric of this nation.”[4]

Examining the laws and policies of previous decades to identify and remediate racial discrimination is critical to our pluralistic society. Such an examination is not, as Idaho Code now states, “contrary to the unity of the nation and the well-being of the state of Idaho.”[5] We need to know more about our racial history, not less.

For example, many people, even many lawyers, do not know about redlining. Redlining was a discriminatory practice by which banks, insurance companies, and others refused loans and mortgages within specific geographic neighborhoods, based on the racial make-up of those neighborhoods.[6] Redlining was not a social construct—it was not white families choosing to flea to the suburbs or black families choosing to live together in the same neighborhood. Redlining was a distinct federal government policy that had a devastating effect on the ability for people of color to accrue intergenerational wealth.[7]

Redlining policy

In an attempt to stabilize the housing market following the Great Depression, the federal government promoted a relatively new tool aimed at increasing homeownership. The government would fully back the risk that banks incurred when issuing mortgages. Working class Americans didn’t have today’s equivalent of $350,000 stashed under a mattress to buy a home. Banks instead would front 90-100% of the home price because the loans were backed by the federal government.

As part of that effort, the government, first through the Home Owners’ Loan Corporation and then through the Federal Housing Administration, drew maps for over 200 cities to grade the riskiness of lending to neighborhoods. The maps were color-coded using an A to D scale. A was green and deemed “best.” B was blue and labeled “still desirable.”  C was yellow and marked “definitely declining.” And D was red and labeled “hazardous.” Neighborhoods with occupants from communities of color were marked in red — hence the term “redlining” — and considered high-risk for mortgage lenders.[8]

This approach was grounded in the work of two individuals.  The first is Frederick Babcock, who helped start the Federal Housing Administration and who, in his 1932 book The Valuation of Real Estate, proposed a segregationist housing valuation policy.[10]  The second is Homer Hoyt, the first chief housing economist for the Federal Housing Administration, whose 1933 dissertation perfected a system of ranking races and nationalities by order of “desirability” as a means of illustrating their impact on land values.[11]

Babcock and Hoyt are credited with establishing the first Underwriting Manual for the Federal Housing Administration in 1936. The Manual promoted racial segregation by recommending racially restrictive covenants to guarantee the most “favorable condition” for neighborhoods. The Manual stated that deed restrictions should include a “prohibition of the occupancy of properties except by the race for which they are intended,” and that “inharmonious racial groups” and “incompatible racial elements” would devalue a neighborhood.[12]

In New York City, for example, the Federal Housing Administration characterized areas rated D as: “There is a steady infiltration of negro, Spanish and Puerto Rican into the area,” and “colored infiltration is a definitely adverse influence on neighborhood desirability.”[13] Many of these redline maps also included further explanations: “Infiltration of: Negroes” is a common fill-in-the-blank item explaining why a region was deemed hazardous.[14] “Respectable people but homes are too near negro area,” reads a summary for a B-grade neighborhood in Richmond, Virginia.[15]

Put simply, from 1934 to 1968, the federal government made homeownership accessible to a subset of Caucasian people by guaranteeing their loans, but explicitly refused to back loans to people of color or white people who lived near people of color.  Notably, the government pursued this policy without any evidence supporting the notion that property values would decline if people of color bought homes in any given neighborhood.

Redlining in Idaho

The practice of drawing redline maps was not relegated to New York or Chicago or other big cities. It proliferated across the country, including Idaho. A new interactive map available to the public shows redlining across the entire United States.[17] Strangely, Idaho is blank.

We know that redlining occurred in Idaho, and yet there are no easily accessible copies of Idaho’s redlining maps. Local historian and Boise State University professor, Jill Gill, identifies the river district in Boise as previously redlined.[18] Indeed, Professor Gill notes that “the River Street neighborhood was zoned for noise and warehouse and industrial, whereas white neighborhoods were zoned to protect them more.”[19]

Outside anecdotal evidence of redlining in Boise, Pocatello, and other Idaho towns, very little data is publicly available. The maps division at the Idaho Historical Society contains no redlining maps, nor does the U.S. National Archive.

To fill this gap, the College of Idaho has launched a project to find and publish those maps. The project seeks to unearth redlining maps from Idaho’s past, integrating those maps into a platform that allows the public to see those neighborhoods that the federal government boxed out of the housing boom. The platform hopes to include overlaying data, including proximity to fresh food, parks, environmental hazards, medical facilities, food swamps, and more.

Redlining’s relevance

Perhaps the Idaho Legislature would disapprove of this project. Perhaps the Legislature would see the publication of Idaho’s redlining maps as “contrary to the unity of the nation.” After all, redlining was outlawed in 1968 with the enactment of the Fair Housing Act; arguably, it’s relevance today is minimal.

But redlining is not irrelevant today. Its effects are severe and ongoing. As noted previously, redlining had its heyday in the decades following World War Two—a golden era of the American economy. The ability of working-class families to attain middle-class wealth was spurred by federal government programs, like the provision of mortgages with little or no down payment.  With the federal government’s backing, homes were affordable, even for African-American and Latinx working class families.  But the government refused to back their loans.  As housing values shot up during this period, the home equity that white homeowners realized assured them intergenerational wealth—an opportunity denied to communities of color.[20]

It may seem like a small thing, but the connection between homeownership and wealth accumulation is critical. It is one of the few ways that any household, but particularly low or middle-income households, can accumulate wealth and pass that wealth to future generations. Today, the wealth gap that separates whites from communities of color reflects redlining’s continuing impact.  The net worth of a typical white family, $188,200, is nearly eight times greater than that of a black family at $24,100 and more than five times the wealth of a Latinx family at $36,100.[21]

Without access to government backed mortgages, people of color, as well as whites who lived among and near people of color, remained relegated to the rental market. Black, Latinx, and poor white households, for example, are predominately renters rather than homeowners.[22]  The Survey of Consumer Finances shows that the average homeowner has household wealth of $255,000, while the average renter has household wealth of $6,300.[23]

Redlining and Renting

The fragility of rental households will soon be tested. The U.S. Supreme Court recently struck down the federal eviction moratorium imposed by the Centers for Disease Control and extended by the Biden Administration.[24]  Millions of Americans currently face eviction.[25]  The COVID-based moratorium did not excuse unpaid rent; it only delayed it. Idaho tenants, as a result, owe their landlords all unpaid rent, fees, penalties, and/or interest during the period of the moratorium, which extended over 16 months.

To be clear, redlining is not the only cause of a fragile rental market. There is a well-documented housing shortage in Idaho; there are not enough homes for purchase or properties for rent. Simultaneously, Idaho has seen a sharp increase in migration of families with significantly more purchasing power.  “The budget for out-of-town home buyers moving to Boise is 50% higher than locals’.”[26]

In combination, these factors have generated a housing crisis in Idaho.[27] An extensive study of vulnerable Idahoans by the United Way reveals that although Idaho has experienced significant economic growth according to traditional metrics, a full 40% of Idahoans struggle with basic subsistence. “[I]n 2018, 40% of households still struggled to make ends meet. While 12% of these struggling households were living below the Federal Poverty Level (FPL), another 28% were ALICE: Asset Limited, Income Constrained, Employed.”[28]

A home is considered affordable when rent and utilities cost no more than 30% of a household’s income.[29] Statewide, the average rent for a modest two-bedroom home is $903 per month, which is affordable for those who earn $17.36 per hour.[30] But Idaho renters earn an average of $13.62 per hour,[31] and the minimum wage in Idaho is $7.25 an hour.

Of course, the income necessary to live in an affordable rental varies by Idaho county. In both Ada and Canyon counties, the “livable” income is $19.27 an hour, while the average renter wage is $15.67 and $12.11, respectively.[32] Rural counties such as Boise, Owyhee, Kootenai, and Blaine also require a household income above $18 an hour compared with average renter wages of $6.87, $12.32, $13.41 and $14.70, respectively.[33]

Conclusion

Housing disparities stem from several causes. Redlining is just one of them. Awareness of our former laws and policies unveils the causes of our current dilemmas and sometimes reveals avenues of redress. Mixed-use zoning, multi-unit housing, and limitations or even prohibitions on single-family residential zones can facilitate housing opportunities.  Similarly, intentional investment in communities that have historically been sidelined and promoting programs that bolster homeownership opportunities for low-income families alleviate the effects of past prejudices. 

Although the floor debate that lead to HB 377 reflected animosity toward a critical review of historic racist policies, the actual language of the law is more hopeful. In part, Idaho Code 33-138 provides that no public school shall direct students “that individuals should be adversely treated on the basis of their sex, race, ethnicity, religion, color, or national origin.”[34]

Redlining did precisely that.

Identifying the effects of redlining in Idaho and across the country is an important step toward understanding housing disparities and attempting to address them. As a 13-year-old organizer said in response to HB 377, “being taught the country’s complete history, the good and the bad, is not about ‘self-hatred.’ Rather, it’s an important step to being able to correct those wrongs.”[35]

“Make no mistake, this is self-awareness,” she said. “If we aren’t able to recognize our own flaws, we will never be able to progress beyond them.”[36]

---

Endnotes

[1] Idaho Code § 33-138(2) (2021) (“The Idaho legislature finds that tenets outlined in . . . ‘critical race theory,’ . . . exacerbate and inflame divisions on the basis of sex, race, ethnicity, religion, color, national origin, or other criteria in ways contrary to the unity of the nation and the well-being of the state of Idaho and its citizens.”).

[2] Exec. Order No. 13,950, 85 Fed. Reg. 60,683 (Sept. 22, 2020), revoked by Exec. Order No. 13,985, 86 Fed. Reg. 7,009 (Jan. 20, 2021).

[3]  Janel George, A Lesson on Critical Race Theory, 46 Human Rights, no. 2, Jan. 11, 2021, available at https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/.

[4] Id.

[5] Idaho Code § 33-138(2) (2021).

[6] See generally Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017).

[7] See id.

[8] Facing Segregation: Housing Policy Solutions for a Stronger Society (Molly W. Metzger & Henry S. Webber eds., 2018).

[9] Downloads & Data, Mapping Inequality, https://dsl.richmond.edu/panorama/redlining/#loc=5/39.1/-94.58&text=downloads (last visited Sept. 10, 2021).

[10] Frederick M. Babcock, The Valuation of Real Estate (1932).

[11] Homer Hoyt, One Hundred Years of Land Values in Chicago: The Relationship of the Growth of Chicago to the Rise of Its Land Values, 1830–1933 (1933).

[12] Fed. Hous. Admin., Underwriting Manual: Underwriting and Valuation Procedure Under Title II of the National Housing Act (1938).

[13] Facing Segregation, supra note 8.

[14] Camila Domonoske, Interactive Redlining Map Zooms in on America’s History of Discrimination, NPR, Oct. 19, 2016, https://www.npr.org/sections/thetwo-way/2016/10/19/498536077/interactive-redlining-map-zooms-in-on-americas-history-of-discrimination.

[15] Id.

[16] Downloads & Data, supra note 9.

[17] See Mapping Inequality: Redlining in New Deal America (1935-1940), Mapping Inequality, https://dsl.richmond.edu/panorama/redlining/#loc=5/39.1/-94.58 (last visited Sept. 10, 2021).

[18] Idaho Matters, Why Idaho’s Racist History Matters: Part 2, Boise St. Pub. Radio, Aug. 13, 2020, available at https://www.boisestatepublicradio.org/show/idaho-matters/2020-08-13/why-idahos-racist-history-matters-part-2

[19] Id. 

[20] See Rothstein, supra note 6.

[21] Neil Bhutta et al., Disparities in Wealth by Race and Ethnicity in the 2019 Survey of Consumer Finances, FEDS Notes (Sept. 28, 2020), https://www.federalreserve.gov/econres/notes/feds-notes/disparities-in-wealth-by-race-and-ethnicity-in-the-2019-survey-of-consumer-finances-20200928.htm.

[22] Joint Center for Housing Studies of Harvard University, The State of the Nation’s Housing 3 (2021) (finding “differences in homeownership rates between households of color and white households remain substantial” with the Hispanic-white homeownership gap at 23.8 percentage points and the Black-white homeownership gap at 28.1 percentage points).

[23] Fed. Res. Sys., 2019 Survey of Consumer Finances, https://www.federalreserve.gov/econres/scfindex.htm (last updated May 20, 2021).

[24] Ala. Ass’n of Realtors, et al. v. Dep’t of Health and Hum. Services, No. 21A23 (U.S. Aug. 26, 2021) (per curiam).

[25] U.S. Census Bureau, Week 36 Household Pulse Survey: August 18 – August 30 (Sept. 8, 2021), https://www.census.gov/data/tables/2021/demo/hhp/hhp36.html; U.S. Dep’t of Hous. and Urban Dev., Off. of Pol’y Dev. and Res., Census Household Pulse Survey: Key Phase 3 Housing Payment Findings, PD&R Edge (Apr. 26, 2021), https://www.huduser.gov/portal/pdredge/pdr-edge-trending-042621.html (last updated Sept. 1, 2021).

[26] Conor Dougherty, The Californians Are Coming. So Is Their Housing Crisis., NY Times, Feb. 12, 2021 (last updated Jun. 21, 2021). 

[27] See Sally Krutzig, Housing Trend Finally Breaks: Boise-Area Home Prices Drop for First Time in 15 Months, Idaho Statesman, Sept. 9, 2021 (stating that even though median homes prices declined in Ada and Canyon counties by between 1-2 percent in August 2021, “the Treasure Valley market is still far above what it was last year” with an almost 33 percent increase in median home prices since August 2020); Ryan Suppe, Study: ‘Deep and Unrelenting’ Need for Affordable Housing in Boise, Idaho Press, Aug. 25, 2021 (“According to a housing needs analysis by the city of Boise, 67% of renters and 36% of homeowners cannot afford housing the local market is producing”).

[28] United For ALICE et al., ALICE in Idaho: A Financial Hardship Study 1 (2021), https://www.unitedforalice.org/idaho.

[29] Nat’l Low Income Hous. Coalition, Out of Reach: The High Cost of Housing 74-77 (2021), https://reports.nlihc.org/oor.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Idaho Code § 33-138(3)(a)(ii) (2021).

[35] Hayat Norimine, Idaho Legislature Fast-Tracks ‘Critical Race Theory’ Bill Despite Student Protests, The Spokesman-Review, Apr. 27, 2021.

[36] Id.

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.”).              

Laird B. Stone

Idaho State Bar Commissioner

Third and Fifth Districts

Published November/December 2021

When a potential client walks in your door, what does that individual expect?

You need to know that, and whether you can meet those expectations, or you will find yourself in the situation noted by Bennett Cerf (some of the more “seasoned” lawyers will remember him):

“The owner of a corner saloon was sleeping peacefully at 3 o’clock in the morning when his phone rang.  ‘What time does your saloon open?’ asked a drunken voice.

‘Eleven o’clock,’ said the saloon-keeper, and slammed down the phone.

A minute later the bell rang again.  The same voice asked, ‘What time did you say your saloon opened?’

‘Eleven o’clock, damn it,’ roared the proprietor, ‘and you can’t get in a minute before.’

‘Who wants to get in?’ said a very hurt voice.  ‘I want to get out.’ ¹

Clients expect and deserve quality, services they need, and value for their fees.

Keeping these in mind, focusing on them, and performing the work requested will get you to a satisfactory end, but the question is, how do we meet those expectations?

It is done by pursuing excellence, not perfection.  “The search for perfection is illusory and has no end.” ² “Since perfection does not exist, perfectionists are doomed to be perpetually frustrated.” ³ The pursuit of excellence in our work is consistent with achieving the expectations of the client and of a greater benefit to ourselves is reducing the stress in our lives. ⁴

Then how do we pursue the excellence to achieve our client’s desires?  Start by reviewing the Idaho Rules of Professional Conduct beginning with the Preamble §§ 2, 4, and 8.  These recognize the dual duty of representing your client and the honest treatment of and dealings with other lawyers and the legal system.  Then review Rules 1.1 through 4.4 which clearly define our roles, what we as lawyers should do with our clients, and how we interact with all the representatives of the legal system.

Now that you have refreshed yourself on what is expected of you as a professional, look at it from the client’s perspective.  If you were the client, would you be satisfied with the service that had been provided to you?  It really becomes as simple as the old saying, “Put yourself in their shoes.”  If the answer is no, be honest with yourself and your client.  Take the steps to satisfy the client’s expectations or refer them to someone else.  If the answer is yes, then you have done your job.

If you were the client, would you be satisfied with the service that had been provided to you?

If you as a lawyer have an underlying belief in meeting a client’s expectations, they will see that in your actions.  This also will bring personal satisfaction to you, and you will have satisfied clients who appreciate you and are willing to pay the fee you deserve.

A well-known attorney said, “I do the very best I know how; the very best I can; and I mean to keep doing so until the end.  If the end brings me out alright, what is said against me won’t amount to anything.  If the end brings me out wrong, ten angels swearing I was right would make no difference.”⁵

Also, you won’t be calling the bar owner at 3 in the morning.

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Endnotes

1. Bennett Cerf’s Vest Pocket Book of Jokes for all Occasions (1956).

2. Alan Dershowitz, Letters to a Young Lawyer (2000) at 77-78.

3. Amiram Elwork (with contributions by Douglas R. Marlow), Stress Management for Lawyers: How to Increase Personal and Professional Satisfaction in the Law 139 (2^nd Edition 1997) 153.

4. For an outstanding book on stress see Lawyers Life: Finding a Life and a Higher Calling in the Practice of Law, Carl Horn, III (2003).

5. Abraham Lincoln.

Charles L. Baum II, Ph.D.

Published June/July 2022

The United States Supreme Court during its 2019-2020 term reviewed several employment termination cases to determine whether the Civil Rights Act protects workers based on sexual orientation[1] and gender identity.[2]  The Supreme Court determined (in Bostock v. Clayton Cty., Ga., No. 17-1618 (June 16, 2020)) that protections extend to these workers. This will likely make economic damage awards in employment cases more prevalent. Federal courts already awarded damages for economic losses from wrongful employment terminations due to discrimination based on gender, race, national origin, and religion under Title VII of the Civil Rights Act, age through the Age Discrimination in Employment Act (ADEA), disability through the Americans with Disabilities Act (ADA), and pregnancy through the Family and Medical Leave Act (FMLA). 

This article reviews methods used to calculate economic losses and evaluates whether these approaches are acceptable under federal statutes and Ninth Circuit case law.  Eight key elements are examined. 

Lost earnings

Economic losses from lost earnings are awardable in federal employment termination cases to make wrongfully terminated workers whole.[3]  Damages for both back pay (lost earnings from the time of the termination to trial)[4] and front pay (lost earnings after the trial)[5] are available, though reinstatement is available as a substitute remedy that may be preferred to front pay.[6]  Front pay should be the monetary equivalent of reinstatement.[7] Awards for lost pay in termination cases should be calculated as the amount the plaintiff would have earned absent the termination with the amount actually earned or that could have been earned after the termination deducted.[8]

Economic loss calculations have been based on the worker’s average earnings over the several years prior to the termination or on earnings at the time of the termination.[9]  This information is likely reported on income tax returns, w-2 forms, and pay stubs.[10]  When this information is not available, or when past earnings is not believed to be an accurate reflection of lost front pay, occupation-specific average earnings from the Bureau of Labor Statistics for each state and metropolitan area may be considered.[11]

Fringe benefits

Many workers prefer to receive a portion of their compensation in the form of fringe benefits.  According to the Bureau of Labor Statistics, currently the average employer cost of fringe benefits for private-sector workers is 29.9 percent of total compensation and the average employer cost for public-sector workers is 37.7 percent of total compensation.[12]  Common fringe benefits include insurance, retirement, and government-mandated benefits.  The monetary value of a worker’s fringe benefits could be measured by the terminated worker’s cost to replace them in the market or as the employer’s cost to provide them.[13] These amounts will differ when employers receive group rates or when benefits through employers are tax deductible.  Lost fringe benefits are typically awardable as economic losses in federal employment cases.[14]  However, in the Ninth Circuit, health and life insurance are valued as out-of-pocket replacement costs incurred by the terminated plaintiff, rather than the cost of the premiums to the terminating employer.[15] If the terminated worker did not replace the lost health insurance, then the medical costs while uninsured that would have been paid by the defendant’s insurance plan are awardable.[16]

Worklife projections are published in tables by economists based on government survey data and are functions of the probability of being alive, able to work, and in the labor force.

Worklife expectancy

Courts must determine the appropriate period over which to calculate losses when awarding damages for lost front pay.  In the Ninth Circuit, this should be “temporary in nature”[17] and should not be “an annuity to age 70.”[18]  The Ninth Circuit otherwise provides no stipulations for the duration of lost front pay.  Three approaches have been used.  First, courts have considered the period to common retirement ages, such 62, 66, or 68 years.[19] The Social Security Normal Retirement Age, which is the age one first becomes eligible to retire and receive full retirement benefits, has historically been 65 years, but it increases by 2 months for each year from 1938 to 1943 and from 1955 to 1960 after 1937 in which an individual was born, up to a maximum of 67 years for those born in 1960 or thereafter.  Second, courts have used worklife projections.[20]  Worklife projections are published in tables by economists based on government survey data and are functions of the probability of being alive, able to work, and in the labor force.[21]  Worklife projections are provided for each age and separately by gender, race, education, and labor force status (e.g., for those employed and for those unemployed).  Third, courts have used fixed post-trial periods (e.g., 3 or 11 years).[22]

Mitigating factors

Those who are injured are typically expected to take action to limit damage.  Federal courts require terminated workers to attempt to minimize their losses by finding another job in employment cases.[23]  In turn, courts have awarded economic damages for the difference in what earnings are projected to have been absent the termination and actual or projected earnings given the termination.[24]  Terminated workers are required to use diligent effort to find reasonably comparable employment.[25] However, they need not “go into another line of work” or “accept a demotion.”[26] In the Ninth Circuit, damage awards for lost back and front pay are not forfeited by a failure to mitigate, but they should be reduced by what the plaintiff could earn with reasonable mitigation efforts.[27]  The burden to prove the plaintiff did not adequately mitigate damage resides with the defendant.[28] In the Ninth Circuit, the defendant must prove both the availability of substantially equivalent positions the plaintiff could have obtained and that the plaintiff did not use reasonable diligence seeking them.[29]

Terminated workers may receive income or benefits from collateral sources.  If deducted, then the collateral benefits may become a windfall for the wrongdoer.  If not deducted, then the plaintiff may receive a double recovery.  Just the opposite, it would seem consistent for a payment from a fund financed by the defendant employer to be credited against any liability.[30]  Federal courts in most circuits have wide discretion to deduct collateral benefits in employment cases.  For example, in the Ninth Circuit, unemployment benefits have been deducted in some employment cases—with the court maintaining the discretion to apply the collateral source rule[31]—but not in other cases.[32]

Growth rates

Economic theory predicts wages will grow over time, with price inflation and labor productivity, and over a worker’s career, with on-the-job training and work experience.  Federal courts have awarded economic losses for lost front pay with wage growth incorporated.[33]  Courts have based wage growth on the rate of past raises and salary increases, shown on tax returns.[34]  Historical rates of wage growth can be calculated from data provided by the Bureau of Labor Statistics.  Their Current Employment Survey provides wage information for production and non-supervisory workers and their Employment Cost Index does so for civilian workers.[35]  Future wage growth forecasts are provided by economists for the Economic Report of the President, the Congressional Budget Office, and the Social Security Advisory Board.[36]  Ninth Circuit courts have not made any adjustments for wage growth absent evidentiary support.[37]

Discounting to present value

Federal courts direct future losses to be discounted to present value[38] so that a lump-sum damage award when invested by the terminated worker will grow to the amount of the future loss when that loss would have occurred.  This is necessary because invested money earns interest. 

Courts in federal employment cases have used three methods for present-value discounting. The ‘case-by-case’ method uses separate and independently-determined rates for future wage growth and present-value discounting. The ‘below-market’ discount method uses a market interest rate on investments otherwise used for discounting, adjusted for the taxes that would be paid on investment earnings, minus the rate of general price and wage inflation as measured by the Consumer Price Index.  The ‘total offset’ method uses the same rate for wage growth and present-value discounting such that the two cancel each other out, resulting in no explicit adjustments for either.  The Ninth Circuit does not specify a rate for present-value discounting, and any of these approaches may be used.[39]

Courts in federal employment termination cases indicate the interest rate to use for present-value discounting should be one on “the best and safest investments,”[40] but no further guidance is provided.  Interest rates are higher on riskier investments, all else equal, to compensate investors for assuming risk.  Interest rates are also higher, all else equal, on investments with longer maturities, because risk (or uncertainty) increases with time.  Many consider short-term government treasuries to be the investment closest to being risk-free.  Treasury bills are securities with a maturity of a year or less, while treasury notes have maturities of more than 1 year, but less than 20 years, and treasury bonds have maturities of 20 or more years. 

Interest rates for discounting could be based on historical averages, the current rate, or a forecast of future rates.  Information on historical and current rates is available from the Federal Reserve Bank.[41]  Reasonable periods for historical averages may be 20 or 30 years.  Alternatively, a past period equal to the length of the future period over which lost front pay is projected may be appropriate for historical averaging.  Current rates indicate the amount of interest that can be earned on investments made today but may not represent future rates. Future interest rates are forecasted by economists for the Economic Report of the President, the Congressional Budget Office, and the Social Security Advisory Board.[42]

Pre-judgment interest

According to the economic theory for the time-value of money, increasing past losses for interest is the mirror image of discounting future losses for interest.[43]  Courts in the Ninth Circuit retain discretion to include pre-judgment interest for the lost use of back pay in economic damage awards.[44]  This is part of the process of making wrongfully terminated workers whole, because their lost pay if invested could have grown with interest. Federal statutes do not define the rate to use to calculate pre-judgment interest.  The court in the Ninth Circuit also retains discretion over the rate to use for pre-judgment interest.[45] Although different interest rates have been used, including state statutory rates and the IRS rates in 26 U.S.C. § 6621, the Ninth Circuit prefers the federal post-judgement rate specified in 28 U.S.C. § 1961—the rate on 52-week treasury bills.[46]

Tax adjustments

The U.S. Supreme Court has ruled that awards for economic damages in employment termination cases are taxable as income.[47] However, the tax owed on an award for economic losses may be different than the taxes that would have been paid on the earnings when otherwise received. First, a lump-sum payment if sufficiently large may move the terminated worker into a higher federal income tax bracket during the award year.[48]  Second, payroll or FICA taxes for Social Security and Medicare may not be owed on income from a damage award but would have been owed on earnings from employment.[49]  Third, worker contributions toward many fringe benefits, such as health insurance, are tax deductible but a damage award for lost fringe benefits will be taxed as income. 

The Ninth Circuit has recently joined several other federal circuits in leaving tax gross-ups to the discretion of the court, to make the plaintiff whole, after previously not authorizing compensation for tax differentials.[50] In other federal circuits, the plaintiff bears the burden of quantifying the needed tax adjustment, which can be satisfied with testimony from an economist.[51]

Conclusions

Attorneys and their clients likely must address eight key elements when calculating economic damages from wrongful employment terminations in federal cases.  This review is designed to provide a survey of the methods available to use in those calculations.  It also identifies which of these approaches have been used by federal courts and are permissible in the Ninth Circuit.  Since the U.S. Supreme Court has determined that Title VII protections provided by the Civil Rights Act extend to sexual orientation and gender identity, the methods outlined in this review can be applied to a new set of employment termination cases.

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Endnotes

[1] Zarda v. Altitude Express, Inc.,883 F.3d 100, 106(2d Cir. 2018); Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 Fed. Appx. 964 (11th Cir. 2018).

[2] Equal Emp’t Opp. Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 574 (6th Cir. 2018)

[3] Albemarle Paper Co. v. Moody,422 U.S. 405, 418 (1975).

[4] Id.

[5] Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1346 (9th Cir. 1987).

[6] Thorne v. City of El Segundo,802 F.2d 1131, 1136 (9th Cir. 1986).

[7] Traxler v. Multnomah Cnty., 596 F.3d 1007, 1012 (9th Cir. 2010).

[8] Gotthardt v. Nat’l R.R. Passenger Corp.,191 F.3d 1148, 1158 (9th Cir. 1999).

[9] Velasco v. Broadway Arctic Circle, LLC, No. 4:11-cv-00102-BLW, 2012 WL 2505291, at *4 (D. Idaho June 28, 2012).

[10] Kelly v. Am. Standard, Inc.,640 F.2d 974, 985 (9th Cir. 1981).

[11] Bureau of Labor Statistics.  (2019). “Occupational Employment Statistics.”  Washington, D.C., U.S. Bureau of Labor Statistics: http://www.bls.gov/oes/tables.htm.

[12] Bureau of Labor Statistics.  (2019).  “News Release.”  U.S. Department of Labor, Employer Costs for Employee Compensation – September 2019.  Washington, D.C.: U.S. Bureau of Labor Statistics: https://www.bls.gov/news.release/pdf/ecec.pdf.

[13] Galindo v. Stoody Co., 793 F.2d 1502, 1517 (9th Cir. 1986).

[14] Cassino,817 F.2d at 1348.

[15] E.E.O.C. v. Farmer Bros. Co.,31 F.3d 891, 902 (9th Cir. 1994).

[16] Id.

[17] Cassino, 817 F.2d at 1347.

[18] Gotthardt,191 F.3d at 1157.

[19] Velasco,2012 WL 2505291, at *4.

[20] Jadwin v. Cnty. of Kern,No. 07-CV-0026-OWW-DLB, 2010 WL 1267264, at *11 (E.D. Cal. Mar. 31, 2010).

[21] Gary R. Skoog, James E. Ciecka, & Kurt V. Krueger, “The Markov Process Model of Labor Force Activity: Extended Tables of Central Tendency, Shape, Percentile Points, and Bootstrap Standard Errors,” Journal of Forensic Economics, 22 (2): 165-229 (2011).

[22] Traxler,596 F.3d at 1014.

[23] Ford Motor Co. v. E.E.O.C.,458 U.S. 219, 231 (1982).

[24] Cassino,817 F.2d at 1345.

[25] Jackson v. Shell Oil Co., 702 F.2d 197, 201 (9th Cir. 1983).

[26] Ford Motor Co.,458 U.S. at 231.

[27] Thorne,802 F.2d at 1137.

[28] Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995).

[29] Id.

[30] McLean v. Runyon, 222 F.3d 1150, 1155 (9th Cir. 2000).

[31] Naton v. Bank of California,649 F.2d 691, 700 (9th Cir. 1981).

[32] Kauffman v. Sidereal,695 F.2d 343, 347 (9th Cir. 1982).

[33] Cassino,817 F.2d at 1347.

[34] Kelly,640 F.2d at 985.

[35] Bureau of Labor Statistics. (2019). “Current Employment Survey, Employment, Hours, and Earnings of Production and Nonsupervisory Employees.” Washington, D.C., U.S. Bureau of Labor Statistics: http://data.bls.gov/pdq/SurveyOutputServlet (Databases, Tables, and Calculators by Subject). See also Bureau of Labor Statistics. (2019). “Employment Cost Index, Historical Listing – Volume 5.”  Washington, D.C., U.S. Bureau of Labor Statistics: https://www.bls.gov/web/eci/ecicois.pdf (Table 8).

[36]  Chairman of the Council of Economic Advisers.  (2019).  “Economic Report of the President, March 2019.”  Washington, D.C.: Government Publishing Office. See also Congressional Budget Office. (2019). “An Update to the Budget and Economic Outlook: 2019-2029.” (August 2019 Update); Social Security Trustees Report.  (2019).  “2019 OASDI Trustees Report.”  Washington, D.C.: Social Security Administration, 2016 OASDI Trustees Report, Economic assumptions and Methods, Tables V.B1 and V.B2.

[37] Traxler,596 F.3d at 1014.

[38] Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533 (1983).

[39] Gauthier v. Eastern Oregon Corr. Inst.,No. CIV 04-290-SU, 2006 WL 2728957, at *4 (D. Or. Sept. 22, 2006).

[40] Jones & Laughlin Steel Corp.,462 U.S. at 537.

[41]  Board of Governors of the Federal Reserve System. (2019). “Economic and Research Data.” https://www.federalreserve.gov/econresdata/default.htm (Selected Interest Rates – H.15).

[42]  Chairman of the Council of Economic Advisers, 2019; Congressional Budget Office, 2019; Social Security Trustees Report, 2019.

[43] Arnold v. Pfizer Inc., No. 10-cv-01025-AC, 2015 WL 1262775, at *1 (D. Or. Mar. 18, 2015).

[44] Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (9th Cir. 1984).

[45] W. Pac. Fisheries, Inv. v. SS President Grant,730 F.2d 1280, 1288 (9th Cir. 1984).

[46] Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620, 628 (9th Cir. 2007).

[47] United States v. Burke, 504 U.S. 229 (1992).

[48] Clemens v. Centurylink Inc.,874 F.3d 1113, 1116 (9th Cir. 2017).

[49] Burke,504 U.S. at 231.

[50] Clemens,874 F.3d at 1116.

[51] Eshelman v. Agere Systems, Inc.,554 F.3d 426, 441 (3d Cir. 2009).

Leslie M.G Hayes

Emma C. Nowacki

Published June/July 2022

It takes tremendous courage for a transgender employee to make the decision that he, she, ze,[1] or they is ready to come out in the workplace.  This article is intended to help employers and their attorneys navigate the legal issues presented once a transgender employee is ready to present at work consistent the employee’s gender identity.

Studies show that 77% of employed transgender individuals take steps to actively hide his/her/their identity to avoid mistreatment at work. This mistreatments manifests in many forms, including delaying gender transition, living as his/her/their true gender identity only outside of work, refraining from asking employers or coworkers to use correct pronouns, or quitting employment.[2]  A transgender individual may feel compelled to hide his/her/their true gender because of a feeling that he/she/they is “socially devalued” or may be subject to discrimination or harassment in the workplace.[3]  Creating a work environment that respects all individuals is not only important for recruitment and retention, but it is also required by Title VII of the Civil Rights Act of 1964.  This article will examine discrimination under Title VII, help you to learn the correct terminology, and provide a useful series of considerations to help navigate a transitioning employee. 

Discrimination on the basis of sex is protected by Title VII

In Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the United States Supreme Court held that Title VII prohibits discrimination against an employee based on sex, which includes being homosexual or transgender.  The court reasoned that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.  That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex, which is expressly prohibited under Title VII.”[4]

The Court reasoned that where an employer fires an employee because her gender identity is female but her sex assigned at birth was male, and the employer retains an employee whose gender identity is female and sex assigned at birth is female, then “the employer intentionally penalizes a person” based on the individual’s sex. “[T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge of the decision.”[5] 

With the Supreme Court’s recognition that this type of discrimination is covered under Title VII, employment attorneys must ensure their clients are aware of what this means.  In order to create a legally compliant work environment for all employees, it is recommended that employers conduct regular trainings addressing the respectful workplace.  This training should include at a minimum what is required under the law and what is expected under an employer’s respectful workplace policy.  Employers should consider updating respectful workplace policies to accurately reflect the law, including that discrimination based on gender expression or gender identity is a violation of Title VII and the employer’s policy.

Educate your Workforce and Learn the Terminology

Before you are ready to help an employee navigate the process of coming out in the workplace, it’s important to make sure that everyone in human resources and upper management has been educated on the topic of transgender rights. It is also important to educate your workplace on proper terminology and what it means.

There are plenty of resources to provide for that education, one of which is the Human Rights Campaign.[6] Let’s start with a few terms that we’ve used already.  The term “gender” is one’s innermost concept of self as male, female, or a blend of both or neither.  This is how individuals perceive themselves and what they call themselves.  One’s gender identity can be the same or different from their sex assigned at birth.   We all have a gender identity. 

Next, the term “transgender” is an umbrella term for people whose gender and/or gender expression is different from cultural expectations based on his/her/their assumed gender at birth. “Coming out” is the term used to describe the process in which a person first acknowledges, accepts, and appreciates their sexual orientation or gender identity and begins to share it with others. “Outing” someone is sharing an individual’s sexual orientation or gender identity without permission.  Outing an individual in a workplace can result in legal hazards, particularly if it leads to harassment or discrimination.

Finally, “gender expression” is the external appearance of one’s gender, usually expressed through behavior, clothing, and body characteristics or voice, which may or may not conform to socially defined behaviors and characteristics associated with being either masculine or feminine.  We all have a form of gender expression.  Long before Bostock, discrimination based on one’s gender expression was considered a violation of Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that discrimination against a woman based on her masculine gender expression was a form of discrimination under Title VII.  Price Waterhouse was used in two other circuits prior to Bostock to hold that Title VII also protects transgender employees.[7]

There are multiple other terms an employer must necessarily understand, including, but not limited to, gender-expansive, gender-fluid, genderqueer, non-binary, transitioning, cis-gender, deadname, and gender dysphoria.  If as you are reading this article and these terms are unfamiliar, it may be worthwhile to familiarize yourself with them so that you are prepared when a client brings them up.  Understanding this terminology will help an employer educate the workforce and create inclusion so that all employees may experience the safe and respectful workplace that he/she/they deserve.

You Have an Employee Ready to Come Out – What do you do?

Navigating the Initial Conversation – An Information Gathering Session: First and foremost, the employee should be reassured that the company will be supportive as he/she/they come out to the workforce as transgender or start the transition process. There are certain topics that should be covered in the initial conversation, such as the employee’s pronouns and what name the employee uses.  An employer should also determine whether an employee will legally change his/her/their name for the purpose of payroll and insurance benefits.  However, it should be made clear that there is no requirement to legally change the employee’s name at work.[8] If an employee informs the employer that the employee would like to use a different name, the employer should inquire if the employee would like to update business cards, email address, door name, etc.  An employee may also want to update his/her/their professional business photograph.

Another important topic to discuss is who the employee would like to share his/her/their news within the workforce.  Some employees may prefer to come out to only a limited workgroup; some may want to come out to the entire office.   You’ll also want to address the timing of the announcement and confirm who the employee is comfortable with you sharing the information so that you do not out an employee who is not ready.

Finally, you’ll want to discuss bathrooms and provide the employee with assurances that the organization permits all employees – not just transgender employees – to use the restroom that is most appropriate for him/her/them.[9] When any individual starts work at an office, HR does not assign him/her/them a bathroom.  An employee may use the bathroom most appropriate for the employee.

Communicating Transition to the Workgroup:  When communicating the transition to the workgroup, the most important aspect is to set the expectation for other employees without including extraneous information. A sample announcement email should be straightforward and to the point, and the employee must approve the language in the email.  For example:

Our employee, John Doe,[10] has changed her name to Jane Doe.  She is a transgender female[11] and she uses the pronouns she/her/hers.  Her right to a respectful workplace is not only covered under Employer’s respectful workplace policy, but it is also protected under Title VII of the Civil Rights Act.  I know you will join me in providing a warm welcoming workspace for Jane.

Depending on the culture within the organization, the employer may also want to include additional information on the expectation, including what may happen if an employee violates the employer’s respectful workplace policy or the law.  For example:

While we have never permitted discrimination on the basis of sex, including transgender status, I want to make clear that discrimination for any protected reason, including any sex-based discrimination, will not be tolerated, and will be subject to discipline, up to, and including termination.

While the transgender employee may prefer a more personal email that includes additional details, it is recommended that the organizational email simply set the expectation and give the necessary information, including pronouns and name.  If the transgender employee desires to send an email with additional information or prefers to make an announcement on his/her/their own, he/she/they may do so from his/her/their employer email address.[12]

How to Handle Mistakes[13]: After the employee comes out, mistakes may happen – both in name utilization and mis-gendering.[14]  While these mistakes might seem innocuous, they can cause significant distress for the employee and make him/her/them feel unsafe in the workplace.  The transgender employee may feel any range of emotions including embarrassment, rage, anger, or minimization, while the mistaken employee may feel embarrassed, sad, upset, or dismissive.  The most important thing a mistaken employee can do when mistakes happen is (1) quickly apologize; (2) quickly correct; and (3) move on.[15]  Employees can prevent future mistakes by practicing both name and pronoun utilization in his/her/their head or by concentrating while speaking with the transgender employee.  Courts have found that repeatedly mis-gendering an employee may be sufficient to support a claim for a hostile work environment and discrimination.[16]

Another important topic to discuss is who the employee would like to share his/her/their news within the workforce.  Some employees may prefer to come out to only a limited workgroup; some may want to come out to the entire office.

Sick or Medical Leave: Under the Family Medical Leave Act (“FMLA”), an employee may be able to take time off for medical needs related to transitioning or for treatment related to transgender status (example: depression or gender dysphoria).

As it relates to the where a transgender employee is in the medical-transition process, it is completely inappropriate for any employer or employee to inquire about another employee’s anatomy.  While an employer may require medical verification pursuant to an employee’s request for leave and/or an accommodation under FMLA and the ADA, it is inappropriate for an organization to share medical information of an employee.  If an employer shares medical information of an employee, it may be a violation of FMLA, ADA and/or Title VII. 

Interplay with Religious/Free Speech Rights: There may be instances where one employee’s religious beliefs or free speech rights conflict with a transgender employee’s rights.   In Meriwether v. Hartop, 992 F. 3d 492 (6^th Cir 2021), a professor of philosophy believed that God created human beings as either male or females and that sex is fixed in each person from the moment of conception.  Because of his religious beliefs, he refused to call one of his students a pronoun that he did not believe was consistent with the sex assigned to that student at birth.  Ultimately, he was subject to discipline by the university and filed a complaint alleging that the school violated his free speech and free exercise rights.  The Sixth Circuit reversed the lower court’s granting of the university’s motion to dismiss the complaint, explaining that the plaintiff had plead a plausible claim for relief that the school violated his free speech, and that the school’s pronoun policy was not religiously neutral.[17] On April 14, 2022, the university settled with Meriwether for $400,000 in damages and legal fees.[18]

It is not known yet how Idaho or the Ninth Circuit will view conflicts between an employee’s gender expression/identity with another employee’s free speech or religious beliefs, but it may be necessary for an employer to explore and provide an accommodation for an employee who refuses to use a particular pronoun for a particular individual.

Interplay with clients: An employer should also be prepared for the unfortunate event of a client who treats a transgender employee with disrespect or refuses to work with a transgender employee.  When a client displays disrespect or even refuses to work with a transgender employee because that employee is transgender, the employer must ensure that the employee is not being discriminated against by being denied workplace opportunities.  Employers are liable for discrimination or harassment caused by customers of the employer regardless of the employee’s transgender status.[19]  A transgender employee is entitled to the same treatment as all other employees.  

Conclusion

Creating an inclusive and respectful environment in the workplace is the first step in ensuring that the workplace complies with Title VII under Bostock.  Education is a key component in ensuring that human resources and management can navigate the sensitive practice.  Finally, the most important component may be patience as an employer and employee work through the processes of these dynamic workspaces in a respectful, nondiscriminatory manner.  

---

Endnotes

[1] Neo-pronouns are gender inclusive pronouns – i.e., not gender specific pronouns.  An example of neo-pronouns are ze/hir/hirs.  Pronouns | Gender Identity/Expression and Sexual Orientation Resource Center at WSU found at https://thecenter.wsu.edu/education/pronouns (last accessed April 15, 2022).  Neo-pronouns are usually used at the request of the individual.

[2] Christian N. Thoroughgood, Katrina B. Sawyer, and Jennica R. Webster, Creating a Trans-Inclusive Workplace, Harv. Bus. Rev., March-April 2020, found at https://hbr.org/2020/03/creating-a-trans-inclusive-workplace (last accessed April 15, 2022).

[3] Id.

[4] Bostock v. Clayton County, 140 S.Ct. 1731, 1742 (2020)

[5] Id. at 1741-42.

[6] https://www.hrc.org/resources/glossary-of-terms (last access April 11, 2022).

[7] Smith v. City of Salem, 378 F. 3d 566 (6th Circ. 2004); Glenn v. Brumby, 663 F. 3d 1312 (11th Circ. 2011).

[8] There can be any number of reasons an employee does not want to legally change his/her/their name, including that the name change process is a public process, which requires publication in a local paper stating the reason for the name changes.  See I.C. § 7-803.

[9] While not all entities are OSHA-covered entities, OSHA has guidance that provides “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  https://www.osha.gov/sites/default/files/publications/OSHA3795.pdf (last accessed April 15, 2022).

[10] Not all employees are comfortable using his/her/their deadname.  If the employee does not want to use his/her/their deadname as a point of reference as to who the email is about, consider other identifying details, including job title or function within the organization.  Example: “Our staff attorney, Jane Doe, wanted us to share that she uses she/her pronouns . . .”

[11] While some employees will want to share his/her/their transgender status, not all employees are comfortable with that level of detail.  This is why it is important for the employee to approve the language within the announcement.

[12] An organization that does not regularly share personal information company-wide about employees (i.e., divorces, children, living arrangements, marriages), should not share similar personal information for transgender employees.  If your organization regularly distributes “welcome emails” about new employees, it would be appropriate to craft a similar email for the transgender employee, but ensure the employee approves the language and any photos that are included.

[13] It should be cautioned that there is a difference between a mistake and purposefully mis-gendering an employee.  The failure to correct the behavior by management could lead to a hostile work environment or discrimination claim.  See Doe v. Triangle Doughnuts, LLC, 472 F.Supp.3d 115 (E.D. Pa 2020); see also Eller v. Prince George’s County Public Schools, 2022 WL 170792 (D. Md. January 14, 2022).

[14] Mis-gendering is “[t]he act of gendering someone incorrectly.  This often involves using gendered words that are inappropriate or the wrong pronouns.”  Style Guide – Trans Journalists Association found at https://transjournalists.org/style-guide/ (last accessed at April 15, 2022).

[15] Christian N. Thoroughgood, Katrina B. Sawyer, and Jennica R. Webster, Creating a Trans-Inclusive Workplace, Harv. Bus. Rev., March-April 2020, found at https://hbr.org/2020/03/creating-a-trans-inclusive-workplace (last accessed April 15, 2022).

[16] Doe, 472 F.Supp.3d 115; Eller, 2022 WL 170792.

[17] A California Court made a similar finding based on a law that “prohibits staff members of long-term care facilities from willfully and repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and the pronoun.”  Taking Offense v. State, 66 Cal. App. 5th 696, 702 (Ct. App. Cal. 2021).  The Court found that the statute was a content-based restriction on speech that could not survive strict scrutiny.  Id. at 706.

[18] Shawnee State University to pay professor $400K in pronoun lawsuit settlement: NPR found at https://www.npr.org/2022/04/20/10*36601721/shawnee-state-university-lawsuit-pronouns (last accessed April 21, 2022)

[19] Christian v. Umpqua Bank, 984 F.3d 801, 810 (9th Cir. 2020).