Category: Digital Advocate

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]

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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.

---

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.

---

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.

---

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.  

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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).

Anne E. Henderson

Published June/July 2022

“I’m not done yet”

–Hon. Candy W. Dale

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The Honorable Candy W. Dale was chosen for appointment to the federal bench in 2008. At the time, she had a busy civil litigation practice. She had a reputation as a dedicated advocate for her clients and as an effective trial lawyer. Since donning the black robe on March 30, 2008, Judge Dale has served the District of Idaho with distinction—both in her capacity as a U.S. Magistrate Judge and through her numerous appointments to the service of the District of Idaho, the Ninth Circuit, and the federal judiciary.

I have known Judge Dale since August 2016, when I applied to be a law clerk in her chambers. I had my application in with her while participating in the University of Idaho College of Law’s Trial Advocacy program. Judge Dale was there as a trainer. Luck shined on me and she offered me the job. After joining Judge Dale’s chambers, I quickly learned her service to the College of Law that summer was not rare, but a regular occurrence. I also learned of her incredible work ethic, her whip smart intellect, and the care she took to thoughtfully reach each decision she made.   

This March, just weeks before her retirement and transition to recall status, I had the opportunity to return to chambers for a conversation with Judge Dale. Our discussion ranged from her early days as a judge, her reflections of the impact of technology on the administration of justice, and her personal highlights from her fourteen years on the bench.

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Q: Why did you decide to put your “hat in the ring” to be considered for the U.S. Magistrate Judge position?

Judge Dale: As a lawyer, I had the privilege of serving on the Advisory Council for the Ninth Circuit. At that time, we reported to Chief Judge Schroeder (Mary Schroeder was the Chief Judge of the Circuit). I had also been on court committees for the District of Idaho and was a community board member for the Federal Defenders. I had familiarity with the policy-making aspects of the Federal Courts. And, I was also very active as a trial attorney in federal court. So, I had exposure and association with the judges and thought that I might be able to do the job.

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Q. Was there something particular about becoming a judge that appealed to you?

Judge Dale: Being on the other side of the litigation and being an advocate to the process and the procedure as opposed to being an advocate for one of the parties.

The transition to the other side does take rewiring. One aspect that was shocking to me was how immediate the level of respect for the person [judge] is reflected in everyone that you are surrounded by. Especially in terms of the court employees and the members of the bar. Once you put on the “black dress” it’s a little overwhelming because to a certain extent, your identity is transformed. You are a judge—and that carries a whole new level of meaning.

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“Once you put on the “black dress” it’s a little overwhelming because to a certain extent, your identity is transformed. You are a judge—and that carries a whole new level of meaning.”

Q. Can you remember anything from your first day at the Courthouse?

Judge Dale: I remember a lot. I picked a jury for Judge Winmill[1] the very first afternoon. Right around the lunch hour, Judge Williams[2] administered the oath to me (there is a photo on my refrigerator of that first day).  My family was also there. And I remember Judge Lodge[3] saying, “just remember you are in charge.”  At 1:30 p.m. I walked into the courtroom and presided over jury selection for a two defendant felony jury trial. We got the jury seated that day, but it wasn’t until early evening because there was a Batson[4] challenge. What I can’t believe, in hindsight, is that the defendants consented to me conducting the jury selection and the attorneys for the defendants knew  it was my first day. 

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Q. You were a litigator before you took the bench in 2008. In what ways did that experience inform your work as a judge?

Judge Dale: In several ways. It allowed me to appreciate how difficult it is to be a trial attorney. I had (and continue to have) a level of appreciation for what the attorneys who are appearing in court go through. Not only in preparing for the appearance but also what is at play when they are in the courtroom. I think that was a benefit. I also had some insight and appreciation for what the attorneys have to address with regard to their clients—things like keeping clients informed and aware of what is going on and how to manage a so-called “difficult” client.

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On writing decisions:

Judge Dale: I like to write the decision so it is understood. It may not be agreed with, but I want it to be understood by the attorneys, the clients, and the public. And that probably comes from my time as an attorney when I got decisions that I didn’t understand and then had difficulty informing my clients about. 

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Q. How has the experience of being a judge changed from the time you took the bench in 2008 to today—a span of 14 years?

Judge Dale:  The increase in the workload is definitely there. The workload translates into the fact that it is more difficult to make the time to really think through the issues.

In the criminal area we also have to keep up with technology related to search warrant requests—and the law that is changing in that area.

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On the impact of social media:

Judge Dale: There has also been change regarding technology and the impact of social media. I don’t think you can ignore social media and the impact it has both on what we see filed with the court (briefs) and the impact it has on jurors. I think that the overload of information and disinformation—is overwhelming. It has crept into advocacy more so than ever.

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On the overload of information and disinformation:

Judge Dale: It is more difficult for the judiciary to maintain the public’s confidence. That is what really concerns me. Not to be political, but when we have justices put on the U.S. Supreme Court from a partisan perspective, it concerns me regardless of the political bent. I agree with Justice Roberts who said we are not “Obama judges” and we are not “Bush judges.” I think it is largely the influence of social media and the other branches of the government that rely on social media to support their cause. Social media has changed a lot about the role of the judiciary and the responsibility of the judiciary, and the same with regards to lawyers.

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Q. What has been the most challenging aspect of the work of a United States Magistrate Judge? Particularly in the District of Idaho?

Judge Dale: Resisting the urge to express my opinion. You can do that more readily when you are a lawyer. I am more restrained in social settings and even to a certain extent in family settings. That is a challenge in the sense that goes back to that metamorphosis. You become a judge and you must be mindful of the fact that you need to be as objective, impartial, and fair as possible— all the things that you take the oath to do.

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Q. Have you lost sleep over a decision?

Judge Dale: I have lost sleep by thinking about a decision and wanting to make sure I understood the issue and understood the law. But I don’t believe once I made a decision, I lost sleep over it. My feeling was that I did what I could to get it right. “Tomorrow is a new day.” Judge Lodge talked to me about that. That as a judge, you are going to have to make some tough decisions, for instance sentencing, the family is often there and is crying, and you have to be able to come back the next day and start again. The focus shifts [as a judge] to getting it right. The difficulty is having the time to do that. But there is also the reality that, you can’t let perfection be the evil of completion.

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Q. Is there any one case that impacted you the most?

Judge Dale: One way of answering that question is that some of the decisions I had to make highlighted or emphasized the impact the decision was going to have—either on one person or on many others. You can think about cases where the impact of reaching a decision, stops logging in Central Idaho or sets aside a state constitutional amendment that 63.3 percent of the voters approved. 

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Q. What has been the best part about your judicial career?

Judge Dale: When I was making the change [from lawyer to judge] people would say “are you concerned about judicial isolation?” Yet, the one thing I’ve enjoyed the most is working with others. I have gained an appreciation for how dedicated and how committed the employees are here, how committed the lawyers are to their clients and practice, and how committed the judges are around the country who volunteer for service in their own districts, the circuits, or the conference committees. I have just been really impressed by and enjoyed the level of dedication that comes through in everything that the judges do; without that dedication by everybody (U.S. attorneys, court room deputies, docketing clerks, court security officers, federal defenders) the system would not work.

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Q. Are there any highlights from your time on the bench you’d like to share?

Judge Dale: Several highlights, these are not in order of priority. One would be serving for two years as the Magistrate Judge Observer to the Judicial Conference of the United States. Through that I got to meet many judges, justices, and court unit executives. Meeting RBG [Justice Ruth Bader Ginsberg] was definitely a highlight. All I had to say was I was from Idaho, and she immediately brought up the Reed v. Reed[5] case and Idaho’s connection to equal protection. She said to me, “You know it all started there.”

Other highlights were naturalization ceremonies, seeing how genuinely delighted the petitioners and their families were to become American citizens. It is a genuine celebration of what being a part of our country means.

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Q. The Courtroom is a serious place, but has anything funny ever happened in your courtroom that you can share?

Judge Dale: That is true. However, I was talking about this question with my Courtroom Deputy, who remembered a defendant who had his initial appearance who was wearing a T-shirt that said, “its all fun and games until the cops show up.” He was arrested for robbing a bank. He was sentenced and went to prison. He got out and almost immediately did the same thing again. He had an initial appearance on that second arrest and had the same shirt on.

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Q. As a woman in the legal profession, it meant a great deal to me to have you as a mentor and role model: Do you have any reflections on the impact your career has had because you are the first women to ever sit on the Federal bench in Idaho?

Judge Dale:  I would like to believe it has had a positive impact—I can remember a time when I was standing  next to another experienced woman trial attorney at the point in the district bar conference when they had the judge’s panel [of all white men] and we both looked at each other and said—”wouldn’t it be nice if there was someone else up there?” If you don’t see another woman doing what you have an aspiration to do, it is really hard to even make that a goal or see  yourself in those shoes. I tried to focus on the seconds, thirds, etc.—without a first there is not going to be a second—someone must be the first.

I agree with what Justice Sandra Day O’Conner related, which was along the lines of, “while it is special to be the first it’s more important not to be the last.”

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Q. What does it mean to be on “recall” status? What roles and responsibilities does the status entail?

Judge Dale: “Recall status” is the term used for U.S. Magistrate Judges, rather than “senior status,” which is the term used for U.S. District Judges. To be placed on senior status or recall status, the application has to be approved first by the Chief District Judge, then approved by the Ninth Circuit, and finally approved by the Judicial Conference of the United States through the Committee on the Administration of the Magistrate Judges System. For approval, the district needs to have an ongoing need for judicial service, which we clearly demonstrate! I agreed to be recalled to the District of Idaho and have been approved [at all levels] for extended service recall. The primary expense to the judiciary is only the expense of chambers staffing and that staffing must be approved. I have been approved for two law clerks the first year. I have committed to handling a full civil docket. I will be working on civil cases—sharing the workload of all the district and magistrate judges. This means that approximately 20 percent of the standard civil cases will be randomly assigned to each of the five district court judges in our District and  the magistrate judges will each be assigned approximately one-third of the social security filings.  I will still have chambers in Boise and will travel to the other divisions in the District as needed. I will be covering criminal matters on a limited and as-needed basis.

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Q. What are you most looking forward to doing/seeing/experiencing during this next stage of life? Do you have “bucket list” items?

Judge Dale: Definitely playing more golf and spending more time in McCall. Also traveling with my husband and visiting our daughter who will be relocating to Maine. While some friends and family members have been suggesting more extravagant adventures, can I get back to you on that?

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Q. Is there anything else you’d like to share with the readers of the Advocate?

Judge Dale: I want to say… I am not done yet, but thank you for all of your support. I am hopeful that the support will continue, as I will.

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Endnotes

[1] U.S. District Judge B. Lynn Winmill, was appointed on August 14, 1995. Judge Winmill took senior status in August 2021.

[2] U.S. Magistrate Judge Mikel H. Williams, appointed in 1984 and the first full-time magistrate judge in the District of Idaho. Judge Williams was succeeded by Judge Dale in 2008 although he served on recall status until the end of 2020.

[3] U.S. District Judge Edward J. Lodge, appointed in 1989. Judge Lodge took inactive status in July 2019.

[4] A Batson challenge is an objection to the validity of a party’s peremptory challenge to exclude a juror. The objection is made on the grounds that the party used peremptory challenge to exclude a potential juror based on race, ethnicity, or sex. See Batson v. Kentucky, 476 U.S. 79 (1986).

[5]  “A mandatory provision of the Idaho probate code that gave preference to men over women when persons of the same entitlement class applied for appointment as administrator of a decedent’s estate” was found to be based “solely on a discrimination prohibited by and therefore violative of the Equal Protection Clause of the Fourteenth Amendment.” Reed v. Reed, 404 U.S. 71 (1971) (syllabus). Ruth Bader Ginsberg was the principle author of the brief to the U.S. Supreme Court. Plaintiff Sally Reed was represented at the U.S. Supreme Court by Idaho lawyer Allen Derr.

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Jennifer S. Palmer

Published June/July 2022

The Equal Pay Act of 1963 amended the Fair Labor Standards Act to protect against sex-based wage discrimination across the country.  Many states followed with their own equal pay laws, including Idaho in 1969. 

These laws were a promising starting place, but have done little to close the significant gender pay gap that continues to exist today.  Over the past 15 years, the gap has remained fairly steady, with women now earning roughly 84% of what men earn.[1]  Idaho has one of the largest wage gaps among the states, with women earning only 75% of what men earn.[2]  The pay gap is worse for women of color.[3]

To be sure, the gender-based pay gap is a difficult problem to solve.  Employers largely value equality and want to treat their employees fairly.  But employers also need flexibility to compensate their employees according to unique qualifications and market needs.  And evaluating what constitutes equal or comparable work can be tricky, especially given conventional gender roles, societal norms, and unconscious bias.  The last two-plus years of the Covid-19 pandemic have only exacerbated the problem, with a disproportionate number of women quitting or slowing down to cover family responsibilities.

This article examines federal and Idaho equal pay and employment discrimination laws.  It then looks at new state law trends that are exploring creative solutions well beyond the existing framework—and what these trends could mean for Idaho.

Equal pay laws

The Equal Pay Act prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”[4] 

Idaho’s equal pay law (Discriminatory Wage Rates Based Upon Sex) is similar, prohibiting employers from discriminating “between or among employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility.”[5]  Both Idaho law and federal law create exceptions for unequal pay based on a seniority system or merit system. 

There are few cases interpreting Idaho’s law.  In one case, Perkins v. U.S. Transformer W., 132 Idaho 427, 429, 974 P.2d 73, 75 (1999) (overruled on other grounds), the Idaho Supreme Court noted in passing that a jury had entered a special verdict for $10,000 for an equal pay violation where a woman was paid less than her male counterparts.  In a recent federal case, Johnson v. Canyon Cty., Idaho by & through Bd. of Cty. Commissioners, No. 1:19-CV-364-BLW, 2020 WL 5077731, at *3 (D. Idaho Aug. 27, 2020), the court found that there could be no defense of mistake on an employers’ part because the equal pay laws create strict liability. 

Idaho courts would likely track federal equal pay caselaw to apply Idaho’s equal pay law, even though the language is slightly different.  The Idaho law uses the language of “comparable” work, while federal law uses “equal” work.[6]  Outside of Idaho, some courts have found that comparable work and equal work amount to the same thing.[7]  Others have found that the statutes with similar “comparable” language are broader than the federal law.[8] 

One strategy many states are adopting is prohibiting employers from asking about and/or considering applicants’ prior salary or wage history.

The federal district court in Johnson noted that “it is undisputed that the Idaho EPA claim is governed by the same analysis as EPA claims.”  But no state or federal court in Idaho has opined on whether Idaho law’s comparable work is the same as equal work.

Employment Discrimination Laws

Unequal pay can also be addressed through state and federal employment discrimination laws.  Title VII of the Civil Rights Act of 1964 prohibits discrimination against any individual with respect to compensation (and other things) because of the individual’s sex.[9]  The Idaho Human Rights Act likewise makes it unlawful “to fail or refuse to hire, to discharge, or to otherwise discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment” because of the individual’s sex.[10] 

Unlike equal pay laws, these employment discrimination laws generally require discriminatory intent, either through direct or circumstantial evidence, which can be hard to prove.  Employment discrimination can also be shown through disparate impact, where a seemingly neutral policy or practice has a discriminatory effect on a protected class.  Proving disparate impact may require statistical analysis.  For equal pay laws, which create strict liability for employers, intent does not matter (hence why there can be no defense of mistake).

State Law Trends

Recently, states have started developing creative strategies to close the pay gap and increase “pay equity.”  Pay equity is the idea that sex- and race-based wage discrimination should be eliminated even for jobs that are not necessarily “equal.”  That is, people should be paid equally for substantially similar work, not just equal or comparable work. 

One strategy many states are adopting is prohibiting employers from asking about and/or considering applicants’ prior salary or wage history.  Traditionally, many employers have asked applicants about their current or past compensation to determine a starting point for a job offer.  But using an employee’s prior compensation can lead to lower wages for female applicants (and applicants of color) due to historical discrimination and bias in the workplace, and societal forces such as family and caretaking responsibilities that women disproportionately carry. Alabama, California, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Maine, Maryland, Massachusetts, New Jersey, Nevada, New Jersey, New York, Oregon, Rhode Island (effective 2023), Vermont, and Washington all prohibit employers from inquiring about or using salary history in some form or another.  Other states, and many cities, have additional bans on government agencies inquiring about applicants’ prior compensation. 

Rizo v. Yovino As the Ninth Circuit recently explained in Rizo v. Yovino, 950 F.3d 1217, 1228 (9th Cir.) (discussed further below): “We do not presume that any particular employee’s prior wages were depressed as a result of sex discrimination. But the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex. . . . [S]etting wages based on prior pay risks perpetuating the history of sex-based wage discrimination.” 

States are also pursuing laws around pay transparency.  California, Massachusetts, Nebraska, New Hampshire, Vermont, and Washington are among the states with laws protecting the right of employees to inquire about and discuss wages.  California, Connecticut, Maryland, Nevada, Rhode Island, and Washington require employers to disclose the pay range of a job in certain circumstances, such as after an interview or with a job offer.  Colorado goes the farthest, requiring employers to include a pay range in every job posting. 

Private companies are also helping to boost pay transparency.  Companies liked Glassdoor, Payscale, LinkedIn Salary (and for lawyers, Above the Law and the NALP Directory of Legal Employers) are helping employees share wage information.

Other states may require employers to report their wage data.  California and Illinois now require companies with 100 or more employees to report their wage data by race and gender.  States are also increasing non-retaliation protections for reporting wage discrepancies or discussing wages. 

National Labor Retaliation Act Existing labor law also provides some protections for covered employees to discuss wages, whether or not the employees are in a union.  Under the National Labor Relations Act, employees have the right to communicate with other employees about their wages.  They can discuss their wages outside of the workplace and at the workplace while on a break—or even during work if employees are allowed to have other non-work conversations. 

Future outlook

There is no doubt that pay equity laws will continue to expand and evolve at the state level. 

At the federal level, the Lilly Ledbetter Fair Pay Act of 2009 amended Title VII and other federal statutes to make it easier for employees to file equal-pay lawsuits regarding gender discrimination.  It overturned the U.S. Supreme Court decision Ledbetter v. Goodyear Tire and Rubber Co., Inc., 550 U.S. 618 (2007), in which the Court held that a plaintiff did not file a charge of pay discrimination within the statutory time limit.  Under the Lilly Ledbetter Act, each unlawful paycheck resets the statute of limitations during which a worker may file a claim for pay discrimination on the basis of sex, race, national origin, age, religion and disability.

The Paycheck Fairness Act—which has been proposed for years, but has not yet passed—would amend the Equal Pay Act of 1963.  Among other things, it would prohibit employers from stopping employees from disclosing their wages, enhance non-retaliation provisions, and increase civil penalties for equal pay violations. 

New court authority will also change the landscape. The Ninth Circuit recently held in Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020) that prior wages cannot be used to justify gender-based pay discrepancies under the Equal Pay Act.  Thus, in addition to the state laws prohibiting employers from asking about prior wages, now employers in the Ninth Circuit cannot rely on prior wages to justify unequal pay going forward.

And the United States Supreme Court recently held in Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020) that Title VII forbids discrimination against homosexual or transgender individuals, so “[a]n employer who fires an individual merely for being gay or transgender defies the law.”  We are likely to see more lawsuits on behalf of the LGBTQ+ community under Title VII, other discrimination laws, and equal pay laws.

What does this mean for Idaho?  For now, litigation against employers remains possible under traditional state and federal equal pay and discrimination laws, including the Lilly Ledbetter, Rizo, and Bostock updates.  And employment lawyers should be on the lookout for the new pay equity trends that could soon come to Idaho through federal law or (less likely for now) state law.

But it will likely take more than laws and litigation to finally close the wage gap.  Employers need to proactively work on pay equity, employees need to advocate and negotiate for themselves, and society needs to provide more support for caretakers, now more than ever. 

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Endnotes

[1] Amanda Barroso & Anna Brown, Gender Pay Gap in U.S. Held Steady in 2020, Pew Research Center (May 25, 2021), https://www.pewresearch.org/fact-tank/2021/05/25/gender-pay-gap-facts/.

[2] Sharon Lurye, States with the Biggest Gender Wage Gaps, U.S. News & World Report (Mar. 14, 2022), https://www.usnews.com/news/best-states/articles/2022-03-14/states-with-biggest-gender-wage-gaps.

[3] https://www.americanprogress.org/article/women-of-color-and-the-wage-gap/.

[4] 29 U.S.C. § 206(d)(1). 

[5] Idaho Code § 44-1702(1). 

[6] Hoppe v. McDonald, 103 Idaho 33, 37, 644 P.2d 355, 359 (1982) (looking to federal Equal Pay Act caselaw to evaluate a compensation claim under the Idaho Human Rights Act).

[7] See, e.g., Wiseman v. Whayne Supply Co., 359 F. Supp. 2d 579, 588–89 (W.D. Ky. 2004), aff’d, 123 F. App’x 699 (6th Cir. 2005); Cohens v. Md. Dep’t of Human Res., 933 F. Supp. 2d 735, 747 (D. Md. 2013); Tolliver v. Children’s Home-Chambliss Shelter, 784 F. Supp. 2d 893, 903–04 (E.D. Tenn. 2011).

[8] Jancey v. Sch. Comm. of Everett, 421 Mass. 482, 488, 658 N.E.2d 162, 167 (1995) (“[W]e accept the judge’s reasoning that ‘comparable’ is a more inclusive term than ‘equal.’”); Bureau of Lab. & Indus. v. City of Roseburg, 75 Or. App. 306, 309 n.2, 706 P.2d 956, 959 n.2 (1985) (“Work of ‘comparable character’ is broader than ‘equal work.’ ‘Comparable’ does not require equality but that two items have important common characteristics.”).

[9] 42 U.S.C. § 2000e-2.

[10] Idaho Code § 67-5909(1).

Savannah G. Ward

Published June/July 2022

We can all agree that 2020 and 2021 were crazy years for everyone, but labor & employment lawyers were dealt a particularly interesting hand.  From the uncertainty of mask and vaccine mandates,[1] a switch from one administration to the next, and the Biden Administration’s push toward employee-friendly policies in several areas of the law, employment lawyers have been staying busy.  We are halfway through 2022, and, aside from new laws predicated on the COVID pandemic, there is significant activity throughout the country regarding restrictive covenants—specifically, non-compete agreements.  For several decades, companies across the U.S. (outside California and a handful of other states) have utilized non-compete agreements in an effort to protect their “playbook for success” from getting into the hands of a competitor.  Over the years, and more recently this past year, non-compete agreements have been scrutinized for their tendency to unfairly restrict workers from leaving their current employer to go work for another within the industry.  As of last year, the Biden Administration has made it clear that it wants to ban or limit non-compete agreements, as “[i]nadequate competition holds back economic growth and innovation.”[2]

The world of non-competes is especially relevant considering the most significant recent trend in the job market: the mobile employee and the ability to work remotely.  If the pandemic has taught us anything, it is that (1) there are many industries where employees have the ability to efficiently and effectively work remotely, and (2) employees have lots of options, as people and their skills are needed in just about every industry/sector of the job market.  This mobility gives workers the option to look for other higher-paying opportunities elsewhere and increases aggressive headhunting expeditions to find the best candidate already trained in the industry. 

Increased employee mobility creates tension with an employer’s incentive to invest resources in an employee.  As a general rule, employers invest time, training, and resources in their employees, while giving some employees access to competitively sensitive business information such as customer and employee lists, internal business practices/models, marketing strategies, financial information, product information, etc.  With the potential for non-competes to become nonexistent, employers are now tasked with balancing the need to protect their investment in their “key” employees—along with the sensitive business information to which they have access—while also accommodating the employee mobility and flexibility that comes with “at-will” employment (should the employer wish to have an “at-will” relationship with their employees).  

Whether you represent a small business or large company, or your legal practice somehow intersects with employers or employees alike, this article examines the role restrictive covenants play in the workplace, challenges to enforcement, and best practices to account for a mobile workplace society.

The Idaho Code

While there is an uncertain future of non-competes in federal law and other states, Idaho currently follows a statutory framework from 2008 that expressly permits non-compete agreements.[3]  Idaho allows an employer to enter into a non-compete agreement with a “key employee or independent contractor,” which prevents the employee or contractor from engaging in employment after termination that is in “direct competition with the employer’s business” in order to protect the “employer’s legitimate business interests.”[4]  An agreement is enforceable as long as it is “reasonable as to its duration, geographical area, type of employment or line of business, and does not impose a greater restraint than is reasonably necessary to protect the employer’s legitimate business interests.”[5] 

The statute sets out four important rebuttable presumptions that must be taken into account: (1) a non-compete’s time limit of 18 months or less is considered presumptively reasonable; (2) a non-compete’s geographical limitation is presumptively reasonable if it is restricted to areas where the key employee/independent contractor “provided services or had a significant presence or influence”; (3) an agreement that limits subsequent employment to the same “type of employment or line of business” performed while working for the employer is presumptively reasonable; and (4) an employee is presumptively “key” if they are paid in the top 5% of the employer’s employees.[6]  Non-compete agreements that fall within all four of these presumptions shift the burden on the former employee to show that the agreement is unreasonable.

There is very little case law in Idaho interpreting this statute.[7]  While the statute itself explicitly provides Idaho employers the ability to enter into such agreements, Idaho courts have tended to approach those agreements with a certain amount of caution and skepticism.  That, coupled with the fervent air of change surrounding enforceable non-compete agreements, may lead Idaho to become yet another state to further restrict the reasonableness of non-competes.  For the moment, they are permissible, but to be sure, any reasonable and enforceable non-compete agreement in Idaho must be meticulously drafted within the realm of the presumptive reasonableness laid out by the statute.   

“While the statute itself explicitly provides Idaho employers the ability to enter into such agreements, Idaho courts have tended to approach those agreements with a certain amount of caution and skepticism.”

Other restrictive covenant tools

Non-competes, while effective when executed properly, are but one tool available.  Similar to non-competes, non-solicitation agreements typically prohibit both current and departing employees or independent contractors from soliciting the employer’s customers/vendors/etc. and the employer’s remaining employees.  These types of agreements are typically used for those who work closely with customers/vendors, have been in a supervisory position, or have specific knowledge about other employees.  At the moment, it is unclear if non-solicitation agreements are limited to “key” employees like with non-compete agreements.[8]

Additionally, confidentiality (or non-disclosure) agreements are suitable for all employees/independent contractors who have access to business information that is confidential, proprietary, and/or trade secrets.  Confidentiality agreements can and should be addressed throughout an employee handbook and various policies that may touch on related subject matter, i.e., policies specifically related to non-disclosure and proprietary company information, social media, and IT. 

Finally, the Idaho Trade Secret Act prohibits the misappropriation of a trade secret.[9]  A trade secret is information that “(a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use” and “(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”[10]  Misappropriation is defined as the improper acquisition of a trade secret, or unauthorized disclosure or use of a trade secret by someone who improperly “acquire[d] knowledge of the trade secret,” or who “[a]t the time of disclosure or use, knew or had reason to know that [his/her] knowledge of the trade secret was” due to the information having been acquired improperly, through a breach of duty, or by accident or mistake.[11] 

Although the trend throughout the country is to move away from competitive restrictions, and even if Idaho joins the trend, Idaho employers can protect their interests through the use of non-solicitation agreements and confidentiality agreements, and by pursuing statutory and common law claims when appropriate.  These include claims for tortious interference and claims under the Idaho Trade Secrets Act, which are unlikely to be affected by the potential risk of non-competes falling out of favor.

The shifting landscape of non-competes at the Federal and State levels

In July 2021, President Biden signed an executive order (the “Order”) directing the Federal Trade Commission (“FTC”) “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”[12]  While the Order itself does not ban non-competes, it encourages the FTC to create employee-friendly laws and regulations in an effort to stimulate movement and competition in the American workforce.  

Before the Order, the Freedom to Compete Act (the “Act”) was first introduced to the Senate in 2019 to amend the Fair Labor Standards Act (“FLSA”).[13]  The Act prohibits an employer from enforcing, or threatening to enforce, non-compete agreements for entry level, lower wage workers, but it was stalled in the Senate Committee on Small Business and Entrepreneurship.[14]  After President Biden’s Order was announced, the Act was reintroduced to the Senate on July 15, 2021 and is still under review by the Senate Committee on Health, Education, Labor, and Pensions.[15]  It is unclear what actions the Committee plans to take with this Act. 

The FTC has yet to officially respond to President Biden’s Order, but it is hard to ignore the obvious trend toward legislative reform.  The legislative groundwork attempted so far in 2021 could well lead to action in 2022.  If the FTC chooses to implement a “freedom to compete” rule, we can expect many legal and political challenges to the FTC’s authority to promulgate such a rule, including whether it exceeds constitutional authority, as the enforcement and regulation of non-competes has usually been handled by individual states.  Even so, if President Biden’s Order gains momentum, this power could potentially be transferred from states to federal legislators. 

This raises the question of what would happen to Idaho’s statutory non-compete framework—would it be rendered null and void?  Would Idaho’s case law addressing non-competes both before and after Idaho’s non-compete statute was enacted be superfluous?  The procedure it would take to accomplish the Order’s request for FTC intervention is confusing at best, and, should the FTC be able to regulate non-compete agreements, would have very broad implications going forward. 

Additionally, several states have begun to amend their non-compete statutes to impose stricter requirements for enforceability and to limit rebuttable presumptions.  Oregon recently enacted rules that restrict the time limit of non-competes to one year.[16]  Other states have amended their laws in order to protect low-wage earners.  For example, Nevada now specifically prohibits non-competes for employees who are paid hourly, exclusive of any tips or gratuities.[17] In Washington state, a non-compete is enforceable only as to employees whose annual earnings exceed $107,301.04 and to contractors whose annual earnings exceed $268,252.59.[18]  Additionally, a non-compete agreement signed by a Washington-based employee or independent contractor is void and unenforceable if the agreement’s choice of law provision requires the worker to adjudicate the agreement outside of Washington (assuming Washington law is deemed to apply).[19]

Currently, California has the strictest law regarding non-competes: the state doesn’t just prohibit non-compete agreements, it outright voids any contract that restrains an employee from engaging in any lawful employment.[20]  Similarly, the District of Columbia is attempting to ban both the use of non-compete agreements and any policy or agreement that prohibits employees from simultaneously working for other employers.[21]  This law would impact those entities whose key employees are valuable mainly because their services are not available to competitors.  The proposed law was set to go into effect on April 1, 2022, but was extended to October 1, 2022, in order for the Council of the District of Columbia’s Committee on Labor and Workforce Development to continue consulting with the D.C. business community.[22]

The Great Resignation

Before the pandemic, no one could have contemplated just how many employees would begin working from home so rapidly and abruptly.  Now, whether it be a positive or a negative, the American people have spoken: the option to work remotely is staying.  According to researchers at Ladders, a career site for jobs that pay $100,000 or more annually, 25% of all professional jobs that pay $100,000 or more in North America will be remote by the end of 2022, and that percentage will increase through 2023.[23]  Among North America’s largest 50,000 employers that offer high-paying professional jobs, the availability of remote opportunities jumped from under 4% before the pandemic, to about 9% at the end of 2020, and to more than 15% by the end of 2021.[24] 

Of the full-time remote workers surveyed from another study conducted by Owl Labs in 2021, 90% reported they were equally or more productive working remotely than when they were in the office; notably, 84% reported they were happier, with some saying they would be willing to take a pay cut for the opportunity, and 74% reported improvements to their mental health.[25] 

In the world of restrictive covenants, an employer’s protected information is more vulnerable than ever given the increased fluidity of the remote workforce, with no plateau in sight. 

Even before the increased prevalence of remote work, many companies faced difficulties with establishing and maintaining confidentiality protections, and it is all too easy to fail to properly retrieve company information from departing employees.  Common enforcement challenges include poorly drafted or outdated non-compete agreements, lack of solid employment policies, and poor enforcement of policies and protocols designed to protect confidential information.  In the agreements themselves, the restrictive period set is either unreasonable, or an employer waits too long to enforce the non-compete, resulting in failed legal attempts to enforce the agreement.

With a mobile society, employers could face problems not fully anticipated before the pandemic.  For instance, choice of law provisions could come into play if an employee works remotely in a state with different non-compete agreement laws than the state where the employer is located.  Consider the employee who lives in Idaho but works for a New York employer.  Does the law of New York or Idaho govern?  This is a difficult analysis and makes for extra confusion for employers.  Also, an employee could be working from home for one employer while doing the same thing for another employer.[26] Additionally, employees could be using their own personal devices while working from home and/or downloading and storing information on a USB device or external hard drive, with limited or no monitoring of their activity.

Employers need to now shift their focus to take proactive measures to inhibit the outbound flow of protected information before any violation occurs.  This year, the best practices companies should follow in a state where non-competes are still allowed include:

• updating employee policies to properly define their expectations regarding what is considered confidential, proprietary, and trade secret information and that it is not to be disclosed;
• require employees to acknowledge the policies;
• make sure employees signing a non-compete are “key” employees, and that the competitive restriction is sufficiently narrow to protect legitimate business interests;
• have an on-boarding process when first hiring employees;
• clear choice of law provisions within the non-compete; and
• an exit process when employees leave to retrieve any company devices or information immediately and remind outgoing employees of any post-separation obligations. 

For remote workers, companies could install some sort of software that prohibits non-company USB or storage device use or encrypt certain information that can only be accessed by authorized users.  If remote workers use their own devices while working from home, then there could be a policy or agreement wherein the employee gives their consent to allow the employer to recover its data at the time of separation, although employee privacy concerns may be implicated by this approach.

Conclusion

To sum up, in 2022 and moving forward, the tenuous applicability of non-compete agreements is questionable.  Even so, businesses and practitioners can no longer afford to be reactive.  Proactive approaches—updating policies, having on-boarding and exiting processes, and IT procedures to prevent unauthorized or inappropriate access to protected information—are essential. 

While Idaho provides for non-compete agreements, an enforceable non-compete agreement will be the carefully drafted one which restrains only what is necessary to protect an employer’s legitimate business interests and is consistent with the presumptive reasonableness standards outlined in the statute.  Using these and the other tools discussed above will go a long way to protecting employers’ interests even if the trend of disfavoring or disallowing non-competition restrictions spreads and continues. 

---

Endnotes

[1] Aria Bendix et al., CDC mask mandate for planes, trains no longer in effect after judge rules it ‘unlawful’, NBC News(Apr. 18, 2022, 10:25 PM) https://www.nbcnews.com/news/us-news/florida-court-overturns-cdc-travel-mask-mandate-unlawful-rcna24853 (last visited May 1, 2022).

[2] The White House, FACT SHEET: Executive Order on Promoting Competition in the American Economy (Jul. 9, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/07/09/fact-sheet-executive-order-on-promoting-competition-in-the-american-economy/ [hereinafter Executive Order] (last visited Apr. 13, 2022). 

[3] Idaho’s non-compete statute—while substantively identical to its 2008 version—was briefly amended in 2016 to add a “rebuttable presumption of irreparable harm” paragraph that imposed defendants to “show that the key employee . . . has no ability to adversely affect the employer’s legitimate business interests.”  This amendment caused great criticism throughout the state and was subsequently repealed in 2018.

[4] Idaho Code Ann. § 44-2701 (West 2008).  

[5] Id. 

[6] Id. at § 44-2704(2)-(5).

[7] See Bybee v. Isaac, 145 Idaho 251, 256 178 P.3d 616, 621 (Idaho 2008) (holding that Idaho “courts are less strict in construing the reasonableness of such covenants ancillary to the sale of a business.”); Brand Makers Promotional Prods., LLC v. Archibald, No. 44926, 2018 WL 5076135, at *1 (Idaho Ct. App. Oct. 18, 2018) (holding that based on the statute, the non-compete agreement imposed more restraint on employee than reasonably necessary to protect the employer’s interests).

[8] See Melaleuca, Inc. v. Bartholomew, 2012 WL 1677449, at *12 (D. Idaho May 14, 2012) (holding that a non-solicitation agreement “is similar enough to a non-compete agreement that it is appropriate to apply the same legal standard for determining its enforceability.”).  However, due to settlement outside of the court, the district court ruled that its “May 14, 2012 Memorandum Decision and Order . . . is hereby vacated in its entirety and is of no effect for any purpose.”  Melaleuca, Inc. v. Bartholomew, 2013 WL 1459149, at *1 (D. Idaho Feb. 27, 2013) (emphasis added).   

[9] I.C. § 48-801 et seq.

[10] Id. at § 48-801(5).  See also Basic Am., Inc. v. Shatila, 133 Idaho 726, 734, 992 P.2d 175, 183 (1999) (citing Restatement of Torts sec. 757 cmt. b (1939)) (wherein the Idaho Supreme Court adopted the six factors identified by the Restatement of Torts to help establish whether a trade secret exists). 

[11] I.C. § 48-801(2).

[12] Executive Order, supra note 1. 

[13] Freedom to Compete Act of 2019, S.124, 116th Cong. (1st Sess. 2019).

[14] See id.

[15] Freedom to Compete Act of 2021, S.2375, 117th Cong. (1st Sess. 2021). 

[16] Or. Rev. Stat. § 653.295 (2022).

[17] Nev. Rev. Stat. § 613.195(3) (2021).

[18] Wash. Rev. Code § 49.62.040 (2020) (requiring the Department of Labor & Industries to adjust salary thresholds annually).

[19] Id. at § 49.62.050.

[20] Cal. Bus. & Prof. Code § 16600 (West 2022). 

[21] Ban on Non-Compete Agreements Amendment Act of 2020, 2020 D.C. Sess. L. 23-209 (West).

[22] Ban on Non-Compete Agreements Applicability Emergency Amendment Act of 2022, § 2 (D.C. Act 24-350, Mar. 28, 2022, 69 DCR 2622).

[23] Ladders, 25% of all professional jobs in North America will be remote by end of next year (Dec. 7, 2021), https://www.theladders.com/press/25-of-all-professional-jobs-in-north-america-will-be-remote-by-end-of-next-year (last visited Apr. 13, 2022). 

[24] Id.

[25] Bryan Robinson, Ph.D., Remote Work Is Here To Stay And Will Increase Into 2023, Experts Say, Forbes(Feb. 1, 2022, 6:24 AM) https://www.forbes.com/sites/bryanrobinson/2022/02/01/remote-work-is-here-to-stay-and-will-increase-into-2023-experts-say/?sh=7234cfdf20a6 (last visited Apr. 13, 2022).

[26] But see D.C.’s proposed legislation that would prohibit an employee from working simultaneous jobs.