Introduction

The Idaho Supreme Court recently held in Blasch v. HP, Inc.[i] that discriminatory wage claims under the Idaho Human Rights Act (“IHRA”)[ii] accrue when the employer’s pay-setting decision is made and communicated to the employee, not when subsequent paychecks are issued. In so holding, a unanimous Court interpreted the IHRA consistent with the U.S. Supreme Court’s 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc.,[iii] not the language of the act Congress subsequently passed to nullify Ledbetter. The Lilly Ledbetter Fair Pay Act of 2009 (“FPA”)[iv] amended Title VII of the Civil Rights Act of 1964 (“Title VII”)[v] so that a new filing period commences “each time wages, benefits, or other compensation is paid.”[vi] In adopting the FPA, Congress expressly found that the Ledbetter decision was contrary to its intent.[vii]

The Blasch Court based its decision, in part, on the Idaho Legislature’s failure to amend the IHRA to comport with the FPA, treating its inaction as a tacit approval of Ledbetter. This line of reasoning is important because Congress expressly “overturned” U.S. Supreme Court holdings with the Pregnancy Discrimination Act of 1978 (“PDA”),[viii] the Civil Rights Act of 1991,[ix] and the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).[x] Yet the Idaho Legislature, as with the FPA, has failed to amend the IHRA consistent with these significant federal anti-discrimination acts.[xi]

In this article, we review the Blasch decision, focusing on its reliance upon legislative acquiescence, which is, at best, an auxiliary tool of statutory construction. We explain how the holding in Blasch could be far-reaching if applied in subsequent IHRA cases, and finally, we posit that legislative acquiescence is not a helpful tool for interpreting the IHRA.

Background

On November 5, 2018, Lori Blasch was told she was being terminated from her job at HP, Inc. Blasch’s last day of work was November 16, 2018, and she received her last paycheck on December 13, 2018. On November 12, 2019, her attorney filed a charge of discrimination with the Idaho Human Rights Commission (“Commission”), asserting she had been discriminated against because of sex in violation of Title VII, the IHRA, and the Idaho Equal Pay Act.[xii] In support of her claim, Blasch pointed to pay discrepancies between similarly situated male and female HP employees occurring since 2015. After the Commission issued a notice of right to sue, Blasch filed a discrimination complaint in U.S. District Court. HP moved to dismiss on timeliness grounds.

Title VII and the IHRA have different filing periods.[xiii] Blasch conceded her charge under Title VII was untimely but argued that her IHRA claim was timely under its one-year limitation period either as a continuing violation or because the IHRA should follow the FPA’s “paycheck rule.” In support, Blasch pointed to the general purposes clause of section 67-5901(1) of the IHRA: “[t]o provide for execution within the state of the policies embodied in the federal Civil Rights Act of 1964, as amended.” She argued that Ledbetter no longer represented policy embodied in Title VII and urged the court to interpret the IHRA in accord with the FPA. Blasch also argued that the IHRA, as a remedial statute, should be interpreted broadly to give effect to its remedial purposes.[xiv]

HP argued that the IHRA should be interpreted consistent with Ledbetter because the Idaho Legislature had never rejected Ledbetter by adding the language of the FPA to the IHRA.

No controlling Idaho law existed as to the accrual of wage discrimination claims, so, for the first time, a federal court certified a question under the IHRA to the Idaho Supreme Court.[xv]

The Blasch Decision

Because the IHRA is silent regarding the accrual of wage discrimination claims and two reasonable constructions were being argued, the Blasch Court was tasked with filling a gap in the IHRA using tools of statutory construction.

The Court rejected Blasch’s argument that Ledbetter no longer reflected the policies embodied in Title VII. Agreeing with HP, the Court emphasized that the Idaho Legislature had taken no action to amend the IHRA to add the FPA text. In other words, the Legislature’s failure to repudiate Ledbetter by statute demonstrated its acquiescence to the Ledbetter decision and its rejection of the text and interpretive gloss of the FPA. The Court acknowledged the IHRA was a remedial statute but stated “that fact alone does not allow us to ignore the principles from Ledbetter.”[xvi] It added: “We reject the more liberal interpretation that would amount to this Court amending the IHRA to be consistent with the Lilly Ledbetter Act—which would be a step too far, even for this remedial legislation.”[xvii]

Noting that Ledbetter interpreted language very similar to that of the IHRA, the Blasch Court found the majority opinion in Ledbetter to be a “reasoned decision” and applied its logic to the IHRA.[xviii] The Court concluded that the receipt of discriminatory paychecks was not an ongoing, continuous violation and that, as Ledbetter had ruled, the proper point of accrual for Blasch’s wage discrimination claim was when HP made the pay-setting decision and communicated it to her. Thus, her November 12, 2019 filing date was untimely because that decision had been made well outside the IHRA filing deadline.

“In support of her claim, Blasch pointed to pay
discrepancies between similarly situated male
and female HP employees occurring since 2015.”

Legislative Acquiescence

Legislative acquiescence refers to the theory that a legislature’s failure to have taken any action to change a long-standing court or administrative interpretation of a statute demonstrates the legislature’s approval of the interpretation.[xix] The Blasch Court was clearly relying upon legislative acquiescence when it wrote: “[T]he Idaho Legislature has chosen not to act in light of Ledbetter, even though it has had fourteen legislative sessions to do so—and even though it amended the law in 2005 to expand protections for disabled people. We interpret Idaho’s statute as it has existed for over fifty years, rather than against the backdrop of a federal act that Idaho has not adopted.”[xx]

Legislative acquiescence has been roundly criticized. It has been called a “weak reed upon which to lean” and a “poor beacon to follow” when construing a statute.[xxi] The U.S. Supreme Court noted that it “is at best only an auxiliary tool for use in interpreting ambiguous statutory provisions” and that Congress is not expected “to make an affirmative move every time [there is] . . . an erroneous interpretation.”[xxii]

The Idaho Supreme Court aptly observed in a 1913 decision: “The legislative intent that controls in the construction of statutes has reference to the Legislature which passed a given act” and that “intent is indicated by the action of the Legislature, and not by their failure to act.”[xxiii] Moreover, Justice Scalia pointed out that a legislature’s failure to act signifies little because “it is impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice.”[xxiv]

The Blasch Court’s use of legislative acquiescence is anomalous because federal anti-discrimination case law and acts of Congress do not interpret or amend the IHRA.[xxv] Instead, they serve only as persuasive authority,[xxvi] as would comparable decisions from other states,^[xxvii] for interpreting the IHRA. The Court must also consider the policies and mandates of the IHRA,[xxviii] including the policy favoring harmonious construction of the IHRA with federal law where the IHRA text would reasonably allow.[xxix]

The Ledbetter decision did not interpret an Idaho statute, and its holding was not long-standing, lasting only two years before it was squelched by the FPA.[xxx] One could just as easily argue that because the relevant federal and state statutory text here is nearly identical, the Idaho Legislature’s inaction signals acquiescence not to Ledbetter but rather to Congress’s longstanding expression in the FPA as to what it intended Title VII to mean. Nonetheless, it makes little sense to presume the Idaho Legislature has acquiesced to non-binding authority from other jurisdictions that has yet to be vetted by the Idaho Supreme Court.

If legislative acquiescence becomes a core rationale for the Idaho Supreme Court when reviewing issues of first impression under the IHRA, then the policy reasons underlying Congress’s actions in “overturning” U.S. Supreme Court decisions will likely be ignored. Discarded federal holdings will become the default for interpreting the IHRA, widening the rift between the two bodies of law which would be contrary to the policy favoring harmonious interpretation. Blasch’s impact would be far-reaching.

For example, in 1979, the Idaho Supreme Court followed federal law and recognized that disparate impact claims could be brought under the IHRA.[xxxi] Then, in 1989, the U.S. Supreme Court held in Wards Cove Packing Co. v. Antonio that disparate impact claims required proof of discriminatory intent, making them much more difficult to prove.[xxxii] Congress overturned that holding two years later by passing the Civil Rights Act of 1991, which amended Title VII. Because the Idaho Supreme Court has taken no action on this issue of interpretation, legislative acquiescence could be argued as a basis for following Wards Cove and requiring proof of discriminatory intent in charges of disparate impact under the IHRA. If that came to pass, the required proof in federal and Idaho disparate impact claims would be fundamentally different.

Another example relates to disability discrimination protections. After two U.S. Supreme Court decisions dramatically narrowed the definition of disability under the ADA,[xxxiii] Congress intervened in 2008 and passed the ADAAA,[xxxiv] which, in part, provided an expansive definition for disability. One of the ADAAA’s stated purposes was to make clear that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”[xxxv] Legislative acquiescence would suggest that Idaho keep the narrow definition of disability in claims under the IHRA, creating two entirely different disability standards for Idaho employers.[xxxvi]

The PDA is another instance where the IHRA has not been amended to reflect changes to Title VII. Congress enacted the PDA in 1978 to nullify General Electric Co. v. Gilbert,[xxxvii] a controversial U.S. Supreme Court opinion holding that pregnancy discrimination was not a form of sex discrimination under Title VII. Under the reasoning of Blasch, the Idaho Legislature’s inaction after the PDA was passed would lead to few, if any, protections against pregnancy discrimination under the IHRA.

Finally, even if one could demonstrate that the Idaho legislatures convened after the adoption of the IHRA in 1969 have agreed in principle with subsequent U.S. Supreme Court holdings that narrow protections against discrimination, this still would provide no evidence of the intent of the 1969 Legislature that adopted the IHRA. It would be simply speculation.

“If legislative acquiescence becomes a core
rationale for the Idaho Supreme Court when
reviewing issues of first impression under the
IHRA, then the policy reasons underlying
Congress’ actions in “overturning” U.S.
Supreme Court decisions will likely be ignored.”

Conclusion

The Idaho Supreme Court should construe the IHRA independently because it is a creature of Idaho law. However, when confronted with ambiguous text, the Court should continue to look to federal law for guidance along with decisions from other states addressing comparable issues.^[xxxviii] The reasoning that best furthers the text and policies of Idaho, as expressed in the IHRA, should prevail.[xxxix] Harmonious interpretation should be recognized as one such policy, though it may not be determinative in every case.[xl]

We respectfully suggest that the Court should eschew legislative acquiescence when interpreting the IHRA. Finding intent based on legislative inaction is not only problematic, as we explained previously, but it is also a far too narrow approach that could result in further divergence from important, widely accepted federal law. This reasoning in Blasch, if applied in subsequent cases, is all but guaranteed to create sharp divisions between federal and Idaho non-discrimination laws, making it more difficult for courts, practitioners, and juries to apply, and, equally important, for businesses trying to successfully navigate the twists and turns of employment law.[xli]

Douglas A. Werth is Lead Deputy Attorney General for the Labor Unit of the Idaho Attorney General’s Office. He graduated from the University of Idaho College of Law and the Georgetown University Law Center. Mr. Werth’s analyses and opinions stated in this article are his own and do not necessarily reflect those of the Idaho Attorney General’s Office.

Susan E. Park is an Associate Professor of Legal Studies in Business and the John Elorriaga Endowed Teaching Fellow at Boise State University. She is also the former Editor in Chief of the American Business Law Journal. She graduated from the University of Idaho College of Law.

Endnotes:

[i] Blasch v. HP, Inc., —- Idaho —-, 545 P.3d 581 (2024).

[ii] Idaho Code §§ 67-5901 et seq.

[iii] Ledbetter v. Goodyear Tire & Rubber Co., Inc.,550 U.S. 618 (2007).

[iv] Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (codified at 42 U.S.C. § 2000e-5(e)(3)) (FPA).

[v] Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 601-605, 78 Stat. 241, 252 (codified at 42 U.S.C. §§ 2000d to 2000d-7).

[vi] FPA, § 3, 123 Stat. at 5-6 (emphasis added).

[vii] FPA, § 2, 123 Stat. at 5.

[viii] Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, § 1, § 701(k), 92 Stat. 2076, 2076 (codified at 42 U.S.C. § 2000e(k)).

[ix] Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 104-13, §§ 701, 703, 705, 706, 722, 105 Stat. 1071, 1074-79 (codified at 42 U.S.C. §§ 2000e, 2000e-2, 2000e-5).

[x] Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325, § 2, 122 Stat. 3553, 3553-54 (codified at 42 U.S.C. § 12102).

[xi] In fact, the Idaho Legislature has amended the IHRA only once after Ledbetter, in 2010 to task the Idaho Department of Labor with providing administrative support for the Commission. 2010 Idaho Sess. Laws, ch. 248, pp. 636-37.

[xii] We do not discuss the Blasch Court’s holdings on her claim under the Idaho Equal Pay Act, Idaho Code §§ 44-1701 et seq., or her other claims of retaliation and wrongful termination because they are not germane to the subject of this article.

[xiii] The IHRA provides that discrimination complaints must be filed “within one (1) year of the alleged unlawful discrimination.” Idaho Code § 67-5907(1). In contrast, the filing period under Title VII is 180 days “after the alleged unlawful employment practice occurred,” or within 300 days if a claim is filed with a state or local anti-discrimination agency, like the IHRC. 42 U.S.C. § 2000e-5(e)(1).

[xiv] Blasch’s remedial statute argument is supported by Idaho Code § 73-102, which directs that the entire Idaho Code, including the IHRA, be “liberally constructed, with a view to effect [its] objects and to promote justice.”

[xv] Prior to Blasch, federal courts routinely held that the IHRA should be interpreted in the same manner as parallel federal anti-discrimination acts, usually citing in support the purposes clause of the IHRA and Bowles v. Keating, 100 Idaho 808, 812, 606 P.2d 458, 462 (1979) (noting that state courts may look to federal law for guidance when interpreting the IHRA) or cases relying on Bowles. See, e.g., White v. Oxarc, 2022 WL 17668781, at *11, (D. Idaho 2022) (“[T]he same standards apply to discrimination claims under both federal and Idaho law. . .”).

[xvi] Blasch v. HP, Inc., —- Idaho —-, 545 P.3d 581, 587 (2024).

[xvii] Id.

[xviii] Id. at 588.

[xix] The phrase “legislative acquiescence” has only been used in Idaho case law to describe one of the factors in determining whether deference should be given to agency interpretations. See St. Luke’s Health Sys., Ltd. v. Bd. of Comm’rs of Gem County, 168 Idaho 750, 754, 487 P.3d 342, 346 (2021).

[xx] Blasch, 545 P.3d at 588.

[xxi] 2B Sutherland Statutory Construction § 49:9 (7th ed.) (Nov. 2023 update). Accord J.R. Simplot Co. v. Idaho State Tax Comm’n, 120 Idaho 849, 859 n.6, 820 P.2d 1206, 1216 n.6 (1991).

[xxii] Jones v. Liberty Glass Co., 332 U.S. 524, 533–34 (1947).

[xxiii] Reed v. Huston, 24 Idaho 26, —-, 132 P. 109, 111–12 (1913) (emphasis in original). See also Jones v. United States, 526 U.S. 223, 241–42 (2011) (“Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.”).

[xxiv] Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting).

[xxv] Cf. Grimwood v. Univ. of Puget Sound, Inc., 753 P.2d 517, 520 (Wash. 1988) (noting that federal cases are not binding and the state court is “free to adopt those theories and rationale which best further the purposes and mandates of our state statute”).

[xxvi] Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 9 (Iowa 2014) (“Federal law does not necessarily control our interpretation of a state statute. . . . [A]n amendment to a federal statute does not simultaneously and automatically amend a parallel or even identical Iowa statute.”).

[xxvii] State case law on the paycheck rule after Ledbetter is mixed. In Texas, the pay-setting decision commences the running of the limitation period, not subsequent paychecks. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500 (Tex. 2012). Wisconsin essentially follows the continuing violation approach where the pay-setting decision and all subsequent paychecks would be timely if one of the paychecks was issued during the limitation period. Rice Lake Harley Davidson v. State of Wisconsin Lab. & Indus. Rev. Comm’n, 855 N.W.2d 882, 894 (Wis. Ct. App. 2014). Iowa, New Jersey, and Washington D.C. take the intermediate approach where a limitation period begins to run with each paycheck and only those paychecks occurring within the limitation period are actionable. Dindinger v. Allsteel, Inc., 860 N.W.2d 557 (Iowa 2015); Alexander v. Seton Hall Univ., 8 A.3d 198 (N.J. 2010); Zuurbier v. MedStar Health, Inc., 895 A.2d 905 (D.C. Ct. App. 2006).

[xxviii] See, e.g., Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d 555, 605–14 (Iowa 2017) (Appel, J., concurring and dissenting) (discussing the relationship between state and federal civil rights statutes and methodology for interpreting state civil rights statutes).

[xxix] Interestingly, the legislative history of the IHRA supports Blasch’s harmonious interpretation argument. The IHRA was taken from the Model Anti-Discrimination Act of 1966 (“Model Act”), Nat’l Conference of Comm’rs on Uniform State Laws 1966, published at Harvard J. on Legislation, Volume 4, No. 2, 212–78 (March 1967). An official comment states that the language in the purposes clause was “designed to assure the act will be construed harmoniously with Tiles II and VII of the [Civil Rights Act].” The Idaho Supreme Court has on numerous occasions looked to the comments of model laws for guidance when interpreting Idaho statutes patterned after a model law. See, e.g., Odenwalt v. Zaring, 102 Idaho 1, 4–5, 624 P.2d 383, 386–87 (1980); Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979). Other state statutes with purposes clauses similar to section 67-5909(1) and taken from the Model Act include: Ky. Rev. Stat. § 344.020; La. Stat. § 51:2231; Ga. Code § 45-19-21; Tenn. Code § 4-21-101; Tex. Labor Code § 21.001.

[xxx] This is unlike Idaho County Property Owners Ass’n, Inc. v. Syringa Gen. Hosp. Dist., 119 Idaho 309, 313, 805 P.2d 1233, 1237 (1991), where an Idaho State Tax Commission interpretation of an Idaho statute stood for over nine years without any corrective action by the Legislature. See also State v. Dumke, 901 S.W.2d 100, 102 (Mo. Ct. App. 1995) (looking to comments of model act).

[xxxi] Bowles v. Keating, 100 Idaho 808, 812, 606 P.2d 458, 462 (1979).

[xxxii] Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989).

[xxxiii] Sutton v. United Airlines, Inc., 527 U.S. 471, 478 (1999); Toyota Motor Mfg. of Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002).

[xxxiv] ADA Amendments Act of 2008, Pub. L. No. 110–325, 112 Stat. 3553 (codified as amended at 42 U.S.C. §§ 12101-03).

[xxxv] 42 U.S.C. § 12101(b)(5).

[xxxvi] Reconciling the ADAAA with state civil rights statutes that were not amended after the ADAAA has proven difficult. See generally, J. Dunman, Harmonizing State and Federal Anti-Discrimination Law: The Problem of the ADAAA, 61 Louisville L. Rev. 479 (2023); Kevin J. Koai, Judicial Federalism and Causation in State Employment Discrimination Statutes, 119 Colum. L. Rev. 763, 774 (2019); Alex B. Long, “If the Train Should Jump the Track . . .”: Divergent Interpretations of State and Federal Employment Discrimination Statutes, 40 Ga. L. Rev. 469, 471 (2006). See also Anderson v. Bright Horizons Children’s Centers, LLC, 2022 WL 910157 (Ohio Ct. App 2022).

[xxxvii] General Electric Co. v. Gilbert, 429 U.S. 125 (1976).

[xxxviii] See supra note 27.

[xxxix] See supra note 36.

[xl] See Texas Tech Univ. Health Scis. Ctr. – El Paso v. Niehay, 671 S.W.3d 929, 937 (Tex. 2023) (applying purposes clause similar to section 67-5909(1) and describing “statutory objective of maximizing consistency in federal and state law”).

[xli] It may also threaten the Commission’s deferral status as a Fair Employment Practices Agency (FEPA). Deferral status and certification by the EEOC allow state and local FEPAs to investigate and resolve charges filed with the EEOC. See 29 C.F.R. 1601.70 (qualifications for FEPA certification). Without work-sharing agreements entered into pursuant to FEPA certification, the EEOC, rather than the Commission, would handle all of its jurisdictional federal discrimination claims within the State. Idaho businesses are unlikely to prefer this outcome.