Charles L. Baum II, Ph.D.

Published June/July 2022

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

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

Lost earnings

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

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

Fringe benefits

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

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

Worklife expectancy

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

Mitigating factors

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

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

Growth rates

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

Discounting to present value

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

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

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

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

Pre-judgment interest

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

Tax adjustments

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

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

Conclusions

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

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Endnotes

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

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

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

[4] Id.

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

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

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

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

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

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

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

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

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

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

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

[16] Id.

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

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

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

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

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

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

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

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

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

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

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

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

[29] Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leslie M.G Hayes

Emma C. Nowacki

Published June/July 2022

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

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

Discrimination on the basis of sex is protected by Title VII

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

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

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

Educate your Workforce and Learn the Terminology

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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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.

Kurt D. Holzer

President

Fourth District

Published June/July 2022

“Be well, do good work, and keep in touch”

-Garrison Keillor

It is a bit daunting trying to produce something insightful/pithy/entertaining/useful for this, the last President’s column I get to write. Thanking all who have made the experience great is, of course, essential. So, to my fellow Commissioners, the Idaho State Bar staff, the volunteers, and all the lawyers the Commission has interacted with over the past three years – thank you.

Three years of service passed in a flash. Serving in this role, as has been the comment of every current and former Commissioner I’ve spoken to, is a satisfying and invigorating experience. 

A feeling of the inevitability of change permeated the years I’ve served.  The Bar and its members have been engaged in important discussions about behavioral norms and the role of the Bar in ensuring the sense of belonging, safety, and inclusion all its members deserve. That is in part reflected in the ongoing conversations about proposed Rule 8.4(g). 

Other change, like the exploration of legal regulatory reform and expansion of who can deliver legal services remains a work in progress.  The Idaho State Bar (ISB) saw a very concrete change in the retirement of Brad Andrews as Bar Counsel and the start of the era of Bar Counsel Joe Pirtle. Another substantial pending change is the work on the upcoming “Next Gen Bar Exam” which will await students who matriculate in 2023.

The most significant change on the horizon for the ISB is that sometime too soon we will say farewell to the incredible, steady, insightful, and beyond competent leadership of Executive Director Diane Minnich. 

But some things stay steady. Spending time with the volunteer bar graders in Lewiston recently, the Commissioners got to see the hands-on commitment of Idaho lawyers from across the state to upholding the quality of the profession in Idaho.  Seeing, speaking to, and speaking with this generation of lawyers who took that test is itself quite uplifting.  The steady reality of newly-minted lawyers going forth to change their lives and the lives of others remains a constant.

So, I will wrap this up with a reminder of things real and aspirational about being an Idaho lawyer that shouldn’t change.  

Keeping honesty as a touchstone.

We need to remain cognizant of our own limitations and avoid making promises to judges, attorneys, or clients we cannot keep.  Telling the truth is always the only policy to follow in practice even when doing so is difficult.

Real Idaho lawyers make sure we don’t misrepresent facts to anyone.

We also admit our mistakes when they come, and they do come.  Nobody is perfect, neither our adversaries nor clients really expect us to be.

Maintaining respect for our clients.

Taking the time to listen and understand our clients’ goals and what they need is an essential act. Those needs are sometimes divergent from our lawyerly perspective. Clients often encounter us at times of crisis when life is presenting them with pain, frustration, or loss. They too are imperfect. They can carry unrealistic expectations to our relationship. We get hired to be on their side.  Even when we deliver bad news or uncomfortable truths, we need to be doing it with an understanding of the client.

Respect manifests when we get our client’s tasks done in a timely manner. Delay, or perceptions thereof, are a big source of client frustration and dissatisfaction. Call them back, answer their letters, reply to their emails, and keep them informed.

Assessing our client’s problem with an objective mind reflects respect as well. The job is to help solve these problems. We can do that best when we remain objective.  We can be committed to their ends without losing sight of the real playing field.

Showing respect for our adversaries.

Often inter-lawyer conflict or incivility has a foundation in “otherness” or a lack of familiarity. The more broadly we know our professional colleagues, the less likely we are to be unprofessional. As our Bar gets larger, it becomes harder to have the same relationships that have traditionally defined practice in Idaho. Don’t let another lawyer’s unprofessional conduct result in a tit for tat response. Treat others with dignity and respect, regardless of how they treat you.

Don’t practice angry. Behave in a way that will get a positive response. 

Eliminate unnecessary conflicts with your adversary. If your adversary asks for a concession, favor, or time extension and it is within your power to say yes then by all means grant the request. Someday we are each in the position of making a similar request. Take into account the demands on, and limitations of, others

Embracing respect for our profession.

Winning and losing is part of what many of us in the practice experience every day. In either instance, we remain public representatives of the legal system.  As officers of the court, we need to support our oaths and the rule of law. It is certainly okay to believe a decision-maker made an error. It’s okay to be disappointed, but it’s not okay to be disparaging.  Temper your commentary about the judge, other attorney, or jury.

Set a positive tone about the system for your client. They likely won’t hold respect for the system if we don’t.

Join a Section, specialty bar organization, or volunteer for one of the ISB committees. Go to the Bar’s Annual Meeting.  Attend local CLEs.  Be part of the life of the profession.

I appreciate the opportunity members of the 4^th District gave me to serve. And look forward to my final weeks culminating in the first Idaho State Bar Annual Meeting to be held in Twin Falls. 

Finally, in the words of Douglas Adam: “So Long, and thanks for all the fish.”

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Catherine E. Enright

Published February 2022

 Many of you, like me, may not remember what happened on your 18^th birthday.  We remember that we magically became an adult capable of making most adult decisions overnight.  We may even remember the presents we received or the celebrations we had on that enchanted day.  However, I would venture to say that, like me, you probably had no idea of the true legal consequences of turning 18 because you had a support network there to help continue to guide you and provide for you.  For example, many of us were still in high school, and although 18, our daily life remained largely unchanged.  Unlike others, the true consequences and realities of adulthood were still far off.  But for many children in the foster care system, their 18^th birthdays were of much more consequence than your 18^th birthday.

In Idaho, that all changed for children in foster care beginning on October 1, 2021, when Idaho implemented its extended foster care (EFC) legislation.   That was the day that meant the world for one youth, whom I currently represent in a child protection matter.  We will call this youth “Timmy.”  For Timmy, the changes that were made on October 1^st and the extension of foster care allowed him to feel more normal on his 18^th birthday, which came later in October.  For Timmy, the extension of foster care beyond his 18^th birthday meant that he could focus on school and transitioning out into the adult world in the same way that any other average Idahoan youth would.  This article will introduce you to Timmy and his story, and then take you through the state and federal extended foster care requirements.

The story of Timmy

To give a picture of cases where EFC is necessary and where it works, I want to share a little about Timmy’s story.  Timmy came into foster care when he was 15 years old.  After an initial stay with a foster family here in Idaho, it became apparent that Timmy needed some additional psychological services and a higher level of care, so the Idaho Department of Health and Welfare (IDHW) found an appropriate placement in a therapeutic group home out of state, where Timmy has remained ever since.  His mother, unfortunately, passed away about a year ago, and his father has never actually worked his case plan, but it was never Timmy’s desire to terminate parental rights, and it was not in Timmy’s best interests as there was no other family or adoptive placement suitable for Timmy and his needs, especially after the tragic passing of his mother.

Timmy is set to graduate high school with his diploma in summer of 2022, but he just needed a place to stay at least to get him through his education.  All of the support people that Timmy knows now are in the therapeutic group home, and he wants to stay at that home at least until he graduates.  By staying at that home, he can also continue to receive counseling with his counselor, with whom he has a strong bond.  He can also continue in the same school with the same teachers.  The home provides him with hands-on training in various trades which Timmy can pursue after leaving foster care.  If EFC had not come into existence, Timmy would not have continued to have all of these services or supports. 

What is extended foster care and how was it created?

Extended foster care is a term for continuing a youth in the custody and control of the IDHW beyond his 18^th birthday and up to his 21^st birthday.[1]  Since the youth is already 18 and technically an adult, it is a voluntary program, which means the youth has to sign on to continue being subject to the rules and authority of IDHW and/or the foster parent.  In that way, EFC is very much like when your child turns 18 and continues to live at home.  This may be to avoid rent or food costs, but it may also be that the newly minted 18 year old is still finishing high school, and is preparing for their next chapter.  EFC allows the youth to continue living in foster care while requiring the youth’s “parent” (the State of Idaho) to continue to help provide his basic necessities.

“Extended foster care is a term for continuing a youth in the custody and control of the IDHW beyond his 18th birthday and up to his 21st birthday.”

EFC in Idaho was created under H.B. 336, which was signed into law by Governor Little on April 23, 2021.[2]  H.B. 336 amended several sections of the Idaho Code relating to juveniles in order to comply with the Family First Prevention Services Act (FFPSA) passed into law by Congress in February 2018.  FFPSA was created and passed as a way to turn the focus of the child welfare system toward providing resources so that children could safely remain with their families, if at all possible, rather than going through the trauma of a removal from the home and placement into foster care.[3]  Although Idaho lumped EFC in with the other changes being made in accordance with FFPSA, the ability to provide extended foster care came from amendments to the title IV-E program by way of the Federal Fostering Connections to Success and Increasing Adoptions Act of 2008.[4]

The two changes to the Idaho Code under H.B. 336 to create extended foster care were relatively minor.  The first change was to simply add a section to I.C. § 16-1622, which is the portion of the Child Protective Act that deals with review hearings, allowing the court to extend foster care for a person between the ages of 18 and 21 in order to help that person achieve “successful transition to adulthood,” provided that certain other qualifications are met.[5]  The other minor change was to add a line to the Idaho Code section about the retention of jurisdiction in Child Protective Act cases.  This change allows courts to retain jurisdiction over the child beyond his 18^th birthday if jurisdiction is extended by the court pursuant to I.C. § 16-1622(5).[6]

Who qualifies for EFC?

The qualifications for EFC are few but rather broad.  Of course, a person must be 18 years or older to qualify for EFC, and he will only qualify up until his 21^st birthday.[7]  As previously noted, the youth must voluntarily agree to EFC as well since he is technically an adult capable of living on his own and making most adult decisions by law.  Those are the more obvious and general conditions.  However, there are more specific conditions which must be met.

First, the youth must have previously been in the custody of the State of Idaho up until his 18^th birthday.[8]  This provision is included as the program was meant to be a transitional program for youth to be able to successfully exit foster care and enter into the adult world.  If this was not a qualification, any person ages 18 to 21 could request to be a dependent of the State of Idaho, which is not the intent of either the foster care program, or the EFC program. There are other social programs available for those not within the foster care system.

Once those qualifications are met, the Idaho Code requires that we look to the United States Code for the additional qualifications, specifically those under 42 U.S.C. § 675(8)(B)(iv).[9]  Under that section, the youth must meet one of five criteria.  He must either be: 1) completing high school or a high school equivalent program, such as a GED program; 2) enrolled in college or vocational education; 3) participating in “a program or activity designed to promote, or remove barriers to, employment;” 4) employed at least 80 hours per month; or 5) have a medical condition which renders him incapable of doing activities 1-4 and such incapability is regularly documented and updated in the case plan for the youth.[10]  It would be rather difficult not to meet one of those five qualifications, so the vast majority of youth who would previously have “aged out” of foster care at 18 will now qualify for EFC.

What are the benefits of EFC?

Now, some of you die hard child protection practitioners may be saying, “But what about the Independent Living Program?  Didn’t that already cover helping youth transition into adulthood?”  The short answer to that is yes and no.  There are several differences in the Independent Living Program and EFC.  While Idaho’s Independent Living Program is meant to help youth ages 14-21 develop skills necessary to transition from foster care to being able to live on their own, EFC has many additional benefits and services available on top of the Independent Living Program.[11] 

The eligibility criteria for the Independent Living Program is vastly different than the EFC qualifications, and there are some disqualification factors to consider with the Independent Living Program as well.  To be eligible for the Independent Living Program, the youth must have been in care for 90 cumulative days at some point after his 14^th birthday, but there are only certain types of placements which would qualify, and even if adopted or having achieved permanency under a legal guardianship, youth can still qualify for the Independent Living Program.[12]

The nice thing is that the two programs are not mutually exclusive, so you can still receive services under the Independent Living Program while also being in EFC program.  For the youth, the only real drawback to the EFC program is the youth must give up some autonomy for the continued oversight of IDHW and the courts.  EFC allows the courts to continue having jurisdiction over the youth and the case for as long as the youth remains in care or until EFC eligibility ends at age 21.[13] 

In many cases, it may be of extra benefit to the youth to still continue to have relationships with the judges, social workers, attorneys, and guardians ad litem who have been a part of the youth’s life for quite some time and may even be the only family-like support people that the youth has.  Most often, the attorney for the youth is a court-appointed attorney from a public defender’s office like mine, and once a child protection case closes, our contact with the youth usually ends unless the contact continues on the attorney’s personal time.

What is the process for EFC?

As EFC is a new program in Idaho, the process for EFC is evolving and subject to change.  Timmy was the first case of EFC in Idaho that I am aware of, so of course none of the professionals involved in Timmy’s case had any idea what we were doing.  Many thanks and kudos go out to the people at IDHW, on the Child Protection Committee, and working for the Administrative Office of the Courts for answering my frantic calls and emails as we tried to figure out what needed to happen by when and which forms to use.  After consultation with those wonderful individuals, the process we used for Timmy’s case was actually fairly painless, but I do suggest starting the process early by doing everything you can to prepare the youth and to make sure the court has all of the necessary information and documents to order the continued jurisdiction.

First and foremost, you need to make sure that the youth actually wants to participate in EFC and will sign on to the program voluntarily.  EFC is entirely based on the cooperation of the youth, so that is a piece you will want to get established earlier than when the youth turns 18.  For Timmy, we had several conversations about EFC starting about four or five months before his 18^th birthday.  If the youth is already engaged in the Independent Living Program, they will have an Independent Living Transition Planning meeting to create a transition plan for the youth, which will also be of great benefit. 

I strongly recommend that that transition meeting or another similar meeting occur at least two months before the youth’s 18^th birthday.  The transition plan is different than the case plan.  In EFC cases, the social worker will need to develop a new case plan for EFC.  These EFC case plans look similar to a regular case plan in a Child Protective Act case, but there is a different focus, as the case plan for EFC will focus more on service needs of the youth and how those needs will be fulfilled rather than what the parents or various parties need to do to address areas of concern and reunify with their child.

Prior to the youth’s 18^th birthday, the social worker will need to submit the new case plan to the court along with an Affidavit for Review of Transition Plan and Notice of Extended Foster Care.  That affidavit is created by the social worker and should include all of the information necessary for the judge to determine that the youth meets eligibility requirements for EFC and to authorize continued jurisdiction.  The affidavit submitted in Timmy’s case was a stock form where the social worker was able to check the necessary boxes, such as what grounds for EFC the youth met under 42 U.S.C. § 675(8)(B)(iv).  In that affidavit, it will also include what the transition plan will be and goes through each individual health and education passport document, which are documents like birth certificates, driver’s license, social security card, medical insurance card, and others that a youth will need going forward into adulthood.

Once the necessary documentation has been submitted, there should be a hearing in the Child Protective Act case just prior to the youth’s 18^th birthday.  At that time, the court can hear from the youth himself about whether he is voluntarily entering into EFC, and the parties can go over any unresolved issues or questions that the court may have.  The court will then have to specifically authorize EFC and specify the grounds in 42 U.S.C. § 675(8)(B)(iv) under which the youth qualifies.  The court should specify a set period of time for which EFC is authorized, as required under I.C. § 16-1622(5).  The court should also set another regular review hearing within six months.  On the youth’s 18^th birthday, once he has reached the age of majority and has the ability to legally sign onto an agreement, the youth will need to sign on to the case plan and any other documentation required by IDHW to continue to provide services.

Conclusion

Thus, while EFC may have just been achieved by two minor adjustments to the Idaho Code, as demonstrated through this article, it changed at least one life immensely.  For many of us, turning 18 is a cause for celebration, but for others, it is a cause for uncertainty.  With EFC, that uncertainty can be turned into celebration, transition, and opportunity.  I encourage practitioners to consider whether EFC could help in any of your cases.

BIO:

            Catherine is a Deputy Public Defender with the Bonner County Public Defender’s Office.  She has worked in child protection law in various capacities since 2010 and is recognized as a Child Welfare Law Specialist by the National Association of Counsel for Children.  She lives in Sandpoint with her husband, dog, and two rambunctious guinea pigs.

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Endnotes

[1] I.C. § 16-1622(5)

[2] https://legislature.idaho.gov/sessioninfo/2021/legislation/H0336/

[3] https://www.childwelfare.gov/topics/systemwide/laws-policies/federal/family-first/

[4] https://www.childwelfare.gov/pubpdfs/extensionfc.pdf

[5] I.C. § 16-1622(5)

[6] I.C. § 16-1604(1)

[7] I.C. § 16-1622(5)

[8] Id.

[9] Id.

[10] 42 U.S.C. § 675(8)(B)(iv)

[11] https://healthandwelfare.idaho.gov/services-programs/children-families/child-and-family-services-and-foster-care/about-independent

[12] https://healthandwelfare.idaho.gov/services-programs/children-families/child-and-family-services-and-foster-care/eligibility

[13] I.C. § 16-1604(1).

Shanna C. Knight

Published February 2022

As an Idaho practitioner, unless you represent a tribe, you might be wondering why you should care about Oregon’s new Indian Child Welfare Act (“ORICWA”). After all, Idaho practitioners are already required to follow the federal Indian Child Welfare Act (“ICWA”). If so, I would answer first that Oregon’s new law demonstrates best practices should be applied to not only Indian children[1], but also all children in the child welfare system. Over time child welfare practices and laws have recognized many of ICWA’s tenets as best practices for all children – including keeping them in their communities, recognizing and supporting their cultural connections, and working to keep families together in the first place. Second, I would point out that people move, of course, and often with little thought to little things like jurisdiction.

Our state borders are porous, and many families move around for school, military service, love, and work. In addition, the matters covered by ORICWA apply to many different kinds of child custody proceedings. Whether your practice involves family law, child dependency law, or both, this law will be useful to know if you find yourself representing a family, child, or tribe in a matter that lands in Oregon state court or under that state’s jurisdiction. Even if you do not find yourself practicing under ORICWA, I hope you take away some good information that helps you support your clients – and families – in the future.

Background: Federal ICWA

There is much to talk about when it comes to ICWA, but if you are new to this topic, I encourage you to pursue your own research. I have provided some resources for readers for more in-depth information in the endnotes. To start, Congress passed the federal Indian Child Welfare Act in 1978 (“ICWA”).[2] This law sets the foundations for ORICWA, and you should also be aware that there are binding regulations[3] and somewhat unhelpful (non-binding) guidelines, as well. Both the regulations and the guidelines came out in 2016. If you want to look at some good guidelines, I recommend taking a look at the 2015 guidelines,[4] which are much more helpful and representative of best practices. If you are short on time, I recommend starting with the regulations, which also cover the law.

ICWA applies whenever there is reason to know that a child is an Indian Child in a child-custody proceeding in state court. ICWA defines an Indian Child as a child who is (i) under 18 and either (ii) a member of a federally-recognized tribe or (iii) the biological child of a member and eligible to become a member themselves. A child custody proceeding does not include custody disputes between parents, but rather several involuntary and voluntary proceedings that would remove a child or terminate parental rights.

The statute bears close reading here, because these proceedings not only include foster care and termination, but guardianship cases, as well. The law was passed in light of evidence that Indian families commonly faced unwarranted removal of their children from their homes – so much so that before the law was passed in 1978, at least a quarter of all Indian children were being taken, and most of them were being placed outside their families and cultures. Over 30 years later, the statistics are not much better, as many lawyers and judges either struggle with or fail to apply the law.

In order to better enforce the law and fill in the gaps that the statutes and regulations have left behind, nine states have enacted their own laws. Section 1921 of ICWA provides that where state or federal law provides a higher standard of protection, the court shall apply the higher standard. Another state neighbor, Washington, passed its own ICWA law in 2011. Oregon is one of the more recent states to join this trend. Oregon’s state legislature unanimously passed ORICWA[5] on June 26, 2020 and the law went into effect on January 1, 2021.

Comparing ORICWA with the Federal ICWA

ORICWA restates many sections of the original ICWA and the 2016 federal regulations; however, there are some key differences. The remainder of this article will focus on how ORICWA addresses the best interests of an Indian child, fathers’ rights, qualified expert witnesses, active efforts, and placement preferences. However, readers should also be aware of ORICWA’s sections on jurisdiction, transfer, notice, right to counsel for the Indian child and parents, and the right of each party to examine documents. Placements and terminations can be overturned if these sections are not followed. To learn more, I encourage you to read the statute, but I also would like to point out that there is a very helpful benchbook available to you.[6]

Best Interests of an Indian Child

Section 5 of ORICWA contains a unique best interests of the Indian child analysis that the federal law does not. Under ORICWA, the juvenile court is instructed to consider the following five factors in consultation with the Indian child’s tribe: (i) the protection of the safety, well-being, development and stability of the Indian child; (ii) the prevention of unnecessary out-of-home placement of the Indian child; (iii) the prioritization of placement of the Indian child in accordance with ORICWA’s placement preferences; (iv) the value to the Indian child of establishing, developing or maintaining a political, cultural, social and spiritual relationship with the Indian child’s tribe and tribal community; and (v) the importance to the Indian child of the Indian tribe’s ability to maintain the tribe’s existence and integrity in promotion of the stability and security of Indian children and families.

Before ORICWA, courts could infer some of these factors into the best interests of the child analysis; however, many did not. ORICWA clearly states that the enforcement of the law is meant to effectuate the best interests of the child by taking into account cultural significance. Many of these factors have been repeatedly shown to support the resiliency of all children removed from their homes.[7] It is my hope to someday see many of these factors integrated into the best interests of the child analysis for all children.

Fathers

Unmarried Indian fathers have had a fraught history of losing their children under ICWA. ORICWA’s language is similar to the federal regulations in that paternity can be established under state, federal, or tribal law. However, ORICWA goes further to say that it also recognizes fathers who are recognized in accordance with tribal custom or if the man openly proclaims to be the father in court, to the Indian child’s family, to Oregon’s Department of Human Services, or to an Oregon licensed adoption agency.

Qualified Expert Witness

ICWA has always required that a qualified expert witness (QEW) testify before the court regarding whether continued custody by the parent or Indian guardian is likely to result in serious emotional or physical damage to the child, whether active efforts have been made, and the child’s tribe’s social and cultural standards around child rearing. However, historically many state agencies would just have a staff member, usually not a tribal member, and sometimes even the child welfare worker on the case, fill this role. That last practice was finally prohibited by the federal regulations, but petitioners still often fell short of finding a good QEW.

Having a QEW means educating the court on tribal practices and it is really meant to disrupt western bias in the placement of Indian children. For example, many children have been disproportionately taken away simply because many different adults in the community were involved in raising children, which does not really fit with western society’s predominant views on family structure (e.g., the nuclear family unit). What may seem like neglect to an outsider, if both parents are away, is in reality a large network of aunties, uncles, grandparents, and more, taking care of the children. A QEW should be able to testify to this and clarify cultural misunderstandings.

To address the continued problem of getting this information before the state court, Section 17 of ORICWA specifically lists out who can be a Qualified Expert Witness, in order of priority: (i) a member of the Indian child’s tribe or another person of the tribe’s choice who is recognized by the tribe as knowledgeable tribal customs regarding family organization or child rearing practices; (ii) a person having substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child’s tribe; or (iii) any person having substantial experience in the delivery of child and family services to Indians and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribes with cultural similarities to the child’s tribe.

ORICWA also allows for other professional testimony, but prohibits any petitioning party or the employees of Oregon’s Department of Human Services from serving as a qualified expert witness or a professional for purposes of giving testimony.

Active Efforts

Most child dependency proceedings rely on a reasonable efforts standard. This means that the petitioning party or child welfare services is required to provide reasonable efforts to try and keep families together, or reunite the child with them if the child has been removed. In 1978 ICWA raised the standard to active efforts; however, the law was vague and the standards of care a family received varied widely from state to state. The federal regulations helped to reinforce that active efforts really are a higher standard, but the examples in the guidelines were muddy. Section 18 of ORICWA emphasized the language of the regulations, but also offers specific requirements that make it easier to know if the petitioner or child welfare agency is on the right track and give the court an idea of what to look for.

ORICWA is clear that active efforts are a higher standard than reasonable efforts and requires that they must: (i) be documented in detail in writing and on the record; (ii) include assisting the Indian child’s parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan; (iii) include providing assistance in a manner consistent with the prevailing social and cultural standards and way of life of the Indian child’s tribe; (iv) be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians and tribe; and (v) be tailored to the facts and circumstances of the case.

Here is one scenario comparing reasonable efforts with active efforts under ORICWA: Regarding a reasonable efforts standard, the petitioning party, such as the child welfare agency, might provide parents with a referral to services, such as to a Positive Parenting class and then follow up with the class’s teacher to ensure the parents attended and were engaged. In an active efforts scenario, the petitioning party might meet with the family to determine the best services, work to overcome barriers like scheduling during work and finding childcare, locate culturally specific resources like Positive Indian Parenting or Parenting in 2 Worlds,[8] and offer the parents a ride to class. Afterwards, the petitioning party would check in with the parents to see how the resource was working for them. Active efforts are much more likely to ensure that families engage, feel empowered, and have a meaningful chance to stay together or reunite.

Placement Preferences

While the federal ICWA and the regulations have established placement preferences for temporary and permanent removal, ORICWA’s Section 23 goes in depth into several different scenarios.

For substitute care, ORICWA first directs the petitioner to place children according to the child’s tribe’s preference. If such preferences are not available, then, in order of priority: (i) with extended family; (ii) in a foster home approved by the tribe; (iii) in a foster home with an Indian parent; or (iv) in an institution that meets the Indian child’s needs and is approved by a tribe or operated by an Indian organization.

For guardianships, ORICWA again refers to tribal preference, but if unavailable then, in order of priority: (i) with extended family; (ii) with the family of a tribal member; or (iii) with an Indian family.

ORICWA also has a process for courts to follow in the event that a child is placed outside the placement preferences. In order to begin the process a party must move to make a placement contrary to the placement preferences, and the motion must detail why good cause exists. If there is an objection to the motion, the court must hold a hearing. Good cause may be based upon: (i) the Indian child’s preference; (ii) the presence of a sibling attachment; (iii) the extraordinary needs of the Indian child; or (iv) proof that the petitioner performed a diligent search and was unable to find a home that met the placement preferences.

ORICWA does not accept (i) perception of the tribe’s justice or social services system; (ii) perception of the tribe’s justice or social services system; (iii) distance; or (iv) ordinary bonding and attachment as evidence of good cause.

Conclusion

ORICWA is one of the newest additions to an already large body of Indian Child Welfare law. This law is really important to understand if our clients or their families fall under Oregon jurisdiction. Even more, though, it may also help teach us about best practices in other areas of child welfare, and support more children by keeping them in their communities, in touch with their cultures, and connected to their extended families. All of these things are a part of the best interests of each and every child.

Although there is so much more to talk about, I hope that this article gives you a good place to start and that you will keep ORICWA’s lessons in mind the next time you practice.

To learn more about ICWA View the Native American Rights Fund’s short film on ICWA available on YouTube at https://youtu.be/VJCqeauLvY8. Access the National Council of Juvenile and Family Court Judges Benchbook available at www.ncjfcj.org. To learn more about ORICWA: look up the ORICWA 2021 Judicial Benchbook (link available in the end notes).

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Endnotes

[1] A note about terms: This article uses the term, “Indian,” instead of “Native American” or “American Indian/Alaska Native” because both the federal and state laws use those terms.

[2] 25 U.S.C § 1901 et. seq.

[3] Indian Child Welfare Act Proceedings; Final Rule, 81 Fed. Reg. 38,778 (June 14, 2016), 25 C.F.R § 23.101 –23.144.

[4] Guidelines for State Courts and Agencies in Indian Child Welfare Act Proceedings, 80 Fed. Reg. 10146 (Feb. 25, 2015).

[5] Oregon Indian Child Welfare Act (ORICWA), Oregon Laws 2020, ch. 14. (At the time this article was written, ORICWA had yet to be published in the Oregon Revised Statutes. Readers can access the text of Oregon HB 4214 at https://olis.oregonlegislature.gov/liz/2020S1/Downloads/MeasureDocument/HB4214/Enrolled).

[6] Oregon Judicial Department Juvenile Court Improvement Program & Casey Family Programs Work Group. Oregon Indian Child Welfare Act (ORICWA) 2021 Judicial Benchbook, (Jan. 2021), https://www.courts.oregon.gov/programs/jcip/Documents/OregonIndianChildWelfareActBenchbook.pdf.

[7] See e.g., Ariella Hope Stafanson, Supporting Cultural Identity for Children in Foster Care, Child Law Practice Today (Jan. – Dec. 2019), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/january—december-2019/supporting-cultural-identity-for-children-in-foster-care/.

[8] Services differ from place to place. Here I reference the Native American Youth and Family Center’s Parenting in 2 Worlds  class in Portland, OR. Practitioners are going to have to do their own research to locate culturally specific resources. I recommend to always start with the child’s tribe to see if they offer or refer families to services.

Janice Beller

Published February 2022

While most folks rush in and out of their local post office, indifferently dropping off or picking up mail on their way to somewhere else, Malissa Poog remembers the Blackfoot Post Office with an entirely different set of feelings.  Melissa, a member of the Shoshone-Bannock Tribe, fondly remembers often visiting the post office with her mother as a child.  While there, she would look at a series of murals painted on the walls of the building, each depicting people who looked like her, busily working on the tasks of life in peace.

The murals, painted by the artist Andrew Standing Soldier, “showed life prior to the boarding school era,” remembers Melissa, “it was a snapshot of my people that always felt tranquil.”  The older she got, however, Melissa began to recognize the great disparity that exists between the mural’s scenes and the reality for her tribe and its children.

Melissa’s discovery eventually led her to a career in Tribal Social Services.  Her work is a labor of love over the last 25 years.  Today, as the Shoshone-Bannock Tribal Social Services Manager, Melissa spends her days working with tribal families, connecting them to resources, support, and assisting adults looking to reconnect with their tribal ties.  Too often those ties were severed while tribal members were children, many times as a result of a child protective act (“CPA”) case ending in the termination of parental rights.

Making the situation even more traumatic, the termination of parental rights to an Indian child also meant, functionally, the termination of connection between the child and his or her tribe.  These connections, Melissa notes, are critical to the survival of the tribe and the preservation of its history, culture, and traditions.  “Adults coming back to the tribe struggle,” she says, “because they have lost the values unique to the tribe.  They feel like they do not fit in either world – the white or the Indian – and it is difficult to reconnect.”

ICWA at the Crossroads

It also helps to explain why the current potential for a major change in Indian Child welfare policy concerns Melissa so greatly.  Currently, the Supreme Court of the United States is poised to consider whether to grant certiorari to a block of cases challenging the constitutionality of the Indian Child Welfare Act (“ICWA”).

The challenge is real and the potential impact to tribes fighting to keep their children is substantial.  “ICWA helps us fight to preserve the connection between a child and his or her tribe.”  Melissa notes, “[t]ribal children placed in the child welfare system without ICWA stand to lose so much more; their community, their tribe, their culture.  We lost so many children before….”  Melissa’s voice trails off and for a moment, it is easy to feel the hurt, anger, and fear the current situation creates for her.  “ICWA is in danger and not everyone knows it yet.  Some tribes are too trusting and take for granted the value ICWA provides.”

Understanding the weight of the current court battle first requires an understanding of the fight undertaken by America’s Indian tribes to secure the rights established in ICWA, over 40 years ago.

Responding to the Indian Boarding School Era

Congress passed the Indian Child Welfare Act in 1978, in response to significant concerns that Native children were still being disproportionately removed from their homes and tribes, when compared to non-Native children.[1]  Even after the closure of the Indian boarding schools, it was alleged that government child welfare entities would systematically remove Native children from their homes, doing so without first establishing any legitimate basis for removal.[2]

This policy silently replicated the atrocities experienced by tribes in the earlier days of Indian boarding schools, where it is estimated that 83% of Native children were removed indiscriminately from their tribes and placed in state-supported facilities.[3]

At the peak of the boarding school era, 367 schools existed in the U.S.[4]  In those facilities, children were forced to wear non-native clothing, could not speak their native languages, or participate in native traditions or ceremonies.[5]  Schools isolated the students from their families and tribes with the expressed purpose to “kill the Indian, save the man.”[6]  Often, children taken from their families never returned home, succumbing to rampant abuse and unchecked disease.[7]

In this context, the road to becoming law was not easy for ICWA.  Congress held multiple hearings and investigated the situation for over four years before enacting the legislation.[8]  In the hundreds of pages of documents creating the legislative record for ICWA, investigators concluded that in the 1970’s, “up to 35% of American Indian children lived in foster care, adoptive care, or institutions.”[9]  Instead of a blanket policy of ‘forced assimilation’ with the boarding schools, governmental agencies utilized state-run health and welfare agencies to remove children, predicated on ill-informed judgments about the conditions present on tribal reservations.[10]

One out of every three Indian children were still being taken, involuntarily, from their homes and tribes.  Instead of death from abuse and disease, the ties between child and tribe were permanently severed by state-sanctioned foster care placement and adoption.    

Child Welfare’s Gold Standard 

When President Jimmy Carter signed ICWA into law on November 8, 1978, it required a substantial shift in how state agencies approached child welfare cases involving Indian children.  Once established that a child of concern is or may be an Indian child, CPA courts must confirm that the responsible child welfare agency has notified the child’s potential tribe of the open child welfare case.[11]

For any child custody case involving an Indian child domiciled on tribal land, the tribe has exclusive jurisdiction over the child and may remove the case to tribal court.[12]  For those cases that originate from tribal lands, the tribe has concurrent jurisdiction in the case.[13]

What Does ICWA Do? ICWA governs State child-custody proceedings in multiple ways, including: (1) by recognizing Tribal jurisdiction over decisions for their Indian children; (2) by establishing minimum Federal standards for the removal of Indian children from their families; (3) by establishing preferences for placement of Indian children with extended family or other Tribal families; and (4) by instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.  *Box 2*

One of the primary improvements mandated within ICWA is the requirement that the state utilize “active efforts” to reunify a child identified as an Indian child with his or her biological parents.[14] For non-Indian children, the standard is “reasonable efforts,” which is generally considered a slightly lesser level.

A state court may terminate an Indian child’s biological parent’s rights only once the state has made its case beyond a reasonable doubt, as compared to the clear and convincing standard used in non-Indian child proceedings.[15]  Additionally, the State must offer the testimony of a Qualified Indian Expert, who must conclude that a parent’s or Indian custodian’s continued custody of the Indian child will result in serious emotional or physical damage.[16]

Another important difference are the rules around foster placement of an Indian child.  Long before the Families First Act firmly established a requirement for kinship placement, ICWA mandated that Indian children must, wherever possible, be placed with extended family or other tribal foster families.[17]  Why is this important?  Melissa has seen the impacts of placing Indian children in non-Indian foster or kinship placements.  “Even if foster parents want to do right by an Indian child, there is no guarantee the community or extended family will,” she says, “these children are subjected to fear and hatred, judged in the community, and lack a sense of acceptance.”

Together, these protections, in addition to many others built into ICWA, create what has been called the ‘gold standard’ of child welfare; a structure of checks, balances, resources, and heightened judicial oversight that gives Indian families and tribes every opportunity to prevent the loss of children from tribal communities.[18]  This standard and its disproportionately high use of limited resources, however, has not gone without judicial challenge.

Legal Challenges to ICWA

Unsurprisingly since 1978, multiple groups have challenged ICWA.  Over time, and with the changing of the U.S. Supreme Court’s composition, ICWA’s scope has been modified.  In Mississippi Band of Choctaw Indians v. Holyfield, twin children born to members of the Mississippi Band of the Choctaw Indian tribe were born off the reservation and adopted (with the parents’ consent) by non-Indian parents, the Holyfields.[19]

The mother attempted to locate an adoptive family or relative on the reservation to take the children, but was unsuccessful in doing so.[20]  She moved off the reservation solely for the purpose of giving birth and when the tribe found out two months after the State finalized the adoption, they filed suit.[21]  The tribe claimed it had exclusive jurisdiction and sought to reverse the previous adoption order.[22] 

Both the trial court and Mississippi Supreme Court upheld the trial court’s original decision that because the children were not born, nor resided, on the reservation, ICWA did not apply.[23] 

The Supreme Court of the United States, however, reversed the lower court decisions, holding that ICWA does apply to the adoption of Indian children, provided the child(ren) or biological parents resided on the reservation.[24]

In Justice Brennan’s majority opinion, he noted that “[t]hese congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA’s jurisdictional scheme is inconsistent with what Congress intended.  The appellees in this case argue strenuously that the twins’ mother went to great lengths to give birth off the reservation so that her children could be adopted by the Holyfields.  But that was precisely part of Congress’ concern.  Permitting individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish.”[25]

Chipping Away at ICWA’s Scope

The tide began turning against ICWA in the 2013 Adoptive Couple v. Baby Girl decision, where the Supreme Court held that several sections of ICWA apply only to biological fathers with custodial rights to an Indian child.[26] The case focused on a baby girl whose father was a registered member of the Cherokee Nation, but who had no formalized custody of the child because he and the child’s mother terminated their relationship.[27]  While he privately told the mother he was not interested in parenting the child, he reacted differently when he realized his child was set to be privately adopted.[28]  He objected, claiming his rights under ICWA, and the state court awarded him custody of the little girl.[29]

The identified adoptive parents appealed to the Supreme Court of the United States, who reversed the lower court decisions.[30]  The Court held that for an Indian child without a formalized relationship to his or her father, ICWA does not apply.[31]  Additionally, the Court held that ICWA’s requirements for active efforts to preserve the Native American family do not apply if no other party (presumably a tribal party) steps forward to seek adoption of an Indian child.[32]

The decision rocked the child welfare world, not only because it left the future of ICWA uncertain, but because it led to a worst-case scenario for the young girl; the case began in 2009, the biological father was awarded custody in 2011, and custody of the child was returned to the adoptive couple in late 2013.  For the tribe, it was a reversal of fortune that foreshadowed the legal challenges happening now.

Zeroing in on the New Fight

Just five years after the final decision in the Baby Girl case, multiple cases directly challenging the constitutionality of key ICWA provisions began making their way through the federal courts.  The cases surviving an initial appellate review all come from the Fifth Circuit Court of Appeals.  While a few cases arrived at Courts of Appeal in the Second, Eighth, and Ninth Circuits, none of the cases were decided on substantive legal grounds tied to ICWA.

In fact, of the three cases taken up by the Ninth Circuit Court of Appeals since Baby Girl, all of them were summarily addressed without the bench commenting on ICWA.  The Eighth Circuit examined a basic jurisdictional issue related to ICWA and quickly upheld the tribal court’s exclusive and primary jurisdiction for incidents occurring on tribal land with Indian children.[33]  The battle for ICWA, it seems, comes from deep in the heart (and tribes) of Texas.

The Anti-Commandeering Question One of the central issues in the potential Supreme Court cases questions whether the federal government, through ICWA and the judicial system, has impermissibly allocated state resources without the authorization of the state involved.  The basic “anti-commandeering” doctrine notes: “[t]he Constitution confers on Congress not plenary legislative power but only certain enumerated powers, and conspicuously absent from those is the power to issue direct orders to the governments of the States.”   The challenge?  This directive conflicts with the Supremacy Clause, which requires state courts to follow validly enacted federal laws – like ICWA.  “Typically, if a federal law is enforceable in state courts or preempts state law, no “commandeering” arises from the fact that state courts must apply the federal enactment—rather, this is what the Supremacy Clause demands.”  Since the enforcement of ICWA occurs directly through the judicial intervention of a child welfare case, the question before the Fifth Circuit was whether federal law commandeers state courts.  The judges acknowledged, prior to their analysis, that an overlap exists.  **Box 3**

Awaiting Certiorari: Brackeen v. Haaland

Over the last two years, four cases in the Fifth Circuit have put ICWA’s fundamental provisions front and center of judicial review.  These cases, collectively identified under the Brackeen v. Haaland umbrella, challenge significant portions of ICWA, and the Fifth Circuit, en banc, split on the issues presented.[34] 

The cases have garnered substantial attention by multiple states, numerous tribes, and additional special interest groups, all of whom are trying to advocate for their own special mix of affirmations and reversals.

Why?  The problems created by the Fifth Circuit are stated succinctly in the Petition for Certiorari Review submitted in Brackeen v. Haaland,

“[a]cross six splintered opinions, eight judges concluded that all three of ICWA’s placement preferences were constitutional, six judges concluded that all three violated equal protection, and two judges concluded that at least the third placement preference was unconstitutional, resulting in an affirmance of the district court’s invalidation of that provision. A different majority of the en banc court further held that certain provisions of ICWA violated the anti-commandeering doctrine, and an equally divided court affirmed the district court’s holding that the preferences unconstitutionally commandeered state agencies. Yet another majority of the Fifth Circuit, however, upheld the placement preferences as applied to state courts based on the conclusion that the anti-commandeering doctrine provides no protections to state judiciaries.”[35]

While the Supreme Court will not make its decision on the petitions until sometime in January, most leading court experts agree that based on the split within the circuit, there is a high degree of likelihood the Court will take up these cases.  Given the differences in the composition of the Court from 2013 to now, the end result is unclear and troubling to tribal advocates like Melissa.

Why ICWA Matters

When asked why ICWA matters to her tribe, Melissa’s answer is quick and definite, informed by her twenty plus years of experience.  “Indian children are the children of the tribe.”  She pauses and then adds, “[w]e must get states to recognize that the tribe is a child’s family.”  She notes as an example, “[w]hen the boarding school children came home and had children of their own, they were unable to raise them.  Those children, as adults, came home traumatized and with problems.  It was the Grandparents in the tribe that took over parenting responsibilities for their grandchildren, and in this way, began to heal the damage caused by the boarding schools,” said Melissa.

Without that transfer of history, culture, and language to the next generation of tribal members, a crisis looms for America’s smaller tribes as their elders succumb to time.  The Kootenai Tribe of northwestern Montana and northern Idaho exemplifies this dire problem.

The Kootenai are a small tribe with a “language isolate:” a language which stands alone, unrelated to any other tribal tongue.[36] 

In the 1970’s, linguists and sociologists began recording the elders telling the stories of the tribe, but failed to appreciate the loss of new language speakers who could understand the stories.[37] 

The fix is not an easy one.  For a tribal member to gain fluency in the Kootenai language with the proper context, tone, and syntax, it requires a lifetime of exposure, instead of an intensive workshop or written primer.

Today, this is a pervasive problem among the Indian tribes of the United States.  “The U.S. Census Bureau reported in 2011 that the 169 Native North American languages it tracks have only about 375,000 total speakers; the 10 most prominent languages account for about three-quarters of them.”[38] 

The United Nations identified 140 languages within the U.S. that are “dying,” and most belong to Indian tribes.[39] 

Now, instead of battling a concerted effort to “remove the Indian from the man,” tribes face losing culture and heritage due the loss of its treasured elders, who die without passing on the knowledge they have guarded for generations.

“Today, this is a pervasive problem among the Indian tribes of the United States.”

The Role of Practitioners

While an urgent situation exists every time the state removes a child from his or her home, when an Indian child is removed from his or her family, a companion risk of disconnection from the tribe’s history, culture, and language exists.  When removal of a child cannot be prevented, it is critical that child protection practitioners support the effort to identify Indian children quickly. 

This process could require something as simple as establishing parental ancestry, or something as technical as confirming a child’s paternity.  Confirming a child’s ICWA status gives the tribe a chance to engage as early as possible and opens up additional resources to assist the child and parents with reunification.

“ICWA gives us the resources and authority to continue to look after our tribe’s children,” Melissa says.  “The people in our tribe must be committed to making it work, but,” she notes, “we are resilient.”

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Janice Beller served as a child protection GAL and spent seven years working on the Child Protection team at the Idaho Supreme Court.  After serving as a Deputy Criminal Prosecutor for the Cities of Boise and Meridian for five years, she currently handles a child protection calendar in Canyon County.  She remains hopeful that someday, her guitar-playing teenager will expand his repertoire of guitar solos and playing prowess beyond his beloved Metallica.

The author wishes to express her thanks to Debra Alsaker-Burke, for her critical feedback and insightful suggestions on this topic as the article took shape. 

The Brackeen v. Haaland Cases Haaland v. Brackeen  (Petition 21-376) Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection. Cherokee Nation v. Brackeen  (Petition 21-377) Issues: (1) Whether the en banc U.S. Court of Appeals for the Fifth Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc Fifth Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc Fifth Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari. Texas v. Haaland  (Petition 21-378) Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress. Brackeen v. Haaland  (Petition 21-380) Issues: (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.                                                                                                                                       *Box 4*

Endnotes

[1] Indian Child Welfare Act (ICWA), Child Welfare Information Gateway, https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/ (last visited Dec. 7, 2021).

[2] Id.

[3] The National Native American Boarding School Healing Coalition, A Primer on American Indian and Alaska Native Boarding Schools in the U.S., 1 Healing Voices, June 2020, at 1. https://secureservercdn.net/198.71.233.187/ee8.a33.myftpupload.com/wp-content/uploads/2021/09/NABS-Newsletter-2020-7-1-spreads.pdf.

[4] Id at 9.

[5] Id at 2.

[6] History and Culture: Boarding Schools, Northern Plains Reservation Aid,  http://www.nativepartnership.org/site/PageServer?pagename=airc_hist_boardingschools (last visited Dec. 7, 2021).

[7] The National Native American Boarding School Healing Coalition, note 3 at 3.

[8] Lynelle Hartway & Adrea Korthase, The Indian Child Welfare Act and Active Efforts: Past and Present 2 (2020).

[9] Id.

[10]  Boarding School Blues: Revisiting American Indian Educational Experiences 205 (Clifford E. Trafzer et al. eds., 2006).

[11] ICWA Notice, Bureau of Indian Affairs, https://www.bia.gov/bia/ois/dhs/icwa/icwa-notice (last visited Dec. 7, 2021).

[12] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 2. Jurisdiction, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/jurisdiction.html (last visited Dec. 7, 2021).

[13] Id.

[14] Hartway & Korthase, note 8 at 3. 

[15] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 13. Termination of parental rights, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/termination.html (last visited Dec. 7, 2021).

[16] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 14. Expert Witnesses, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/expert.html (last visited Dec. 7, 2021).

[17] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 11. Foster care placement & removal, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/foster.html (last visited Dec. 7, 2021).

[18] Hartway & Korthase, note 9 at 2.

[19] Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37–38 (1989).

[20] Id. at 38–39.

[21] Id.

[22] Id.

[23] Id. at 53.

[24] Id.

[25]  Id. at 51–52.

[26] Adoptive Couple v. Baby Girl, 570 U.S. 637, 643 (2013).

[27] Id.

[28] Id. at 644.

[29] Id. at 645.

[30] Id. at 641–42.

[31] Id.

[32] Id.

[33] Watso v. Lourey, 929 F.3d 1024, 1027 (8th Cir. 2019), cert. denied sub nom. Watso v. Harpstead, 140 S. Ct. 1265 (2020).

[34]  Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog, Sept. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.

[35]Petition for Writ of Certiorari at 2-3, Brackeen v. Haaland, No. 21-380 (filed Sept. 8, 2021).

[36] Kevin Dupzyk, NOT TRANSLATABLE: On the Flathead reservation, recording the Kootenai worldview in its own words, Native News, http://nativenews.jour.umt.edu/2014/?page_id=18 (last visited Dec. 7, 2021).

[37] Id.

[38] Id.

[39] Id.

Sidebar Boxes:

Box 1:  History and Culture: Boarding Schools, Northern Plains Reservation Aid,  http://www.nativepartnership.org/site/PageServer?pagename=airc_hist_boardingschools (last visited Dec. 7, 2021).

Box 2:   Frequently Asked Questions, Bureau of Indian Affairs, Final Rule: Indian Child Welfare Act (ICWA) Proceedings, U.S. Dep’t of the Interior Indian Affairs 3 (June 17, 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/raca/pdf/idc1-034295.pdf.

Box 3:  Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog, Sept. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.

Box 4:  Brackeen v. Haaland, 994 F.3d 249, 402–03 (5th Cir. 2021).

Kurt D. Holzer

Published February 2022

Even with organized and sustained efforts at expanding access to legal services, many Idahoans cannot get the legal help they need. As of 2019, half of Idaho’s 44 counties had 10 or fewer attorneys, three had none, and five had only lawyers employed by government.

Limited access to legal services is a problem that impacts people from most walks of life. A recent national study concluded that nearly 80% of civil litigants facing issues related to probate, divorce, child custody, landlord-tenant, debt collection, and the like have no representation in court proceedings.  This lack of access comes with serious social, legal, economic, and political consequences. It is no surprise that the top 25% or so of people on the economic ladder, and corporate interests, can access legal assistance essentially without limit.  The 35% near the bottom of that ladder have some ability to seek out assistance through a variety of pro bono, Legal Aid, public defender, or other resources. That leaves about 40% of the population in the middle who frequently cannot afford or otherwise obtain the legal assistance when faced with a legal issue. 

Lack of access to legal services translates directly to a lack of access to justice.  While there is no universally accepted definition of access to justice, my personal working definition provides:

“Access to justice exists when a person with a legal issue can, within their financial means, obtain that level of legal assistance needed to achieve a just outcome on the merits accompanied by the sense they were treated fairly in the process.”

We as a profession have some responsibility in having contributed to the problem of incomplete access by our role in developing the system’s well-intentioned regulatory structure. Regardless, our profession certainly has a leading role in addressing the problem. 

Idaho is far from alone in seeing access issues impact its citizens. Across the country, pro bono and “low bono” efforts are nowhere near sufficient in and of themselves at providing access.  Many states are thinking about how to serve populations that cannot currently obtain affordable help with legal issues.  Regulatory barriers to delivering legal services are under scrutiny by academicians, regulators, and courts. 

Legal regulatory reform may not sound sexy, but it is a hot topic.

The Idaho Supreme Court is starting to contemplate what more Idaho should do to provide Idahoans access to the legal assistance they need.  This past summer, Chief Justice Richard Bevan, Bar Counsel Brad Andrews, Idaho State Bar Executive Director Diane Minnich, and I attended a program sponsored by the Conference of Chief Justices and the National Center for State Courts.  The conference explored legal services delivery reform efforts underway across the country.

Almost all of us in practice have had an experienced paralegal or legal secretary with a depth of knowledge in an area or areas that no newly minted lawyer could ever match.  Like many attorneys, lots of what I know about the practice of law was taught me by the paralegals I have been lucky to work with in my career.  (Thanks Joanne, Katy, and others.)  Cultivating and utilizing that important and valuable reservoir of knowledge and experience is starting to be recognized as one of the potential solutions to access issues in various states. 

For example, in 2015, the Utah Supreme Court approved a licensed Legal Paraprofessional program. Utah LPPs can provide legal advice and assistance to clients in three areas of law with a traditionally high number of self-represented litigants: debt collection, eviction cases, and certain family law matters. While not authorized to represent clients in court, Utah LPPs can complete and file court documents, advise clients how a court order affects their rights and obligations, and represent clients in settlement negotiations.

Similarly, in 2020, Arizona approved a new category of licensee called legal paraprofessionals (LPs). In limited areas, including some family law, Arizona LPs can draft, sign, and file legal documents; provide advice, opinions, or recommendations; appear before a court; and negotiate on behalf of a client.  

Utah LPPs and Arizona LPs are to the legal profession what nurse practitioners are in the medical world:  people qualified by education, training, and experience to handle less-complex, more routine, work for less expense than more extensively trained and broadly qualified persons.

This past September, the California Paraprofessional Program Working Group submitted a final report recommending the widest scope of services of any state including court representation in some collateral criminal matters; consumer debt; employment and income maintenance; family, children, and custody; and housing. The recommendations remain under consideration by the California State Bar

This regulatory change is happening in far more than just these nearby states.  Minnesota has an ongoing legal paraprofessional pilot project that allows participants to provide legal services in landlord–tenant disputes and family law cases. Other states including Illinois, Connecticut, Florida, Michigan, New Mexico, New York, North Carolina, Oregon, Virginia, and Washington are actively studying or have adopted regulations of the practice of law designed to enhance the access to legal assistance.

There are more revolutionary efforts at expanding and regulating the delivery of legal services as well. In 2020, Utah launched its Office of Legal Services Innovation to oversee what is referred to as Utah’s legal “regulatory sandbox.”  That program allows entities to apply to use new models for legal businesses and offer new kinds of legal services. For example, it allows companies using technology platforms or service providers without law licenses to practice law while be very closely scrutinized by the regulators. The regulatory sandbox is the most aggressive current regulatory reform. It requires a huge commitment of State personnel, time, and resources.  It remains in an experimental, evaluative, stage.  

This is truly a moment, and legal regulatory reform an issue, where Justice Louis Brandeis’ vision of states as laboratories of democracy is in full flower.

The Idaho Supreme Court has the power and authority to make determinations related to the scope of licensure and the practice of law in our state. Any changes that come will be via processes the Court decides.  The Idaho State Bar whose regulatory authority over licensed lawyers is delegated by the Court is one of many stakeholders with deep interest in any potential changes.  For example, the scope of practice for any paraprofessional licensing Idaho considers will be intimately tied to availability and cost of relevant education and training.  The Court has made clear it will consider input from all the appropriate stakeholders as it evaluates all aspects of these issues.  Whether this happens via a task force or through some of the Court’s standing committees, we can all expect a thoughtful assessment of what, if any, changes to its practice of law regulations Idaho should adopt. 

In the end, one of the enduring measures of the success of our democracy is whether we can make access to justice real.  As the late Chief Justice Earl Warren said, “The success of any legal system is measured by its fidelity to the universal ideal of justice.” 

Here’s to Idaho taking an intelligent, thoughtful new step in fulfilling the goal of achieving justice for all.

Special Note of Appreciation

There is another change on the near horizon for members of the Idaho State Bar (ISB).  As you likely know, Bar Counsel Brad Andrews is retiring this year.  Brad has served the ISB with distinction. He has made the Idaho Office of Bar Counsel the envy of many of his counterparts across the country. Brad has helped ISB Commissioners navigate many issues facing the Bar with careful analysis, insight, and aplomb.  He has been a thoughtful sounding board for hundreds of practitioners facing ethical quandaries in their practice.  His even-handed and reasonable approach to service, leadership, and management made our bar better.  Thank you, Brad.