By Bobbi K. Dominick

Much has been written about promoting diversity in the legal profession.[i]  Intense focus has centered around women, but the goal of diversity is to encourage, support, and assist those with many diverse backgrounds to enter, and excel, in the legal profession.  This includes diverse backgrounds and experiences such as national origin, race, religion, disability, age, and orientation. Organizations that promote diversity and inclusion perform better, achieve better results, and have increased employee engagement.[ii]  Diversity increases the bottom line of organizations.[iii]  Diversity is an issue worthy of our attention, for economic reasons, as well as the overall goal of improvement of the legal profession.

What are the barriers to increased diversity within the legal profession? A recent report examining female attrition stated this issue succinctly: “[O]ne of the most pernicious hurdles to achieving a satisfying legal career is the unfortunate and continuing problem of sexual harassment.”[iv] This article will examine sexual harassment as a barrier to diversity and provide thoughts for improving diversity.

Harassment is Just One of Many Barriers to Diversity in Law

Recent Advocate articles provide an excellent summary of statistics on female attorneys in Idaho,[v] and bias and its potential impact upon the advancement of women in law.[vi]  Those articles, and other research,[vii] point to numerous factors contributing to women leaving the profession or not advancing to positions of greater authority.  Some factors may be purely personal choices on the part of individual attorneys who choose a different career or life path.  But some reasons for women and minorities leaving the practice may be within our control, and eliminating harassment as a barrier is one of them.

Harassment in the Legal Profession: Statistics and Surveys

A discussion of the impact of workplace harassment must start at the beginning. How prevalent is harassment in the legal profession? Statistics are sporadic and often hard to find, especially if we focus solely upon Idaho.

First, those in protected classes are clearly underrepresented in the law, and thus often in the minority. The articles referenced above cite statistics about women (in Idaho, 28% of attorneys are female, nationally the number is 36%). Statistics nationally indicate a low percentage representation for attorneys with disabilities (perhaps as low as 7%),[viii] those of Hispanic origin (9.9%), Black (5.5) and Asian (4.9).[ix] Since these groups are underrepresented does this mean that they are more susceptible to harassment?   According to the EEOC’s recent study of workplace harassment, it does.[x]

Another important point from the recent study: “[w]hen the target of harassment is both and member of a racial minority group and a woman, the individual is more likely to experience higher rates of harassment than white women. Moreover, when the target of harassment is both a member of a racial minority group and a woman, the individual is more likely to experience harassment than men who are members of the same racial minority group.”[xi] While the research is sparse, the same is likely true of those who are members of more than one protected class.

Other states have conducted surveys to discover the prevalence of harassment.  For example, a 2005 California survey found that 50% of female attorneys reported experiencing sexual harassment.[xii] The Florida Bar’s study found that 17% had been subjected to harassment based on their gender.[xiii] Utah’s 2010 survey revealed that 37% of women attorneys responding had experienced verbal or physical behavior that created an offensive work environment. Of those, 86% identified gender as the basis for the harassment.[xiv]

As you can see, there is a wide swing in the numbers.  Some of that may be attributable to the way the word “harassment” is defined, the way survey questions are worded, or individual nuances in the responder’s understanding of harassment.  As the EEOC study noted, the numbers who reported harassment rose when the questions included gender demeaning and derogatory behavior.[xv]

Despite the difficulty of interpreting these statistics and applying them to the Idaho experience, several things are certain:

• Harassment does exist,
• It likely exists in legal practice in Idaho, and
• It is a barrier to women and minorities thriving.

Harassment in the Law: What Kinds of Behaviors are We Talking About?

Harassment that doesn’t involve propositions or sexual language can still form a barrier to diversity.  The EEOC has said: “harassment not involving sexual activity or language may also give rise to Title VII liability…if it is ‘sufficiently patterned or pervasive’ and directed at employees because of their sex.”[xvi] Social science research indicates that mistreatment and incivility, whether it rises to the level of illegal harassment or not, can lead to the same kind of harm as harassment, and creates a barrier to advancement.[xvii]  Research also tells us that those subjected to this kind of treatment often respond by leaving the organization.[xviii]

Recent surveys and stories have detailed other types of harassment that female attorneys have been subjected to, often not even the typical sexual propositions, but rather demeaning comments and behavior.[xix]  Examples that women have shared with me, or that have appeared in articles or case law,  include bringing a female attorney into the courtroom as “window dressing,” because “witnesses prefer young and pretty,” or it would be good for “the jury to see a pretty face.” Other examples might include comments made about lipstick, clothing, body parts, makeup and hair, directed only towards women, implying a sexualized or diminished view of the person and their capabilities. Jokes about women could be demeaning, like using #MeToo as a punchline, or comments about women succeeding by “sleeping with the judge,” implying that women cannot advance on their own merits without using gender as an advantage. Comments about women not being serious about their legal careers because they want to have babies and start families also fall into this category (speaking from personal experience).  Other micro-aggressions might include labeling women’s behavior as “bitchy” or “aggressive,” or cautioning against being “naïve” or “weak.”

Harassment based on race, national origin, religion, disability is often this kind of “negative stereotype” harassment.  Behavior, comments, or attitudes that make a particular class of people feel unwelcome, unappreciated, or unrecognized discourages them from remaining in a profession or organization. Examples might include using pet names, interrupting or ignoring, or dismissive comments. These types of behaviors impede diversity and prevent the advancement of women and minorities.

We Don’t Have a Problem, Do We?

Many legal professionals reading this article may think to themselves: “well, this is all theoretical, because we don’t have a problem in our organization.” That type of thinking is naïve at best and damaging at worst.  Research indicates that every type of profession may experience protected class harassment.[xx]

The EEOC consulted with experts and examined what types of organizations are most at risk for harassment.  Some of the risk factors clearly apply to legal organizations:

• Homogenous workforce: Ironically, when an entity is made up of primarily one gender (or other protected class, that makes the organization more susceptible to harassment, and the legal profession, based on the above statistics, clearly falls into this risk factor.
• Workplace “norm” dependent environments: When the written or unwritten norms for how people must “behave” tend to favor the dominant class, those who do not meet those norms are harassed at higher rates.  This could affect women, but also those with disabilities, different national origins, different religions, and different orientations.
• Power disparity environments: A high power or valuable asset, like a rainmaking senior partner, offers a power disparity that creates a higher risk of harassment.
• Client satisfaction factors: When the environment is client dependent, there is a higher risk of harassment, because bad client behavior may be tolerated or even condoned. [xxi]

Another common misconception: “no one has complained, so it may be happening elsewhere, but not here.” But the statistics tell a different story.  The vast majority of those who are subjected to harassing behavior do not complain at all. For many, the solution is to put up with the behavior, minimize the seriousness of it, try to ignore it, or simply to leave that environment.[xxii]  This not only damages the diversity of that particular organization but also can be a setback to career advancement for the individual who leaves.

Even when someone does complain, those in a position to respond may not act.  This happens for many different reasons. Perhaps most common is that the person to whom the individual complains views the behavior from a different lens, and may not see the harmfulness of the behavior.  Other common reasons the behavior might be ignored include the high value of the offender, the difficulty of resolving conflict in the workplace, or perceptions of the person complaining (i.e., questioning motives for complaining, etc.) Another common reason is that there is no process in place in many legal organizations (especially smaller ones) to address complaints, so leaders simply don’t know what to do.

So What Do We Do About This? Some Suggestions

Study and Prevention

A current survey and study should be conducted on harassment (all protected classes) in the legal profession in Idaho.[xxiii] While we know from statistics in other professions that harassment likely exists, we need to know the types of issues we are dealing with specifically in Idaho. Our professionalism efforts should also help lawyers focus upon effective human resource management, including both diversity and harassment prevention.

Internal Organizational Efforts

At a minimum, each legal organization in Idaho could assess the impact of harassment within their organization and develop strategies for removing this diversity barrier diversity. Every law firm and legal department should engage in proactive efforts to raise the level of concern about harassment that might be occurring, and encourage attorneys to come forward with complaints.  This includes serious work on training, policies and complaint resolutions efforts.  While specific suggestions are beyond the scope of this article, there are many ways to find these suggestions.  Two sources are listed in the endnote.[xxiv]

Where Do We Go From Here?

The discussion above highlights some of the difficulties of, and potential solutions for, eliminating harassment in the law.  While beyond the scope of this article, any serious discussion surrounding eliminating bias and harassment must also include a discussion of whether ethical rules should address harassment and bullying.  Many states have adopted some version of Rule of Professional Conduct 8.4, addressing the ethics of discriminatory behavior.  Idaho recently went through a process of assessing this, but after the Bar (on a divided vote) concluded that the rule should be adopted, the Idaho Supreme Court (on a divided vote) declined to implement the rule and directed more study on the issue.[xxv]  Firms and entities can internally deal with harassment within their walls, but some protected class harassment is perpetrated by attorneys outside our firm/organization.  The only effective way to combat such offensive behavior, and provide accountability, maybe through ethical rules.

In addition, efforts to promote professionalism in the practice of law may also be an effective deterrent to harassment, as many studies have found that bullying and disrespect provides a breeding ground for unlawful harassment.[xxvi] It may be time to more closely examine, and enhance, our professionalism efforts to specifically address this issue.

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[i]  See, e.g., Deborah L. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Georgetown Journal of Legal Ethics 1041 (2011); Douglas E. Brayley & Eric S. Nguyen, Good Business: A Market-Based Argument for Law Firm Diversity, 34 J. Legal Prof. 1, 4-8 (2009); Jason P. Nance & Paul E. Madsen, An Empirical Analysis of Diversity in the Legal Profession, 47 Connecticut Law Review 271 (2014).

[ii] Stefanie K. Johnson, What 11 CEOs Have Learned About Championing Diversity, Harvard Business Review (August 29, 2017) located at https://hbr.org/2017/08/what-11-ceos-have-learned-about-championing-diversity.

[iii] Id.

[iv] Stephanie Ann Scharf, The Problem of Sexual Harassment in the Legal Profession and its Consequences (February 2018) located at https://www.scharfbanks.com/sites/default/files/assets/docs/report.pdf.

[v] Jessica R. Gunder, Women in Law: A Statistical Review of the Status of Women Attorneys in Idaho, The Advocate, (February 2019).

[vi] Alison M. Nelson, Spotlight on Bias, The Advocate (February 2019).

[vii] See, e.g., Achieving Long-Term Careers for Women in Law, report pending, ABA Commission on Women in the Profession, located at https://www.americanbar.org/groups/diversity/women/initiatives_awards/long-term-careers-for-women/.

[viii] See ABA Disability Statistics Report, 2011, ABA Commission on Mental and Physical Disability Law, https://www.americanbar.org/content/dam/aba/uncategorized/2011/20110314_aba_disability_statistics_report.pdf.

[ix] https://www.bls.gov/cps/cpsaat11.htm.

[x] U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, EEOC (June 2016) located at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm (EEOC Report).

[xi] EEOC Report, at pp. 13-14.

[xii]  Chang and Chopra, “Where are All the Women Lawyers?” https://www.360advocacy.com/wp-content/uploads/2015/10/ChangChopraArticle-1.pdf.

[xiii] The Florida Bar, 2015 YLD Survey on Women in the Legal Profession,  https://www-media.floridabar.org/uploads/2017/04/results-of-2015-survey.pdf.

[xiv] Women Lawyers of Utah, The Utah Report: The Initiative on the Advancement and Retention of Women in Law Firms (Oct. 2010), at http://utahwomenlawyers.org/wp-content/uploads/wlu_report_final.pdf.

[xv] EEOC Report, p. 8.

[xvi] EEOC,  1990 Policy Guidance on Current Issues of Sexual Harassment, https://www.eeoc.gov/policy/docs/currentissues.html.

[xvii] Lilia M. Cortina, et. al., Researching Rudeness: The Past, Present, and Future of the Science of Incivility, 22 Journal of Occupational Health Psychology 299 (2017); Sandy Lim & Lilia M. Cortina, Interpersonal Mistreatment in the Workplace: The Interface and Impact of General Incivility and Sexual Harassment, 90 Journal of Applied Psychology 483 (2005).

[xviii] Chelsea R. Willness, et. al, A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment, 60 Personnel Psychology 127 (2007).

[xix] A good collection of the types of behaviors identified as problematic is included in the Florida Bar’s 2016 Survey on Gender Equality in the Legal Profession, located at https://www-media.floridabar.org/uploads/2017/04/2016-Survey-on-Gender-Equality-in-the-Legal-Profession.pdf

[xx] See, e.g., Heather McLaughlin, Who’s Harassed, and How? Harvard Business Review (January 31, 2018) located at https://hbr.org/2018/01/whos-harassed-and-how; Audrey Carlsen, et. al, #MeToo Brought Down 201 Powerful Men.  Nearly Half of Their Replacements are Women, New York Times (October 29, 2018) located at https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html.

[xxi] EEOC Report, pp. 25-28.

[xxii] Mindy Bergman, et al., The (Un)Reasonableness of Reporting: Antecedents and Consequences of Reporting Sexual Harassment, 87(2) J. Applied Psychology 230 (2002).

[xxiii] Some studies have been done in the past, but the author could not locate any recent studies or surveys.  In the current #MeToo climate, such a study would be useful in developing solutions.

[xxiv] Bobbi K. Dominick, Preventing Harassment in a #MeToo World, SHRM Publishing (2018)(detailing specific actions to take in all areas of prevention); ABA Commission on Women in the Profession, Zero Tolerance: Best Practices for Combating Sex-Based Harassment inthe Legal Profession (2018),and ToolKit located athttps://www.americanbar.org/groups/diversity/women/initiatives_awards/the-zero-tolerance-program-toolkit/zero_tolerance/; see also EEOC Report noted above.

[xxv] Chief Justice Roger Burdick, Letter to Diane Minnich, Executive Director, ISB, dated September 6, 2018.

[xxvi] Zero Tolerance, pp. 28-30. See also note xviii above for additional resources.

By McKay Cunningham

Lawyers and non-lawyers alike revere the Constitution as a document that embodies the nation’s greatest values. It has been called America’s civic religion. In times of political discord, the Constitution unifies those with opposing views because all agree that the Constitution is the proper legal authority. The disagreement is not whether the Constitution should apply, but how it should be interpreted.

Open-ended phrases in the Constitution like the promise of “equal protection” and “due process” have allowed recognition of several civil liberties not expressly included in the document. The Ninth Amendment recognizes that rights not listed in the Constitution are not necessarily denied: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[i]

But how does the Court identify non-enumerated rights, and how does the Court determine who is protected and who is not?

In large part, it is a question of interpretation. If the Constitution is interpreted as a static document that only reflects the intent of those who drafted it, then the document rejects values of equality, liberty, and inclusion. If the Constitution is interpreted as a “living document” that reflects the values identified in the Preamble, including liberty, democratic governance, justice, and the promotion of general welfare, the Constitution is truly an egalitarian document.

The original Constitution

The Constitution, from the perspective of those who wrote it, failed to embrace or advance diversity. It centralized power in the dominant demographic of the time, white men. Only white men could meaningfully participate in the three branches of government because voting was reserved for white men alone. And voting, in a representational democracy, is the currency of power.

Not only did the framers reserve power for themselves, they expressly denied it for others. Several provisions in the original Constitution institutionalized the nation’s greatest tragedy. Article I, §9 prevented Congress from stopping the importation of slaves until 1808. Article V barred that same provision from being altered by constitutional amendment. And Article IV, §2 – the Fugitive Slave Clause – required the return of escaped slaves, specifically invalidating laws in free states that would have protected them.

It is tempting to lay the blame for slavery at the feet of the southern states, whose economy depended on slave labor and who would not have ratified a Constitution without express protections for slavery. But many of the most influential drafters at the Constitutional Convention were slave owners, including George Washington, John Rutledge, and James Madison – the last of whom is regularly identified as the “Father of the Constitution.”

The framers’ intent

Two-hundred and thirty years ago, when only white men could vote, there were no automobiles, web sites, cell phones – or any phones for that matter. Religious practice was primarily Protestant and more homogeneous than religious practices in America today. Back then, for example, Catholics endured virile anti-Catholic bias. In the late 18th Century, nothing protected homosexuals from state-supported discrimination. Women could not vote, or work in several professions, or own property in many instances.

Interpreting the Constitution by relying on the intent of those who drafted it has resulted in exclusion and oppression of people of color, women, atheists, homosexuals, and a raft of other “non-traditional” communities. The framers, for all their wisdom, were flawed – as is every generation – and a formalistic devotion to “framer intent” when interpreting the Constitution damns society to repeat those flaws.

Framers’ intent applied to race

Nevertheless, many politicians and jurists have interpreted the Constitution by relying on the framers’ intent and the society of 1780’s America. This construct, this devotion to the framers’ intent when interpreting the Constitution, has been embraced by the Supreme Court at times throughout our constitutional jurisprudence.

1. Framers’ intent applied to race before the 14^th Amendment.

In Prigg v. Pennsylvania, the Court upheld the Fugitive Slave Clause: “[W]e have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave.”[ii]

Fifteen years later, in Dred Scott v. Sandford, a former slave petitioned for freedom after his owner died in a free state. The Court denied Scott’s plea, relying on the framers’ original intent. The Court said that those imported as slaves “were not intended to be included under the word ‘citizens’ in the Constitution . . . . On the contrary, they were at that time considered as a subordinate and inferior class of beings . . . .”[iii]

2. Framers’ intent applied to race after the 14^th Amendment.

The Civil War and the ratification of the 13^th, 14^th, and 15^th Amendments ended slavery and expanded the right to vote despite “race, color, or previous condition of servitude.”[iv] The 14th Amendment targeted states that had racially discriminatory laws, promising “the equal protection of the laws” to all persons. “Equal protection” is an ambiguous phrase and could be understood to include a wide variety of people within its scope. But time and again, the Court confronted that ambiguity by adhering to the framers’ intent. To understand what the framers had in mind, the Court often inspected the context and culture of the nation at the time the language was drafted.

In 1868, when the 14th Amendment was ratified, society was racially segregated in the north and the south. Every southern state had enacted laws separating the races in virtually every aspect of life, from schools to bathrooms, to water fountains. When state segregation laws were challenged as violating the Equal Protection Clause, the Court initially upheld racial segregation and pointed to the framers of the 14th Amendment as justification for doing so. According to the Court in Plessy v. Ferguson, “Equal Protection” only meant that states cannot draft laws that intentionally harm racial minorities.[v] Requiring racial separation, by contrast, was fine because that was the norm in 1868, when the framers wrote the 14th Amendment.

Framers’ intent today

At least five current Supreme Court Justices interpret the Constitution by looking to the framers’ intent. The late Justice Antonin Scalia, for example, said that the 14th Amendment and the Equal Protection Clause do not protect women: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.”[vi]

Justice Thomas also relies on the framers’ intent when interpreting the Constitution. In a 1995 decision, Thomas wrote that when interpreting the Constitution, “we must be guided by their original meaning, for the Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now.”[vii]

 Justices Thomas and Scalia are likely correct when they assert that the framers intended no protections for women when the Constitution was adopted nor when the 14th Amendment was adopted. Four years after the 14th Amendment was adopted, the Court upheld a law barring women from becoming lawyers.[viii] Two years after that, the Court upheld a state law that allowed only men to vote.[ix] Even after WWII, the Court continued to allow gender discrimination based largely on the notion that the Constitution must be interpreted through the eyes of the framers. In a 1948 decision, the Court upheld a law that prevented women from bartending unless the woman was the wife or daughter of a male who owned the bar.[x]

If the Equal Protection Clause must be interpreted through an 1868 lens, as Justices Thomas and Scalia posit, then Equal Protection means nothing for women, homosexuals, children born out of wedlock, non-citizens or anyone other than people of color.

Framers’ intent and inequality

Reading the Constitution as a static document, as a snapshot of value judgments popular in 1789 (Constitution), 1791 (Bill of Rights), or 1868 (14th Amendment), entrenches inequities. It is not surprising that no woman has been elected president and only four have served on the Supreme Court, all of whom were appointed after 1980. It is not surprising that over 95 percent of executive positions at Fortune 500 companies are still held by men and that women’s wages are typically 75 percent of men’s wages.

And it is not surprising that one in three African American children are born into poverty, that much less is spent on the average African American’s elementary and secondary schooling than on the average white child’s, and that at every age, African Americans have a higher mortality rate than whites.

Other Interpretations

The Supreme Court does not always rely on the framers when interpreting the Constitution. Some of the most revered Supreme Court cases are those that extend fundamental rights and civil liberties beyond what they were in 1789 or 1868. In Brown v. Board of Education, the Court rejected the rationale relied upon in Plessy v. Ferguson and invalidated racial segregation in public schools.[xi]

In Loving v. Virginia, the Supreme Court struck Virginia’s law criminalizing interracial marriage. It did so, despite the framers’ intent. Laws barring interracial marriage were common in 1868. Indeed, Virginia argued as much, positing that “the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must apply equally . . . .”[xii] The Court could strike anti-miscegenation laws as unconstitutional only by ignoring the Framers’ intent.

Likewise, no protections existed in the late eighteenth century for consensual homosexual activity. Nevertheless, the Court recognized such constitutional protections in Lawrence v. Texas.[xiii] In a series of cases, the Court has extended constitutional protection for gay marriage, even though such protections would have been foreign to the framers.

An inclusive interpretation

If the Constitution is not interpreted by the framers’ intent, how should it be interpreted? Jurists often gravitate to a theory grounded in the framers’ intent because it is understandable. Several canons of interpretation require lawyers to divine legislative intent when interpreting statutes. Doesn’t it make sense to do the same with the Constitution? Moreover, if originalism and the framers’ intent should not drive constitutional interpretation, what should?

When determining whether to recognize a new fundamental right stemming from the open-ended Due Process Clause, originalists aver that fundamental rights are limited to those liberties explicitly stated in the text or clearly intended by the framers. Others ask whether the claimed fundamental right is deeply entrenched in the history and tradition of the nation. There are many varieties of constitutional interpretation, all with benefits and detriments.

At a minimum, however, the Constitution should not be a static snapshot of the 1780s. It should be a “living” document that accounts for the inevitability of societal and cultural evolution. All of nature reflects the inevitability of change; our governing document should do so as well. But what values guide a flexible interpretation? One of the most overlooked provisions in the Constitution provides insight, the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.[xiv]

The first three words denote the genesis of power in the people, not the local, state, or federal government, and they illustrate that the government serves the people, not the other way around. The core values that follow include democratic government, effective government, justice, and liberty. The exhortation to “form a more perfect Union” recognizes the need to change and the capacity to acknowledge protections for marginalized persons who have not been historically protected.     The call to ensure justice and protect liberty articulates the basic values of the Constitution and should be the interpretational touchstones embraced by those charged with its interpretation. While Americans value tradition and origin, we are not constrained by them. Our governing and most revered legal document should reflect the same.

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[i] U.S. Const. amend. IX.

[ii] Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 540–541 (1842).

[iii] Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404–405 (1857) (emphases added).

[iv] U.S. Const. amend XV.

[v] Plessy v. Ferguson, 163 U.S. 537 (1896).

[vi] The Originalist, California Lawyer, January 2011, https://ww2.callawyer.com/clstory.cfm?eid=913358.

[vii] McIntyre v. Ohio Elections Commission, 514 U.S. 334, 359 (1995) (Thomas, J., concurring in the judgment).

[viii] Bradwell v. The State, 83 U.S. 130 (1872).

[ix] Minor v. Happersett 88 U.S. (21 Wall.) 162 (1874).

[x] Goesaert v. Cleary, 335 U.S. 464 (1948).

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

[xii] Loving vs. Virginia, 388 U.S. 1, 7–8 (1967).

[xiii] Lawrence v. Texas 539 U.S. 558 (2003).

[xiv] U.S. Const. pmbl.

By Brenda M. Bauges and Tenielle Fordyce-Ruff

Bias in hiring used to be overt.  For instance, during her keynote address at the Idaho Women Lawyers 2019 Gala, the Honorable Mary M. Schroeder, Senior Judge of the United States Court of Appeals for the Ninth Circuit, shared her experiences trying to find a job after moving to Phoenix, Arizona, in the 1960s.  She suffered through several meetings where she was told that the firm wouldn’t hire a female attorney.  Then, after a meeting with a male partner who was willing to hire her, she was once again told that she didn’t have a job because another partner refused to work with a woman attorney.

While these types of incidents hopefully don’t happen today, diverse candidates can still face implicit bias in the hiring process.  To help you avoid this type of bias, we will first explain why a lack of diversity hurts workplaces, what gatekeeper bias in the hiring process is, and the law governing employment in Idaho. We then offer some suggested ways to help any employer avoid gatekeeper bias.

The Benefits of Diversity in the Workplace

Increasing diversity is a smart business decision.[i] Having employees with different personalities, at various stages of their careers, as well as the more common markers of diversity like gender, race, ethnicity, cultural background, and sexual orientation improves workplace performance.[ii] Studies as far back as 2006 have heralded the benefits of diversity in the workplace.[iii]  In the specific context of gender diversity, noted benefits include more collaborative leadership styles that benefit boardroom dynamics, increasing mentorship and coaching of employees and economic outperformance of competitors. More recent articles continue to tout the benefits of the diversity of all types.

For instance, working with diverse people makes everyone smarter because it challenges the brain to overcome stale thinking by focusing more on facts and processing facts more carefully; this, in turn, leads to more innovation.[iv]  In addition to driving innovation, diversity at a workplace makes recruiting easier, avoids high turnover among employees, and increases employee productivity.[v] Finally, diversity in the workplace can open the employer to a deeper talent pool and to a wider market.[vi]

What is Gatekeeper Bias?

When we think of bias, we often think of discrimination.  This bias or prejudice involves “dislike, hostility, or unjust behavior deriving from preconceived and unfounded opinions.”[vii]  We also tend to link bias with negative emotions.[viii]  Some forms of bias, however, come from positive feelings, such as in-group favoritism.[ix]  In other words, some forms of bias come from positive feelings toward an individual that result in “significant discriminatory results from differential helping or favoring.”[x]  Additionally, while some bias is overt and conscious, oftentimes bias is the result of implicitly held beliefs of which a person is completely unaware.

In the context of employment decisions, gatekeeper bias happens when an employment decision is based on the decision maker’s perceived preferences of the existing employers or co-workers with whom the new employee would be working.[xi]  Gatekeeper bias—allowing the perceived bias of co-workers to influence employment decisions—happens even when the gatekeeper herself believes in the importance of diversity.[xii]  In fact, gatekeepers may not even be aware that these considerations are factoring into the hiring, or other employment, decision.  It is not uncommon for such decisions to be considered simply a commentary on who best “fits” the company culture or mission.  In other words, even a commitment to diversity doesn’t necessarily prevent employers from accommodating biases in hiring decisions.

This gatekeeping bias happens because employers face a challenge with each hire: they must match unknown applicants to well-known, experience-based requirements.[xiii]  Thus, each new hire represents a risk to the employer, and the persons charged with hiring decisions often allow emotions, including the desire to avoid risk and reproduce the current situation with a new employee, to creep in.[xiv]  This isn’t always bad, but these emotions can mean certain candidates are excluded from consideration based on a gatekeeper’s perception that existing employees have a bias, though that might not be the word used, against the candidate’s social characteristics, which could include race, gender, or ethnicity.[xv]

Idaho and Federal Employment Law

Gatekeeper bias is especially concerning not only because diversity in the workplace makes good business sense, but also because it could open up employers to legal liability.

The Idaho Human Rights Act prohibits discrimination in employment based on race, color, religion, sex, national origin, disability, and age.[xvi]  Employment decisions that cannot be based on these protected classes include hiring, termination, compensation, promotions and discipline, and other conditions or privileges of employment.[xvii] The Idaho Human Rights Act applies to employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, a person who as a contractor or subcontractor is furnishing material or performing work for the state, any agency of or any governmental entity within the state, and any agent of such employer.[xviii]  In addition to the Idaho Human Rights Act,  some local governments have enacted legislation seeking to extend employment anti-discrimination protections explicitly on the basis of sexual orientation and gender identity/expression.[xix]

Like the Idaho Human Rights Act, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race, color, religion, sex, and national origin.[xx]  Title VII similarly covers decisions regarding hiring, termination, compensation, promotions and discipline, and other terms and conditions of employment.[xxi]  Covered employers include those “affecting commerce” with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, any agent of such employer, and various federal governmental entities.[xxii] In addition to the Civil Rights Act, a patchwork of other federal laws prohibit discrimination based on various characteristics in the employment context including on the basis of a disability, age, genetic information, and others.[xxiii]

Tips to Avoid Gatekeeper Bias

We have extolled the virtues of diversity in the workplace; uncovered for you the, sometimes subconscious and unintentional, role of gatekeeper bias as an obstacle to achieving such diversity; and illustrated how this phenomenon can open up employers to legal issues in light of prevailing anti-discrimination laws.  The question remains, especially if gatekeeper bias is sometimes subconscious and unintentional, how does your or your client’s organization prevent gatekeeper bias from happening? Here is some guidance and some suggestions on how to prevent gatekeeper bias.

First, be aware of your implicit biases.[xxiv]  We all have them.  Unfortunately, too often we do not want to admit, to ourselves or others, that we categorize people based on their appearances, history, or yes, specific culture-conforming attributes.  We do not want to admit that we feel more comfortable with people who act, look, and think like us.  It is time to get over that.  Until we do, we will never win the battle against implicit bias.  Have your hiring managers take implicit bias tests or training.[xxv]

Second, create definable rubrics for your hiring process.[xxvi]  Systemizing your hiring process will go a long way towards ensuring your hiring process results in the most qualified, successful candidate.  For example, keep your job description handy and only ask questions related to job-related duties.  Consider asking the same questions to all candidates.  Assign numbers for candidate answers with “1” being unable/incompetent to complete the required task and “10” being perfectly able/competent to complete the required task.

Third, be very careful of assigning too much weight to “likability,” “fit,” or “gut feeling.” These feelings could just be implicit biases in disguise.  Consider, instead, including another element to your hiring rubric for personal interaction or ability to work well in a team setting, if those are truly important components of the job at issue.  Then make sure you rate the candidates based on the definite qualities in the rubric.

Finally, diversify your hiring panel.  Have multiple employees in your office responsible for giving input on job candidates.  You can have the candidates meet one-on-one with multiple employees, or in a group setting.  Regardless of the format, ensure that the hiring panel includes different genders, cultures, and ages.  Diversifying your panel does not mean that every member will have an equal say in who gets hired, but it does ensure that the feedback that goes into the decision is varied and more likely to be free from individual bias.  This diversifying can also go a long way toward ensuring that a single person’s feelings about how a candidate’s co-workers would feel about him are based on explicit ratings or reactions, not biased assumptions.

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[i] David Rock & Heidi Grant, Why Diverse Teams are Smarter, Harvard Business Review, available at https://hbr.org/2016/11/why-diverse-teams-are-smarter (last visited April 9, 2019).

[ii] Rose Johnson, What Are the Advantages of a Diverse Workforce? Houston Chronical (Jan. 28, 2019), available at https://smallbusiness.chron.com/advantages-diverse-workforce-18780.html (last visited April 9, 2019) ; see also What Are the Benefits of Diversity in the Workplace? available at https://theundercoverrecruiter.com/benefits-diversity-workplace/ (last visited April 9, 2019).

[iii] Alexandra S. Grande, Caitlin Kling, & Brenda M. Bauges, Women on State Boards and Commissions: Is Idaho Where it Wants to Be?, The Advocate, Volume 59, No. 3/4, p. 30 (March/April 2016).

[iv] David Rock & Heidi Grant, Why Diverse Teams are Smarter, Harvard Business Review, available at https://hbr.org/2016/11/why-diverse-teams-are-smarter (last visited April 9, 2019).

[v] Sylvia Ann Hewlett, Melinda Marshall & Laura Sherbin, How Diversity Can Drive Innovation, Harvard Business Review (Dec. 2013) available at https://hbr.org/2013/12/how-diversity-can-drive-innovation (last visited April 9, 2019); Kim Abreu, The Myriad Benefits of Diversity in the Workforce, available at https://www.entrepreneur.com/article/240550 (last visited April 9, 2019); Rose Johnson, What Are the Advantages of a Diverse Workforce? Houston Chronical (Jan. 28, 2019), available at https://smallbusiness.chron.com/advantages-diverse-workforce-18780.html (last visited April 9, 2019.

[vi] Kim Abreu, The Myriad Benefits of Diversity in the Workforce, available at https://www.entrepreneur.com/article/240550 (last visited April 9, 2019).

[vii] Anthony G. Greenwalk & T homas F. Pettigrew, With Malice Toward None and Charity for Some: Ingroup Favoritism Enables Discrimination, American Psychologist 669 (October 2014).

[viii] Id. at 670.

[ix] Id.

[x] Id. at 672.

[xi] Bill Hathaway, Three Is Not Good Company for Women Job Seekers, Yale News (October 19, 2018), available at https://news.yale.edu/2018/10/19/three-not-good-company-women-job-seekers?utm_source=YNemail&utm_medium=email&utm_campaign=yn-10-22-18 (last visited March 22, 2019).

[xii] See id. (noting that the gender biases of potential co-workers can influence hiring decisions even when the gatekeeper is committed to gender diversity).

[xiii] Emotionalizing Organizations and Organizing Emotions, 86 (Barbara Sieben ed., 2010).

[xiv] Id. at 87, 100.

[xv] Id. at 100.

[xvi] Idaho Code §§ 67-5909. 

[xvii] Id.

[xviii] Idaho Code § 67-5902(6). 

[xix] See e.g. Boise City Ordinance Title 5, Chapter 15, available at https://www.sterlingcodifiers.com/codebook/index.php?book_id=1079(last visited April 9, 2019).

[xx] 42 U.S.C. § 2000e-2. 

[xxi] Id.

[xxii] 42 U.S.C. § 2000e(b); 42 U.S.C. § 2000e-16.

[xxiii] See e.g. Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; Americans with Disabilities Act Amendments Act; Rehabilitation Act, 29 U.S.C. § 791 et seq.; Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.; Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq.; Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4311.

[xxiv] See Rebecca Knight, 7 Practical Ways to Reduce Bias in Your Hiring Process, Society for Human Resource Management (April 19, 2018), available at https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/7-practical-ways-to-reduce-bias-in-your-hiring-process.aspx (last visited March 29, 2019).

[xxv] Project Implicit, https://implicit.harvard.edu/implicit/takeatest.html (last visited March 29, 2019).

[xxvi] See Rebecca Knight, 7 Practical Ways to Reduce Bias in Your Hiring Process, Society for Human Resource Management (April 19, 2018), available at https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/7-practical-ways-to-reduce-bias-in-your-hiring-process.aspx (last visited March 29, 2019).

By Mary E. Shea

Family Law Forever Changed

In the summer of 2015, we watched celebrations nationwide when the United States Supreme Court fundamentally changed the American legal landscape by holding that the Fourteenth Amendment mandates equal legal marriage rights for same-sex couples.[i]  This watershed ruling means that all 50 states must allow legal marriage for same-sex couples and all 50 states must recognize legal same-sex marriages that have been solemnized elsewhere.

Although this decision was celebrated widely as settling the question once and for all, by the time this opinion was issued on June 30, 2015, most states, including Idaho, had already reached the same conclusion legislatively, or by binding federal court decision.[ii]  What we have learned in the last few years is that granting same-sex couples the legal right to marry did not really create much controversy in applying marriage and divorce laws state by state.  This article will provide a brief overview of the family law issues the legal system is grappling with in the wake of Obergerfell.

Constitutional Protections for Alternative Families

Courts throughout the country are still sorting out whether to treat same-sex or transgendered persons as part of a quasi-suspect class so that discriminatory laws should be subject to heightened scrutiny, similar to gender.[iii] To survive, laws that discriminate against a quasi-suspect class must be substantially related to an important government interest. Discriminatory laws can survive intermediate scrutiny if they have a very good reason to exist.[iv]

One federal court has held recently that sexual identity should be considered a true suspect class similar to race. [v]  This means laws based on sexual identity would have to survive strict scrutiny.  Applying strict scrutiny to these laws would likely be fatal because such laws rarely survive strict scrutiny.

In Obergerfell and the related family law cases, the Court so far has focused on the important and fundamental nature of the rights denied, rather than on the legal status of the people who have been denied the rights.  That analysis, in the marriage context, has been enough.[vi]  State laws restricting the right have been struck down consistently, such that even felons facing lifetime imprisonment must be given the right to marry.[vii]

Parenting Rights Have Become More Complex

However settled marital rights are, parenting rights are a different story.   Same-sex couples, today, cannot have what the law has indelicately but traditionally referred to as “natural” children except through the use of Assisted Reproductive Technology (“ART”).  They can adopt children in all 50 states if they are married, and in most states even if they are not married, although that has only been true in very recent history.[viii]

Idaho adoption laws have never prevented adoption based on sexual preference or marriage and Idaho statutes have never required termination of a natural or legal parent’s rights in order to complete an adoption. Although never prevented, there was no Idaho case holding such until 2014.[ix]  If a same-sex couple wishes to have children, only one of the spouses will be biologically related to the child, or neither of the partners will be biologically related to the child.[x]   Courts and legislatures throughout the country, including here in Idaho, in light of the obligation to recognize same-sex marriage on the same legal terms as heterosexual marriage, are still working through how to redefine legal parenthood as a result of that biological reality.

The United States Supreme Court has clarified same-sex parenting rights in two important cases post-Obergerfell, both decided per curium without oral argument.  In the first case, a lesbian couple together for 16 years conceived three children through ART, with one of the partners serving as the biological mother.  With the full knowledge and consent of the biological mother, the same-sex partner adopted all three children and they were raised together as a family.  The family moved to Alabama and subsequently, the partners split up.  The Supreme Court unanimously reversed Alabama’s attempt to relitigate the legitimacy of the Georgia adoption.[xi]

In Pavan v. Smith, two same-sex married couples who conceived using artificial insemination sued Arkansas, because Arkansas would permit only the birth mother to place her name on the birth certificate.  The Arkansas statutes, applying the marriage presumption, permitted husbands of birth mothers to be placed on birth certificates for children conceived the same way.  The United States Supreme Court held that this constituted unlawful discrimination against same-sex couples, stating that “the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples.”[xii]

Post-Obergerfell, state courts deciding this issue have all agreed that the gendered marital presumption has to be applied in a non-gendered way, and they have so far given legal parenting rights and responsibilities to non-biological married same-sex parents.  In a recent Hawaii case, the non-biological parent was not permitted to rebut the legal parenting presumption in order to avoid paying child support.  The Hawaii court reasoned that if the Uniform Parenting Act is applied in a gender-neutral way, a legally presumed heterosexual parent who is later determined not to be the biological parent could still be made to pay child support, which applies equally to a same-sex partner as the intended parent of the child. [xiii]  The Idaho case on this issue is also interesting because in that case the lesbian couple never married.  The evidence was uncontroverted, however, that they would have been married when their child was born in 2012 if legal marriage had been available to them in Idaho at that time.[xiv]

Married Same-Sex Couples Who Divorce May Not Opt Out of Parental Obligations

Two of these cases, the Mississippi and the Arizona cases, also raise an interesting estoppel argument to prevent a biological mother from “revoking” her consent to consider her partner the legal parent of the child they conceived and raised together.  Equitable estoppel is a legal principle known well to the family law courts; it has been applied successfully in Idaho on several occasions to prevent parents from “changing their minds” about who the legal parent should be.[xv]  It has a logical place in this context.  A parenting relationship should not be severed simply because a biologically related parent no longer wants the company of their ex-partner.  If parents have allowed the parental bond with a child to form in a legal way, they should not be able to retract that relationship simply and only because they have the genetic advantage.

There is a case on appeal in Idaho, where a Magistrate Court denied legal parenting rights to a married same-sex parent for a child conceived and born during the marriage.  The trial court held that the marital presumption was rebutted by the non-biological relationship.  This will be an important case for Idaho practitioners to watch.

Unmarried Families Should Perfect Their Parenting Rights

The LGBTQ families in the most peril concerning parental rights are the co-parents who never marry and never adopt.  In 2016, the Idaho Supreme Court refused to allow an unmarried, same-sex co-parent to assert any legal parenting rights because there is no procedural vehicle for her to assert them in Idaho.  The biological mother did not sign a Voluntary Acknowledgment of Paternity at birth, which could have created a legal parenting presumption even without marriage.[xvi]  The parents were advised incorrectly (based on pre-2014 assumptions) that as a same-sex couple, the non-biologically related mother could not adopt.

Idaho recognizes an “equitable parenting” rule, whereby a person who has had a “parent-like” relationship with a child can gain legal parent-like rights, such as custody or visitation.[xvii]  In this same-sex parenting case, the Idaho Supreme Court clarified the equitable parent rule to be a substantive rule, not a procedural rule:  it does not give a parent a vehicle into court.  Unless a putative parent has standing to get into court through a legal process involving child custody rights such as divorce, or guardianship, they cannot assert Stockwell equitable parenting rights.[xviii]

Unmarried co-parents in Idaho who are not biologically related to the child they are parenting should be advised to seek adoption because Idaho does not give them any path currently to legal parenthood in the event the co-parents split up and the “natural” parent no longer wishes to have them around.

Alternative Reproductive Technologies Raise Additional Legal Issues

Currently, Idaho regulates only Artificial Insemination (“AI”).  There are no statutes concerning surrogacy agreements, although there is a Supreme Court Administrative Order that assigns all such cases to one Judge, ostensibly to assure consistent application of the law to facts.  The Uniform Law Commission has updated its Uniform Parentage Act to consider recent developments in the law.[xix]  But, Idaho’s AI statute is based on a 1982 version of the Uniform Parentage Act and has not been updated.[xx]  The purpose seems to be to help determine legal parentage despite the biology concerns.

On its face, it discriminates between married and non-married parents, and it requires a physician’s assistance for a procedure that does not require medical intervention.   Most problematically, Idaho law does not account for the many other, more modern ways ART can now be used to create a life for partners outside of true genetic relationships, such as egg and embryo donation, whereby a birth mother may not even be genetically related to the infant she delivers.  The AI statute was at issue in the 2016 same-sex equitable parenting case discussed above, Doe v. Doe, but the legal challenge was not addressed when the Idaho Supreme Court held the plaintiff lacked standing to assert any rights.

Conclusion

Although it took several decades to accomplish, once same-sex marriage equality reached the tipping point, change came very rapidly.  Parenting was a very important part of the same-sex marriage decisions and debate.  Ultimately, the courts concluded that same-sex parents are no more or less able to raise children well than traditional heterosexual partnerships.  As the Sixth Circuit held, “Gay couples, no less than straight couples, are capable of raising children and providing stable families for them.  The quality of such relationships and the capacity to raise children within them turns not on sexual orientation, but on individual choices and individual commitment.”[xxi]  Parenting rights for the LGBTQ community is the next family law frontier.  Practitioners would be well served to keep up with this rapidly evolving area of the law.

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[i] Obergerfell v. Hodges, 576 U.S.    , 135 S.Ct. 2584 (2015).

[ii] Latta v. Otter, 19 F. Supp. 3d 1054, 1086-1087 (D. Idaho 2014), aff’d, 771 F.3d 456 (9th Cir. 2014), cert. denied, 135 S.Ct. 293 (2015) (permitting same sex marriage in Idaho since October 10, 2014).

[iii] In F.V. v. Baron, 286 F. Supp.3d 1131 (D. Idaho 2018), Idaho was required to permit gender changes for adults on birth certificates without showing such birth certificates as “amended.”  Idaho did not appeal, and Idaho has been permitting these changes on birth certificates since April 2018.  Following 9^th Circuit case law, transgender status was treated as a “quasi suspect” class.  This quasi suspect class analysis was also applied in the Idaho same sex marriage case, Latta v. Otter, footnote 2 supra.   The Supreme Court has recently granted certiorari in an employment law case that may settle the question of whether LBGQT belong to a protected class.

https://www.npr.org/2019/04/22/716010002/supreme-court-will-hear-cases-on-lgbtq-discrimination-protections-for-employees

[iv] E.g., Rostker v. Goldberg, 453 U.S. 57 (1981), which upheld the male-only draft rules.  The “legitimate reason” for discrimination was that women were not eligible for combat duty in the military.  Times have changed significantly, such that a federal judge recently has found the male only draft rules are discriminatory, because women are now eligible for combat positions.    National Coalition for Men, et al. v. Selective Service System, et al., Case No. 4:16-cv-03362, Doc. 87, USDC SD Tex, Houston Div., Filed February 22, 2019.

[v] Karnoski v. Trump, Case No. 2:17-cv-01297-MJP, Doc. 233, USDC WD Wash, Seattle, Filed April 13, 2018 (granting summary judgment against administration’s policies towards transgendered military). 

[vi] Justice Roberts’ dissent in the watershed decision striking down Section 3 of the Defense of Marriage Act (“DOMA”) specifically criticized the vagueness of the majority opinion’s analysis, authored by Justice Kennedy.  The Second Circuit had applied intermediate scrutiny to the federal law which on its face discriminated against even legally married same sex partners.  The Supreme Court did no more than mention the Second Circuit’s treatment of the issue, without offering any opinion at all as to whether it was correct or incorrect.  United States v. Windsor, 570 U.S. 744 (2013).  Justice Kennedy also wrote the Obergerfell decision two years later, and he again offered no clarification of whether sexual orientation should be treated as a quasi-suspect or suspect class.

[vii] Turner v. Safley, 482 U.S. 78, 95 (1987). 

[viii]On March 31, 2016, a federal court struck down Mississippi’s ban on same sex adoption – the very last state to hold out.  https://southernequality.org/wp-content/uploads/2016/03/Judge-Jordan-III-opinion-in-Campaign-for-Southern-Equality-v.-Mississippi-Department-of-Human-Services-et-al.pdf.  In VL v. EL, 136 S.Ct. 1017, 194 L.Ed.2d 29 (2016) (per curium), without hearing oral argument, SCOTUS unanimously overturned the Alabama Supreme Court’s decision which had refused to recognize a same sex adoption issued out of the Georgia courts.  The Court held that the Full Faith and Credit Clause demands that all states recognize adoptions from other states, and that lack of jurisdiction is the only basis for rejecting an out of state adoption.

[ix] Idaho Code § 16-1501 et. seq; In Re:  Adoption of Doe, 156 Idaho 345, 326 P.3d 347 (2014).

[x] There are some cutting edge ART technologies that may one day permit same sex couples to have genetically related children, but these are still very experimental, and there a lot of bio ethics questions to address. See, e.g.:

https://jme.bmj.com/content/44/12/835;

https://www.independent.co.uk/news/science/same-sex-couples-could-both-be-biological-parents-to-their-babies-with-new-genetic-technique-a6781401.html

[xi] V.L. v. E.L., 136 S.Ct. 1017, 194 L.Ed.2d 29 (2016) (per curium)

[xii] Pavan v. Smith, 137 S.Ct. 2075 (2017).

[xiii] LC v. MG and Child Support Enforcement, WL 4804417, Hawaii Supreme Court October 4, 2018; Strickland v. Day, 239 S.3d 486 (Miss. 2018); McGlaughlin v. Jones, 401 P.3d 492 (Ariz. 2017);  Ayala v. Armstrong, 2018 WL 3636524, Case 1:16-cv-00501-BLW Document 59 Filed 07/30/2018 (D. Idaho).Roe v. Patton, 2:15-cv-00253-DB, Doc. 15, USDC D. Utah, Central Div., Filed July 22, 2015.

[xiv] Ayala v. Armstrong, 2018 WL 3636524, Case 1:16-cv-00501-BLW Document 59 Filed 07/30/2018 (D. Idaho).

[xv] Gordon v. Hedrick, 159 Idaho 605, 364 P.3d 951 (2015)(mother not permitted to withdraw her signature on a VAP absent clear and convincing evidence of fraud, duress, or material mistake of fact); Doe v. Roe, 142 Idaho 202, 127 P.3d 105 (2005) (Father learned during divorce he was not the natural father of the child; biological dad was not permitted to rebut the legal marital presumption because he asserted his rights too late); Miller v. Miller, 96 Idaho 10, 523 P.2d 321 (1974) (Mother could not revisit divorce action to rebut husband’s legal paternity). 

[xvi] Idaho Code § 7-1119 et seq. It should be noted that there has not yet been a case in Idaho holding that unmarried same sex partners may use a VAP to establish presumptive legal parenting rights. 

[xvii] Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989).

[xviii] Doe v. Doe, 162 Idaho 254, 395 P.3d 1287 (2017)

[xix] https://www.uniformlaws.org/committees/community-home?CommunityKey=c4f37d2d-4d20-4be0-8256-22dd73af068f

[xx] I.C. § 39-5401 et. seq.

[xxi] DeBoer v. Snyder, 772 F.3d 388 (6^th Cir. 2014), rev’d, Obergerfell v. Hodges, 135 S.Ct. 2584 (2015).

By Anna E. Eberlin

What does diversity look like here?  It depends on how you define “here” – is it a particular firm or partnership?  Is it our local legal market?  All attorneys in the state of Idaho?  Attorneys in the West?  Or even on a national level?  For me, a female real estate, construction, and finance transactional attorney in Boise, Idaho, diversity is viewed through each of those lenses.  I have personally witnessed the progress we have made over the past 13 years, since starting out as a junior associate with no context for diversity except growing up in Eastern Idaho – which is not exactly a place teeming with diversity – to today, where the conversation about diversity is front and center, as it should be.

In my experience, the membership of the Idaho State Bar (ISB) is (slowly) becoming more diverse.  And the numbers seem to support this, at least as far as gender: in 2009, 75% of the members of the ISB were men, with 25% women, and in 2018, the numbers had changed to 72% and 28%, respectively.[i]  Still, we clearly have a long way to go.  This article will present an emerging approach to increasing diversity within law offices, share the results of early efforts, and provide an outlook for future efforts to improve diversity across the spectrum of the legal profession.

Enter the Mansfield Rule

Diversity, in theory, has much support across many platforms.  But diversity in practice?   That’s the problem.  The Diversity Lab, an incubator for innovative ideas and solutions that increase diversity and inclusion in the legal industry, has set out to change this.[ii]  The “Mansfield Rule” was one of the winning ideas from the 2016 Women in Law Hackathon, which is an annual event created by the Diversity Lab in conjunction with Bloomberg Law and Stanford Law School.  The genesis of the Mansfield Rule is the National Football League’s (NFL) Rooney Rule.

The Rooney Rule, named after Dan Rooney, who was once head of the NFL’s diversity committee and owner of the Pittsburgh Steelers, requires NFL franchises to interview at least one racially diverse candidate for all top-level positions in the NFL, including head coaching jobs, general manager jobs, and other equivalent positions.  In the years following the implementation of the Rooney Rule, the number of minorities hired to fill head-coach positions doubled.[iii]

The Mansfield Rule is named after the first woman to be admitted to practice law in the United States, Arabella Mansfield, who took the Iowa bar exam in 1869.  Ms. Mansfield impressed the bar examiners so much that they stated that her brilliant performance defied the idea that ladies cannot practice law.[iv]  Now, 150 years later, diversity in the lawyer ranks is still woefully inadequate.  Thus, the Diversity Lab developed this idea to increase diversity in the law profession by designating tangible thresholds and goals, namely, to promote more women and minorities into leadership roles within their firms or companies.

One of the Rooney Rule Success Stories

Mike Tomlin, an African American championed by Dan Rooney under the Rooney Rule, became the Head Coach of the Pittsburgh Steelers, leading the team to a Super Bowl Championship, and multiple division and conference championships.

Early Adopters, Early Results!

In 2017, a total of 44 law firms across the United States first adopted the Mansfield Rule as part of a pilot program under the Diversity Lab’s supervision. The Mansfield Rule requires participating firms to consider 30% of women and racially diverse attorneys for 70% or more of the firms’ openings in leadership positions – including firm-wide leadership positions, various committees, practice group leaders, or office leaders – during a yearlong review period.  If the firm met the threshold, then it is qualified as “Mansfield Certified.”

After the first year in the pilot program, 41 firms have been Mansfield Certified.[v]  My firm, Holland & Hart LLP, is one of them.  As one of the smallest firms to participate, Holland & Hart enthusiastically took on the implementation of the Mansfield Rule.  As a result, it became “Mansfield Certified Plus.”  The “Plus” status indicates that in addition to meeting the pipeline requirements during the process of filling leadership positions, it also successfully reached at least 30% women and minority lawyer representation in a notable number of current leadership roles and committees.

The Diversity Forum found measurable results across the 41 firms that achieved Mansfield Certification.  Before adopting the Mansfield Rule, only 20% of the participating firms tracked the diversity of candidates considered for partnership, for lateral senior positions, and for leadership and governance roles; as Mansfield Certified firms, all 41 of the firms now track this. After the adoption of the Mansfield Rule, 95% of firms have increased formal discussions among firm leaders regarding diversity in candidate pools for leadership positions and lateral hiring. In addition, many firms have added reporting requirements internally regarding Mansfield Rule statistics.[vi]  These results are supported by research that finds that law firms with women in leadership roles have more women lawyers overall and 5% more women equity partners on average.[vii]

Expansion of the Rule

Running from July 2018 to July 2019, Mansfield 2.0 was implemented last year, which expanded the rule to include LGBTQ+ attorneys as well as women and minorities.[viii]  For example, if firm management has identified a short list of five candidates for an opening on the executive committee, the Mansfield Rule requires that two of the candidates would need to be women, minorities, or LGBTQ+.   In addition, Mansfield 2.0 will measure consideration for roles in client pitch meetings and measure transparency in appointment and election processes to all lawyers in their firms.  The Diversity Lab will continue to measure and report data on the progress of participating firms.

My experience with the Mansfield Rule has been both eye-opening and incredible.  As a “reward” for achieving Mansfield Certification and Certification Plus, firms were invited to send their newly promoted diverse and women partners to Client Forums held around the country last year.  As a newly promoted partner in 2018, I was invited to go to the San Francisco forum to learn from, connect with, and pitch to in-house legal teams from national and international companies across multiple industries and practice areas.

At the Client Forum in San Francisco, it was clear that in-house legal teams are committed to diversity just as much as law firms are and are 100% committed to moving the needle on diversity throughout the entire legal industry.  Some in-house counsel went so far as to say that if the outside legal teams performing the company’s work did not include at least one diverse team member, then the firm would no longer be doing the work for that company.  Companies wanted to see diverse pitch teams – and not just for facetime during the pitch, but for performing the work as well.

The legal industry is last to the party:

Facebook implemented its own version of the Rooney Rule to increase diversity in tech.
House Democrats have adopted the Rooney Rule to push diversity in staff.
Amazon adopted the Rooney Rule to increase board diversity.
The NCAA adopted the College Rooney Rule.

Diversity is an Ongoing Commitment

I have strived to bring back to my office and my overall firm the teamwork, camaraderie, and excitement that I experienced at the Client Forum.  Increasing diversity is not lip service at Holland & Hart – especially in my real estate world but notably, the firm as a whole.  Holland & Hart’s management committee recently approved an updated Diversity & Inclusion Plan that includes diversity goals modeled on the Mansfield Rule, such as:

• Consideration of diverse attorneys for at least 30% of the candidate pool for recruitment for open attorney positions, including partner and non-partner lateral, entry level, and summer clerk positions.

• Consideration of diverse attorneys for at least 30% of the candidates for partnership promotion, which requires certification by the Practice Group Leader to the partnership committee whether she or he met the requirement.

• Consideration of diverse attorneys for at least 30% of the candidates for the composition of teams making pitches to existing or potential clients.

• Consideration of diverse attorneys for at least 30% of the candidates for open positions on firm committees.

• Consideration of diverse attorneys for at least 30 percent of the candidates for succession planning to ensure diverse lawyers are being offered meaningful opportunities.[ix]

In addition to the updated Diversity and Inclusion Plan, I have seen a marked difference in Holland & Hart’s increased diversity efforts and have pushed these with my own pitch teams and client service teams.  The breadth and depth of experience, culture, and background that diverse attorneys bring to a team shows in the new and creative solutions, insights, and knowledge that have helped clients achieve their own goals.

Idaho, with its measurable growth in corporate presence both from home-grown companies and those that are moving in from out of the region, should take notice.  Diversity is not just for the bigger firms or bigger companies; we should all be taking action to increase diversity and inclusion in our own firms and in-house legal teams.  I challenge Idaho firms and in-house legal groups alike to create diversity and inclusion goals that align with the Mansfield Rule and Mansfield Rule 2.0.

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[i] See https://isb.idaho.gov/wp-content/uploads/Road-Show-PowerPoint-General.pdf.

[ii] See https://www.diversitylab.com/for a full description of the Diversity Lab and its initiatives.

[iii] See https://www.diversitylab.com/pilot-projects/mansfield-rule/; see also The Impact of “Soft” Affirmative Action Policies on Minority Hiring in Executive Leadership: The Case of the NFL’s Rooney Rule.  American Law and Economics Review, Volume 18, Issue 1, Spring 2016, Pages 208–233.

[iv] Arabella Mansfield brought suit to allow women to become members of the bar after she successfully passed the bar exam, resulting in Iowa amending its licensing statute and becoming the first state to accept women and minorities into its bar.  Interestingly, she never actually practiced law and instead worked as an educator and activist.  See https://law.jrank.org/pages/12257/Mansfield-Arabella.html. 

[v] See https://www.diversitylab.com/pilot-projects/mansfield-rule-certified-firms-2018/.

[vi] See https://www.diversitylab.com/wp-content/uploads/2018/06/Mansfield-Rule-Pilot-Mid-Point-Progress-Report-2017-2018.pdf.

[vii] See https://www.law360.com/corporate/articles/1047285.

[viii] See https://www.diversitylab.com/pilot-projects/mansfield-rule/. 

[ix] See https://www.hollandhart.com/holland-hart-among-41-trailblazing-firms-to-achieve-mansfield-rule-certification.

By Will Ranstrom

‘Life, liberty, and the pursuit of happiness’ is perhaps the most well-known and often quoted phrases of the Declaration of Independence, yet one of the most enigmatic phrases enshrined in the annals of American history.  If you were to ask 100 random folks on the streets of any town in Idaho what that phrase means, you may receive 100 different responses, though the overall gist would likely remain the same.  Most responders would include the rights to be free, to love and be loved, and to be able to care and provide for their loved ones.

I have my own articulation of the phrase:  life, liberty, and the pursuit of happiness is the promise that the government will not unnecessarily restrict my path to creating my own version of a loving and supportive family and community.  Within that family and community, I should be able to obtain housing, be gainfully employed, associate with whomever I choose and create a family as I see fit for me.  In short, I should be able to live my life as I deem appropriate to my core values, provided that in such pursuit my actions do not interfere with the lives of others who are pursuing their own versions of life, liberty, and happiness.

Where one person’s rights end and another’s begin may seem like a juxtaposition, especially when those rights appear diametrically opposed.  However, it becomes easier to see that apparently opposing rights can and should harmoniously exist when you step back and empathetically view the similarities between apparently opposing communities.  Through my experiences, I have recognized the similarities between a misunderstood religious community and the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) community.  These experiences, in turn, have given me an understanding that could help the religious and LGBTQ communities to resolve their legal tension.

My Background

I was born in Pocatello, Idaho, in 1976 to a mixed family:  my father’s side was a mix of members of the Church of Jesus Christ of Latter-Day Saints (LDS) and “Jack Mormons” (colloquial slang for non-practicing LDS members); and my mother’s side was a mix of LDS, “Jack Mormons,” and Mennonites.  Neither of my parents strictly subscribed to any religion, and my sister and I were given wide latitude to attend any services that we cared to attend with our friends or family while my parents attended their own Sunday services that were usually officiated by the National Football League.

By the time I was a teenager, I had attended services with the Mormons, the Mennonites, the Catholics, the Baptists, and the Protestants.  Admittedly, I did not attend so many services because I was seeking to find a deeper connection to religion.  Rather, I attended to seek a deeper connection with my friends and family who had invited me to join them.

As an astute student, I was fascinated by the rituals in each service and always paid close attention to the message that what was being taught.  The rituals were always different.  Sometimes the congregation sat, but sometimes they stood or kneeled.  Sometimes the congregation was completely silent, yet sometimes they interacted with the minister or sang hymns.

The story told to convey the message also varied greatly, but the overall theme of the individual messages remained constant.  Sometimes the story was funny and entertaining, but sometimes it was grim and sobering.  Sometimes the story was plain and the message was clear, yet sometimes the story was abstract and the message was discovered only through reflection and contemplation.  Whatever the differences in ritual or theme, however, the overarching message was nearly always the same:  love, understanding, and compassion for your fellow human beings, while allowing the Creator to be the judge of virtuosity.

When I decided to live my life openly and honestly as a gay man, it was 1998.  Coming out was beginning to become more mainstream in American society by then.  Several celebrities had come out, “Will & Grace” was a popular prime-time sitcom on network television, and nationwide companies such as Budweiser and Wells Fargo had begun to openly court the LGBTQ community.  My friends and family were mostly accepting, and those who struggled with my open identity soon realized that I was essentially the same person they always knew and loved and that by living my life openly I had blossomed into a happier and more joyous person who no longer carried the burdens of secrecy.

The Legal Tension

As society, in general, has become more accepting of the LGBTQ community since the late 1990s, the laws of the United States have slowly followed suit.  Some states extended civil union and equal protection rights to their LGBTQ citizens and eventually other states extended marriage rights to their LGBTQ citizens.  The United States Supreme Court eventually decriminalized same-sex sexual conduct,[i] declared the Defense of Marriage Act unconstitutional,[ii] and eventually legalized same-sex marriage throughout the United States.[iii]

Yet as LGBTQ rights have expanded, the tension between the religious and the LGBTQ communities has increased.  The crux of the tension was exemplified in Masterpiece Cakeshop.[iv]   In Masterpiece, a Christian baker in Colorado refused to bake a wedding cake for a same-sex marriage ceremony, citing First Amendment religious freedom protections.[v]   The same-sex couple filed a complaint with the Colorado Civil Rights Commission for discrimination under the Colorado Anti-Discrimination Act which forbade discrimination based on sexual orientation.[vi]   The baker was found in violation of the Act and appealed the ruling.[vii]   The U.S. Supreme Court held that, though Colorado had the right to protect its LGBTQ citizens, it must do so without animus towards the religious person or their sincerely held religious beliefs.[viii]

To say that the Masterpiece decision did little to resolve the tension between the religious and LGBTQ communities is a vast understatement.  In states such as Idaho, that have yet to include LGBTQ protections in their Human Rights Acts, the tension has increased.  So, the question becomes, how can the two communities co-exist with maximum legal protections for each without stifling the legal protections of the other?

Understanding Our Similarities

Though the religious and LGBTQ communities may seem strikingly different, they share similarities in past discrimination and misunderstanding.  They also share a commonality in their seeking life, liberty, and the pursuit of happiness.

Human history is filled with examples of religious discrimination from the beginnings of Christianity, Islam, and Judaism to our present day.  Many Idahoans are likely most familiar with the history of the LDS church and know that LDS members faced discrimination and misunderstanding from the inception of the Church.  My grandmother would tell stories of the faithful followers being ostracized and expelled from their communities because their religion and its practices were new and unfamiliar to the non-believers.  The followers were forced to relocate from New York, Ohio, Illinois, and Nebraska until finally finding refuge in what would become Utah in order to find a safe place to freely practice their religion.

Within the Utah Territory and its surrounding areas, the Mormons flourished and were able to establish loving, safe, and compassionate communities where they could live their lives openly, freely, and without interference from those who may not have understood the core values that the LDS church embraced.

Similarly, the LGBTQ community has faced discrimination and misunderstanding throughout human history.  Members of the LGBTQ community continue to be ostracized, expelled, jailed, beaten, stoned, and even killed because of their sexual identity. In some predominately Muslim countries such as Kuwait, Lebanon, and Bahrain, the conviction of homosexual conduct was and remains today punishable by up to 10 years in prison.[ix]   Prior to Lawrence, a conviction of sodomy in Idaho was punishable by five years to life in prison.[x]

Many LGBTQ individuals were forced from their homes and communities because of their sexuality and sought refuge in larger cities where others had established LGBTQ communities and neighborhoods, like San Francisco’s Castro district or New York City’s Greenwich Village.  Within these neighborhoods, LGBTQ citizens also flourished and were able to establish loving, safe, and compassionate communities where they could live their lives openly, freely, and without interference from those who may not have understood the core values that the LGBTQ community embraced.

For both the Mormon and LGBTQ communities, isolation was not the desired end, but instead the means necessary to create a home where they could feel protected and safe. Both communities sought an environment where they could create a family, obtain housing, and earn a living to support their families.  Both communities sought a home where they could be free of hate and animosity, and where both could pursue their own versions of happiness.

The Solution

The similarities between the communities and their abilities to thrive when isolated may lead you to think that separation is the solution for the two communities to live how they see fit.  However, life in the Information Age makes that solution untenable.  Technology has connected nearly every corner of the planet, and total isolation now requires a level of retreat that most people would eschew because human nature demands a greater sense of community and connection.  Additionally, I doubt that most of us would want to live in a completely homogenous society, free from fresh, new ideas and perspectives.

So, what is the solution to a harmonious, legally viable coexistence?  I do not know the answer.

What I do know is that some truths are self-evident:  all humans seek to create a safe, loving, compassionate community and family life in which they can thrive, love, and be loved. We all want to go about our daily lives without being hassled about our core beliefs and without compromising our core values.  We all want to celebrate the joys and accomplishments of life, and we all want to find comfort and solace in our friends and family during life’s inevitable tragedies.  We are all human and we all have similar basic human needs.

If we can try to understand each other’s perspectives, realize that we all have the same basic human needs, that our own core values may not strictly mirror that of our neighbors, and realize that our differences enrich us instead of devalue us, we can find the solution that works best for us all to live openly, freely, and harmoniously.

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[i] Lawrence v. Texas, 539 U.S. 558 (2003)

[ii] United States v. Windsor, 570 U.S. 744 (2013)

[iii] Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

[iv] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n., 138 S. Ct. 1719 (2018)

[v] Id. at 1723

[vi] Id.

[vii] Id.

[viii] Id. at 1732

[ix] https://www.theguardian.com/world/2016/jun/21/gay-lgbt-muslim-countries-middle-east

[x] http://www.glapn.org/sodomylaws/usa/idaho/idaho.htm

By Jeffrey A. Dodge

On my first day of law school, I walked into an imposing auditorium filled with dozens of professionally dressed students and faculty I would soon address as “colleagues.”  To get there, I spent nearly every dollar I had on the LSAT, application process, and relocation.  As a first-generation student and a gay man, I felt out of place. Though my family beamed with pride as they saw one of their own go to college, and then law school, for the first time, I felt insecure and anxious at the “what ifs” ahead.  As I listened to the dean speak at orientation, I suddenly felt paralyzed by the thought of difficult classes, three years of hard work, over $100,000 in debt, the Bar exam, and the elusive character and fitness process.  I kept thinking: Do I belong here?  Are there others in my class who are gay?  Can I do this?  I don’t know any attorneys; how will I get a job?

Somehow, I wrested my limbs from paralysis and moved cautiously toward my future.  It was not an easy decision to complete orientation and show up for the first day of classes.  Many others from diverse backgrounds have the same sense of unease, often referred to as “imposter syndrome.” Sadly it does not go away over time: some 16 years later, I often still feel like I don’t belong or that I somehow got to where I am by pure luck.  For those whose difference is seen before spoken, these feelings can be even worse.  I can’t imagine the daily worries around having physical limitations, presenting as a gender different than assigned at birth, or fearing someone will assume my immigration status based on the color of my skin.  To carry those worries into law school and then manage the same workload as everyone else is a heavy burden to bear.

The experiences of our diverse students can be obstacles to their success in our profession. But it’s those very experiences that make their engagement so important.  Our diverse colleagues enrich and inform the legal profession’s evolution, and how the profession supports and embraces them is critical to developing a more just society.

A Look at Diversity Data

Fortunately, Idaho’s law schools are blazing trails in a state that does not naturally offer much quantifiable diversity.  Current projections say that Idaho’s population is hovering at just shy of 1.8 million people. Of that group, less than 9% self-identify as ethnically diverse.[i]  Neighboring state populations, from which Idaho’s law schools may more easily recruit students, don’t offer much more in the way of diversity. Utah, Oregon, Montana, and Wyoming have, at most, a population that is 15% multicultural.  Nationally, the demographics of attorneys aren’t that much better with only 15% of lawyers identifying as multicultural and 36% being women.[ii] Both Idaho law schools should be commended not only for their commitment to enrolling diverse, students but also for doing so given these challenges.

In Fall 2018, Concordia University School of Law enrolled a class with 17% self-identifying as ethnically diverse and 30.5% women.[iii]  Of the entire student body, 21% are multicultural and 34% are women.  The multicultural diversity at the University of Idaho (U of I) College of Law is even higher with an entering class comprised of 26.5% self-identified ethnically diverse students and an entire student body that is 22% multicultural.[iv]  Women made up 49% of the Fall 2018 entering class and are 44% of the entire student body.

All of this raises the question: How are Idaho’s law schools transcending their population base and enrolling such diverse student bodies?

Programs that Embrace Diversity

National, statewide, and institutional efforts are at play in order to enroll incoming classes that are more diverse than the state population. The Council on Legal Education Opportunity, Inc. (CLEO), is a 50-year-old national organization committed to diversifying the legal profession through the Pre-Law Summer Institute, workshops, and resources. This program exists to help minority, low-income and disadvantaged groups access legal education.  More than 300 students apply each year for 40 spots in the summer institute. The institute teaches students how to read and brief court opinions, prepare for law school exams, conquer the workload and stress in law school, establish productive study groups, and more.

In Fall 2015, four law schools, including the U of I, signed on to an experimental program that aimed to further increase access to law school for minority students.  This program, the CLEO Legally Inspired Cohort (CLIC), enrolled five students at U of I who successfully completed the CLEO Pre-Law Summer Institute and CLIC four-day seminar.  The CLIC Scholars had worked together with the intention of enrolling somewhere as a group. Once they began law school in Fall 2016, the students received continuous academic, financial, and other support services during their first year of study.  The first five CLIC Scholars, all previously non-residents of Idaho, are set to graduate from U of I this month, and more are in the pipeline to graduate soon.

Concordia and U of I are also equally committed to the Idaho State Bar’s Love the Law! program.  An initiative by the Diversity Section, Love the Law! promotes diversity, equality, and cultural understanding to better serve the State’s diverse citizenry.  In particular, the Jennifer King Memorial Scholarship program has provided financial assistance for applicants’ LSAT study courses, test fees, and Idaho law school application fees.  This support eliminated the financial barrier to legal education in Idaho for diverse applicants, many of whom have gone on to pursue their Juris Doctor degrees.

Both Idaho law schools have made great efforts to attract and support diverse students through institutionally-developed initiatives.  Concordia hosts a Women Leading Women breakfast series to connect female students with professional women in the Boise area for employment and leadership opportunities.  It also signaled its openness to lesbian, gay, bisexual, transgender, and queer students by hosting the Interfaith & LGBT Summit in February 2019.  The summit, part of Diversity Week, engaged attendees in the perceived tension between religious liberties and nondiscrimination solutions.  In May 2016, the Admission by Performance program launched to acknowledge that standardized tests do not always predict law school success, particularly for underrepresented populations.  The program resulted in increased enrollment and diversity in Concordia’s incoming classes for the past three years.  Lastly, Concordia has made efforts to be as accessible and supportive to veterans as possible.  It works with veterans closely to utilize their benefits and supports them throughout their legal education.

At U of I, the College of Law’s student diversity has resulted in inclusion on the U.S. News & World Report Top Law Schools for Diversity list.  The richness of the student body ensures active diversity-related student organization efforts, like the Latino/a Law Caucus’ pro bono and humanitarian trip to Othello, Washington, and the Women’s Law Caucus’ speaker series.  The College maintains a Professionalism Education Program graduation requirement that includes programs on cultural competency and bias in the profession.  Diverse students are also attracted to the Native American Law emphasis and Immigration Litigation and Appellate Clinic programs, amongst others.  U of I also visits diverse middle and high schools to introduce law as a potential career path.

These programs and many others are just some of the reasons Idaho’s law schools are successful at enrolling a more diverse student body than the population of the state.  Through these efforts and the bridges they build with the bench and bar, the hope is that when students graduate they will be met with a profession equally supportive of their unique contributions.  The transition can be intimidating, though, and the success of that relies heavily on the attorneys who welcome them.

Supporting the Transition to Practice

The role of law schools is to recruit, retain, and graduate diverse law students.  But how employers evaluate and support these students as they become attorneys is something for members of the bench and bar to consider.  Diverse attorneys have different and varied needs as they navigate a profession that does not look, sound, or relate to them in the same ways as other professions might.  Much has been written about the connection between well-being and inclusion.  That connection, or lack thereof, impacts attorney retention, business development, and morale.

Consider the following suggestions as ways to better support diverse colleagues:

Be an Active Mentor.  Many studies have shown that diverse law students, and then attorneys, benefit greatly from having a mentor to help them navigate challenges and opportunities.  Be conscientious and intentional about mentorship by having dedicated times to check in; introducing new clients, contacts, and organizations; supporting each other personally and professionally; and showing up for important moments.

Encourage Professional Association Involvement.  Organizations like the Idaho Women Lawyers, the National Association of Attorneys with Disabilities, the National LGBT Bar Association and more are opportunities for diverse attorneys to connect with others and find professional and personal support.  Colleagues who actively encourage diverse attorneys to engage with these associations will be seen as allies.

Make Room for Differing Views.  A true benefit of diversity in the profession is that new ideas and beliefs are brought to the table.  Though diverse perspectives may at times require a reexamination of commonly held beliefs, make room for these views in the least defensive way possible as forced cultural norms lead to exclusion.  Ways of doing things, strategies on a case, operational processes, and many other “status quo” approaches may need to be questioned in the name of inclusivity.

Avoid Tokenizing.  Few things are more off-putting than feeling tokenized or having one’s difference on display and used for the benefit of others.  As diverse attorneys enter new spheres of our profession, avoid over-relying on their identity as a basis for placing them on hiring or climate committees, assigning them a certain type of client, or limiting them to matters before certain courts.  These attorneys deserve the richness of experiences provided by their employer and shouldn’t carry the burden of the sole representative of diversity through service or unseen and unbillable work. Diverse law students and colleagues bring their background, skills, and life experiences to the classroom, the workplace, and the people they ultimately serve.  Their contributions are both immeasurable and sometimes not fully realized until offered the support and environment they need to shine.  Supporting a diverse and inclusive bench and Bar requires intentionality and hard work.  I encourage us all to be self-reflective about ways we can contribute to these efforts.

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[i] Idaho Population, http://worldpopulationreview.com/states/idaho/ (last visited May 2, 2019).

[ii] American Bar Association, National Lawyer Population Survey, https://www.americanbar.org/content/dam/aba/administrative/market_research/National_Lawyer_Population_Demographics_2008-2018.pdf (last visited May 2, 2019).

[iii] Concordia University School of Law, https://law.cu-portland.edu/admission-financial-aid/aba-required-disclosures (last visited May 2, 2019).

[iv] University of Idaho College of Law, https://www.uidaho.edu/law/admissions/aba-requirements (last visited May 2, 2019).

By Kylie Hicks and Tanner J. Bean

There are two places to resolve competing civil rights: the courts and the legislature. In the courts, rights are pitted against another, locking parties in an expensive, intractable battle that imperils the human dignity of communities as media outlets paint the communities as “enemy” and “other.” In the legislature, the resolution of these rights hinges upon finding common ground between communities with unfamiliar ideas and modes of life.

Idaho has yet to make up its mind about which approach is more attractive, at least when it comes to LGBT rights and religious liberty. So we convened the Interfaith & LGBT Summit on Religious Liberty and Nondiscrimination Solutions[i] to help Idaho along. The Summit gathered 20 speakers and 150+ audience members from the faith and LGBT communities across Idaho to sit down and talk about the rights each community seeks. It was an unprecedented gathering in our state.

For compromise

The Summit featured four, panel discussions and spanned two days at Boise’s two law schools, where speakers voiced their opinions on the best way to resolve the competing rights of LGBT nondiscrimination and religious liberty. President Pro Tempore Brent Hill, who appears to lead the Idaho Legislature in dialogue[ii] on these issues, anchored one group of speakers. This group held fast to the concept that building common ground between the communities was essential to lawmaking because the best (and perhaps the only politically possible) type of legislation will include protections for the LGBT community and the faith community. This concept is often referred to as a “compromise,” a “balanced” approach, or “Fairness for All.”

Speakers like Eric Baxter, Senior Counsel for the Becket Fund for Religious Liberty, emphasized that such legislation “should make room for people to live, on both sides, their lives in the fullest.” Recognizing that the freedom of one community need not be deprived in order to protect the other, Howard Belodoff, Associate Director of Idaho Legal Aid Services, noted, “you don’t protect or preserve the freedom of one group by depriving others of their freedom.” Representative John McCrostie, the only openly gay legislator currently serving in the Idaho Legislature, seemed to agree. Acknowledging the influence of both faith and sexuality play in his life, he asserted that “[c]ompromise does not require an abandonment of your beliefs. Both the LGBT community and the religious community can hold on to the things that we treasure dearly. These are values that make us who we are, and we don’t have to give that up through compromise.”

Fears about the ability to live authentically in private and in public motivated much of this discussion about compromise. Doug Werth, Lead Deputy Attorney General at the Idaho Human Rights Commission, cataloged the progress of civil rights and the rate of discrimination claims filed in Idaho. Boise Mayor David Bieter explained the motivation behind Boise’s municipal LGBT nondiscrimination ordinance:[iii] LGBT people were afraid to make complaints to the police department for crimes committed against them, fearing collateral consequences if an investigation outed them. University of Idaho College of Law Professor Katherine Macfarlane drew an analogy to disability discrimination, noting that discrimination pervades society and injures individuals going about their daily lives. Perhaps most succinctly, Kathy Griesmyer, Policy Director and Chief Lobbyist at the ACLU Idaho, concluded LGBT discrimination is “not a feeling, it’s a reality.”

Against compromise

Griesmyer joined other speakers at the Summit who rejected the notion of legislative compromise. She argued that the LGBT community should hold out and seek protection from the courts until the Idaho Legislature is willing to pass an LGBT nondiscrimination law without any religious liberty protections. This model follows the “Add the Words” proposal,[iv] which would add gender identity and sexual orientation as protected categories to the Idaho Human Rights Act (IHRA), as Chelsea Gaona-Lincoln, Chair of Add the Words Idaho, explained to Summit attendees.

Senator Grant Burgoyne shared that from his interactions with LGBT advocates, he has no sense that they are willing to compromise. To Senator Burgoyne, it appears the LGBT community has weighed the risk of (1) receiving some protections now from the Idaho Legislature in a compromise bill against the possibility of (2) receiving all desired protections in the future from the courts or a more sympathetic Legislature. Although former Idaho State Representative Nicole LeFavour expressed that “the cost of doing nothing in our state” can be as drastic as murderous hate crimes and violence against the LGBT community, Senator Burgoyne’s estimation is the LGBT community is “willing to wait. They’re willing to fight.”

Proposed and existing religious exemptions

The disparity in opinion of those amenable and opposed to compromise can largely be attributed to the inclusion of religious exemptions in a compromise bill. LeFavour questioned, “What about including [LGBT people] in the law suddenly requires a religious exemption?” For LeFavour, any religious exemption would signal that LGBT people “are less than human.” President Pro Tempore Hill’s “Concepts for Discussion,”[v] which outlines future legislative dialogue, seeks protections for religious organizations and small businesses in the contexts of employment, housing, and public accommodations. These protections would allow employees to “express their religious or moral beliefs without retaliation”; permit business owners to “abstain from celebrating ‘expressive activities,’ such as demonstrations, weddings, and religious events”; allow “faith-based adoption agencies to avoid services that violate their religious policies”; and ensure “business owners will not have their licenses revoked because of their beliefs.”

Currently, the IHRA,[vi] much like its federal nondiscrimination cousins,[vii] contains religious exemptions from the nondiscrimination duties it imposes along the lines of race, color, religion, sex, national origin, and disability. For example, IHRA allows religious corporations, associations, and societies to make employment decisions based on religion; permits religious schools to choose students based on religion; exempts religious organizations and places of worship from the definition of a place of public accommodation; releases small landlords, who may be religious, from non-discrimination obligations; and allows religious charities to give preference to members of the same religion in real property transactions.[viii]

Theoretically, religious exemptions may also be obtained in court under Idaho’s Free Exercise of Religion Protected Act (FERPA),[ix] the state-level cousin to the federal Religious Freedom Restoration Act (RFRA), which codifies a multifactorial balancing test between religious free exercise and the government’s interest in applying otherwise beneficial legislation. However, since FERPA’s enactment in 2000, no appellate court in Idaho has granted a religious exemption—the Idaho Supreme Court has never even addressed the statute.[x] Moreover, no court in the country has ever granted a religious exemption through an RFRA-type law from an LGBT nondiscrimination law.[xi] Yet, at the Summit, Griesmyer, and Gaona-Lincoln expressed that FERPA and the religious exemptions already found in the IHRA will sufficiently protect the free exercise of religion when sexual orientation and gender identity are added as protected classes.

A religious exemption in the public accommodations context may be the sticking point that has prevented a compromise bill to date. Representative McCrostie recounted that in the hearings on a previous Add the Words bill, public comment from the faith community did not demonstrate strong objection to LGBT nondiscrimination protections in employment, housing, or education, but the issue of public accommodations invoked concerns similar to those behind Masterpiece Cakeshop,[xii] where the Colorado Civil Rights Commission sanctioned a Christian baker for declining to bake a wedding cake for a same-sex wedding celebration.

Municipal inconsistency

Although the Summit speakers took different views on the matter of compromise, all saw the need for a state-wide measure to be passed in the Legislature. University of Illinois College of Law Professor Robin Fretwell Wilson brought to light that Idaho currently has only patchwork protection for LGBT and faith communities, spread across 13 municipalities that ban LGBT discrimination and the numerous municipalities that do not.[xiii] Griesmeyer expressed how patchwork protections make life unpredictable: one may be protected from discrimination while at work in Meridian,[xiv] but lose protections after traveling home to Nampa. While waiting on a state-wide measure, Luke Caverner, Vice President of the Meridian City Council, encouraged attendees to “take the bull by its horns and go work at the local level.”

Community voices

Several speakers at the Summit spoke less of law and politics and more of compassion. Reverend Sara LaWall, of the Boise Unitarian Universalist Fellowship, professed that as a person of faith, she views her job as loving people “in the fullest expression of who they are as a human being” to “affirm the inherent dignity of every person.” Father Antonio Egiguren of St. John’s Cathedral shared his conviction that solutions are in our hearts as he extolled the golden rule. In step with Father Egiguren, Phillip Thompson, Former President of the Islamic Center of Boise, stated, “If we injure or do harm to one member of humanity, we do injury or harm to all of it.” Or, in the words of religious educator John Thomas, to solve these issues, we must avoid the “Puritan Mistake:” “liberty for me, but not for thee.”

Academic dialogue

The dialogue that unfolded at the Summit is mirrored in the high-level academic debates compacted into an innovative book: Religious Freedom, LGBT Rights, and the Prospects for Common Ground.[xv] The book, edited by Wilson and Yale Law School Professor William N. Eskridge, Jr., was digested by several Summit panelists. Led by Wilson, each panelist responded to a chapter from the volume.

President Pro Tempore Hill reviewed former Utah Governor Michael Leavitt’s chapter, Shared Spaces and Brave Gambles, which details five elements that bring opposing parties to legislative compromise: (1) common pain, (2) a shared belief, (3) political equilibrium, (4) skilled conveners, and (5) simultaneous benefit. President Pro Tempore Hill stated that many of these elements are already in play in the Idaho Legislature. Concerning simultaneous benefit, he expressed, “I am convinced, after studying this as long as I have, that each side can have every right that they want.” The chapter reviewed by Representative McCrostie, Choosing Among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy, written by Alan Brownstein, examines another feature of the approach toward cooperative solutions: greater dialogue, tolerance, and engagement. Rather than going “to war and try[ing] to annihilate each other,” Representative McCrostie said Idaho is “not choosing coercive negotiation tactics. What we are choosing to do is choose greater dialogue by the opposing sides.” As Brownstein recognizes, the “essence of liberty in a free society is the right to act wrongfully in the eyes of others.”

Although people of faith and the LGBT community might not see eye to eye, Doug Laycock’s chapter, Liberty and Justice for All, reviewed by Baxter during the Summit, lays out five similarities between the two groups: both (1) believe some “aspects of human identity are so fundamental that they should be left to each individual,” (2) feel their identity cannot be changed by a simple act of will, (3) have been told their rights do not deserve legal protection, (4) desire to live their lives publicly, and (5) have seen their highest virtues condemned. Of this, Baxter instructed that people must “learn to accept the other side’s own view of what they are,” or, put another way, give people “the right to be wrong.”

Senator Burgoyne, who reviewed Rabbi David Saperstein’s chapter, Masterpiece Cakeshop: Impact on the Search for Common Ground, disagreed with one of Saperstein’s conclusions that now is the time for a compromise between faith and sexuality. He argued that because these disagreements will “go on forever,” the courts are the “best place to resolve these rights,” where “religious freedom [is] as every bit as important as LGBTQ rights.” Capping off the book discussion, University of Idaho College of Law Professor Shaakirrah Sanders recognized the fraught jurisprudence of religious liberty and the torch the LGBT community now carries for civil rights. While agreeing that compromise is enviable, she highlighted that “[w]hile we’re waiting to reach our nirvana on these issues, rights are violated and generations of people are affected.”

Beyond these chapters, Prospects for Common Ground offers a “360-degree view of culture-war conflicts around faith and sexuality.” The mere existence of the book serves to discredit the notion that religious liberty and LGBT rights are mutually exclusive, with one necessarily prevailing over the other, as well as the notion that productive dialogue on these issues eludes American society. In the book, authors offer multiple approaches to common ground lawmaking and peaceful coexistence, each of which is instructive to state and national efforts to legislate fairness for all people. What is more is that these solutions come from a vast array of voices: religious liberty and equality advocates, faith leaders, academics, government officials, and legislators. Together, the chapters in Prospects for Common Ground serve as an academic gateway to nuanced, pragmatic, and dispassionate solutions that afford both the faith and LGBT communities a life without discrimination.

Conclusion

It is our opinion that the Summit was an Idaho translation of this high-level discussion, made plain for the communities who fear discrimination among us. As dialogue rolls forward in 2019, we hope that inclusive models and creative proposals—taking faith, sexuality, and gender into account—will emerge as frontrunners. In this arena, the law has the capacity to elevate many Idahoans out of second-class status while affirming the human dignity of all. We hope the Idaho Legislature takes that step.

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[i] Recordings of the Summit, as well as media coverage and panelists’ biographical information, are available at: goo.gl/QT8VtP

[ii] Betsy Russell, Sen. Hill on LGBT Discrimination Protections: ‘The Risks of Doing Nothing Are Great on Both Sides,’ Idaho Press, Feb. 20, 2019.

[iii] Boise, Idaho, Code §§ 3-14-14, 5-15-1 et seq.

[iv] S.B. 1015, 65th Leg., 1st Reg. Sess. (Idaho 2019).

[v] Available upon request from President Pro Tempore Hill’s office.

[vi] Idaho Code § 67-5901 et seq.

[vii] 42 U.S.C. §§ 2000a et seq., 2000e et seq., 3601 et seq.; see also Robin Fretwell Wilson, Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights, 95 Boston U. L. Rev. 951, 973–82 (2015) (discussing lasting exemptions from federal civil rights law).

[viii] Idaho Code § 67-5910.

[ix] Idaho Code § 73-401 et seq.

[x] See Ricks v. Contractors Bd., 164 Idaho 689, 435 P.3d 1 (Ct. App. 2018); State v. Cordingley, 154 Idaho 762, 302 P.3d 730 (Ct. App. 2013); State v. White, 152 Idaho 361, 271 P.3d 1217 (Ct. App. 2011); Hyde v. Fisher, 143 Idaho 782, 152 P.3d 653 (Ct. App. 2007); Lewis v. State, Dep’t of Transp., 143 Idaho 418, 146 P.3d 684 (Ct. App. 2006); Roles v. Townsend, 138 Idaho 412, 64 P.3d 338 (Ct. App. 2003).

[xi] Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, 51 U. Conn. L. Rev. 1, 14–19 (2019) (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3360500.

[xii] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[xiii] Local Non-Discrimination Ordinances, Movement Advancement Project (Mar. 28, 2019), http://www.lgbtmap.org/equality-maps/non_discrimination_ordinances.

[xiv] Maria L. La Ganga, Meridian bans LGBTQ Discrimination, Sending What Backer Calls ‘Message of Inclusivity,’ Idaho Press, Sept. 26, 2018; Meridian, Idaho, Code § 1-15-1.

[xv] Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson eds., 2018).