How Idaho investigates discrimination

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Because of the recent claims of religious discrimination by members of the Micron Employees for Religious Freedom (MERF), the Idaho Business Review decided to profile the workings of the Idaho Human Rights Commission (IHRC), which recently investigated complaints filed against Boise-based Micron Technology. Often flying below the radar of most residents, the IHRC fills an important niche in protecting Idahoans in the workplace and other venues where illegal discrimination can happen.

What does the IHRC do?

According to the executive director of the IRHC, Benjamin Earwicker, the IHRC performs three services for the people of Idaho: it investigates complaints of illegal discrimination; it mediates between aggrieved parties in discrimination claims and it provides education at no cost to employers about workplace discrimination and accommodation.

What is the IHRC?

The IHRC is an independent state agency established by the Idaho Legislature in 1969 to help protect persons within the state from illegal discrimination. The IHRC also handles complaints under federal law deferred to it by the federal Equal Employment Opportunity Commission (EEOC).

The commission has nine members who are appointed by the governor and confirmed by the state Senate for three-year terms. State statute loosely restricts the character of the commissioners: “One member shall be representative of industry; one member shall be representative of labor and seven members shall be appointed at large.”

Besides the nine commissioners, the IHRC has a support staff headed by an executive director. Earwicker explained to the Idaho Business Review how the staff is organized: “I have five civil rights investigators and two additional senior civil rights investigators…a total of 10 staff, including myself and support staff.”

Investigating discrimination

The most visible task of the IHRC is to investigate the legitimacy of claims that discrimination has occurred, or to quote the IHRC’s own resources: “Its purpose is to determine if there is enough evidence to prove discrimination.” The investigation process of the IHRC is set up to encourage mediation, with points along the investigation process to attempt a resolution of a complaint without going to formal litigation in the courts.

Another aspect of the investigation process is that the IHRC has an arrangement with the EEOC to share complaints and the work required to examine those complaints.

Earwicker explained: “We have a work-share agreement with the EEOC. And so when a charge is filed with either the IHRC or the EEOC, a second charge is also concurrently filed under either the state or federal law, depending on where the complainant or the person filing the charge first filed the claim. If someone were to go to the EEOC directly, then they (the EEOC) would reach out to us and say, ‘Hey, we’ve got an Idaho claim; we’d like to send it down to you for processing and investigation.’

“When we receive a charge directly, we’d notify them (the EEOC) and concurrently file the federal charge as well. So there’s a very close kind of symbiotic relationship between the agencies. We don’t technically make a decision on the merits of whether or not somebody can file…We do a screening for jurisdictional issues. If somebody comes to us with a jurisdictional claim, then we have to take that in. And the same is true for the feds.”

A complaint filed with the EEOC may be forwarded to the IHRC for investigation or vice versa. Both agencies only consider jurisdictional claims of discrimination. Earwicker described those as “allegations of discrimination or retaliation based on the different protected categories in the Idaho Human Rights Act, and under the corresponding federal law.” Those categories are race, color, religion, national origin, sex, age (40 and older) and disability.

The investigation process

Idaho law requires that an administrative complaint be filed with the IHRC before a discrimination lawsuit can be filed. The complaint can involve a situation in the workplace, in housing or in pubic accommodation. The latter category could include the lack of facilities for disabled individuals, as one example.

Earwicker described the process: “When a complaint is filed and served, I then assign that to one of my two senior investigators, who then offer mediation, gather position statements and basically set up the investigative file. Once that’s complete, I transfer the case to my civil rights investigators, who then complete the investigation, draft the summary findings and (make) recommendations to the commissioners.” A complaint will go before the commissioners after the staff’s investigation and attempts to mediate between the parties.

Commissioner role

IHRC commissioner Dan Cravens, of Blackfoot, is on a second appointment to the IHRC. Cravens explained his interest in the commission’s mission: “I worked as an executive for an assistive technology company for six years before I came out here to Idaho. So I’m very interested in helping folks with disabilities.”

Cravens moved to Idaho to accept a position as an economist for the state. Gov. Butch Otter appointed Cravens to the IHRC in 2015. Before his appointment was complete, he accepted a position on the business faculty at Idaho State University.

“Normal commissioners get like $100 a meeting or something like that,” Cravens remarked. “I don’t get compensated because I already work for the state. So for me, it’s a purely volunteer position.” Given Craves’ interest in helping those with disabilities, Gov. Brad Little appointed Cravens for a second term on the commission. His current term expires in 2024.

The commission usually meets every month. When complaints progress for consideration, “We look at the documentation and the staff recommendations, typically in panels of three commissioners, and make a decision (on a complaint),” Cravens described.

Confidentiality, mediation and resolution

The meetings are public but the complaints are considered by the panels in executive session. Earwicker explained: “The names of the business and the individuals filing the claims are maintained confidential.”

He commented that the decisions on complaints are “exempted in statute…there’s a specific carve out for the IHRC proceedings…There is one exception in statute: it allows for public policy decisions.” Those exceptions to confidentiality are very rare: “Because we’re not a court proceeding, our proceedings are not open to the public in the same way that a court of law would be.”

After the commissioners have decided, “then the case comes back to the staff. We prepare the final notices of right to sue,” Earwicker remarked. “If we do find cause that discrimination or retaliation have occurred, then we engage in a subsequent conciliation process and try to resolve that with the parties. In cases where we don’t find discrimination, we close the case; issue a notice of right to sue to the complaining party and they can proceed on to court if they wish.”

“We provide free mediation services to the parties,” Earwicker said. “Mediation is a chance to resolve the issue without having to escalate to a full-blown lawsuit.”

Education

The IHRC provides free education and guidance on discrimination law. Earwicker remarked that it just takes a phone call or email to the IHRC to arrange this service for Idahoans: “We provide free training and educational opportunities for businesses and organizations around the state…on anything related to the Human Rights Act and the corresponding federal laws: respectful workplace, sexual harassment prevention, disability accommodations in the workplace, service animals in public accommodation or the workplace…It’s a real benefit for businesses and something that many just aren’t aware of.”