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An opportunity to resolve discrimination complaints

Adam Boone Little

You have developed anti-discrimination policies and done your best to set a positive overall culture for your business. Employees understand the avenues available for raising concerns, and when an issue is raised, it is addressed in good faith. Nevertheless, you now find yourself confronted with a complaint from the Idaho Commission on Human Rights alleging sexual discrimination. Despite the serious nature of the allegations, the presence of the complaint with the commission provides some benefits.

Idaho prohibits discrimination in employment and other settings against a person because of race, color, religion, sex, national origin, age or disability. Reprisal, discriminating against a person for filing a complaint or participating in an investigation, is also prohibited. A court has the power to order the employer to stop the discrimination, reinstate or promote the employee, grant back pay, and award punitive damages of $1,000.

However, a person cannot bring a discrimination lawsuit in Idaho state or federal court unless a complaint is first filed with the Idaho Commission on Human Rights.

The commission, located within the office of the governor, is composed of nine members and supported with staff from the Idaho Department of Labor. The commission’s mission is “[t]o administer state and federal anti-discrimination laws in Idaho in a manner that is fair, accurate, and timely; and to work toward ensuring that all people within the state are treated with dignity and respect in their places of employment, housing, education, and public accommodations.” The commission has the power to receive and investigate complaints of alleged violations of discrimination statutes, and it can act on complaints by appearing in court.

Persons who believe they are subject to unlawful discrimination may file a complaint with the commission within one year of the discrimination. Before investigating the merits of the claim, the commission seeks to resolve the complaint through informal means such as mediation. If the complaint cannot be resolved informally with the parties, the commission or an investigator will conduct an investigation. If the investigation reveals a lack of reasonable grounds to believe that unlawful discrimination has occurred, the commission will enter an order announcing its findings and dismissing the complaint.

If the commission finds probable cause that discrimination occurred, it will seek to eliminate the discrimination through informal means, such as conference, conciliation and persuasion. The complaint will be dismissed if informal means satisfactorily resolve the complaint. While the complaining party may request dismissal at any time, the commission will dismiss a complaint if it is not resolved within one year from the date it is filed.

The commission has the power, but is not required, to file a civil lawsuit where it finds probable cause of discrimination that cannot be resolved. Any lawsuit brought by the commission must be filed within one year of the initial complaint. Once the commission dismisses the complaint, the complaining party has 90 days to file a civil lawsuit in district court.

The commission’s process for investigating and resolving disputes can benefit both parties. The commission encourages parties to use its mediation program, which has been in use for over 20 years. It is an opportunity to clarify the issues causing the disagreement in a less expensive and less adversarial venue than a courtroom. The proceedings and negotiations are not public. The parties need not be represented by an attorney. Even if the commission finds reasonable grounds for discrimination, it will attempt to resolve the complaint with the parties.

In the event a civil lawsuit is filed, the findings of the commission are generally excluded from evidence in Idaho state courts, but in federal courts the commission’s factual findings may be admitted as evidence.

While the dispute may ultimately need to be resolved in court, a good faith effort to resolve the claim with the commission should not hurt the parties’ posture for a trial. If the commission files the civil lawsuit, its resources will provide an attorney for the litigation. Overall, an employer has the incentive to work on resolving the complaint before it progresses to a more expensive setting.

This column was written by Adam Boone Little, an attorney with Eberle Berlin Kading Turnbow & McKlveen Chtd. in Boise.

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