(Executive order no. 2004-05)

From the Office of the Govener, Executive Department - State of Idaho, Boise.
Effective 10/6/2004 and for four years following
(Executive order no. 2004-05) Prohibits discrimination in state employment. Fair Employment Practices Act

• 67-5902. Definitions.
• 67-5909. Acts prohibited.
• 67-5910. Limitations on the prohibitions.
• 67-5911. Reprisals for opposing unlawful practices.

WHEREAS, the United States through its Constitution, laws, executive orders, and regulations has declared that all persons are to be treated fairly and equally; and the State of Idaho is committed to fulfilling that federal mandate; and

WHEREAS, the Legislature of the State of Idaho by Title 44, Chapter 17, and Title 67, Chapter 59, of the Idaho Code has declared that employment discrimination based upon race, color, national origin, religion, disability, sex, or age is illegal; by Title 56, Chapter 7, that the disabled shall be free from employment discrimination in public service; and by Title 65, Chapter 5, that veterans are to be given preference by public employers; and

WHEREAS, every Idahoan should be provided the opportunity to fully develop and use his/her talents. When we allow race, color, religion, national origin, sex, age, and disability to prevent anyone from reaching full potential, we fail that person, our state, and our country. In accordance with the principles of fair employment practices, we must strive to recognize and advance the abilities and talents of all people, while denying no individual his/her rightful opportunities; and

WHEREAS, we must assume our citizen-granted role of leadership in the protection of freedom for all citizens; and we must serve in that leadership role as a model for government, business, industry, labor, and education in this regard;

NOW, THEREFORE, I, DIRK KEMPTHORNE, Governor of the State of Idaho, in that spirit and to that purpose, do hereby proclaim the following Idaho Code of Fair Employment Practices shall continue to be the governing policy throughout every department of the Executive Branch of Government of the State of Idaho.

ARTICLE I--Employment Policies of State Agencies

State employees shall be recruited, appointed, assigned, and promoted upon the basis of individual merit, in accordance with the principles of fair treatment and non-discrimination on the basis of race, color, sex, religion, national origin, age, or disability. Veterans are to be given preference in accordance with applicable state and federal laws and regulations.

All state departments, commissions, and boards are directed to review their present Human Resource policies and practices regarding recruitment, appointment, promotion, demotion, transfer, retention, discipline, separation, training, and compensation to assure compliance with this Executive Order. They shall regularly review present state and federal laws and regulations and implement procedures to assure equal opportunity for minorities and women, and to comply with affirmative action obligations for individuals with disabilities, and qualified veterans within the state workforce.

The Division of Human Resources shall take positive steps to ensure that the entire examination process; oral, written, and ratings, shall be free from either conscious or inadvertent bias. State agencies shall give wide distribution of notice of employment opportunities so that all citizens may be fully advised of career opportunities in state government. Employment announcements issued by state agencies shall include a statement such as, "The State of Idaho is an Equal Opportunity Employer. In addition, preference may be given to veterans who qualify under state and federal laws and regulations."

ARTICLE II--State Action

All services of every state agency shall be performed without discrimination based on race, color, religion, national origin, sex, age, or disability. No state facility shall be used in furtherance of any discriminatory practice nor shall any state agency become a party to any agreement, arrangement, plan, contract, or subcontract which has the effect of sanctioning such practices.

ARTICLE III--State Financial Assistance

Race, color, religion, national origin, sex, age, or disability shall not be considered in state-administered or sponsored programs involving the distribution of funds to qualified recipients for benefits authorized by law; and state agencies shall not provide grants, loans, or other financial assistance to public agencies, private institutions, or organizations which engage in discriminatory practices.

ARTICLE IV--State Employment Services

All state agencies, including educational institutions, which provide employment referral or placement services to public or private employers, shall accept job orders and applications on a non-discriminatory basis. They shall refuse to fill any job order designed, either consciously or inadvertently, to exclude any person from employment because of race, color, religion, national origin, sex, age, or disability except where a bona fide occupational qualification has been established.

ARTICLE V--State Education, Counseling, and Training Program

All educational counseling and vocational guidance programs, employment and training programs, policy declarations and staff services of state agencies or those in which state agencies participate, shall be open to all qualified persons, without regard to race, color, religion, national origin, sex, age, or disability.

ARTICLE VI--Cooperation with Idaho Human Rights Commission

All state departments shall cooperate fully with the Idaho Human Rights Commission if state employees or applicants for state employment file complaints with the Commission. They shall also utilize the services of the Commission when needing technical advice regarding compliance with the equal employment opportunity provisions of Title 67, Chapter 59, Idaho Code. The Commission shall act as a referral agency for information or complaints concerning discrimination in certain protected classes not covered by Title 67, Chapter 59, Idaho Code.

ARTICLE VII--Enforcement by Appointing Authorities

The head of each state executive department shall be responsible for carrying out the policies of this Idaho Code of Fair Employment Practices and shall inform and educate all commission and board supervisory personnel regarding its intent and spirit. They shall establish clearly written directions to carry out this policy. Upon a showing of credible evidence to the appropriate appointing authority that any officer or employee of the state has violated any of the provisions of this Executive Order or any applicable state or federal law or regulation, the appointing authority shall take appropriate disciplinary action.

Every appointing authority shall be responsible for the development of a complaint procedure to be used by employees and recipients of state services who believe they have been subjected to harassment. This policy shall include at least the following:

(1) a statement defining and forbidding harassment of any nature,

(2) an investigative procedure designed to protect the confidentiality of participants wherever possible and to effect a timely and fair resolution of the allegation, and

(3) a statement advising employees and service recipients of their rights to raise this issue with appropriate governmental agencies and the courts. The Idaho Human Rights Commission and the Division of Human Resources shall assist in the development of these policies.

ARTICLE VIII-- Fair Employment/Affirmative Action Oversight

The agency charged with overseeing the review of the state's Equal Employment and Affirmative Action planning shall be the Division of Human Resources under the Executive Office of the Governor. The Division will consult with appointing authorities and report to the Governor on the State's fair employment practices, including Equal Employment Opportunity and Affirmative Action compliance efforts on an annual basis.

This Executive Order repeals and replaces Executive Order No 00-09.
This Executive Order shall cease to be effective four years after its entry into force.

IN WITNESS WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of the State of Idaho at the Capitol in Boise on the 6th day of October in the year of our Lord two thousand and four and of the Independence of the United States of America the two hundred twenty-ninth and of the Statehood of Idaho the one hundred-fifteenth.

Idaho Employment Discrimination Law

The following sections of the Idaho Code concern employment discrimination in Idaho.

67-5901. PURPOSE OF ACT.

The general purposes of this act are:

(1) To provide for execution within the state of the policies embodied in the federal Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended.

(2) To secure for all individuals within the state freedom from discrimination because of race, color, religion, sex or national origin in connection with employment, public accommodations, education and real property transactions, discrimination because of age or disability in connection with employment, and discrimination because of disability in real property transactions, and thereby to protect their interest in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health, and general welfare, and to promote the interests, rights and privileges of individuals within the state.

67-5902. DEFINITIONS.

In this act, unless the context otherwise requires:

(1) "Commission" means the commission on human rights created by this act;

(2) "Commissioner" means a member of the commission;

(3) "Discriminatory practice" means a practice designated as discriminatory under the terms of this act;

(4) "National origin" includes the national origin of an ancestor;

(5) "Person" includes an individual, association, corporation, joint apprenticeship committee, joint-stock company, labor union, legal representative, mutual company, partnership, any other legal or commercial entity, the state, or any governmental entity or agency;

(6) "Employer" means a person, wherever situated, who hires five (5) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year whose services are to be partially or wholly performed in the state of Idaho, except for domestic servants hired to work in and about the person's household. The term also means:

(a) a person who as contractor or subcontractor is furnishing material or performing work for the state;

(b) any agency of or any governmental entity within the state; and

(c) any agent of such employer.

(7) "Employment agency" means a person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person;

(8) "Labor organization" includes:

(a) an organization of any kind, an agency or employee representation committee, group, association, or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievance, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment;

(b) a conference, general committee, joint or system board, or joint council which is subordinate to a national or international labor organization; or

(c) an agent of a labor organization.

(9) "Place of public accommodation" means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public;

(10) "Educational institution" means a public or private institution and includes an academy, college, elementary or secondary school, extension course, kindergarten, nursery, school system, or university and a business, nursing, professional, secretarial, technical, or vocational school and includes an agent of an educational institution;

(11) "Real property" includes buildings, structures, real estate, lands, tenements, leaseholds, interests in real estate cooperatives, condominiums, and hereditaments, corporeal and incorporeal or any interest therein;

(12) "Real estate transaction" includes the sale, exchange, rental or lease of real property;

(13) "Housing accommodation" includes any improved or unimproved real property, or part thereof, which is used or occupied, or as the home or residence of one or more individuals;

(14) "Real estate broker or salesman" means a person, whether licensed or not, who, for or with the expectation of receiving a consideration, lists, sells, purchases, exchanges, rents, or leases real property, or who negotiates or attempts to negotiate any of these activities, or who holds himself out as engaged in these activities, or who negotiates or attempts to negotiate a loan secured or to be secured by mortgage or other encumbrance upon real property, or who is engaged in the business of listing real property in a publication; or a person employed by or acting on behalf of any of these;

(15) "Disability" means a physical or mental condition of a person, whether congenital or acquired, which constitutes a substantial limitation to that person and is demonstrable by medically accepted clinical or laboratory diagnostic techniques. A person with a disability is one who (a) has such a disability, or (b) has a record of such a disability, or (c) is regarded as having such a disability;

(16) "Reasonable accommodation" means an adjustment which does not (a) unduly disrupt or interfere with the employer's normal operations, (b) threaten the health or safety of the person with the disability or others, (c) contradict a business necessity of the employer, or (d) impose undue hardship on the employer based on the size of the employer's business, the type of business, the financial resources, and the estimated cost and extent of the adjustment.

67-5903. CREATION OF COMMISSION ON HUMAN RIGHTS -- MEMBERS -- APPOINTMENT.

There is hereby created in the office of the governor the Idaho commission on human rights to consist of nine (9) members, all of whom shall be appointed by the governor, with the advice and consent of the senate, each for a term of three (3) years. In making the first appointments, the governor shall specify the term of each member, so that the terms of three (3) members expire each year. The terms of office of members of the commission holding office prior to July 1, 1974, shall terminate on July 1, 1974, and within thirty (30) days thereafter the governor shall appoint the members of the commission who shall serve staggered terms as provided by this section.

On and after July 1, 1976, the governor shall appoint members of the commission as terms of existing members expire so that the commission shall be comprised as follows: one (1) member shall be representative of industry; one (1) member shall be representative of labor; and seven (7)

67-5904. ORGANIZATION OF COMMISSION -- COMPENSATION OF MEMBERS.

The commission shall annually select a president and vice president. Members shall each be compensated as provided by section 59-509(h), Idaho Code. The commission may appoint a staff director to serve at its pleasure. Other subordinate staff necessary to accomplish the commission's mission shall be subject to the provisions of chapter 53, title 67, Idaho Code.

67-5905. DUTIES OF STAFF DIRECTOR.

The staff director shall attend all meetings of the commission, serve as its executive and administrative officer, have charge of its office and records, and, under the general supervision of the commission, be responsible for the administration of this act and the general policies and regulations adopted by the commission.

67-5906. POWERS AND DUTIES OF COMMISSION.

The Idaho commission on human rights shall have the following powers and duties:

(1) To investigate complaints of alleged violation of this act and act upon its findings pursuant to the provisions contained in this chapter;

(2) To make bylaws for its own government and procedure not inconsistent with the laws of this state;

(3) To maintain an office in Ada county and other offices within the state as it may deem necessary;

(4) To meet and exercise its powers at any place within the state;

(5) To appear in court and before other administrative bodies;

(6) To cooperate or contract with individuals and state, local and other agencies, both public and private, including agencies of the federal government and of other states;

(7) To accept public grants or private gifts, bequests, or other payments;

(8) To receive and act on complaints;

(9) To furnish technical assistance requested by persons subject to this act to further compliance with the act or an order issued thereunder;

(10) To make studies appropriate to effectuate the purposes and policies of this act and to make the results thereof available to the public;

(11) To render at least annually a comprehensive written report to the governor and to the legislature. The report may contain recommendations of the commission for legislative or other action to effectuate the purposes and policies of this act.

(12) In accordance with chapter 52, title 67, Idaho Code, to adopt, promulgate, amend and rescind rules to effectuate the purposes and policies of this act, including rules requiring the posting or inclusion in advertising material of notices prepared or approved by the commission.

67-5907. COMPLAINTS -- PROCEDURE ON COMPLAINT.

(1) Any person who believes he or she has been subject to unlawful discrimination, or a member of the commission, may file a complaint under oath with the commission stating the facts concerning the alleged discrimination within one (1) year of the alleged unlawful discrimination.

(2) Upon receipt of such a complaint, the commission or its delegated investigator shall endeavor to resolve the matter by informal means prior to a determination of whether there are reasonable grounds to believe that unlawful discrimination has occurred. The commission or its delegated investigator shall conduct such investigation as may be necessary to resolve the issues raised by the facts set forth in the complaint.

(3) If the commission does not find reasonable grounds to believe that unlawful discrimination has occurred, it shall enter an order so finding, and dismiss the proceeding, and shall notify the complainant and the respondent of its action.

(4) If the commission finds reasonable grounds to believe that unlawful discrimination has occurred, it shall endeavor to eliminate such discrimination by informal means such as conference, conciliation and persuasion. No offer or counter offer of conciliation nor the terms of any conciliation agreement may be made public without the written consent of all the parties to the proceeding, nor used as evidence in any subsequent proceeding, civil or criminal. If the case is disposed of by such informal means in a manner satisfactory to the commission, the commission shall dismiss the proceeding, and shall notify the complainant and the respondent.

(5) If the commission finds reasonable grounds to believe that unlawful discrimination has occurred, and further believes that irreparable injury or great inconvenience will be caused the victim of such discrimination if relief is not immediately granted, or if conciliation efforts under subsection (4) have not succeeded, the commission may file a civil action seeking appropriate legal and equitable relief.

(6) A complainant may request dismissal of an administrative complaint at any time. Dismissals requested before three hundred sixty-five (365) calendar days from the date of filing of the administrative complaint may be granted at the discretion of the staff director who will attempt to contact all parties who have appeared in the proceeding and consider their interests. After three hundred sixty-five (365) calendar days, if the complaint has not been dismissed pursuant to subsection (3) of this section or the parties have not entered into a settlement or conciliation agreement pursuant to subsection (2) or (4) of this section or other administrative dismissal has not occurred, the commission shall, upon request of the complainant, dismiss the complaint and notify the parties.

67-5907A. COMPLIANCE WITH THE IDAHO TORT CLAIMS ACT.

Compliance with section 67-5907(1), Idaho Code, satisfies the notice requirements of sections 6-905 and 6-906, Idaho Code, as to the allegations of the administrative complaint arising under chapter 59, title 67, Idaho Code.

67-5908. PROCEDURE IN DISTRICT COURT.

(1) Any action filed by the commission shall be heard by the district court unless either party shall move for a jury trial. Except as otherwise provided herein, the court shall hear the case and grant relief as in other civil actions. Any such action shall be brought in the name of the commission for the use of the person alleging discrimination or a described class, and the commission shall furnish counsel for the prosecution thereof. Any person aggrieved by the alleged discrimination may intervene in such an action.

(2) A complaint must be filed with the commission as a condition precedent to litigation. A complainant may file a civil action in district court within ninety (90) days of issuance of the notice of administrative dismissal pursuant to section 67-5907(6), Idaho Code.

(3) In a civil action filed by the commission or filed directly by the person alleging unlawful discrimination, if the court finds that unlawful discrimination has occurred, its judgment shall specify an appropriate remedy or remedies therefor. Such remedies may include, but are not limited to

(a) An order to cease and desist from the unlawful practice specified in the order;

(b) An order to employ, reinstate, promote or grant other employment benefits to a victim of unlawful employment discrimination;

(c) An order for actual damages including lost wages and benefits, provided that such back pay liability shall not accrue from a date more than two (2) years prior to the filing of the complaint with the commission or the district court, whichever occurs first;

(d) An order to accept or reinstate such a person in a union;

(e) An order for punitive damages, not to exceed one thousand dollars ($1,000) for each willful violation of this chapter.

(4) Any civil action filed by the commission under this section shall commence not more than one (1) year after a complaint of discrimination under oath is filed with the commission.

(5) In any civil action under this chapter, the burden of proof shall be on the person seeking relief.

67-5909. ACTS PROHIBITED.

It shall be a prohibited act to discriminate against a person because of, or on a basis of, race, color, religion, sex or national origin, in any of the following and on the basis of age or disability in subsections (1), (2), (3) and (4), provided that the prohibition against discrimination because of disability shall not apply if the particular disability, even with a reasonable accommodation by the employer, prevents the performance of the work required by the employer in that job. The prohibition to discriminate shall also apply to persons with disabilities in real property transactions in subsections (7), (8), (9) and (10) of this section, and to those individuals without disabilities who are associated with a person with a disability.

(1) For an employer to fail or refuse to hire, to discharge, or to otherwise discriminate against an individual with respect to compensation or the terms, conditions or privileges of employment or to reduce the wage of any employee in order to comply with this act;

(2) For an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against an individual or to classify or refer an individual for employment;

(3) For a labor organization;

(a) to exclude or to expel from membership, or to otherwise discriminate against, a member or applicant for membership,

(b) to limit, segregate or classify membership, or to fail or refuse to refer for employment an individual in any way,

1. which would deprive an individual of employment opportunities, or

2. which would limit employment opportunities or adversely affect the status of an employee or of an applicant for employment, or

(c) to cause or attempt to cause an employer to violate this act.

(4) For an employer labor organization or employment agency to print or publish or cause to be printed or published a notice or advertisement relating to employment by the employer or membership in or a classification or referral for employment by the labor organization, or relating to a classification or referral for employment by an employment agency, indicating a preference, limitation, specification or discrimination; but a notice or advertisement may indicate a preference limitation, specification, or discrimination when such is a bona fide occupational qualification for employment;

(5) For a person;

(a) to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of a place of public accommodation, or

(b) to print, circulate, post, or mail or otherwise cause to be published a statement, advertisement or sign which indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual's patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable.

(6) For an educational institution;

(a) to exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, and privileges of the institution, or

(b) to make or use a written or oral inquiry or form of application for admission that elicits or attempts to elicit information, or to make or keep a record, of an applicant for admission, except as permitted by the regulations of the commission,

(c) to print or publish or cause to be printed or published a catalogue or other notice or advertisement indicating a preference, limitation, specification, discrimination of an applicant for admission, or

(d) to announce or follow a policy of denial or limitation through a quota or otherwise of educational opportunities of a group or its members.

(7) For an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesman;

(a) to refuse to engage in a real estate transaction with a person,

(b) to discriminate against a person in the terms, conditions or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith,

(c) to refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person,

(d) to refuse to negotiate a real estate transaction with a person,

(e) to represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is so available, or to fail to bring a property listing to his attention, or to refuse to permit him to inspect real property,

(f) to print, circulate, post or mail or cause to be so published a statement, advertisement or sign, or to use a form of application for a real estate transaction, or to make a record or inquiry in connection with a prospective real estate transaction, which indicates, directly or indirectly, an intent to make a limitation, specification, or discrimination with respect thereto,

(g) to offer, solicit, accept, use or retain a listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection therewith, or

(h) to refuse to permit, at the expense of a person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if the modifications may be necessary to afford such person full enjoyment of the premises. Provided, that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the interior, exterior, or both, of the premises, to the condition that existed before the modification, reasonable wear and tear excepted. The provision for restoration shall be included in any lease or rental agreement.

(8) For a person to whom application is made for financial assistance in connection with a real estate transaction or for the construction, rehabilitation, repair, maintenance, or improvement of real property, or a representative of such a person;

(a) to discriminate against the applicant,

(b) to use a form of application for financial assistance or to make or keep a record or inquiry in connection with applications for financial assistance which indicates directly or indirectly, an intent to make a limitation, specification, or discrimination.

(9) To insert in a written instrument relating to real property a provision which purports to forbid or restrict the conveyance, encumbrance, occupancy or lease thereof;

(10) For a person for the purpose of inducing a real estate transaction from which he may benefit financially;

(a) to represent that a change has occurred or will or may occur in the composition of the owners or occupants in the block, neighborhood, or area in which the real property is located, or

(b) to represent that this change will or may result in the lowering of property values, an increase in criminal or anti-social behavior, or a decline in the quality of schools in the block, neighborhood, or area in which the real property is located.

67-5910. LIMITATIONS.

(1) This act does not apply to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by the corporation, association, or society of its religious activities.

(2) It is not a discriminatory practice;

(a) for an employer to employ an employee, or an employment agency to classify or refer for employment an individual, for a labor organization to classify its membership or to classify or refer for employment an individual, or for an employer, labor organization, or joint labor-management committee controlling an apprenticeship or other training or retraining program, on the basis of his religion, sex, national origin, or age if religion, sex, national origin, or age is a bona fide occupational qualification reasonably necessary to the normal operation of the business or enterprise, or

(b) for an employer, employment agency, or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this act, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit involuntary retirement of any individual specified in subsection (7) of this section because of the age of such individual; however, the prohibition against age discrimination contained in this act shall not be construed to prohibit compulsory retirement if such retirement is permitted under the terms of 29 USC, section 631(c)(1) and (2), or

(c) for a religious educational institution or an educational organization to limit employment or give preference to members of the same religion, or

(d) for an employer, employment agency, or labor organization to discriminate against a person with a disability which, under the circumstances, poses a serious threat to the health or safety of the person with a disability or others. The burden of proving this defense is upon the employer, labor organization, or employment agency.

(3) This act does not apply to a private club, or other establishment not in fact open to the public, except to the extent that the goods, services, facilities, privileges, advantages or accommodations of the establishment are made available to the customers or patrons of another establishment that is a place of public accommodation.

(4) Notwithstanding any other provisions of this act, it is not a discriminatory practice for;

(a) a religious educational institution or an educational institution operated, supervised, or controlled by a religious institution (operated, supervised, or controlled by a religious institution) or organization to limit admission or give preference to applicants of the same religion, or

(b) an educational institution to accept and administer an inter vivos or testamentary gift upon the terms and conditions prescribed by the donor.

(5) The provisions of section 67-5909(7), Idaho Code, do not apply;

(a) to the rental of a housing accommodation in a building which contains housing accommodations for not more than two (2) families living independently of each other, if the lessor or a member of his family resides in one (1) of the housing accommodations, or

(b) to the rental of a room or rooms in a housing accommodation by an individual if he or a member of his family resides therein.

(6) It is not a discriminatory practice for a religious institution or organization or a charitable or educational organization operated, supervised or controlled by a religious institution or organization to give preference to members of the same religion in a real property transaction.

(7) The prohibitions against discrimination based on age contained in this act shall be limited to individuals who are at least forty (40) years of age.

67-5911. REPRISALS FOR OPPOSING UNLAWFUL PRACTICES.

It shall be unlawful for an employer, employment agency, or labor organization to discriminate against any individual because he or she has opposed any practice made unlawful by this act or because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this act.

67-5912. PERSONS IMMUNE FROM CIVIL PERSONAL LIABILITY FOR ACTS PERFORMED IN CONNECTION WITH CARRYING OUT PROVISIONS OF THIS ACT.

The members of the commission, the attorney general and any personnel they employ or state employees they utilize shall be immune from civil personal liability for any act performed or omitted in the course of carrying out the provisions of this act.

DISCRIMINATORY WAGE RATES BASED UPON SEX

44-1701. DEFINITIONS.

As used in this act:

(1) "Employee" means any individual employed by an employer, including individuals employed by the state or any of its political subdivisions.

(2) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(3) "Wage rate" means all compensation for employment, including payment in kind and amounts paid by employers for employee benefits, as defined by the director in regulations issued under this act.

(4) "Employ" includes to suffer or permit to work.

(5) "Occupation" includes any industry, trade, business or branch thereof, or any employment or class of employment.

(6) "Director" means the director of the human rights commission.

44-1702. DISCRIMINATORY PAYMENT OF WAGES BASED UPON SEX PROHIBITED.

(1) No employer shall discriminate between or among employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility. Differentials which are paid pursuant to established seniority systems or merit increase systems, which do not discriminate on the basis of sex, are not within this prohibition.

(2) No person shall cause or attempt to cause an employer to discriminate against any employee in violation of this act.

(3) No employer may discharge or discriminate against any employee by reason of any action taken by such employee to invoke or assist in any manner the enforcement of this act.

44-1703. POWERS AND DUTIES OF DIRECTOR WITH RESPECT TO UNLAWFUL PAY PRACTICES.

(1) The director is authorized to endeavor to eliminate pay practices unlawful under this act, by informal methods of conference, conciliation and persuasion, and to supervise the payment of wages owing to any employee under this act.

(2) The director shall have power to issue such regulations, not inconsistent with the purpose of this act, as he deems necessary or appropriate to carry out its provisions.

(3) Employers shall be furnished copies or abstracts of this act and such regulations by the director on request without charge.

44-1704. PROCEDURES FOR COLLECTION OF UNPAID WAGES.

(1) Any employer who violates the provisions of section 44-1702, Idaho Code, shall be liable to the employee or employees affected in the amount of their unpaid wages, and in instances of wilful violation in employee suits under subsection (2) of this section, up to an additional equal amount as liquidated damages.

(2) Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. The court in such action shall, in cases of violation in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

(3) No agreement by any such employee to work for less than the wage to which such employee is entitled under this act shall be a bar to any such action, or to a voluntary wage restitution of the full amount due under this act.

(4) At the written request of any employee claiming to have been paid less than the wage to which he may be entitled under this act, the director may bring any legal action necessary in behalf of the employee to collect such claim for unpaid wages. The director shall not be required to pay the filing fee, or other costs, in connection with such action. The director shall have power to join various claims against the employer in one (1) cause of action.

(5) In proceedings under this section, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of this act.

(6) The director shall have power to petition any court of competent jurisdiction to restrain violations of section 44-1702, Idaho Code, and for such affirmative relief as the court may deem appropriate, including restoration of unpaid wages and reinstatement of employees, consistent with the purpose of this act.

EMPLOYEE ASSISTANCE PROGRAMS

44-201. EMPLOYER DUTIES.

(1) It is unlawful for any employer to maintain a blacklist, or to notify any other employer that any current or former employee has been blacklisted by such employer, for the purpose of preventing such employee from receiving employment.

(2) An employer who in good faith provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee, or at the request of the current or former employee, may not be held civilly liable for the disclosure or the consequences of providing the information.

There is a rebuttable presumption that an employer is acting in good faith when the employer provides information about the job performance, professional conduct, or evaluation of a former or current employee to a prospective employer of that employee, at the request of the prospective employer of that employee or at the request of the current or former employee.

The presumption of good faith is rebuttable only upon showing by clear and convincing evidence that the employer disclosed the information with actual malice or with deliberate intent to mislead.

For the purposes of this section, "actual malice" means knowledge that the information was false or given with reckless disregard of whether the information was false.

44-202. EMPLOYEE ASSISTANCE PROGRAMS.

(1) As used in this section

(a) "Provider" means any professional licensed under the laws of this state whose communications with clients or patients are subject to any requirement of confidentiality or privilege pursuant to the laws, regulations, or rules of court of this state and who provides professional services to employee assistance program participants.

(b) "Participants" means employees eligible to participate in an employee assistance program and all others eligible to participate in an employee assistance program by virtue of their relationship to an employee. (c) "Employee assistance program" means a program established by an

employer for the benefit and convenience of its employees pursuant to which participants access the professional services of one (1) or more providers regardless of who is responsible for the payment of any fees charged for such services, and regardless of the type of employment or business relationship, if any, that the employer has with the providers involved.

(2) No provider shall disclose to an employer, and no employer shall be entitled to obtain disclosure of, a communication from a participant that is privileged from disclosure, or required to be kept confidential by a provider, under the laws, regulations or rules of court of this state. No employer shall be held liable in any degree on the basis of any communication between a participant and a provider unless the employer actually knew, or should have known, of the information communicated before the alleged breach of duty or harm occurred. The nature of the employment or business relationship between the employer and the provider shall not be a consideration in determining whether an employer actually knew of the information communicated between a participant and a provider.

(3) No participant shall be required to waive the confidential or privileged nature of any communication as a condition of participating in an employee assistance program, but this subsection shall not apply to an employer's referral of an employee to a provider which is a condition of the employee's continued employment.

CIVIL RIGHT TO BE FREE FROM DISCRIMINATION

18-7301.

The right to be free from discrimination because of race, creed, color, sex, or national origin is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(1) The right to obtain and hold employment without discrimination.

(2) The right to the full enjoyment of any of the accommodations, facilities or privileges of any place of public resort, accommodation, assemblage or amusement.

18-7303. Misdemeanor.

Every person shall be guilty of a misdemeanor who denies to any other person because of race, creed, color, sex, or national origin the right to work: (a) by refusing to hire, (b) by discharging, (c) by barring from employment, or (d) by discriminating against such person in compensation or in other terms or conditions of employment; or who denies to any other person because of race, creed, color, sex, or national origin, the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage, or amusement, provided, however, that denial of the right to work on the basis of sex shall be permissible in situations where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the business.

RELIGIOUS DISCRIMINATION

73-401. Terms defined.

As used in this chapter unless the context otherwise requires:

(1) "Demonstrates" means meets the burdens of going forward with evidence, and persuasion under the standard of clear and convincing evidence.

(2) "Exercise of religion" means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

(3) "Government" includes this state and any agency or political subdivision of this state.

(4) "Political subdivision" includes any county, city, school district, taxing district, municipal corporation, or agency of a county, city, school district, or municipal corporation.

(5) "Substantially burden" means to inhibit or curtail religiously motivated practices.

73-402. Religion; Free exercise protected.

(1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral.

(2) Except as provided in subsection (3) of this section, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

(3) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:

(a) Essential to further a compelling governmental interest;

(b) The least restrictive means of furthering that compelling governmental interest.

(4) A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. A party who prevails in any action to enforce this chapter against a government shall recover attorney's fees and costs.

(5) In this section, the term "substantially burden" is intended solely to ensure that this chapter is not triggered by trivial, technical or de minimis infractions.

73-403. Applicability of chapter.

(1) This chapter applies to all state laws and local ordinances and the implementation of those laws and ordinances, whether statutory or otherwise, and whether enacted or adopted before, on or after the effective date of this chapter.

(2) State laws that are enacted or adopted on or after the effective date of this chapter are subject to this chapter unless the law explicitly excludes application by reference to this chapter.

(3) This chapter shall not be construed to authorize any government to burden any religious belief.

DISCRIMINATION BECAUSE OF BLINDNESS OR PHYSICAL HANDICAP

56-701. State policy.

It is the policy of this state to encourage and enable the blind, the visually handicapped, the hearing impaired, and the otherwise physically disabled to participate fully in the social and economic life of the state and to engage in remunerative employment.

56-701A. Terms defined.

As used in this chapter:

As used in this chapter and chapter 58, title 18, Idaho Code:

(1) "Assistance device" means a cane or walking stick, predominantly white or metallic in color, with or without red tip, or a manual or motorized wheelchair or similar scooter, or other similar devices that enhance the safety or mobility of a disabled person.

(2) "Assistance dog" means a dog that has been trained as a guide dog for a blind or visually impaired person, a hearing dog for a hearing impaired person, or a service dog for a physically disabled person.

(3) "Disabled person" means a hearing, visually or physically impaired person.

(4) "Dog-in-training" means a dog being specifically trained to develop social, environmental and other skills needed for admission to a training school or other program for assistance dogs. Dogs-in-training shall wear a jacket, collar, scarf or other similar article identifying it as a dog-in-training.

(5) "Guide dog" means a dog that has been specially trained to aid a particular blind or visually impaired person.

(6) "Hearing dog" means a dog that has been specially trained to aid a particular hearing impaired person.

(7) "Hearing impaired person" means a person who has a hearing impairment manifested by a speech discrimination score of forty percent (40%) or more in the better ear with appropriate correction as certified by a licensed otologist,licensed audiologist, or the Idaho division of vocational rehabilitation.

(8) "Physically impaired person" means any person with any substantial physical disability which prevents normal participation in community or life activities as are available and participated in by persons with no such afflictions or conditions of the same age and sex.

(9) "Service dog" means a dog that has been specially trained to aid a particular physically disabled person with a physical disability other than sight or hearing impairment.

(10) "Visually impaired person" means any person who meets the definition provided in section 39-3202(3), Idaho Code.

56-705. Civil liability.

Civil action may be brought against any person intentionally violating the provisions of section 18-5811, 18-5811A, 18-5812 or 18-5812A, Idaho Code, with judgment awarded upon proof of the elements to a preponderance of the evidence. As a part of any such civil judgment, a successful plaintiff shall be awarded punitive damages in an amount equal to all other damages suffered by the plaintiff, but in no event less than five hundred dollars ($500). The failure of a disabled person to use an assistance device or assistance dog shall not be held to constitute nor be evidence of contributory negligence in any civil action.

56-707. Right to public employment; Restrictions; Use of sick leave.

(1) The blind, the visually handicapped, the hearing impaired, and the otherwise disabled shall be employed in the state service, the service of the political subdivisions of the state, in the public schools, and in all other employment supported in whole or in part by public funds on the same terms and conditions as the able-bodied, unless it is shown that the particular disability prevents the performance of the work involved.

(2) Persons employed as provided in subsection (1) of this section, may use accrued sick leave for the purpose of obtaining guide dogs and necessary training.

GENETIC TESTING PRIVACY ACT

39-8301. Act's title.

This chapter shall be known and may be cited as the "Genetic Testing Privacy Act."

39-8302. Terms defined.

(1) "Blood relative" means a person's biologically related parent, grandparent, child, grandchild, sibling, uncle, aunt, nephew, niece or first cousin.

(2) "DNA" means deoxyribonucleic acid, ribonucleic acid and chromosomes which may be analyzed to detect heritable diseases or conditions, including the identification of carriers, predicting risk of disease, or establishing a clinical diagnosis.

(3) "DNA sample" means any human biological specimen from which DNA can be extracted, or DNA extracted from such specimen.

(4) "Employer" means any person, partnership, limited liability company, association, corporation, labor organization, employment agency or nonprofit entity that employs five (5) or more persons including relatives, and including the legislative, executive and judicial branches of state government; any county, city, or any other political subdivision of the state; or any other separate unit of state or local government.

(5) "Genetic analysis" or "genetic test" means the testing or analysis of an identifiable individual's DNA that results in information that is derived from the presence, absence, alteration or mutation of an inherited gene or genes, or the presence or absence of a specific DNA marker or markers. "Genetic analysis" or "genetic test" does not mean:

(a) A routine physical examination;

(b) A routine chemical, blood or urine analysis;

(c) A test to identify the presence of drugs or HIV infection; or

(d) A test performed due to the presence of signs, symptoms or other manifestations of a disease, illness, impairment or other disorder.

(6) "Individual" means the person from whose body the DNA sample originated.

(7) "Person" means any person, organization or entity other than the individual.

(8) "Private genetic information" means any information about an identifiable individual that is derived from the presence, absence, alteration or mutation of an inherited gene or genes, or the presence or absence of a specific DNA marker or markers, and which has been obtained from a genetic test or analysis of the individual's DNA or from a genetic test or analysis of a person's DNA of whom the individual is a blood relative. "Private genetic information" does not include information that is derived from:

(a) A routine physical examination;

(b) A routine chemical, blood or urine analysis;

(c) A test to identify the presence of drugs or HIV infection; or

(d) A test performed due to the presence of signs, symptoms or other manifestations of a disease, illness, impairment or other disorder.

39-8303. Prohibited acts by employers.

(1) Except as provided in subsection (2) of this section, an employer shall not, in connection with a hiring, promotion, retention or other related decision:

(a) Access or otherwise take into consideration private genetic information about an individual;

(b) Request or require an individual to consent to a release for the purpose of accessing private genetic information about the individual;

(c) Request or require an individual or his blood relative to submit to a genetic test; or

(d) Inquire into the fact that an individual or his blood relative has taken or refused to take a genetic test.

(2)

(a) Notwithstanding the provisions of subsection (1) of this section, an employer may seek an order compelling the disclosure of private genetic information held by an individual or third party pursuant to subsection (2)(b) of this section in connection with:

(i) An employment-related judicial or administrative proceeding in which the individual has placed his health at issue; or

(ii) An employment-related decision in which the employer has a reasonable basis to believe that the individual's health condition poses a real and unjustifiable safety risk requiring the change or denial of an assignment.

(b)

(i) An order compelling the disclosure of private genetic information pursuant to this subsection (2) may only be entered upon a finding that: (A) Other ways of obtaining the private information are not available or would not be effective; and (B) There is a compelling need for the private genetic information which substantially outweighs the potential harm to the privacy interests of the individual.

(ii) An order compelling the disclosure of private genetic information pursuant to this subsection (2) shall: (A) Limit disclosure to those parts of the record containing information essential to fulfill the objective of the order; (B) Limit disclosure to those persons whose need for the information is the basis of the order; and (C) Include such other measures as may be necessary to limit disclosure for the protection of the individual.

39-8304. Enforcement of chapter.

(1) Whenever the attorney general has reason to believe that any employer is engaging, has engaged, or is about to engage in any act in violation of this chapter, the attorney general may bring an action in the name of the state against that employer:

(a) To obtain a declaratory judgment that the act violates the provisions of this chapter;

(b) To enjoin any act that violates the provisions of this chapter by issuance of a temporary restraining order or preliminary or permanent injunction, without bond, upon the giving of appropriate notice;

(c) To recover on behalf of the state and its agencies actual damages or restitution; or

(d) To recover civil penalties of up to twenty-five thousand dollars ($25,000) per violation and reasonable expenses, investigative costs and attorney's fees.

(2) The penalties provided in this section are in addition to any other available remedy at law or equity.

(3) Any civil penalty imposed pursuant to this section shall be deposited in the state general fund.