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Judge Rules in Favor of Idaho Labor Department in Discrimination Suit

"There can be no adverse employment action where a plaintiff, by his own volition, withdraws his application from further consideration prior to being offered the job."


In November 2014, Boise Weekly first reported on a claim filed against Idaho Department of Labor Director Ken Edmunds and former Idaho Human Rights Commission Director Pam Parks, alleging discrimination against a candidate for the position of administrator at the Idaho Human Rights Commission.

The candidate, Don Dew, said he had been made to "feel like I was less than a person," and filed the suit, alleging the Idaho Labor Department had violated the Equal Protection Clause of the Civil Rights Act.

At the time, IDOL had no comment, but when U.S. District Judge Candy Dale dismissed the suit, IDOL Deputy Director Georgia Smith was quick to forward a copy of the federal court order to BW with the brief comment, "Thought you might want to close the loop."

The suit was inspired when Dew withdrew his job application, saying Edmunds looked at him as if "he was smelling a dirty diaper" after Dew revealed he had been treated several years prior for seizures. Dew also alleged he was being discriminated against when he learned Parks made notes about him being in a gay relationship. Dew said he withdrew his application because he believed continuing with the hiring process would be a "futile gesture," but he pursued legal action nonetheless. Dale ruled that because Dew had withdrawn from the hiring process, "the court cannot on the facts, as alleged, find Dew could prove he suffered adverse action."

"There can be no adverse employment action where a plaintiff, by his own volition, withdraws his application from further consideration prior to being offered the job," wrote Dale.

Most interesting, though, was a reference in Dale's ruling to Idaho's longstanding debate over LGBT rights—or the lack thereof—in the Idaho Constitution, which, ironically, the Idaho Department of Labor and the Idaho Human Rights Commission are charged with protecting.

"Dew's response to Defendants' motion highlights the tumultuous times surrounding LGBT rights in Idaho, both during the time of his application and continuing to the present," Dale wrote.

Noting that the Idaho Legislature has yet to extend any LGBT protections through so-called Add the Words legislation, Dale questioned how rights could have been violated when those rights simply don't exist.

"Given the turbulent Add the Words campaign, and the lack of any legislative action, it can hardly be said that reasonable officials would undoubtedly have known that discrimination based upon sexual orientation during the hiring process violated clearly established rights," wrote Dale, adding, "Here, there is no evidence of any policy, rule or law imposed or followed by the Idaho Commission on Human Rights or the Department of Labor that precluded the employment of gays or lesbians."

In her conclusion, Dale wrote that Dew may file an amended complaint, but added a caveat.

"It may be exceedingly difficult to state a claim based upon the facts alleged. This is not a case where more detail would suffice," she wrote.

Meanwhile, the position that Dew initially sought was filled by Linda Goodman, who took over as administrator of the Idaho Commission on Human Rights after serving for 25 years as a mediator and investigator for the commission.

As for Edmunds and Parks, an IDOL letter to BW stated that the two "were cleared of allegations that they violated the civil rights of job applicant Don Dew."

"I know you covered the initial filing of the lawsuit and we have been watching for a follow-up," wrote Smith.