Idaho Human Rights Commission hands nonprofit Micron Employees for Religious Freedom setback in discrimination complaint

Catie Clark//July 8, 2022//

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In the latest round of legal actions between Micron and a group claiming the Boise-based Fortune 500 firm discriminated against them for their religious beliefs, the Idaho Human Rights Commission denied the group’s request to be recognized as a party with standing in officially filed discrimination complaints.

photo of micron — Micron Technology. File photo

Several current and former Micron employees filed complaints against the Boise-based computer memory firm in February, arguing religious discrimination. Those who filed had applied for religious exemptions from Micron’s mandatory COVID-19 vaccination policy in the fall of 2021.

A group of Micron and Micron-contractor employees banded together in November 2021 over this and other actions that they perceived as discrimination by Micron. They call themselves the Micron Employees for Religious Freedom (MERF), which is an Idaho nonprofit. MERF requested in May to intervene as a party in the discrimination complaints. The Idaho Human Rights Commission (IHRC) denied that request on the afternoon of July 7.

Progress since March

According to MERF board member and public relations chair Eric Stevens, MERF has just over 150 members. Out of those, MERF has been able to confirm that approximately 40 filed complaints with the EEOC. MERF president and CEO Ben Chafetz told the Idaho Business Review: “We don’t have an exact number because we know some people filed but don’t want that to be known or confirmed because they are worried about retaliation by Micron.”

By April, the EEOC sent the complaints to be decided by the IHRC. MERF counsel John Runft explained that the IHRC “is not like a court. They have a quasi-judicial role, and they also have sort of a positive kind of a prosecutorial role. But they have their own statute and they operate under a rather detailed and different set of rules.”

John Runft is a founding partner of Runft & Steele in Boise, who has appeared as lead counsel in tort litigation cases at all levels of state and federal courts, including arguing before the United States Supreme Court.

The quest for intervention

The IHRC and MERF collided in April and May over the matter of intervention. A timeline is attached below including the actions leading to the IHRC denying MERF’s intervention request.

Traditional intervention in a legal suit is the process to become a party to the case after the case has been filed. A similar provision in the rules for the IHRC allows for intervention by individuals, partnerships, corporations and “other entities” to intervene in complaints. The rules appear to give the IHRC broad discretion over who it may permit to intervene, including: “A municipal corporation, state, federal, tribal, or local government agency, or entity, incorporated association, or non-profit organization.”

A unique approach to intervention

MERF’s legal representation and the IHRC engaged in a series of email and “informal” meetings, including discussions on April 19 and 28. MERF’s objective was to discuss the general issues surrounding the complaints now before the IHRC. MERF stated it sought a general discussion of issues using “test cases” and cited IHRC’s own rules for its arguments that it had sufficient standing as an Idaho non-profit of current and former Micron employees.

MERF’s approach appears to have been based on its interpretation of the IHRC rules, which do endeavor to be open to innovation and alternative paths. A relevant statement from those rules is: “These rules will be liberally construed to secure just, speedy and economical determination of all issues presented to the Idaho Human Rights Commission. Unless prohibited by statute, the Commission may permit deviation from these rules when it finds that compliance with them is impracticable, unnecessary or not in the public interest.”

MERF’s approach may be unique. According to nation labor law expert Adam Childers: “(MERF) is trying to exert the power of multiple individuals, almost operating like a collective bargaining unit, trying to exert the kind of power that you would have if you had a union … They’re trying to intervene in these charges and kind of throw their weight around as if they’re their own distinct entity that deserves a seat at the table.”

But that is one of the points MERF wants to make: that they are a party and that the IHRC should allow it to have standing as one of those “other entities” mentioned in the IHRC rules.

Childers stated an opinion after reviewing the IHRC rules that: “They are not a proper party just because they have a broader concern that aligns with one particular charging party. I don’t think that entitles them to be on the table at the same time … I think the reason you don’t see this happen across the nation with any regularity is I think they’re really pretty far out there in terms of what proper standard would be to be involved in (the complaints as a party).”

Childers is a director at Crowe & Dunlevy, a leading national business law firm with over 125 years’ experience, headquartered in Oklahoma City. Childers is one of the nation’s leading labor lawyers, selected by The Best Lawyers publication for inclusion in Best Lawyers in America 2016-2021 for labor and employment litigation.

Intervention denied

On May 16, Doug Werth, an Idaho lead deputy attorney general representing the IHRC, communicated with MERF’s counsel that its pursuit to “straddle the fence with arguments about fact scenarios” is a “distraction” and “not helpful” since Runft was not counsel of record for any of the those who had filed complaints. Werth wrote Runft: “Please decide whether you want to enter an appearance.”

On May 18, MERF formally requested to intervene. Of course, Holland & Hart, Micron’s counsel for these complaints, submitted a memorandum in opposition on May 23 to MERF’s request to intervene. MERF replied to Micron’s memorandum on May 26. IHRC denied the request to intervene on July 7.

MERF’s plans going forward

MERF appears to want to continue with seeking further standing and it does not intend to give up on its quest on behalf of its membership. On the morning after the denial to intervene, Runft told the Idaho Business Review that: “We are considering our options in light of the denial … We definitely plan to proceed forward one way or another–that’s the main thing. We’re discussing among ourselves what we are going to do and how we are going to do it.”

Micron timeline

Sept. 9, 2021: In anticipation of a vaccination mandate for its employees, Micron employee, Albert Asker, requested a religious exemption from COVID-19 vaccination.
Sept. 7: Boise-headquartered Micron established its own COVID-19 vaccination mandate. The corporation notified its employees that they had until Nov. 20 to become vaccinated or face termination.
Nov. 1: Micron approved Asker’s exemption request and placed him on an indefinite unpaid leave to begin Nov. 20, 2021, “until a general pandemic level three has been reached.”
Nov. 15: A group of Micron employees sent a letter to the officers and directors of Micron protesting what they see as an unfair accommodation and discrimination against their religious beliefs, especially through the indefinite leave without pay.
Nov. 19: Micron replies to the Nov. 15 letter, stating, “We note initially that the letter purports to be sent on behalf of unvaccinated Micron team members who have each been granted an accommodation regarding Micron’s COVID-19 vaccination mandate. However, our records do not indicate that all of the identified individuals applied for or received any accommodation. Further, some of the Identified Individuals retracted their accommodation requests, and based on our records, some do not even appear to be Micron team members. In addition, some of the Identified Individuals who were initial notified they would be on a temporary leave of absence have since been requested to return to work on-site with various appropriate precautions being taken to protect the health and safety of all team members based on the unique facts and circumstances applicable to the particular team member at issue … “We cannot discuss, in a group setting, individual team member situations and concerns.”
Nov. 20: Micron vaccination policy goes into effect.
Dec. 9: Asker’s claim for unemployment benefits is denied.
Dec. 24: Asker appeals the denial of his unemployment claim.
Jan. 6, 2022: The Idaho Department of Labor Appeals Bureau overturns the denial of Asker’s unemployment claim, ruling against Micron when it determined that an employee on a leave from work but with an undetermined date for the end of leave was actually jobless for the purposes of making an unemployment benefits claim.
Feb. 17: In a case similar to the Micron situation, Sambrano et al. versus United Airlines (21-cr-11159, originally filed Nov. 22, 2021), the U.S. 5 th Appellate Court overturned a district court decision that while litigation went forward to allow United’s placing certain employees on indefinite unpaid leave as an accommodation for a religious exemption application in response to a mandatory vaccination policy. The Fifth Circuit found that those employees who remained on unpaid leave had demonstrated they were “subjected to ongoing coercion based on their religious beliefs” and that indefinite unpaid leave “is harmful in and of itself and cannot be remedied after the fact.” MERF cites this case in its correspondence with IHRC in April and May.
March 22, Micron issued new temporary accommodations according to Micron correspondence provided by MERF: “We are following-up on our prior correspondence providing you with a temporary leave of absence as an accommodation, based on your request in response to Micron’s COVID-19 mandatory vaccination requirement. Your work site will soon return to a Non-Peak safety level, and as a result, your accommodation is changing. Your leave of absence is ending, and your new accommodation is that you will be able to return to working on-site starting on or after Tuesday, March 22, 2022 … Upon your return to working on-site, Micron is providing you with the following temporary accommodation: twice per week on-site testing for COVID-19 prior to beginning work; wearing a mask at all times; a daily COVID-19 safety survey.”
Mid-April to mid-May: MERF’s legal representation engage in a series of email and “informal” meetings, including discussions on April 19 and 28.
May 16: Dug Werth, an Idaho lead deputy attorney general representing the Dept. of Labor and the IHRC, communicated with MERF’s counsel that its pursuit to “straddle the fence with arguments about fact scenarios” is a “distraction” and “not helpful” since Runft was not counsel of record for any of the those who had filed complaints. “Please decide whether you want to enter an appearance.”
May 18, MERF formally requested to intervene.
May 23: Micron submitted a memorandum in opposition to MERF’s request to intervene.
May 26: MERF replied to Micron’s opposition to MERF’s request.
July 1: MERF’s legal representation, John Runft texted the counsel for IHRC requested an update on the request to intervene, noting it had been more than a month since the request was submitted.
July 7: IHRC denies MERF’s request to intervene.