This story was first published by InvestigateWest on Nov. 7, 2023.
Earlier this year, two whistleblowers who triggered a state investigation into Cornerstone Cottage, an Idaho youth facility where they once worked, still believed at least one state agency would take their side.
They made their case to the Idaho Human Rights Commission, arguing that when Cornerstone Cottage fired them both in 2021, it was in direct retaliation for the complaint they sent to state regulators. That 84-page complaint detailed concerns regarding the safety of both the staff and the girls there, including allegations that children had been sexually assaulted, beaten, harassed and frequently hospitalized due to neglect.
But in June, more than two years later, the Human Rights Commission ruled against the two whistleblowers, Emily Carter and Kieria Krieger. With that decision, Carter and Krieger had exhausted any options that could have forced the state to hold Cornerstone accountable for, in their view, trying to silence whistleblowers highlighting sexual assault, sexual harassment and child abuse. (Cornerstone’s owner, Jim Smidt, maintains that they were fired for poor job performance, not in retaliation.)
“It’s a really scary thing to not enforce anti-retaliation regulations,” Carter said.
Last month, InvestigateWest revealed how the Idaho Department of Health and Welfare allowed the facility to stay in business despite substantiating many of the claims detailed by the whistleblowers. But Cornerstone Cottage also hasn’t faced any consequences from the state for firing the whistleblowers.
Legal experts told InvestigateWest that they were stunned by that.
“This case does, viscerally, really cry out for some kind of remedy for Ms. Carter and anyone else in her position,” said John Rumel, a law professor at University of Idaho with experience practicing employment law.
Carter and Krieger turned to the Idaho Human Rights Commission in part because of Idaho’s relatively weak whistleblower protections for employees in the private sector. The Human Rights Commission ruling, however, left them feeling like the state was going out of its way to shut them down, even when they believed the law should have been on their side.
And when the commission accidently sent Krieger the wrong version of the ruling — a draft that found she prevailed in her retaliatory discharge claim — it only fueled more questions.
“It really makes you scratch your head and wonder what’s actually going on,” Krieger said. “I guess I expected that the state would protect people who were fired for reporting in good faith.”
Benjamin Earwicker, the commission’s administrator, would not answer questions about the case when contacted by InvestigateWest, saying via email that the commission does not talk with “non-parties about the specifics of cases.”
Without more answers from the commission, Rumel said he can only speculate about what happened.
“My sense is that there was disagreement about how this case should come down,” Rumel said. “Certain people involved in making it wanted it to go one way. At some point, the people who wanted to go against Carter [and Krieger] prevailed.”
Idaho Human Rights Commission said whistleblower case was outside of its authority
The Idaho Human Rights Commission’s final decision didn’t address whether Smidt fired Carter and Krieger because of their 2021 complaint.
Rather, the commission claimed the case fell outside its scope of authority. The commission protects the right to report discrimination involving employees, but not necessarily the right to report that the children at Cornerstone were being abused.
That reasoning is backed up by federal law. The nine-person commission, appointed by Idaho Gov. Brad Little, investigates cases under federal anti-discrimination statutes, following guidance of the Equal Employment Opportunity Commission, which says that employees may not be punished for participating in a complaint process or otherwise opposing discrimination. That would include picketing in opposition to discrimination or refusing to obey a discriminatory order.
Crucially, it would not include whistleblowers raising concerns “unrelated to employment discrimination,” according to the U.S. Department of Labor.
“Despite the name of the Human Rights Commission, not all human or civil rights are protected under the Idaho Human Rights Act, specifically,” said Earwicker, the commission’s administrator, in an email.
But the commission left out a key fact in the Cornerstone case. Carter and Krieger weren’t only raising alarms about abuse of children. Their complaint to the state also alleged sexual harassment against employees.
One of the allegations, for instance, was that a member of management could access Cornerstone’s camera security feed from home. He would screenshot photos of staff members when they were bending down and send them the photos, according to the complaint whistleblowers gave the state in 2021.
Krieger received such a photo with her backside circled on the screen. She reported it to other management but said they “laughed at” her. The incident was detailed in the complaint without naming Krieger directly.
The 2021 complaint was clear in explaining that sexual harassment against employees was part of their concern.
“Harassment, discrimination, and abuse regularly happen between staff with no response or intervention by [management]. Staff were bullied by other staff, discriminated against based on disability and sexual orientation, and had harmful rumors spread about them,” read the complaint to the Idaho Department of Health and Welfare. “Staff in the past have been consistently sexually harassed by members of past [management] as well as other staff.”
Reporting such allegations to the state is explicitly considered an action that an employer cannot retaliate against. That’s affirmed in the draft of the Human Rights Commission report on Krieger — the version the agency didn’t mean to release to her:
“Krieger engaged in protected activity when she participated in this investigation because concerns included allegations of sexual harassment and Cornerstone’s failure to adequately care for its diverse resident population,” the draft said.
But in the final rulings against Carter and Krieger, the commission removed the reference to sexual harassment allegations, saying that the “bulk” of the complaint was about child abuse. That premise is used to justify a ruling against them. The rulings go so far as to suggest that the commission would rule in their favor if sexual harassment was part of the original complaint.
“Had Carter complained of alleged sexual harassment … she would have engaged in a protected activity,” the commission explains in its final ruling. The same sentence appears in Krieger’s ruling while swapping out the name.
Idaho law requires a complaint go through the Human Rights Commission before filing a discrimination lawsuit. If Carter and Krieger had prevailed, the commission could have imposed damages and penalties. The former employees can now file a discrimination lawsuit in federal court, but they would need a lawyer and the commission’s ruling against them could hurt their chances.
Rumel, the University of Idaho professor, thinks the commission’s ruling may go against the spirit of federal anti-discrimination laws. Judges have generally interpreted them broadly, he said. But the commission’s ruling appeared to intentionally take a narrow view.
“It’s a pretty tortured interpretation of the law,” Rumel said.
Carter and Krieger have another avenue to prove they were wrongfully discharged. And attorneys say they’d have had a good case if they pursued it.
Idaho is an at-will state, meaning employers do not have to give a reason for terminating someone’s employment. There is, however, an exception to that if a worker is fired in violation of public policy.
Idaho courts recognize that exception to the at-will statute as common law, and it means, generally, that employees can’t be fired for refusing to break the law, for reporting a violation of the law or for acting in the greater good of the public.
“It wouldn’t take me long to cobble together what could be a really strong wrongful discharge case under state law,” Rumel said of Carter and Krieger.
But workers have little incentive to pursue these cases, said Erika Birch, an Idaho attorney who specializes in employment and civil rights law. In Idaho, wrongful termination in violation of public policy is considered a contract-related claim that wouldn’t provide for emotional distress damages, Birch said. That’s not the case in many other states, she said.
That means Carter and Krieger could only seek compensation for lost wages — a minuscule amount if the fired low-wage workers were able to get other jobs quickly. Besides, there’s nothing in the law that says bad actors have to be punished, Birch said.
“Unfortunately, it’s not easy, and it often doesn’t produce what the employee is most interested in,” Birch said. “Which is: finding real justice and stopping bad behavior, and making sure that it doesn’t happen to someone else.”
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Wrongful discharge in violation of public policy doesn’t technically fall under Idaho’s whistleblower laws. Idaho’s whistleblower law only protects public employees from retaliation. Cornerstone, though it accepts children who are under the care of the state, is privately operated.
States vary in whether whistleblower laws apply to public or private workers. Washington, like Idaho, applies it to public employees. In Oregon, it can apply to both. Idaho recently put a cap on damages that can be collected in those cases, too, in response to a whistleblower case Birch worked on in which the Idaho State Police was ordered to pay her clients $1.29 million.
Krieger worries that cases like hers will send a message to other workers that Idaho won’t protect those trying to do the right thing for children and their caregivers.
“How does anyone tell the state what’s going on in any of these programs in Idaho if the state condones Cornerstone’s behavior toward employees, these children, and staff who are trying to follow Idaho’s mandatory reporting laws and get help?” she said.
Rumel, however, said employers should not see cases like this as an incentive to punish whistleblowers. Cornerstone, he said, “dodged a bullet.”
“From a moral standpoint, it strikes me as completely wrong, even if the law wasn’t there,” he said. “But I do think the law is there.”
InvestigateWest (invw.org) is an independent news nonprofit dedicated to investigative journalism in the Pacific Northwest. Reach reporter Wilson Criscione at [email protected]. This report was supported in part by a grant from the Fund for Investigative Journalism.