The Idaho Human Rights Commission sided against the City of Boise in a case filed by a transgender former Boise Public Library employee.
In an April 30th document, the state agency determined there was probable cause to believe the city sexually harassed Jax Perez for their nonbinary gender identity during a series of disciplinary actions in mid-2019.
The case stemmed from a social media post and an incident with a patron objecting to Pride merchandise being displayed in the Hillcrest branch of the Boise Public Library where they worked.
Perez is no longer an employee of the Boise Public Library after resigning last year.
Investigation a ‘validating’ experience
ACLU of Idaho’s Legal Director Ritchie Eppink, Perez’s lawyer, called the decision “significant” because he said the Human Rights Commission rarely finds probable cause in its investigations of discrimination around the state.
Now that the commission found probable cause, Eppink said the commission will get involved to broker a resolution. This could either be a settlement with the City of Boise or further litigation in federal court, which could take another year to resolve.
In an interview with BoiseDev, Perez was relieved at the decision and was hopeful it would keep the City of Boise accountable and force it to live up to the city’s strategic priority of inclusivity.
“When I received the news I started sobbing because for me it was like my experience was validated and I no longer had to question as much as to what happened to me,” Perez said, wiping away tears. “It felt like what I knew I went through was true and is reality and I was no longer in a space of uncertainty. I wasn’t worried about being gaslit as much anymore and I think that’s why I cried so much when I was told the news because it has been two years of just an upheaval of my life.”
Title VII of the federal Civil Rights Act protects transgender individuals from sex discrimination. The actions took place under former Mayor Dave Bieter’s administration and Mayor Lauren McLean’s administration oversaw the city’s response to the investigation from the Human Rights Commission.
City spokesman Seth Ogilvie said the city is still evaluating how it will respond.
“We received notice of the decision last week,” Ogilvie said. “We requested the entire decision and are reviewing it to determine next steps.”
Booe calls for ‘strong disciplinary action’
During the investigation, the Human Rights Commission reviewed internal city emails, documents submitted by Perez and interviewed their former supervisor at the Boise Public Library.
The findings unearthed a series of emails from former Boise Library Director Kevin Booe asking multiple times for Perez’s termination against the recommendation of their supervisor and Boise’s human resources staff. The Human Rights Commission found he repeatedly called Perez by the name they formerly went by they objected to and misgendered them with she/her pronouns. Booe retired from his post in December 2019.
In the first, according to the complaint filed by Perez and the ACLU, Perez used their personal Facebook profile to post a link to a program they developed for teens where a local drag queen would talk about makeup and the annual Pride Month. They went back and forth with some commenters who left messages Perez said were “transphobic” and tagged an administrator asking for some of the commenters to be removed from the Facebook group.
After three community members complained about Perez’s Facebook comments, Booe emailed Perez’s branch supervisor Elizabeth Westenburg expressing extreme displeasure at their actions.
“I expect strong disciplinary action which we need to discuss face to face,” Booe wrote on June 11, 2019. “I do NOT want to see this happen again, and frankly, I don’t see a future for (Jax) at BPL.”
Perez was given a memo by their supervisor later that month calling their commentary inappropriate, according to the complaint.
Confrontation with patron
Days later, Perez said a patron tossed Pride buttons the library had set out for patrons onto the check-out desk and called them a “vice” comparable to drug use or teen smoking and said he did not want his kids exposed to them. In response, Perez told the patron they are a member of the LGBTQ community themselves and are “sorry you feel that way.” Perez said the patron returned later that week to stare at them in a “sinister way” before they left the front desk.
Perez sent a summary of the interaction with the patron to Booe, who then followed up with an email to Westernburg and Library Services Manager Sarah Kelley Chase asking for them to have “an exit strategy” for Perez prepared by the next morning.
According to the commission, Booe then went on to criticize the branch’s decision to promote Pride Month and Westenburg removed the buttons from the library.
“First, does Hillcrest provide pins for Christian holidays, Jewish holidays, Juneteenth, black panther [sic] issues, cinco [sic] de Mayo, Holocaust Day, Men’s Health Awareness, Breast Cancer Awareness, September 15 [sic], Ramadan, etc?” he wrote in the June 20 email. “If not, this is a complete breach [sic] of mission and ethics.”
Both Sarah Martin, with the city’s HR department, and Westenburg said they did not agree termination was warranted for Perez.
The complaint said Perez received a warning letter in July saying they should not have “made known” to the patron they were a member of the LGBTQ community and for their Facebook post. Perez submitted an Equal Employment Opportunity complaint with the City of Boise, which upheld the disciplinary letter. Perez appealed the decision to the city attorney’s office, which also upheld the decision.
Number of Pride events ‘upsetting’
Booe’s concerns about LGBTQ programming at the library continued July 2, 2019 with an email to library spokeswoman Holly Funk about what events the library had planned for the 50th anniversary of the moon landing. After Funk told him only three events were planned, he expressed his displeasure.
“I’m very disappointed that we only have 3 events planned for this anniversary, and yet so many and controversial for PRIDE,” Booe wrote. “This is very upsetting. . . Very disappointing.”
He followed up with a second email asking “Do we at least have pins to commemorate this event like we did for Pride? I hope so.”
Boise’s HR department launched its own internal investigation into the case in summer 2019 and found in September that the discipline against Perez was not due to their LGBTQ identity, but because they engaged in conduct they should have known was inappropriate. They filed an appeal to the city in October, 2019 and the decision was upheld by the city a week later. In March 2020, Perez filed a complaint with the Human Rights Commission.
HRC agrees with some of city’s points
Even though the commission did find probable cause for harassment, they did not agree with Perez on everything.
In the complaint, Perez argued the city should have stepped in and protected them from discriminatory comments in the Facebook comments where they were promoting the library event. The Human Rights Commission found that the city hasn’t claimed the posts were in an official capacity and only disciplined Perez for not including a disclaimer saying their opinions do not represent the library.
To prevent this from happening again, the city proposed creating an official account for library employees to use to post and share virtual events on Facebook to attract attendees.
“Although the situation was not ideal, given the lack of an employee account through which Perez could share the event in an official capacity, the City proposed to remedy this,” the commission’s report said. “Perez cannot argue that they were under the blanket protection of the City for their personal interactions.”
In the complaint, Perez also said the patron’s behavior constituted harassment the city should have protected them from. Perez said visitor’s behavior included making anti-LGBTQ comments to them, returning to the branch to stare at Perez, yelling at Westenburg when she called to apologize about the incident with Perez, and sending the branch links to videos opposing gay sex.
The commission found that while Perez has cause to be upset by the comments and be intimidated by his return to the branch to stare at them, the patron’s actions did not meet the commission’s standard of “severe and pervasive” harassment.
The investigation also found Perez was allowed to dress how they wished at work and the city was supportive of their gender transition and presentation.
“Perez has not shown that they were subjected to severe or pervasive unwelcome, offensive, or intimidating conduct because of their gender identity by the City,” the April 30th document said.
‘A thing against’ Perez?
The Human Rights Commission found Booe’s conduct towards Perez was inappropriate and the city’s argument that it was right to discipline Perez for telling the patron they were in the LGBGQ community wasn’t sound.
Westerburg, Perez’s former supervisor, stood up for Perez in an interview with the Human Rights Commission. She said although the city argued during this case they would have disciplined any employee for sharing personal information (like if they opposed smoking marijuana or if they were a gun owner), Perez was the only one disciplined for it. Westerburg pointed to another employee of the Hillcrest Branch who has people who attend her story hour specifically because she is a member of the LDS Church.
“Westenburg thought that the library administration already had ‘a thing against’ Perez, who was outspoken,” the commission’s report said. “Westenburg would receive calls, for example, asking what was to be done about Perez, who had asked what Westenburg thought was a completely normal question in a meeting.”
Commission says Booe used influence to oust an employee
The commission’s report also found Booe’s position as library director and his desire to oust Perez had a strong influence on their disciplinary record at the city.
“While Booe’s preference for Perez’s discharge was viewed as unnecessary and HR downgraded his request, his emails and reactions affected his staff and the ultimate disciplinary outcome,” the commission wrote.
The commission said the City of Boise’s argument for why they disciplined Perez “failed on several counts.” This is due to the fact that Perez sharing the fact they are in the LGBTQ community was not an opinion, but their identity which is protected by federal law.
“It states that had Perez expressed that they were a recreational marijuana user, the result would be the same. (Not only is this not a comparable protected class, but it is also illegal in the state of Idaho.) The City did not argue, for example, that it likewise would have issued a disciplinary warning had Perez stated ‘I’m sorry you feel that way. As a member of the African American community myself, I’m sorry you feel that way.’”