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EEOC Offers Assistance to Tribes to Investigate and Settle Employment Discrimination Claims

On September 18, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) announced a national initiative to encourage Indian tribes to partner with the EEOC to reduce employment discrimination in Indian Country.

The EEOC enforces Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). Nevertheless, the EEOC’s authority to regulate Indian tribes is very limited. Congress has specifically excluded “Indian tribes” from Title VII of the Civil Rights Act. Congress has also excluded tribes from Title I of the ADA. The ADEA is silent with respect to its application to tribes. The federal courts of appeals have sent conflicting signals as to the jurisdiction of the EEOC over tribal employers but have recognized the importance of respecting tribal sovereignty in deciding when the EEOC might have jurisdiction.

The handling and disposition of employment discrimination charges is a complex field. Outside Indian Country, the EEOC regularly handles thousands of claims. Most of them wind up being dismissed for lack of evidence, but a large amount of the claims are settled through mediation and conciliation. Settlement can include hiring or reinstatement; new training; discipline; monitoring and reporting; and payment of money to the charging party. In some instances, where the EEOC finds reasonable cause that discrimination exists and settlement efforts fail, the EEOC will file a suit on behalf of the charging party or provide the party with a Notice of Right to Sue.

Against this backdrop, the EEOC is asking tribes to consider signing voluntary agreements with the EEOC that would allow them to jointly handle charges of employment discrimination in Indian Country.

The EEOC has proposed a model Memorandum of Understanding (MOU; attached) that would allow a tribe to voluntarily agree to authorize the EEOC to assist the tribe in the investigation and processing of employment discrimination complaints. In order to enter into an MOU, a tribe must have an employment discrimination ordinance covering race; color; national origin; gender; religion; disability; age; and genetic information. The tribe must also have a Tribal Employment Rights Office (TERO) office that is empowered to enforce that ordinance.

Under the model MOU, the tribe would agree that it and the EEOC “both have responsibility for enforcing statutes and ordinances” regarding employment discrimination on the tribe’s reservation and that their respective jurisdictions “overlap.”

In the event that an Indian employee files an employment discrimination charge with the EEOC, the EEOC would forward the charge to the TERO office for settlement of the charge. The TERO office would have 60 days to settle the charge. If it cannot, it would return the charge to the EEOC for disposition. The EEOC would provide the TERO office with support and assistance in handling charges. The EEOC would not have to forward a charge to the TERO office if the EEOC determines that it does not need additional evidence to determine that the charge will likely result in a probable cause finding (an “A” charge). The EEOC would have the right to review a case that the TERO office has settled.

If an Indian files a charge with both the EEOC and TERO office, and 60 days have elapsed, the EEOC would delay action for a “reasonable” period of time to allow the TERO office to dispose of the charge. The EEOC would review the TERO office’s disposition and, if the TERO office finds probable cause, the EEOC would coordinate settlement with the TERO office.

An Indian who files an employment discrimination charge can request a Notice of Right to Sue from the EEOC within 180 days of filing the charge, at which point the individual would have 90 days to sue his or her employer.

If the EEOC receives a discrimination complaint from an Indian but the EEOC determines it does not have jurisdiction over the complaint, the EEOC would advise the charging party that the TERO office may have jurisdiction, and with the charging party’s consent, refer the complaint to the TERO office. Conversely, if the TERO office learns of an employer that “it has reason to believe may be engaging in systemic employment discrimination on or off of the Reservation,” the TERO office would have to share that information with the EEOC.

If a tribe signs the MOU, the EEOC would be obligated to provide training to tribal staff and also train its own regional field staff in cultural competency and tribal jurisdiction. The EEOC would also provide the tribe with experienced investigators who can assist the tribe’s TERO office enforce the tribe’s own discrimination laws.

A tribe that signs the MOU would have to provide the EEOC with quarterly reports regarding charges that were referred to the TERO office from the EEOC as well as charges that were directly filed with the TERO office. Either party would have the right to terminate the MOU for any reason with 30 days written notice.

Please contact us if you would like additional information regarding the model EEOC program.