HIRING PREFERENCE BY PRIVATE EMPLOYERS ON INDIAN RESERVATIONS - LEGAL OR NOT?
February 1, 2015
We have long-worried that the answer to this question might be "Yes." The Equal Employment Opportunity Commission (EEOC), which enforces Title VII of the Civil Rights Act of 1964, has maintained that such a practice constitutes unlawful national origin discrimination under Title VII. The EEOC has sued on-reservation private employers on three occasions to prove its point. Until last September, procedural obstacles prevented the EEOC from getting a ruling, but the U.S. Court of Appeals for the Ninth Circuit had hinted that it just might win. "The EEOC, Tribal Employment Preferences, and Tribal Sovereignty"
On September 26, 2014, however, the Ninth Circuit decided just the opposite. It held that when Peabody Western Coal Company, which mines coal on the Navajo Reservation, hired Navajo Nation tribal members instead of qualified members of other tribes, it did not commit "national origin discrimination" because its actions involved the implementation of a political classification, not one based on national origin. EEOC v. Peabody Western Coal Co., 773 F.3d 977.
Peabody entered into leases with the Navajo Nation, dating back to the 1940's, to mine coal on Navajo lands. The leases and Navajo law require Peabody to hire Navajo tribal members before offering employment opportunities to other, equally qualified applicants for employment. Two members of the Hopi Tribe and one member of the Otoe Tribe filed discrimination charges with the EEOC claiming that they were qualified for positions at Peabody, but were not hired because they were not Navajo.
The Ninth Circuit held that the Navajo hiring preference involves differential treatment based on tribal affiliation and that this is not illegal national origin discrimination or discrimination on the basis of other protected classifications (like race, sex, or religion) under Title VII. The court explained that the Navajo hiring preferences for Navajo tribal members are "[m]easures intended to preserve for the [Navajo] Nation and its members the fruit of the resources found on the tribe's own land." As such, they are appropriate political classifications.