Unless modified through a compact, agreement or waiver, federal anti-discrimination law does not apply to on-reservation tribal employment practices. Additionally, in most circumstances state human rights laws do not apply to tribal employers. Since both the federal and state sovereigns have not or cannot define equal opportunity in employment for tribes, it is important for tribes to define equal opportunity in employment in a manner which reflects the tribe’s unique traditions, customs, values and history.
Equal opportunity employers define which criteria they will use in making employment related decisions and which criteria is out of bounds. The equal opportunity criteria might assert that the tribe does not make employment decisions based on the employee’s race, religion, national origin and other described classifications. These groups or classifications are referred to as “protected classes.” The length of the tribe’s list of protected classes depends in part on the tribe’s values, its competitiveness for the best employees, the source of funds used to employ the worker and whether the tribe intends to accept or reject federal minimum standards. This list is illustrative of a policy used by a tribe.
The Tribe grants equal opportunity to all qualified persons without regard to race, color, gender, national origin, disability or age, sexual orientation, pregnancy, financial assistance or political affiliation.
Employers should focus on an employee’s resume, skills, experience and work ethic in making decisions. Using race, religion, national origin and numerous other protected class criteria to make employment decisions is immoral and should be illegal.
Recommendation: Specifically define which groups or classes are protected, draft a sound policy to reflect those choices and vigorously enforce the policy.