The Navajo Preference in Employment Act Updated 7/2014 Howard L. Brown, Esq. 702 North Beaver Street Shorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys.

The Navajo Preference in Employment Act


Updated 7/2014Updated 7/2014

Howard L. Brown, Esq. 702 North Beaver StreetShorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys • phoenix • flagstaff 928.779.1050

fax 928.779.6252

Law Review Articleswith Justice Raymond D. Austin

Law Review Articleswith Justice Raymond D. Austin

New Mexico Law Review, v. 40, Winter 2010

New Mexico Law Review, v. 43, Fall 2013

New Mexico Law Review, v. 40, Winter 2010

New Mexico Law Review, v. 43, Fall 2013

http://lawlibrary.unm.edu/nmlr/40/1/04_brown_twenty.pdf




Summary of Today’s Presentation

Summary of Today’s Presentation

Background, Overview and Purposes Who is Covered by the Act? What are the Requirements of the Act? Monitoring and Enforcement of the Act Navajo Common Law Title VII

Background, Overview and Purposes Who is Covered by the Act? What are the Requirements of the Act? Monitoring and Enforcement of the Act Navajo Common Law Title VII

Background: Indian Nation Authority

Background: Indian Nation Authority

Indian Nations Independent entities with inherent powers of self-government Tribal courts exercise civil & criminal jurisdiction Power to regulate & tax members

Sometimes nonmembers, too.

Indian Nations Independent entities with inherent powers of self-government Tribal courts exercise civil & criminal jurisdiction Power to regulate & tax members

Sometimes nonmembers, too.

Navajo Nation One of the largest federally-recognized tribe in US

250,000 + members 25,000 square miles

Executive, Legislative, & Judicial Branch

Integral part of our cultural, economic & political life

Navajo Nation One of the largest federally-recognized tribe in US

250,000 + members 25,000 square miles

Executive, Legislative, & Judicial Branch

Integral part of our cultural, economic & political life

Background: NPEABackground: NPEA History

1972: NTC created ONLR and Plan of Operation

1985: NTC adopted NPEA (15 NNC §601) 1990: NNC adopted substantive amendments 1998: NNC adopted additional amendments

Intent Addressing unemployment and poverty

1997: 56% of population lived below the poverty level

History 1972: NTC created ONLR and Plan of

Operation 1985: NTC adopted NPEA (15 NNC §601) 1990: NNC adopted substantive amendments 1998: NNC adopted additional amendments

Intent Addressing unemployment and poverty

1997: 56% of population lived below the poverty level

Overview of the NPEAOverview of the NPEA

Regulates employment on the Navajo Nation, from hiring to firing

Preferential treatment for Navajos and spouses of Navajos

No at-will employment for most employees 1998 amendment exempted NN employees

with statutory “at the pleasure of” employment and certain other NN employees

Monitored and enforced by ONLR and NNLC

Regulates employment on the Navajo Nation, from hiring to firing

Preferential treatment for Navajos and spouses of Navajos

No at-will employment for most employees 1998 amendment exempted NN employees

with statutory “at the pleasure of” employment and certain other NN employees

Monitored and enforced by ONLR and NNLC

Purposes (15 NNC §602)Purposes (15 NNC §602)

1. Provide employment opportunities for the Navajo work force

2. Provide training for the Navajo people

3. Protect the health, safety & welfare of Navajo workers

4. Foster economic self-sufficiency of Navajo families

1. Provide employment opportunities for the Navajo work force

2. Provide training for the Navajo people

3. Protect the health, safety & welfare of Navajo workers

4. Foster economic self-sufficiency of Navajo families

Purposes, cont’d (15 NNC §602)

Purposes, cont’d (15 NNC §602)

5. Promote economic development of the Navajo Nation

6. Lessen Navajo Nation’s dependence on off-Rez employment, income, goods and services

7. Foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force (#7 was added in 1990)

5. Promote economic development of the Navajo Nation

6. Lessen Navajo Nation’s dependence on off-Rez employment, income, goods and services

7. Foster cooperative efforts with employers to assure expanded employment opportunities for the Navajo work force (#7 was added in 1990)

Employers Subject to the NPEAEmployers Subject to the NPEA Employer defined as persons, firms, entities and

the NN who engage the services of any person for compensation

NPEA applies to “all employers doing business within the territorial jurisdiction (or near the boundaries) of the Navajo Nation, or engaged in any contract with the Navajo Nation.”

Gatekeepers of employment (Largo v El Paso) Entity that retains control over hiring by its

subcontractors

Employer defined as persons, firms, entities and the NN who engage the services of any person for compensation

NPEA applies to “all employers doing business within the territorial jurisdiction (or near the boundaries) of the Navajo Nation, or engaged in any contract with the Navajo Nation.”

Gatekeepers of employment (Largo v El Paso) Entity that retains control over hiring by its

subcontractors

Employers Subject to the NPEAEmployers Subject to the NPEA

Grant Schools?

What about School Districts and other subdivisions of the State?

Waivers for schools?

Grant Schools?

What about School Districts and other subdivisions of the State?

Waivers for schools?

Employees Covered by NPEAEmployees Covered by NPEA

Employee is defined as an “individual employed by an employer” SCOTUS in reference to ERISA’s definition of

employee: “completely circular and explains nothing”

Does not cover independent contractors “Control Test” Plus

Etsitty v. Dine’ Bii Ass’n for Disable Citizens (Nav. Sup. Ct. 2005)

Employee is defined as an “individual employed by an employer” SCOTUS in reference to ERISA’s definition of

employee: “completely circular and explains nothing”

Does not cover independent contractors “Control Test” Plus

Etsitty v. Dine’ Bii Ass’n for Disable Citizens (Nav. Sup. Ct. 2005)

Employees Covered by NPEAEmployees Covered by NPEA

Navajos are entitled to preference in employment

Spouses of Navajos are entitled to secondary preference under certain circumstances

All employees are entitled to many of the Act’s other protections Just cause and written notice for adverse actions Safe and clean working environment Workplace free of prejudice and harassment

Navajos are entitled to preference in employment

Spouses of Navajos are entitled to secondary preference under certain circumstances

All employees are entitled to many of the Act’s other protections Just cause and written notice for adverse actions Safe and clean working environment Workplace free of prejudice and harassment

Requirements of the NPEARequirements of the NPEA

• Preference: Employer must give preference in employment to Navajos and spouses of Navajos (under certain circumstances)

• No At Will Employment: Employer must not take adverse action against employee without just cause & written notice of the cause

• Preference: Employer must give preference in employment to Navajos and spouses of Navajos (under certain circumstances)

• No At Will Employment: Employer must not take adverse action against employee without just cause & written notice of the cause

Requirements of the NPEARequirements of the NPEA

• Non-Discriminatory Job Qualifications: Use non-discriminatory job qualifications & selection criteria in employment

• Written Job Qualifications: Establish written qualifications for each employment position and provide a copy of the qualifications to each applicant who expresses interest in the position

• Non-Discriminatory Job Qualifications: Use non-discriminatory job qualifications & selection criteria in employment

• Written Job Qualifications: Establish written qualifications for each employment position and provide a copy of the qualifications to each applicant who expresses interest in the position

Requirements of the NPEA, cont’d


• Working Environment: Maintain safe, clean working environment free of prejudice, intimidation & harassment

• Affirmative Action Plan: File a written Navajo affirmative action plan with ONLR

• Training/AAP: Include training as part of the affirmative action plan

• Working Environment: Maintain safe, clean working environment free of prejudice, intimidation & harassment

• Affirmative Action Plan: File a written Navajo affirmative action plan with ONLR

• Training/AAP: Include training as part of the affirmative action plan



• Employment Sources: Utilize NN employment sources & job services for employee recruitment and referrals (except when a current Navajo employee is selected)

• Advertising: Advertise & announce all job vacancies in at least one NN newspaper and radio station (except when a current Navajo employee is selected)

• Employment Sources: Utilize NN employment sources & job services for employee recruitment and referrals (except when a current Navajo employee is selected)

• Advertising: Advertise & announce all job vacancies in at least one NN newspaper and radio station (except when a current Navajo employee is selected)



• Ads/Preference Notice: Include Navajo employment preference policy statement in job announcements, ads & policies

• Preference Notice: Post in a conspicuous place a preference policy notice prepared by ONLR

• Ads/Preference Notice: Include Navajo employment preference policy statement in job announcements, ads & policies

• Preference Notice: Post in a conspicuous place a preference policy notice prepared by ONLR



• Cross-cultural Programs: Educating non-Navajos on Navajo culture

• Fringe Benefits: Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs

• Seniority Systems: Modify seniority systems to comply with NPEA

• Cross-cultural Programs: Educating non-Navajos on Navajo culture

• Fringe Benefits: Ensure fringe benefits do not discriminate against Navajo religious traditions or cultural beliefs

• Seniority Systems: Modify seniority systems to comply with NPEA

Preference: NavajosPreference: Navajos Must hire the Navajo applicant/candidate who

demonstrates the necessary qualifications of the employment position Irrespective of qualifications of non-Navajo applicants

Among a pool of qualified candidates, hire the most qualified Navajo candidate

Compare other preference systems Points for preferred category Among equally qualified candidates, choose the

member of the preferred category

Must hire the Navajo applicant/candidate who demonstrates the necessary qualifications of the employment position Irrespective of qualifications of non-Navajo applicants

Among a pool of qualified candidates, hire the most qualified Navajo candidate

Compare other preference systems Points for preferred category Among equally qualified candidates, choose the

member of the preferred category

Preference: Non-Navajo Spouses

Preference: Non-Navajo Spouses

Entitled to secondary employment preference Must provide proof of marriage to a Navajo Must reside within territorial jurisdiction of NN

for a continuous 1-year period immediately preceding employment consideration

Secondary Preference Only Does not create preference over Navajo

applicants

Entitled to secondary employment preference Must provide proof of marriage to a Navajo Must reside within territorial jurisdiction of NN

for a continuous 1-year period immediately preceding employment consideration

Secondary Preference Only Does not create preference over Navajo

applicants

Preference: Reductions in Force

Preference: Reductions in Force

Navajos who demonstrate necessary qualifications must be retained until all non-Navajos are laid-off

Navajos who are laid off have the right to displace non-Navajos in positions for which the Navajos are qualified

Secondary spousal preference?

Navajos who demonstrate necessary qualifications must be retained until all non-Navajos are laid-off

Navajos who are laid off have the right to displace non-Navajos in positions for which the Navajos are qualified

Secondary spousal preference?

Preference: Waivers for SchoolsPreference: Waivers for Schools 2005 Navajo Sovereignty in Education Act The local school board may waive the

requirements “of this section” by a formal vote

Waiver applies to employment, retention and promotion decisions, but only a case-by-case basis

Must make a written record of the waiver and include in minutes of meeting As a practical matter, the written record

should include justification

2005 Navajo Sovereignty in Education Act The local school board may waive the

requirements “of this section” by a formal vote

Waiver applies to employment, retention and promotion decisions, but only a case-by-case basis

Must make a written record of the waiver and include in minutes of meeting As a practical matter, the written record

should include justification

Preference: Waivers for Schools (cont’d)

Preference: Waivers for Schools (cont’d)

Called into question by recent case? (Iina’ Ba’, Inc. v. Navajo Business

Regulatory (2014))

Called into question by recent case? (Iina’ Ba’, Inc. v. Navajo Business

Regulatory (2014))

Necessary QualificationsNecessary Qualifications

Employers must establish written necessary qualifications for each position

Employers must provide a copy of necessary qualifications to all applicants

Qualifications must be job-related and essential to performance of basic responsibilities for the position, including education, training and job-related experience.

Employers must establish written necessary qualifications for each position

Employers must provide a copy of necessary qualifications to all applicants

Qualifications must be job-related and essential to performance of basic responsibilities for the position, including education, training and job-related experience.

Necessary Qualifications, cont’dNecessary Qualifications, cont’d

Includes speaking/understanding Navajo language & familiarity with Navajo culture

Non-discriminatory Demonstrated ability to perform essential

and basic functions = satisfaction of necessary qualifications

Includes speaking/understanding Navajo language & familiarity with Navajo culture

Non-discriminatory Demonstrated ability to perform essential

and basic functions = satisfaction of necessary qualifications

Necessary Qualifications: Holding Positions Open

Necessary Qualifications: Holding Positions Open

Employers are not required to hold positions open until unqualified Navajos become qualified.

Remember, the NPEA requires: Hire the Navajo who demonstrates necessary

qualifications Among a pool of qualified candidates, hire the

most qualified Navajo

Employers are not required to hold positions open until unqualified Navajos become qualified.

Remember, the NPEA requires: Hire the Navajo who demonstrates necessary

qualifications Among a pool of qualified candidates, hire the

most qualified Navajo

Necessary Qualifications: Who Decides?

Necessary Qualifications: Who Decides?

The ONLR may disagree and NNLC may overrule an employer’s determination as to whether a certain applicant meets the necessary qualifications and whether one Navajo applicant is more qualified than another

But … the employee/candidate has the burden of showing that he/she is qualified

The ONLR may disagree and NNLC may overrule an employer’s determination as to whether a certain applicant meets the necessary qualifications and whether one Navajo applicant is more qualified than another

But … the employee/candidate has the burden of showing that he/she is qualified

Necessary Qualifications:Practice Tips

Necessary Qualifications:Practice Tips

1. Be sure to make the written qualifications stringent enough so that anyone who meets the bare minimum can be expected to perform the job well

2. But, make sure the written qualifications are not unnecessarily demanding or unrelated to the job such that they could be considered discriminatory

3. Include the qualifications in written Position Descriptions, give a copy to everyone who expresses an interest & require each person to sign a form acknowledging receipt of the PD

1. Be sure to make the written qualifications stringent enough so that anyone who meets the bare minimum can be expected to perform the job well

2. But, make sure the written qualifications are not unnecessarily demanding or unrelated to the job such that they could be considered discriminatory

3. Include the qualifications in written Position Descriptions, give a copy to everyone who expresses an interest & require each person to sign a form acknowledging receipt of the PD

4. Re-opening a position or canceling a job posting after receiving one or more applications from Navajo applicants may be suspect

• Query: If an employer receives a qualified Navajo applicant, is the employer prohibited from re-opening the position or canceling the job posting?

• Recommendations1. “Open until filled”

2. Demanding (but non-discriminatory) written qualifications

3. Do not post a position unless you’re sure you need it & can afford it

4. Re-opening a position or canceling a job posting after receiving one or more applications from Navajo applicants may be suspect

• Query: If an employer receives a qualified Navajo applicant, is the employer prohibited from re-opening the position or canceling the job posting?

• Recommendations1. “Open until filled”

2. Demanding (but non-discriminatory) written qualifications

3. Do not post a position unless you’re sure you need it & can afford it

“Any Navajo who demonstrates the necessary qualifications for an employment position shall be

selected by the employer”

Preference & Qualifications: Hypothetical

Preference & Qualifications: Hypothetical

Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.

Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.

Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.

Delores Begay – Navajo; exceeds the necessary qualifications for the position.

Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.

Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.

Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.

Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.

Delores Begay – Navajo; exceeds the necessary qualifications for the position.

Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.

Preference & Qualifications: Hypothetical - Answer

Preference & Qualifications: Hypothetical - Answer

1) Delores Begay – Navajo; exceeds the necessary qualifications for the position.

2) Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.

3) Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.

4) Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.

5) Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.

1) Delores Begay – Navajo; exceeds the necessary qualifications for the position.

2) Joe Yazzie – Navajo; meets, but does not exceed, the necessary qualifications of the position.

3) Sharon Belone - Non-Navajo; married to a Navajo; has resided on the Navajo Nation for two years; most qualified.

4) Robert Smith - Non-Navajo; exceeds the necessary qualifications for the position and is currently an employee of your company.

5) Ted Yellowhair – Navajo; does not meet the necessary qualifications; says he can meet the necessary qualifications if you just give him a chance.

Termination and Adverse ActionTermination and Adverse Action

Employer cannot take ADVERSE ACTIONS against an employee ….

without JUST CAUSE … and WRITTEN NOTICE.

This requirement applies to ALL employees, not just Navajos (except employees exempted in the Act itself)

Employer cannot take ADVERSE ACTIONS against an employee ….

without JUST CAUSE … and WRITTEN NOTICE.

This requirement applies to ALL employees, not just Navajos (except employees exempted in the Act itself)

Termination & Adverse Action: What is Adverse Action?


Adverse action is not defined in the NPEA Statutory context (“Penalizing, disciplining,

discharging or taking any adverse action…”) employment termination, demotion, pay reduction, etc.

Sells v. Rough Rock Community School Adverse = “if it results in some tangible, negative effect

on the Plaintiff’s employment” Action = an affirmative act by the employer

Adverse action is not defined in the NPEA Statutory context (“Penalizing, disciplining,

discharging or taking any adverse action…”) employment termination, demotion, pay reduction, etc.

Sells v. Rough Rock Community School Adverse = “if it results in some tangible, negative effect

on the Plaintiff’s employment” Action = an affirmative act by the employer



Expiration or automatic non-renewal of term contract is not adverse action But, cannot use term contracts to avoid “just

cause” Ex: when an employer uses “unnecessarily

short terms for the same employees in a series of contracts”

Industry standards?

Layoffs are considered adverse action, but require a different type of adverse action

Expiration or automatic non-renewal of term contract is not adverse action But, cannot use term contracts to avoid “just

cause” Ex: when an employer uses “unnecessarily

short terms for the same employees in a series of contracts”

Industry standards?

Layoffs are considered adverse action, but require a different type of adverse action

Termination & Adverse Action: What is Just Cause?

Termination & Adverse Action: What is Just Cause?

Employer cannot take adverse action against an employee without just cause and written notice of the just cause Case-by-case analysis “Just cause is a broad concept that involves

unique factual circumstances” Substantial misconduct; not minor neglect of

duty

Employer cannot take adverse action against an employee without just cause and written notice of the just cause Case-by-case analysis “Just cause is a broad concept that involves

unique factual circumstances” Substantial misconduct; not minor neglect of

duty

Termination & Adverse Action: Examples of Just Cause

Termination & Adverse Action: Examples of Just Cause

Employee used employer’s credit card for gas for non-work related travel in her vehicle & deliberately altered a credit card receipt

Employee’s acts included hanging up on his boss, failing to turn in his keys & stating that he “did not have to talk to his boss”

Employee failed to show up for work for several days & did not notify employer

Employee had 2 occasions of sexually harassing behavior Despite being fully aware of Company’s sexual harassment policy

& being warned that a second infraction would lead to termination

Employee used employer’s credit card for gas for non-work related travel in her vehicle & deliberately altered a credit card receipt

Employee’s acts included hanging up on his boss, failing to turn in his keys & stating that he “did not have to talk to his boss”

Employee failed to show up for work for several days & did not notify employer

Employee had 2 occasions of sexually harassing behavior Despite being fully aware of Company’s sexual harassment policy

& being warned that a second infraction would lead to termination

Examples of Just Cause, cont’dExamples of Just Cause, cont’d

Employee violated Company’s alcohol policy Violated the policy several previous times. Employer

suspended the employee and warned that future violations could result in termination

Security guard: Failed to wear company uniform on the job, wear required number of pepper sprays, comply with patrol procedures, cooperate with co-workers, etc. Employer took corrective actions & warned that continued

misconduct could lead to termination

Employee violated Company’s alcohol policy Violated the policy several previous times. Employer

suspended the employee and warned that future violations could result in termination

Security guard: Failed to wear company uniform on the job, wear required number of pepper sprays, comply with patrol procedures, cooperate with co-workers, etc. Employer took corrective actions & warned that continued

misconduct could lead to termination


12 days of unauthorized sick leave in a 4 month period; refused assigned tasks; arrived late and & left early without authorization Employer gave written and verbal warnings

Employee failed to call or report to a supervisor for 3 days Violated clear rule in employer’s personnel policies

Employee engaged in a pattern of shouting at his subordinates

12 days of unauthorized sick leave in a 4 month period; refused assigned tasks; arrived late and & left early without authorization Employer gave written and verbal warnings

Employee failed to call or report to a supervisor for 3 days Violated clear rule in employer’s personnel policies

Employee engaged in a pattern of shouting at his subordinates


Employee engaged in “persistent violations, despite … months of meetings and emails initiated by the employer,” as well as “extensive in-house training.” Violations included “sending emails containing sexually offensive matters, making demeaning comments about other staff and clients[,] undermining staff morale and office decorum, being rude and unhelpful to visitors and clients, and failing to perform assigned tasks properly.”

Employee engaged in “persistent violations, despite … months of meetings and emails initiated by the employer,” as well as “extensive in-house training.” Violations included “sending emails containing sexually offensive matters, making demeaning comments about other staff and clients[,] undermining staff morale and office decorum, being rude and unhelpful to visitors and clients, and failing to perform assigned tasks properly.”


Pattern of misconduct or multiple infractions Each violation “may not have been so serious” but the

“cumulative effect” constituted substantial misconduct

Repeated violations do not constitute just cause simply because of their repetitive nature. The repeated violations must rise to substantial misconduct.

Consider a policy that addresses repetitive misconduct

The crucial factor was that the employee “had been conveyed the critical importance to the employer’s business of her conforming her conduct to the policies.”

Pattern of misconduct or multiple infractions Each violation “may not have been so serious” but the

“cumulative effect” constituted substantial misconduct

Repeated violations do not constitute just cause simply because of their repetitive nature. The repeated violations must rise to substantial misconduct.

Consider a policy that addresses repetitive misconduct

The crucial factor was that the employee “had been conveyed the critical importance to the employer’s business of her conforming her conduct to the policies.”

Termination & Adverse Action:The Importance of Training

Termination & Adverse Action:The Importance of Training

Smith v. Navajo Nation Department of Head Start and Toledo v. Bashas’ Dine Market “An ambiguous policy, in the absence of training to

inform employees of what that policy means, cannot justify termination”

A terminated employee may rebut the employer’s “just cause” by arguing the employee was not properly trained

Employers must insure proper training on their policies(and should document that training)

“Common sense” exception: Don’t need training to know that some things are wrong.

Smith v. Navajo Nation Department of Head Start and Toledo v. Bashas’ Dine Market “An ambiguous policy, in the absence of training to

inform employees of what that policy means, cannot justify termination”

A terminated employee may rebut the employer’s “just cause” by arguing the employee was not properly trained

Employers must insure proper training on their policies(and should document that training)

“Common sense” exception: Don’t need training to know that some things are wrong.

Termination & Adverse Action:Just Cause for Layoffs

Termination & Adverse Action:Just Cause for Layoffs

Milligan v. Navajo Tribal Utility Authority “Just cause” for layoffs does not require “substantial

misconduct” Layoff may be made when necessary to promote

financial viability or operational efficiency Davis v. Lukachukai Community School

To have “just cause,” employer must follow its own layoff procedures

Also, employer must justify layoffs as necessary to promote financial viability or operational efficiency

Milligan v. Navajo Tribal Utility Authority “Just cause” for layoffs does not require “substantial

misconduct” Layoff may be made when necessary to promote

financial viability or operational efficiency Davis v. Lukachukai Community School

To have “just cause,” employer must follow its own layoff procedures

Also, employer must justify layoffs as necessary to promote financial viability or operational efficiency

Termination & Adverse Action: Just Cause for ReorganizationTermination & Adverse Action: Just Cause for Reorganization

Lessons from Elsie Rose Albert v. Ch’ooshgai Community School Board of Education, Inc., No NNLC 2010-026 (NNLC October 27, 2010)

■ The School was proactive in notifying employees of the upcoming reorganization and that they would have to re-apply

■ The School was exceedingly fair in developing and implementing a re-hiring process

Lessons from Elsie Rose Albert v. Ch’ooshgai Community School Board of Education, Inc., No NNLC 2010-026 (NNLC October 27, 2010)

■ The School was proactive in notifying employees of the upcoming reorganization and that they would have to re-apply

■ The School was exceedingly fair in developing and implementing a re-hiring process

Termination & Adverse Action: Written Notice of Just Cause


Employer cannot take adverse action against an employee without just cause and written notice of the just cause

Employer cannot take adverse action against an employee without just cause and written notice of the just cause



Reasons for the adverse action Reasonably clear language and meaningful explanation

so employee can pursue legal remedies Meaningfulness depends on whole context of

employment relationship, not just the bare language in a vacuum, including what the employee actually knew

Must be contemporaneous with the action to avoid “ad hoc justifications” Can add additional reasons if (1) employer did not know the

additional reasons before issuing the original notice and (2) the additional reasons are provided before employee pursues legal remedies.

Reasons for the adverse action Reasonably clear language and meaningful explanation

so employee can pursue legal remedies Meaningfulness depends on whole context of

employment relationship, not just the bare language in a vacuum, including what the employee actually knew

Must be contemporaneous with the action to avoid “ad hoc justifications” Can add additional reasons if (1) employer did not know the

additional reasons before issuing the original notice and (2) the additional reasons are provided before employee pursues legal remedies.

Termination & Adverse Action: Practice Tips

Termination & Adverse Action: Practice Tips

MUST HAVE JUST CAUSE

MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE OF JUST CAUSE

MUST HAVE JUST CAUSE

MUST PROVIDE EMPLOYEE WITH WRITTEN NOTICE OF JUST CAUSE

Termination & Adverse Action: Practice Tips (cont’d)


Precautionary measures

Document details of each incident when they occurUse progressive discipline and PIPs when appropriate

– Not required, but certainly recommended– Not required to take action after each incident

Clear Policies + Training– Document that employees have read & understand policies

& received training on policies

Apply policies with uniformity

Precautionary measures

Document details of each incident when they occurUse progressive discipline and PIPs when appropriate

– Not required, but certainly recommended– Not required to take action after each incident

Clear Policies + Training– Document that employees have read & understand policies

& received training on policies

Apply policies with uniformity



Precautionary measures (cont’d)

Use k’e mechanisms: Restoring the relationship and fixing problems through talking things out, accountability, self-correction, withholding punishment, etc.

DOCUMENT, DOCUMENT, DOCUMENT

Precautionary measures (cont’d)

Use k’e mechanisms: Restoring the relationship and fixing problems through talking things out, accountability, self-correction, withholding punishment, etc.

DOCUMENT, DOCUMENT, DOCUMENT

Termination & Adverse Action: Hypothetical

Termination & Adverse Action: Hypothetical

Arizona corporation, with office on NN Louis Barley – Non-Navajo employee,

working on NN Louis left work early, reported late, hung-

over Can we fire Louis?

Arizona corporation, with office on NN Louis Barley – Non-Navajo employee,

working on NN Louis left work early, reported late, hung-

over Can we fire Louis?

Health and Safety of Navajo Workers

Health and Safety of Navajo Workers

“All employers must maintain a safe and clean working environment”

“adopt and implement work practices which conform to occupational safety and health standards imposed by law”

“All employers must maintain a safe and clean working environment”

“adopt and implement work practices which conform to occupational safety and health standards imposed by law”

Prohibition Against HarassmentProhibition Against Harassment

“All employers shall provide employment conditions free of prejudice, intimidation and harassment.”

Harassment, including sexual, can be “just cause” for termination of the harasser

NPEA does not authorize action by victim against employer for sexual harassment by co-worker

“All employers shall provide employment conditions free of prejudice, intimidation and harassment.”

Harassment, including sexual, can be “just cause” for termination of the harasser

NPEA does not authorize action by victim against employer for sexual harassment by co-worker

Harassment: Federal Standard

Harassment: Federal Standard

Conduct that is so severe and pervasive to alter the terms of employment

Objectively and subjectively objectionable Based on or because of the victim’s

protected status Unwelcomed But, Title VII is not a general civility code

Conduct that is so severe and pervasive to alter the terms of employment

Objectively and subjectively objectionable Based on or because of the victim’s

protected status Unwelcomed But, Title VII is not a general civility code

Harassment: Navajo Nation Standard

Harassment: Navajo Nation Standard

“A broad term encompassing all forms of conduct that unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive work environment”

Pattern of shouting at subordinates Local standards? Is the NPEA a general civility code?

“A broad term encompassing all forms of conduct that unreasonably interfere with an individual’s work performance or create an intimidating, hostile, or offensive work environment”

Pattern of shouting at subordinates Local standards? Is the NPEA a general civility code?

Affirmative Action PlansAffirmative Action Plans

Act requires all employers to develop Affirmative Action Plans and Timetables to achieve the goal of employing Navajos in all job classifications

Human Services Committee regulations (2002)

Act requires all employers to develop Affirmative Action Plans and Timetables to achieve the goal of employing Navajos in all job classifications

Human Services Committee regulations (2002)

Affirmative Action PlansAffirmative Action Plans

ONLR is required to assist employers with development and implementation of AAP Upon request, ONLR will review employer’s

AAP & either approve or disapprove it

Must be filed with the ONLR

ONLR is required to assist employers with development and implementation of AAP Upon request, ONLR will review employer’s

AAP & either approve or disapprove it

Must be filed with the ONLR

Affirmative Action Plans: Contents of Plan

Affirmative Action Plans: Contents of Plan

1. Training2. Policy Statement3. Management-level employee to implement &

monitor Affirmative Action Plan4. Goals & timelines5. Employer-sponsored cross-cultural program,

including teaching Navajo culture to non-Navajos

6. Workforce analysis

1. Training2. Policy Statement3. Management-level employee to implement &

monitor Affirmative Action Plan4. Goals & timelines5. Employer-sponsored cross-cultural program,

including teaching Navajo culture to non-Navajos

6. Workforce analysis

Affirmative Action Plans: Contents of Plan, cont’d


7. “In depth analysis”• Composition of Navajo/Non-Navajo employees• Composition of applicant flow of Navajos/Non-

Navajos• Employee retention, promotion, transfer, etc.• Apprentice programs & company training

7. “In depth analysis”• Composition of Navajo/Non-Navajo employees• Composition of applicant flow of Navajos/Non-

Navajos• Employee retention, promotion, transfer, etc.• Apprentice programs & company training



8. The following require corrective action1. Under-utilization of Navajo employees2. Vertical movement of Navajo employees is less than

non-Navajo employees3. Selection process eliminates significantly more

Navajos4. Job descriptions are inaccurate in relation to actual

duties of the job5. Testing has a higher adverse impact rate on

Navajos6. Non-support of the AAP by staff7. No formal criteria for evaluating the AAP

8. The following require corrective action1. Under-utilization of Navajo employees2. Vertical movement of Navajo employees is less than

non-Navajo employees3. Selection process eliminates significantly more

Navajos4. Job descriptions are inaccurate in relation to actual

duties of the job5. Testing has a higher adverse impact rate on

Navajos6. Non-support of the AAP by staff7. No formal criteria for evaluating the AAP

Advertising VacanciesAdvertising Vacancies

At least one newspaper and one radio station serving the Navajo Nation (Navajo Nation Times & KTNN) Exception: When current Navajo employee is

selected Navajo employment preference statement

in announcements, ads, and policies On-site posting of ONLR Notice Tip: Save all ads and postings

At least one newspaper and one radio station serving the Navajo Nation (Navajo Nation Times & KTNN) Exception: When current Navajo employee is

selected Navajo employment preference statement

in announcements, ads, and policies On-site posting of ONLR Notice Tip: Save all ads and postings

Polygraph TestingPolygraph Testing

Employers are prohibited from requiring polygraphs of employees or applicants

Employers are prohibited from terminating/disciplining an employee for failing or refusing a test

By NPEA, provision does not apply to federal or state employees

Employers are prohibited from requiring polygraphs of employees or applicants

Employers are prohibited from terminating/disciplining an employee for failing or refusing a test

By NPEA, provision does not apply to federal or state employees

Breast FeedingBreast Feeding

Navajo Nation Healthy Start Act of 2008 Not codified as part of the NPEA, but

creates new rights for certain employees on the Navajo Nation, it incorporates certain definitions from the NPEA, and it is enforced by the ONLR and the NNLC

Navajo Nation Healthy Start Act of 2008 Not codified as part of the NPEA, but

creates new rights for certain employees on the Navajo Nation, it incorporates certain definitions from the NPEA, and it is enforced by the ONLR and the NNLC

Breast Feeding, cont’dBreast Feeding, cont’d

Employers doing business within Navajo Nation, or engaged in any contract with Navajo Nation, shall provide to each working mother opportunities to engage in breast feeding of their infant child or to use of a breast pump at the workplace

Employers doing business within Navajo Nation, or engaged in any contract with Navajo Nation, shall provide to each working mother opportunities to engage in breast feeding of their infant child or to use of a breast pump at the workplace

Breast Feeding, cont’dBreast Feeding, cont’d

Employer must provide (1) “a clean and private area or other enclosure near the employee’s workspace, and not a bathroom, to engage in breast-feeding or use of a breast pump” and (2) “a sufficient number of unpaid and flexible breaks within the course of the workday to allow a working mother to engage in breast-feeding or use of a breast-pump.”

Employers are required to file with the ONLR a written plan to provide working mothers with such opportunities

Employer must provide (1) “a clean and private area or other enclosure near the employee’s workspace, and not a bathroom, to engage in breast-feeding or use of a breast pump” and (2) “a sufficient number of unpaid and flexible breaks within the course of the workday to allow a working mother to engage in breast-feeding or use of a breast-pump.”

Employers are required to file with the ONLR a written plan to provide working mothers with such opportunities

Breast Feeding, cont’dBreast Feeding, cont’d No exceptions/defenses for “undue burden” Failure to comply =

adverse action, failure to provide a safe and clean working

environment, failure to provide employment free of

prejudice, intimidation and harassment ONLR monitors/enforces; NNLC conducts

hearings

No exceptions/defenses for “undue burden” Failure to comply =

adverse action, failure to provide a safe and clean working

environment, failure to provide employment free of

prejudice, intimidation and harassment ONLR monitors/enforces; NNLC conducts

hearings

Monitoring & Enforcement: The ONLR

Monitoring & Enforcement: The ONLR

Office of Navajo Labor Relations (ONLR) Monitors compliance and enforces the NPEA Person may file charges with the ONLR (Individual

Charge) or ONLR may file charges on its own initiative (ONLR Charge)

All Charges must be filed within 1 year after the accrual of the claim

Accrual: the date of the alleged violation, or when the employee reasonably should have known of the violation

May be tolled for special circumstances Employee’s participation in employer’s internal grievance

process does not change the time

Office of Navajo Labor Relations (ONLR) Monitors compliance and enforces the NPEA Person may file charges with the ONLR (Individual

Charge) or ONLR may file charges on its own initiative (ONLR Charge)

All Charges must be filed within 1 year after the accrual of the claim

Accrual: the date of the alleged violation, or when the employee reasonably should have known of the violation

May be tolled for special circumstances Employee’s participation in employer’s internal grievance

process does not change the time

Monitoring & Enforcement: The ONLR, cont’d


ONLR must notify employer within 20 days after the Charge is filed

ONLR is required to investigate whether there is probable cause

Subpoenas, interviews, interrogatories Generally, ONLR will issue a letter describing the

Charge & will request responses to inquiries & copies of documents

ONLR must notify employer within 20 days after the Charge is filed

ONLR is required to investigate whether there is probable cause

Subpoenas, interviews, interrogatories Generally, ONLR will issue a letter describing the

Charge & will request responses to inquiries & copies of documents



Within 180 days after Charge is filed, ONLR must:

Dismiss for lack of probable cause, petitioner’s failure to file timely, petitioner’s failure to cooperate with ONLR, or petitioner’s failure to accept an approved settlement (and issue Right to Sue) or

Issue a probable cause determination, triggering conciliation, and issuance of Right to Sue if conciliation fails or

Certify it will be unable to complete the steps in 180 days and therefore issue a Right to Sue

Within 180 days after Charge is filed, ONLR must:

Dismiss for lack of probable cause, petitioner’s failure to file timely, petitioner’s failure to cooperate with ONLR, or petitioner’s failure to accept an approved settlement (and issue Right to Sue) or

Issue a probable cause determination, triggering conciliation, and issuance of Right to Sue if conciliation fails or

Certify it will be unable to complete the steps in 180 days and therefore issue a Right to Sue

Monitoring & Enforcement: The NNLC

Monitoring & Enforcement: The NNLC

After receiving Right to Sue or expiration of 180 days after Charge was filed: Employee may file written complaint with the

Navajo Nation Labor Commission (NNLC) Complaint must be filed within 360 days after

charge was filed with ONLR Allegations asserted in ONLR Charge define the

scope of the allegations in the NNLC Complaint

After receiving Right to Sue or expiration of 180 days after Charge was filed: Employee may file written complaint with the

Navajo Nation Labor Commission (NNLC) Complaint must be filed within 360 days after

charge was filed with ONLR Allegations asserted in ONLR Charge define the

scope of the allegations in the NNLC Complaint

Monitoring & Enforcement: The NNLC, cont’d

Monitoring & Enforcement: The NNLC, cont’d

NNLC is required to schedule a hearing within 60 days of the filing of complaint

Parties have the right to: Legal counsel Present witnesses Cross-examine witnesses

Employer has the burden of proof to show by a preponderance of the evidence that it complied with the NPEA. Manygoats v. Cameron Trading Post.

NNLC is required to schedule a hearing within 60 days of the filing of complaint

Parties have the right to: Legal counsel Present witnesses Cross-examine witnesses

Employer has the burden of proof to show by a preponderance of the evidence that it complied with the NPEA. Manygoats v. Cameron Trading Post.

Remedies & ReliefRemedies & Relief Remedial relief, including directed hiring,

reinstatement, displacement of non-Navajo employees, back-pay (up to two years prior to filing of Charge), front-pay, injunctive relief, action to cure violation

If NNLC finds the violation intentional, it may impose civil fines as a remedial order; cannot be punitive and must be proportionate to the other relief granted

Attorneys fees if employer’s position was not substantially justified

Remedial relief, including directed hiring, reinstatement, displacement of non-Navajo employees, back-pay (up to two years prior to filing of Charge), front-pay, injunctive relief, action to cure violation

If NNLC finds the violation intentional, it may impose civil fines as a remedial order; cannot be punitive and must be proportionate to the other relief granted

Attorneys fees if employer’s position was not substantially justified

Remedies & Relief, cont’dRemedies & Relief, cont’d

Emotional distress is not a separate claim under the NPEA

Some types of emotional distress damages may be permitted if the NPEA violation caused the distress, damages are necessary to cure the violation (or are remedial in nature), and the amount of damages is reasonably tied to efforts to treat the distress “Remedial, with a goal to cure” the NPEA violation

No tort-like damages; must be remedial

Emotional distress is not a separate claim under the NPEA

Some types of emotional distress damages may be permitted if the NPEA violation caused the distress, damages are necessary to cure the violation (or are remedial in nature), and the amount of damages is reasonably tied to efforts to treat the distress “Remedial, with a goal to cure” the NPEA violation

No tort-like damages; must be remedial

Remedies & Relief, cont’dRemedies & Relief, cont’d

Bee K’endzisdlii’

Requires the NNLC to hold the Employer and the Employee accountable for their actions when crafting remedies to restore the relationship, including Peacemaking (if both parties are willing)

Bee K’endzisdlii’

Requires the NNLC to hold the Employer and the Employee accountable for their actions when crafting remedies to restore the relationship, including Peacemaking (if both parties are willing)

Enforcement & Appeals of NNLC Decisions

Enforcement & Appeals of NNLC Decisions

NNLC’s decisions may be enforced bythe District Courts of the Navajo Nation

Appeals Any party can appeal a NNLC decision

directly to the Navajo Nation Supreme Court Must file a written appeal within 10 days after

receipt of NNLC’s decision

NNLC’s decisions may be enforced bythe District Courts of the Navajo Nation

Appeals Any party can appeal a NNLC decision

directly to the Navajo Nation Supreme Court Must file a written appeal within 10 days after

receipt of NNLC’s decision

Navajo Common Law (NCL)(credit: Justice Raymond Austin)

Navajo Common Law (NCL)(credit: Justice Raymond Austin)

NCL - Values, customs & traditions found in Navajo culture, spirituality, language & sense of place (includes Fundamental Laws)

Duty to Use NCL - 7 NNC sec. 204(A) & (B): Use NCL to interpret Navajo statutory laws and

regulations; Apply NCL whenever Navajo statutes or

regulations are silent on matters in dispute; Knowledgeable Navajos can advise Court

[NNLC, too] on NCL.

NCL - Values, customs & traditions found in Navajo culture, spirituality, language & sense of place (includes Fundamental Laws)

Duty to Use NCL - 7 NNC sec. 204(A) & (B): Use NCL to interpret Navajo statutory laws and

regulations; Apply NCL whenever Navajo statutes or

regulations are silent on matters in dispute; Knowledgeable Navajos can advise Court

[NNLC, too] on NCL.

Rule on adoption of bilagaana law: Non-Navajo law must be compatible with fundamental Navajo values. Goldtooth, 8 Nav. R. 682, 691 (2005).

Fundamental Navajo postulates Navajo dispute resolution model: hozho anahooti

hozho (harmony problem harmony). Goals: restore parties, clan, community etc. to hozho; mend/heal relationships

Hozho: Gloss as a state/condition where everything is in its proper place and functioning in harmonious relationship to everything else. Witherspoon, Navajo Kinship & Marriage (1975). Hozho is not blackletter law that applies to a legal issue.

Rule on adoption of bilagaana law: Non-Navajo law must be compatible with fundamental Navajo values. Goldtooth, 8 Nav. R. 682, 691 (2005).

Fundamental Navajo postulates Navajo dispute resolution model: hozho anahooti

hozho (harmony problem harmony). Goals: restore parties, clan, community etc. to hozho; mend/heal relationships

Hozho: Gloss as a state/condition where everything is in its proper place and functioning in harmonious relationship to everything else. Witherspoon, Navajo Kinship & Marriage (1975). Hozho is not blackletter law that applies to a legal issue.

Fundamental Navajo postulates cont. ... K’e: Gloss as unity through positive values

such as respect, kindness, cooperation, friendliness, reciprocal relations & love. K’e is not blackletter law; it guides relationships & interactions in Navajo society so people can live in hozho.

K’ei: Navajo clan system Nalyeeh: Traditional remedy (uses apology,

forgiveness & restitution/compensation) to heal & restore relationships & to make injured party whole.

Fundamental Navajo postulates cont. ... K’e: Gloss as unity through positive values

such as respect, kindness, cooperation, friendliness, reciprocal relations & love. K’e is not blackletter law; it guides relationships & interactions in Navajo society so people can live in hozho.

K’ei: Navajo clan system Nalyeeh: Traditional remedy (uses apology,

forgiveness & restitution/compensation) to heal & restore relationships & to make injured party whole.

NCL in NPEA casesNCL in NPEA cases “Words are Sacred” (WAS) Principle:

Navajo belief: “Words are powerful” so they can be used to heal, destroy, persuade, etc.

WAS principle is tool naat’aanii uses to lead. In Kesoli v. Anderson Sec. Agcy, 8 Nav. R. 724 (2005), a supervisor (cast as naat’aanii) violated “WAS” principle when he shouted at subordinates (harassment). Harassment is “just cause” for his termination. A naat’aanii is held to high standards in traditional Navajo society which fits with hazho’ogo (responsible use of freedoms) principle.

“Words are Sacred” (WAS) Principle: Navajo belief: “Words are powerful” so they can be

used to heal, destroy, persuade, etc. WAS principle is tool naat’aanii uses to lead. In

Kesoli v. Anderson Sec. Agcy, 8 Nav. R. 724 (2005), a supervisor (cast as naat’aanii) violated “WAS” principle when he shouted at subordinates (harassment). Harassment is “just cause” for his termination. A naat’aanii is held to high standards in traditional Navajo society which fits with hazho’ogo (responsible use of freedoms) principle.

“WAS” principle cont.... WAS used to construe contract (lease). ONLR, ex rel Bailon, 8

Nav. R. 501 (2004) – New Mex explicitly agreed to give Navajos job preference in 1st provision of lease. Using 2nd general provision, NM argues it would violate state & fed laws prohibiting racial/national origin discrimination if it gave Navajos job preference. Court uses WAS principle to hold that 1st provision, as the explicit provision, controls the second (general provision). According to WAS principle, “a party cannot give their word in one section [of lease] and take it back in the next.” Id. at 506.

WAS used to enforce employment contract. In Smith v. NN Dept. of Head Start, 8 Nav. R. 709 (2005), worker was fired for violating personnel manual. Supreme Court uses WAS principle to find “just cause” to fire worker: Manual is contract between worker and employer w/expectations that both will follow it to have hozho in workplace. Words in contract are sacred and never frivolous & promises made must be fulfilled. Id. at 714-15.

“WAS” principle cont.... WAS used to construe contract (lease). ONLR, ex rel Bailon, 8

Nav. R. 501 (2004) – New Mex explicitly agreed to give Navajos job preference in 1st provision of lease. Using 2nd general provision, NM argues it would violate state & fed laws prohibiting racial/national origin discrimination if it gave Navajos job preference. Court uses WAS principle to hold that 1st provision, as the explicit provision, controls the second (general provision). According to WAS principle, “a party cannot give their word in one section [of lease] and take it back in the next.” Id. at 506.

WAS used to enforce employment contract. In Smith v. NN Dept. of Head Start, 8 Nav. R. 709 (2005), worker was fired for violating personnel manual. Supreme Court uses WAS principle to find “just cause” to fire worker: Manual is contract between worker and employer w/expectations that both will follow it to have hozho in workplace. Words in contract are sacred and never frivolous & promises made must be fulfilled. Id. at 714-15.

WAS cont. ... WAS principle used to find binding contract.

In Goldtooth v. NTA Comty Sch, 8 Nav. R. 628 (2005), school’s exec director, w/o school board approval, offered employment contract to worker who accepted. School board later invalidated contract. Court found valid contract because exec director had apparent authority to bind school board. Court used WAS and naat’aanii principles as rationale: Exec director was a naat’aanii w/authority to offer employment contracts and, as such, his words carried great weight within the community.

WAS cont. ... WAS principle used to find binding contract.

In Goldtooth v. NTA Comty Sch, 8 Nav. R. 628 (2005), school’s exec director, w/o school board approval, offered employment contract to worker who accepted. School board later invalidated contract. Court found valid contract because exec director had apparent authority to bind school board. Court used WAS and naat’aanii principles as rationale: Exec director was a naat’aanii w/authority to offer employment contracts and, as such, his words carried great weight within the community.

Nalyeeh in NPEA cases: Tso v. NHA, No. SC-CV-20-06 (Dec. 6, 2007):

Judgment entered v. employer who claims it cannot be forced to use federal $$ to pay judgment. Court holds that NHA must pay judgment using non-federal funds because “there are central principles of … the Navajo Life Way … that affirmatively require the NHA to satisfy the judgment. The important thing is that the NHA have respect for others and for decisions made by the Labor Commission, the lower court and this Court. Dine’ bi’o oo’ iil recognizes our relationships to each other and the responsibilities that those relationships create.”

Although Court has not expressly said so, attorney’s fees and costs are likely recoverable under nalyeeh principle: See e.g. Goldtooth v. NTA Comty Sch., No. SC-CV-12-06 (April 16, 2001).

Nalyeeh in NPEA cases: Tso v. NHA, No. SC-CV-20-06 (Dec. 6, 2007):

Judgment entered v. employer who claims it cannot be forced to use federal $$ to pay judgment. Court holds that NHA must pay judgment using non-federal funds because “there are central principles of … the Navajo Life Way … that affirmatively require the NHA to satisfy the judgment. The important thing is that the NHA have respect for others and for decisions made by the Labor Commission, the lower court and this Court. Dine’ bi’o oo’ iil recognizes our relationships to each other and the responsibilities that those relationships create.”

Although Court has not expressly said so, attorney’s fees and costs are likely recoverable under nalyeeh principle: See e.g. Goldtooth v. NTA Comty Sch., No. SC-CV-12-06 (April 16, 2001).

NPEA & Title VII of the Civil Rights Act

NPEA & Title VII of the Civil Rights Act

NPEA provides for “tribal preference” (as opposed to “Indian preference”)

Title VII Prohibits discrimination on basis of race, color,

religion, sex, or national origin Does not apply to Indian Nations (therefore, Indian

Nation can apply tribal preference without issue) Contains an exception for employers located “on or

near” Indian Reservations, who may give “Indian preference” pursuant to publicly announced employment practice

NPEA provides for “tribal preference” (as opposed to “Indian preference”)

Title VII Prohibits discrimination on basis of race, color,

religion, sex, or national origin Does not apply to Indian Nations (therefore, Indian

Nation can apply tribal preference without issue) Contains an exception for employers located “on or

near” Indian Reservations, who may give “Indian preference” pursuant to publicly announced employment practice

NPEA & Title VII of the Civil Rights Act (cont’d)NPEA & Title VII of the Civil Rights Act (cont’d)

Issue: Can employers on or near the Navajo Nation grant Navajo preference without violating Title VII?

Much litigation, including by the EEOC Political classification vs. national origin

classification In flux, but currently, I believe that Navajo

preference is permitted

Issue: Can employers on or near the Navajo Nation grant Navajo preference without violating Title VII?

Much litigation, including by the EEOC Political classification vs. national origin

classification In flux, but currently, I believe that Navajo

preference is permitted



Howard L. Brown, Esq.Howard L. Brown, Esq.

Shorall McGoldrick Brinkmann 702 North Beaver Streetattorneys • phoenix • flagstaff Flagstaff, AZ 86001

928.779.1050 fax 928.779.6252

The Navajo Preference in Employment Act Updated 7/2014 Howard L. Brown, Esq. 702 North Beaver Street Shorall McGoldrick Brinkmann Flagstaff, AZ 86001 attorneys.

Documents

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