Monday, August 19, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

"Can I Sue the Tribe for Employment Discrimination?"

Answer: Probably not. Both Title VII35 and the Americans with Disabilities Act (ADA) expressly exclude Indian tribes. Similarly, the Ninth Circuit Court of Appeals has held that tribes are immune from suit under the Age Discrimination in Employment Act (ADEA). Tribes are also immune from suit under 42 U.S.C. 1983. Likewise, state discrimination laws do not apply to tribal employers.

Tribally-owned entities are generally not subject to state and federal discrimination laws either. Tribal officials are also immune from suit arising from alleged discriminatory behavior, so long as they acted within the scope of their authority. In short, any employment suit against a tribe or its officials based upon federal or state discrimination law will likely be dismissed for lack of subject matter jurisdiction.

Idaho tribes have become one of the nation's largest employers. As a result, non-Indians' employment records and documents concerning tribal employment practices are increasingly becoming the focus of discovery, even in litigation against non-tribal entities. If the employee is a party, his or her employment records are discoverable if they are in the employee's custody or control. However, under the doctrine of sovereign immunity, a tribe cannot be forced to produce the employee's records. By the same token, a court cannot compel a tribe--or the Bureau of Indian Affairs--to provide documents about the tribe's employment practices.

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