EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Indian Preference

January 4, 2010

[ADDRESS]

Dear ____:

This is in response to your letter of October 13, 2009, regarding the application of the “Indian preference” exemption under Title VII to the Native American Rights Fund (NARF). While the Commission is unable to assess the legality of particular employment practices outside the context of specific charges of discrimination and a complete investigation, we can discuss this issue generally.

As you know, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Section 703(i) of Title VII, however, specifically permits an employer that is located on or near a Native American reservation to grant preferential treatment to an individual who is a Native American living on or near a reservation, if the preference is publicly announced. 42 U.S.C. § 2000e-2(i).

The EEOC has interpreted this preference flexibly, “consistent with the Federal Government’s policy of encouraging Indian employment and with the special legal position of Indians.” 110 Cong. Rec. 12,723 (1964) (statement of Sen. Humphrey). The preference extends to former reservations in Oklahoma and to Native Alaska land held under provisions of the Alaska Native Claims Settlement Act. The EEOC has interpreted “near” to mean within reasonable commuting distance. Under this standard, coverage will vary from case to case, taking into account differing geographic and economic circumstances. For example, proximity to employment may vary from a reservation in one geographic region to another reservation in another geographic region.

Your letter states that NARF has offices in Boulder, Colorado; Washington, D.C.; and Anchorage, Alaska. Application of the preference to NARF would turn on whether NARF is located on or near an Indian reservation and whether the favored individual is a Native American living on or near an Indian reservation. More information about the preference is provided in the EEOC’s Policy Statement on Indian Preference Under Title VII (1988), available at http://www.eeoc.gov/policy/docs/indian_preference.html.

In addition, Title VII only prohibits discrimination against “employees.” For example, while you have noted that NARF’s 13-member Board of Directors is composed solely of Native Americans, it is unclear whether board members are “employees.” In most cases, members of boards of directors do not qualify as employees. Coverage depends on whether the individual acts independently and manages the organization or is instead subject to the organization’s control. Threshold Issues, EEOC Compliance Manual (2000), available at http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1. Thus, to the extent that board membership may discriminate against non-Native Americans, Title VII would only be implicated if board members are employees.

We hope that this information has been helpful.

Sincerely,

/s/
Dianna B. Johnston
Assistant Legal Counsel

This page was last modified on January 25, 2010.

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