The U.S. 10th Circuit Court of Appeals (whose rulings apply to all New Mexico employers) recently affirmed the dismissal of an employment discrimination lawsuit against a private corporation serving the Navajo Nation, finding it constituted an “Indian tribe” and was thus excluded from the legal obligations of Title VII of the Civil Rights Act of 1964.
Kim R. Jim, a former employee of Shiprock Associated Schools, Inc. (SASI), alleged it discriminated against her and terminated her because of her pregnancy and maternity leave. She filed pregnancy discrimination claims under Title VII and the Americans with Disabilities Act (ADA). SASI sought dismissal of the lawsuit because it’s a “tribal organization” exempted from the definition of an employer under both laws.
The lower court granted SASI’s request for dismissal after determining it qualified as an “Indian tribe” for purposes of both Acts, thus excluding it from their legal requirements. The ruling was based on the following facts:
- SASI’s schools are located on the Navajo Reservation, and the vast majority (more than 98 percent) of its students are enrolled in federally recognized tribes;
- The Navajo Nation Board of Education authorizes SASI to operate Navajo community schools and provides funds to manage educational programs;
- SASI, a nonprofit corporation incorporated under state law, was authorized by Navajo Tribal Council Resolution;
- All SASI board members are elected per the Navajo Nation Election Code and are enrolled members of the Navajo Nation, which retains authority to remove board members under the rules and regulations of the election code; and
- SASI is subject to the Navajo Nation’s educational laws and held accountable for ensuring the students make adequate yearly progress in meeting the standards set by the Navajo Nation.
Based on this record, the lower court found Congress intended SASI to fall under the definition of an “Indian tribe” for Title VII and ADA purposes, noting the canons of construction required it to resolve any doubts in favor of the “Indian tribe.”
Appeal
Jim appealed the lawsuit dismissal and argued the lower court incorrectly determined SASI was an “Indian tribe.” Although she had claimed an ADA violation, she appealed only the dismissal of her Title VII discrimination claim.
Applying a de novo review (a nondeferential standard that doesn’t place weight on the lower court’s finding), the 10th Circuit ruled that under the circumstances of the case, the district court properly applied Title VII’s exception for an “Indian tribe,” and it affirmed the dismissal of the lawsuit.
Importance of Context
The 10th Circuit emphasized the importance of context when analyzing whether an entity is a tribal entity, stating the answer to that question depends on the context in which the question is addressed: “In the context of Title VII, we consider the statutory aim of allowing Indian tribes ‘to control their own economic enterprises.’”
Given the context, the 10th Circuit concluded SASI, a private corporation, constituted an “Indian tribe” under Title VII, stating:
The corporation serves the Navajo community, obtains its governing board from the Navajo Nation, follows Navajo law, oversees schools populated by Navajo students and staffed by Navajo members, and receives federal funding because of the corporation’s service to the Navajo community.
Under the circumstances, the 10th Circuit ruled the lower court properly applied the exception for an “Indian tribe” under Title VII. Kim R. Jim v. Shiprock Associated Schools, Inc., No 19-2100 (10th Cir., 2020).
Takeaway
Depending on the circumstances, your company may be excluded from the definition of “employer” under Title VII, the ADA, and other laws addressing discrimination. The exclusion of Title VII’s legal requirements for “Indian tribes” is just one example.
Each law also has its own threshold number of employees before the law applies to an employer. For example, the ADA covers employers with 15 or more employees while the New Mexico Human Rights Act applies to employers with four or more employees. Reviewing the laws on a periodic basis helps to identify your legal obligations.
Sarah K. Downey is an attorney with Jackson Loman Stanford & Downey, P.C., in Albuquerque, New Mexico. You can reach her at sarah@jacksonlomanlaw.com.