A. 
Except when based on a bona fide occupational qualification or in furtherance of the provision of employment preferences provided to citizens of the Band and other qualified classes of persons under the Indian Preference in Employment Code[1] or pursuant policies or actions giving preferences to Indians under 42 U.S.C. § 2000e-2(i), it shall be unlawful employment discrimination, in violation of this chapter:
(1) 
For an employer to discharge an employee or discriminate with respect to any decision to hire, grant tenure, promote, transfer, establish compensation, terms, conditions or privileges of employment or any other matter directly or indirectly related to employment which has a detrimental effect on an individual or group of individuals because of their sex, race, color, national origin, religion, age, familial status, sexual orientation, or disability;
(2) 
For an employer, in recruiting of individuals for employment or in hiring them, to utilize any employment agency that the employer knows or has reasonable cause to know discriminates against individuals because of their sex, race, color, national origin, religion, age, familial status, sexual orientation, or disability; or
(3) 
For an employer to discriminate in any manner against individuals because they have opposed a practice that would be a violation of this chapter or because they have made a charge, reported, testified or assisted in any investigation, proceeding or hearing under this chapter.
[1]
Editor's Note: See Ch. 5.1, Indian Preference in Employment.
B. 
Types of discrimination. "Unlawful employment discrimination," as that term is used in this section:
(1) 
Overt discrimination. An intentional, purposeful act of discrimination, such as direct epithets aimed at an individual because of sex, race, color, national origin, religion, age, familial status, sexual orientation, or disability, resulting in adverse employment action.
(2) 
Harassment (including sexual harassment). Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.
(a) 
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature as well as unwelcome comments, jokes, acts and other verbal or physical conduct related to race, color, national origin, religion, age, familial status, sexual orientation, or disability constitute unlawful workplace harassment when:
[1] 
Submission to such conduct is made either explicitly or implicitly a term or condition or an individual's employment;
[2] 
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
[3] 
Such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
§ 5.2-5B(2) Commentary
Under federal employment discrimination law, "unwelcomeness" is measured by the reasonable person standard. Federal employment discrimination also protects against "same sex" sexual harassment, unwelcome sexual conduct directed against a male from another male or against a female from another female.
Consistent with Bode'wadmi traditions and values, this chapter is specifically intended to prohibit unlawful employment discrimination by employees who receive employment preferences under the Band's Indian Preference in Employment Code[2] against applicants for employment or other employees not entitled to such employment preferences. Similarly, this code prohibits employers from tolerating acts of unlawful employment discrimination by employees who receive employment preferences under the Band's Indian Preference in Employment Code.
[2]
Editor's Note: See Ch. 5.1, Indian Preference in Employment.
(b) 
An employer is responsible for its acts and those of its supervisory employees and agents with respect to the types of harassment described in Subsection B(1). When the supervisor's or agent's harassment culminates in a substantial negative employment action, such as, but not limited to, discharge, demotion, or undesirable reassignment, liability attaches to the employer regardless of whether the employer knew or should have known of the harassment, and regardless of whether the specific acts complained of were authorized or even forbidden by the employer. When the supervisor's harassment does not culminate in a tangible employment action, the employer may raise an affirmative defense to liability or damages by proving by a preponderance of the evidence:
[1] 
That the employer exercised reasonable care to prevent and correct promptly the harassing behavior; and
[2] 
That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
(c) 
With respect to persons other than an employer's supervisors or agents as described in Subsection B(2), an employer is responsible for acts of workplace harassment where the employer, or its supervisory employees, knows or should have known of the conduct. An employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action.
(3) 
Unequal or disparate treatment. Treating persons in a different and less favorable manner than other similarly situated individuals on account of race or color, sex, disability, religion, age, familial status, sexual orientation, ancestry or national origin, or any previous actions that are protected under § 5.2-9.
(4) 
Disparate impact. Conduct which, although applied equally to all, has an adverse effect on persons because of their race or color, sex, disability, religion, age, familial status, sexual orientation, ancestry or national origin as compared to the effect on other persons.
A. 
General rule. An employer shall not discriminate against a qualified individual with a disability because of the disability of the individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment.
B. 
Medical examinations and inquiries. The prohibition against discrimination referred to in Subsection A of this section shall include medical examinations and inquiries.
(1) 
Pre-employment.
(a) 
Prohibited examination or inquiry. Except as provided in Subsection B(1)(b), an employer shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.
(b) 
Acceptable inquiry. An employer may make pre-employment inquiries into the ability of an applicant to perform the essential job-related functions and whether a reasonable accommodation by the employer will permit the applicant to perform the essential job-related functions.
(2) 
Employment entrance examination. An employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if:
(a) 
All entering employees are subjected to such an examination regardless of disability;
(b) 
Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:
[1] 
Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
[2] 
First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
[3] 
Tribal government officials investigating compliance with this chapter shall be provided relevant information on request; and
(c) 
The results of such examination are used only in accordance with this chapter.
(3) 
Examination and inquiry during employment.
(a) 
Prohibited examinations and inquiries. An employer shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
(b) 
Acceptable examinations and inquiries. An employer may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. An employer may make inquiries into the ability of an employee to perform essential job-related functions.
(c) 
Requirement. Information obtained under Subsection B(3)(b) regarding the medical condition or history of any employee are subject to the requirements of Subsection B(2)(b) and (c).
C. 
Drug use and alcohol.
(1) 
Medical tests. A test to determine the illegal use of prescription drugs or other illegal drugs by an employee or applicant does not constitute a pre-employment medical examination for purposes of Subsection B of this section.
(2) 
Qualified individual with a disability. For purposes of this chapter, the term "qualified individual with a disability" shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the employer acts on the basis of such use.
(3) 
Rules of construction. Nothing in Subsection C(2) shall be construed to exclude as a qualified individual with a disability an individual who:
(a) 
Has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
(b) 
Is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(c) 
Is erroneously regarded as engaging in such use, but is not engaging in such use.
(4) 
It shall not be a violation of this chapter for an employer to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in Subsection C(3)(a) or (b) is no longer engaging in the illegal use of drugs.
(5) 
Authority of employers. An employer may:
(a) 
Prohibit the illegal use of prescription drugs and other illegal drugs and the use of alcohol at the workplace or workplace functions by all employees;
(b) 
Require that employees may not be under the influence of alcohol or be engaging in the illegal use of drugs at the workplace;
(c) 
Require that employees behave in conformance with the requirements established under the Federal Drug-Free Workplace Act of 1988, 41 U.S.C. § 701 et seq.; and
(d) 
Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which that entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee, provided that an employer shall make reasonable accommodation to an alcoholic or drug user who is seeking treatment or has successfully completed treatment.
§ 5.2-6C Commentary
Employer drug testing policies and related policies addressing consequences for positive test results must be consistent with these provisions, providing for "reasonable accommodation" if an employee who has a substance abuse problem is seeking treatment.
D. 
Defenses.
(1) 
General provisions. It is a defense to a charge of discrimination under § 5.2-6 if an alleged application of qualification standards tests or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability is shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation.
(a) 
Qualification standards defined. For the purposes of this section, the term "qualification standards" may include a requirement that an individual does not pose a direct threat to the health or safety of other individuals in the workplace.
(2) 
Disability. This chapter does not prohibit an employer from discharging or refusing to hire an individual with a disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an individual with disability, if the individual, because of the disability, is unable to be at, remain at or go to or from the place where the essential job-related duties of employment are to be performed.
§ 5.2-6 Commentary on details of disability discrimination
Disability discrimination law required much detail because it is important to carefully define "disability" and to account for whether employers can "reasonably accommodate" disabilities in the workplace. Employers cannot be required to accommodate persons with disabilities if to do so would impose undue hardships on the employer. As a result, the definition of disability discrimination in § 5.2-6 is necessarily lengthy.
A. 
Sex defined. For the purpose of this chapter, the word "sex" includes pregnancy and medical conditions which result from pregnancy.
B. 
Pregnant women who are able to work. It shall be unlawful employment discrimination in violation of this chapter, except where based on a bona fide occupational qualification, for an employer to treat a pregnant woman who is able to work in a different manner from other persons who are able to work.
C. 
Pregnant women who are not able to work. It shall also be unlawful employment discrimination in violation of this chapter, except where based on a bona fide occupational qualification, for an employer to treat a pregnant woman who is not able to work because of a disability or illness resulting from pregnancy, or from medical conditions which result from pregnancy, in a different manner from other employees who are not able to work because of other disabilities or illnesses.
D. 
Employer not responsible for additional benefits. Nothing in this subsection may be construed to mean that an employer is required to provide sick leave, a leave of absence, medical benefits or other benefits to a woman because of pregnancy or other medical conditions that result from pregnancy, if the employer does not also provide sick leaves, leaves of absence, medical benefits or other benefits for the employer's other employees and is not otherwise required to provide those leaves or benefits under tribal law or applicable federal law.
It shall be unlawful employment discrimination for any employer to require or permit, as a condition of employment, any employee to retire at or before a specified age or after completion of a specified number of years of service. This section shall not be construed to affect or limit any power or duty relating to pension or retirement plans which the United States government reserves to itself.
A. 
General rule. No employer may discharge, threaten or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment as a reprisal because:
(1) 
Subject to the requirements of Subsection B of this section, the employee, acting in good faith, or a person acting on behalf of the employee, has previously reported in writing to a public body with regulatory authority over the employer, what the employee has reasonable cause to believe is a violation of a law or regulation adopted by the Band, including § 5.2-39;
(2) 
Subject to the requirements of Subsection B of this section, the employee, acting in good faith, or a person acting on behalf of the employee, has previously reported in writing to a public body with regulatory authority over the employer, what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual. The protection from discrimination provided in this section specifically includes school personnel who report safety concerns to school officials with regard to a violent or disruptive student;
(3) 
The employee is requested to participate, or does participate, in an investigation, hearing or inquiry held by a public body, or in a court action; or
(4) 
The employee, acting in good faith, has previously refused to carry out a directive given to the employee by person in a supervisory position and:
(a) 
The employee informed the supervisor giving the directive that the directive would result in a violation of law or regulation; or
(b) 
The employee believes would expose the employee or any individual to a condition that would result in serious injury or death, after having sought and been unable to obtain a correction of the dangerous condition from the employer.
§ 5.2-9A Commentary of prohibited conduct
This section is specifically intended to require more specific proof of unlawful discrimination beyond that required under § 5.2-11, by requiring an employee seeking protection under this section to demonstrate that there is a nexus between a protected disclosure and the employer's discriminatory employment action. This standard requires the employee to establish that the adverse employment action was the result of an improper or retaliatory motive on the part of the employer arising out of the employee's protected disclosure.
§ 5.2-9A(4) Commentary
This section is specifically intended to protect employees who refuse to carry out directives that the employee reasonably, and in good faith, believes will cause him/her or the employer to violate applicable laws, including limitations on the employee's license or ethical rules governing the employee. For purposes of this section, a "supervisory" person can include an individual with actual or perceived authority to direct the actions of the employee (even if such persons do not, in fact, have that authority), such as an individual member of the Tribal Council or member of a board or commission.
B. 
Initial report to employer required; exception. Subsection A of this section does not apply to an employee who has reported or caused to be reported a violation, or unsafe condition or practice to a public body, unless the employee has first brought the alleged violation, condition or practice to the attention of a person having supervisory authority with the employer and has allowed the employer a reasonable opportunity to correct that violation, condition or practice. The initial report submitted by the employee must be in writing and the employer is responsible for maintaining a record of all reports alleging violations or unsafe practices or conditions.
A. 
No employer shall discharge or otherwise discriminate against any employee or applicant because of any action taken by such employee or applicant to exercise his/her rights under this chapter or because they provided assistance in the enforcement of this chapter.
B. 
Such action or assistance includes, but is not limited to, filing a complaint, stating an intent to file a complaint, supporting employees who are involved in the complaint process, cooperating with persons investigating alleged violations of this chapter, and educating others concerning the coverage or application of this chapter.
Unlawful employment discrimination exists if a complainant shows that his or her race, color, sex, disability, religion, age, familial status, sexual orientation, ancestry or national origin, even if not the sole factor, was nonetheless a substantial factor motivating the employer's action. If the complainant demonstrates that he/she would not have been rejected, discharged or otherwise treated differently, but for membership in the protected class, the existence of other reasonable grounds for the employer's action does not relieve the employer from liability.
A. 
Native American preference. Nothing in this chapter shall be construed to prohibit any action to provide employment preferences to citizens of the Band, spouses/parents of Band citizens, or other Native Americans pursuant to Indian Preference in Employment Code[1] or any employment policy or action that is permitted under 42 U.S.C. § 2000e-2(i).
[1]
Editor's Note: See Ch. 5.1, Indian Preference in Employment.
B. 
Age. It shall not be unlawful employment discrimination to discriminate on account of age to:
(1) 
Comply with any tribal law relating to the employment of minors;
(2) 
Observe the terms of any bona fide employee benefit plan such as a retirement, pension or insurance plan that does not evade or circumvent the purposes of this chapter.
C. 
Infectious and communicable diseases. Assignment of individuals with an infectious or communicable disease is governed by the following:
(1) 
In any case in which an individual has an infectious or communicable disease, which is transmitted to others through the handling of food and is included on the list developed by the United States Secretary of Health and Human Services under the Federal Americans with Disabilities Act, Title I, Section 103(D)(1), an employer may refuse to assign or continue to assign the individual a job involving food handling, unless the risk of disease transmission can be eliminated by reasonable accommodation.
(2) 
Nothing in this chapter may be construed to preempt, modify or amend any tribal law applicable to food handling that is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissibility published by the United States Secretary of Health and Human Services.