No claim or action shall be brought in the Tribal Court alleging
a violation of the rights under this chapter until such administrative
remedies, including the employer's internal grievance procedures,
as are available are exhausted.
A.
Within the time limit prescribed in § 5.2-15, a person who has been subject to unlawful employment discrimination prohibited by this chapter may, after exhausting his/her administrative remedies, file a civil action in the Tribal Court against the employer or other persons who committed the unlawful discrimination.
B.
The Tribal Court shall have exclusive jurisdiction over any action
arising under this chapter.
C.
The action shall be commenced by the filing of a complaint describing
the facts constituting unlawful discrimination. The party filing the
complaint shall briefly describe any administrative remedies available
to the party prior to filing of the complaint and the party filing
shall attach a copy of the final decision from any administrative
review to the complaint.
D.
The Tribal Court may prescribe the form to be used for filing a complaint
alleging unlawful discrimination.
Any complaints alleging unlawful discrimination must be filed
with the Tribal Court not more than the later of:
In any action filed under this chapter, the Tribal Court may
grant the remedies set forth herein.
A.
Equitable remedies. If the Court finds that unlawful discrimination
occurred, its judgment, decision or order must specify an appropriate
remedy or remedies for that discrimination. The remedies may include,
but are not limited to:
B.
Monetary damages. In addition to the equitable remedies described in Subsection A of this section, if the Court finds that unlawful discrimination occurred, the Court's judgment, decision or order may also include an award for back pay for any victim of unlawful employment discrimination the Court has ordered to be employed or reinstated, or reasonable front pay [not to exceed a total recovery of twelve (12) month's pay] if employment or reinstatement is not in the best interests of the parties. The Tribal Council, acting in its official capacity, shall never be personally liable for any monetary damages.
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§ 5.2-16 Commentary
The standards for allowing damages in employment discrimination cases require public policy decisions. There is controversy in the federal courts about what damages should be allowed, depending upon the nature of the discriminatory action. There is universal agreement that plaintiffs should recover damages (as described in § 5.12-16B) if they are victims of intentional employment discrimination based on sex, race, color, national origin, religion, or disability. There is much debate about the standards of proof for establishing such intentional discrimination. For instance, if the protected trait (e.g., sex, race, color, national origin) was just one factor, but not the "determining" factor in an adverse employment decision, then it can be argued that full damages should not be provided to the employee. Under § 5.2-19, decisions from the Supreme Court and the local Federal Appellate Court will provide guidance for resolving these issues unless the Tribal Council takes them on and makes them clear in this chapter.
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In any civil action under this chapter, the Court, in its discretion,
may allow the prevailing party reasonable attorneys' fees and
costs.
Decisions of the United States Supreme Court and the Court of
Appeals for the Sixth Circuit and the regulations and guidelines of
the United States Equal Employment Opportunity Commission shall be
persuasive authority in guiding the construction of the provisions
of this chapter to the extent that they are similar to federal enactments
addressing employment discrimination.
