Elk
Valley Rancheria Ordinance No. 01-02
AN ORDINANCE OF THE TRIBAL COUNCIL OF THE ELK VALLEY RANCHERIA ESTABLISHING
EMPLOYMENT RIGHTS STANDARDS FOR THE TRIBE'S GAMING FACILITY.
[Title
17], Chapter 4 - Tribal Gaming Facility Employment Rights Ordinance
The Tribal Council of the Elk Valley Rancheria ("Tribe") hereby ordains
as follows:
Section 1. Findings and Declarations. The Tribal Council
("Council") for the Tribe finds and declares that:
1. The
Tribe is a federally recognized Indian Tribe organized under the provisions
of the Indian Reorganization Act, 25 U.S.C. §476, with a written
Constitution establishing the Tribal Council as the governing body
of the Tribe.
2. Pursuant
to Article V, Section 1, of the Tribe's Constitution, the Council
is vested with the authority to enact ordinances for the purposes
of promoting the health and general welfare of the members of the
Tribe and managing all economic enterprises of the Tribe.
3. The
Tribe is the owner and operator of the Elk Valley Casino ("Gaming
Facility") located within the exterior boundaries of the Elk Valley
Rancheria ("Reservation").
4. On
or about September 10, 1999, the Tribe entered into a Tribal-State
Compact ("Compact") with the State of California, which authorizes
the Tribe to conduct Class III gaming on its Reservation Section 10.2(g)
of the Compact requires the Tribe to "Adopt and comply with standards
no less stringent than federal laws and state laws forbidding employers
generally from discriminating in the employment of persons to work
for the Gaming Operation or in the Gaming Facility on the basis of
race, color, religion, national origin, gender, sexual orientation,
age, or disability, provided that nothing herein shall preclude the
tribe from giving a preference in employment to Indians, pursuant
to duly adopted tribal ordinance.
5. The
Council is adopting this Ordinance in order to satisfy the requirements
of §102(g) of its Compact. By enacting and complying with this
Ordinance, the Tribe has established standards "no less stringent
than federal laws and state laws forbidding employers generally from
discriminating in the employment of persons to work for the Gaming
Operation or in the Gaming Facility on the basis of race, color, religion,
national origin, gender, sexual orientation, age, or disability at
the Tribe's Casino on the Reservation.
6. The
adoption of this Ordinance is necessary in order to assure the employees
of the Casino that discrimination in employment will not occur at
the Casino.
Section 2. Adoption of a New Ordinance, Entitled: "Tribal Gaming
Facility Employment Rights Ordinance," A new Chapter
4 of Title 17 of the Tribal Code entitled "Tribal Gaming Facility Employment
Rights Ordinance" is hereby adopted and shall provide as follows:
CHAPTER 4 - TRIBAL GAMING FACILITY EMPLOYMENT RIGHTS
ORDINANCE
Sections:
17.04.010
Employer Practices
17.04.020 Labor Organization Practices
17.04.030 Training Programs
17.04.040 Seniority or Merit System; Quantity or Quality of production;
Ability Tests; Compensation Based on Sex and Authorized by Minimum
Wage Provisions
17.04.050 Prohibition of Discriminatory Use of Test Scores
17.04.060 Impermissible Consideration of Race, Color, Religion, Gender,
National Origin, Sexual Orientation, Age, Disability, or Medical Condition
17.04.070 Discrimination for Making Charges, Testing, Assisting, or
Participating in Enforcement Proceedings
17.04.080 Extension of Preferential Treatment to Indians
17.04.090 Procedure for Filing of Complaint; Enforcement
17.04.100 Appeal of TERO Decision
17.04.110 Regulations Implementing Ordinance
17.04.010 Employer Practices. It shall be an unlawful
employment practice for any person employed by the Tribe at the Tribal
Gaming Facility ("Employer"):
1. To
fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his/her compensation,
terms, conditions, or privileges of employment because of such individuals'
race, color, religion, gender, national origin, sexual orientation,
age, disability or medical condition; or
2. To
limit, segregate, or classify employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his/her status
as an employee, because of such individual's race, color, religion,
gender, national origin, sexual orientation, age, disability or medical
condition.
3. To
cause or attempt to cause an employer to discriminate against an individual
in violation of this section.
17.04.030 Training Programs. It shall be an unlawful employment
practice for the Employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or retraining
programs, including on-the-job training programs, to discriminate against
any individual because of his/her race, color, religion, gender, national
origin, sexual orientation, age, disability or medical condition in
admission to, or employment in, any program established to provide apprenticeship
or other training.
17.04.040 Seniority or Merit System; Quantity or Quality of Production;
Ability Tests; Compensation Based on Sex and Authorized by Minimum Wage
Provisions. Notwithstanding any other provision of this Ordinance,
it shall not be an unlawful employment practice for the Employer to
apply different standards of compensation, or different terms, conditions,
or privileges of employment pursuant to a bona fide seniority or merit
system, or a system which measures earnings by quantity or quality of
production or to employees who work in different locations, provided
that such differences are not the result of an intention to discriminate
because of race, color, religion, gender, national origin, sexual orientation,
age, disability or medical condition, nor shall it be an unlawful employment
practice under this Ordinance for the Employer to differentiate upon
the basis of sex in determining the amount of wages or compensation
paid or to be paid to employees of the Employer if such differentiation
is authorized by the provisions of section 206(d) of Title 29 of the
United States Code.
17.04.050 Prohibition of Discriminatory Use of Test Scores.
It shall be an unlawful employment practice for the Employer, in connection
with the selection or referral of applicants or candidates for employment
or promotion, to adjust the scores or use different cutoff scores for,
other otherwise alter the results of; employment related tests on the
basis of race, color, religion, sex, national origin, disability or
medical condition.
17.04.060 Impermissible Consideration of Race, Color, Religion,
Gender, National Origin, Sexual Orientation, Age, Disability or Medical
Condition. Except as otherwise provided for in this Ordinance,
an unlawful employment practice is established when the complaining
party demonstrates that race, color religion, gender, national origin,
sexual orientation, age, disability or medical condition was a motivating
factor for any employment practice, even though other factors also motivated
the practice.
17.04.070 Discrimination for Making Charges, Testifying, Assisting,
or Participating in Enforcement Proceedings. It shall be an
unlawful employment practice for the Employer to discriminate against
any of his/her employees or applicants for employment, for a joint labor
management committee controlling apprenticeship or other training or
retraining, including on-the-job training programs, to discriminate
against any individual, or for a labor organization to discriminate
against any member thereof or applicant for membership, because he or
she has opposed any practice made an unlawful employment practice by
this Ordinance, or because he or she has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding or hearing
under this Ordinance
17.04.080 Extension of Preferential Treatment to Indians.
Nothing contained in this Ordinance shall apply to the Employer with
respect to any publicly announced employment practice under which preferential
treatment is given to any individual because he or she is an Indian
as defined in any Tribal Employment Relations Ordinance adopted by the
Tribal Council.
17.04.090 Procedure for Filing of Complaint; Enforcement.
Any person who believes that he/she has been the victim of an unlawful
employment practice under this Ordinance ("Complaint") may file a complaint
with the Tribe's Tribal Gaming Commission ("TGC").
1. The
TGC shall have 90 days from the filing of the Complaint in which to
investigate the allegations of the Complaint. All investigations must
be concluded within 90 days.
2. If,
at the conclusion of the investigation, the TGC determines that this
Ordinance has been violated, the TGC shall issue a Notice of Violation
to the Employer, informing the Employer that the violation has occurred.
3. The
TGC, the Complainant, and a representative of the Employer shall,
within 30 days of the issuance of the Notice of Violation, meet and
attempt to reach an informal settlement of the issues related to the
violation.
4. Where
the TGC determines, based upon substantial evidence that a violation
of this Ordinance has occurred, and no informal settlement of the
issues related to the violation is reached, it may impose one or more
of the following sanctions:
A.
Issue an order instructing the Employer to hire, reinstate, or promote
the Complainant or otherwise carry out the action that should have
occurred had the violation of this Ordinance not occurred;
B.
Issue an order instruction the Employer to pay to the Complainant
any back pay or pay increase that was lost by the Complainant as
a result of the violation of this Ordinance;
C.
Award out of pocket damages actually included by the Complainant
to the Complainant; and
D.
Impose punitive damages in the nature of fine of up to $l,000.00
on the Employer, or the person or persons who committed the act
of discrimination.
17.04.100 Appeal of TGC Decision. Any decision or order issued
by the TGC shall be final unless the Tribal Council has established
a Tribal Court. In the event that a Tribal Court has been established,
then any decision or order issued by the TGC may be appealed to the
Tribal Court by filing a Petition for Review with the Clerk of the Court.
The Tribal Court is hereby granted jurisdiction to consider appeals
of the decisions of the TGC relating to violations of this Ordinance.
A Petition for Review filed with the Tribal Court under this Ordinance
relating to a decision of the TGC shall set forth the grounds for the
Petition and shall be supported by any evidence and argument that the
Petitioner believes supports his or her position.
1. Substantial
Evidence Standard. In evaluating a challenge to any decision of
the TGC, the Tribal Court shall determine whether the TGC decision
is supported by substantial evidence. Where the Court determines that
the TGC's decision was supported by substantial evidence, the decision
shall be upheld. Where the Court determines that the TGC's decision
was not supported by substantial evidence, the decision shall be remanded
to the TGC with appropriate instructions from the Court. In applying
the "substantial evidence standard," the Tribal Court must consider
the evidence that was the basis for the TGC's decision in the light
most favorable to the TGC's decision, giving that decision the benefit
of every reasonable inference and resolving conflicts in support of
the TGC's decision.
2. Abuse
of Discretion Standard. In evaluating a challenge to the sanctions
imposed by the TGC, the Tribal Court shall apply an abuse of discretion
standard. In applying the "abuse of discretion standard," the Tribal
Court shall determine whether reasonable minds could disagree as to
the appropriateness of the punishment imposed: if reasonable minds
may differ as to the propriety of the discipline imposed, the sanctions
imposed may not be regarded as an abuse of discretion.
17.04.110 Regulations Implementing Ordinance. The TGC
shall have the authority to adopt regulations consistent with tribal,
federal, and state law to implement this Ordinance.
Section 3. Severability. If any part or provision
of this Ordinance or the application thereof to any person or circumstance
is held invalid, the remainder of this Ordinance, including the application
of such part or provision to persons or circumstances, shall not be
affected thereby and shall continue in full force and effect. To this
end, the provisions of this Ordinance are severable.
Section 4. Effective Date. This Ordinance shall
become effective on the date that it is adopted by the Tribal Council.
CERTIFICATION
The foregoing
Ordinance was adopted at a duly convened regular meeting of the Elk
Valley Rancheria Tribal Council held on the 21st day of February,
2001 by the following vote:
AYES: 8
NOES: 0
ABSENT: 0
ABSTAIN: 0
/s/
Dale A. Miller, Chairman
ATTEST:
/s/
Donna Townsend, Secretary
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