Ordinances of the Elk Valley Rancheria, California
Last amended: 2002
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.
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:
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.
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:
Dale A. Miller, Chairman
Donna Townsend, Secretary
Ordinances of the Elk Valley Rancheria, California