EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Nondiscrimination Exemptions - Indian Preference - Indian Employment Tax Credit

August 19, 2008

[ADDRESS]

Dear____,

This letter is in response to your letter dated July 23, 2008. You request the Equal Employment Opportunity Commission's (EEOC or Commission) "authorization to include screening questions" about Indian tribal membership during the job application process when an employer plans to claim the Indian Employment Credit. We cannot provide "authorization" or an official opinion of the EEOC on this matter, but we hope the following discussion is informative.

The Indian Employment Tax Credit (IEC) provides employers with a tax credit for a portion of the wages paid to a Native American employee (a) who is an enrolled member of an Indian tribe or the spouse of an enrolled member of an Indian tribe; (b) who substantially performs all services within an Indian reservation; and (c) whose principal place of abode is on or near the reservation where the services are performed. 26 U.S.C. § 45A(c).¹

In your letter, you observed that there are similarities between the IEC and the Work Opportunity Tax Credit (WOTC), two programs intended to increase employment for their targeted group(s). Although they are similar programs with similar goals, they are not the same with respect to their ramifications under the laws enforced by the EEOC. The WOTC raises ADA issues concerning pre-employment disability-related inquiries, which have been addressed in previous EEOC informal opinion letters. See https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-102. In contrast, the IEC only concerns Title VII of the Civil Rights Act of 1964, as amended.

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), prohibits employment discrimination on the bases of race, color, sex, religion, and national origin. Title VII does not, however, prohibit pre-employment inquiries that directly or indirectly disclose an applicant's race, color, religion, sex, or national origin. Nevertheless, an employer may be more vulnerable to allegations of employment discrimination if it possesses such information pre-offer and then excludes an individual from employment.

Title VII provides a special exemption from its basic nondiscrimination requirements, however, for businesses on or near Indian reservations. Specifically, section 703(i) allows certain employers under certain circumstances to exercise an employment preference in favor of American Indians. Section 703(i) provides as follows:

Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

42 U.S.C. § 2000e-2(i).

An employer seeking to avail itself of the protection of this provision must meet three conditions: (1) the employer must be located on or near an Indian reservation, (2) the employer's preference for Indians must be publicly announced, and (3) the individual to whom preferential treatment is accorded must be an Indian living on or near a reservation. See EEOC Policy Statement on Indian Preference Under Title VII, available at, http://www.eeoc.gov/policy/docs/indian_preference.html. Accordingly, if an employer meets these three conditions, it may inquire about applicants' status as American Indians during the application process without making itself vulnerable to allegations of employment discrimination, and then give a preference to qualified American Indians for employment without concern about violating Title VII.

We hope that this information is helpful to you. If you have any questions or would like to discuss this or any related matter in more detail, you may reach me at 202-____.

Sincerely,

/s/
Carol R. Miaskoff
Assistant Legal Counsel

Footnotes

¹ Our research identified a statement on the IRS website announcing that the IEC expired on December 31, 2007. www.irs.gov/govt/tribes/article/0,,id=181633,00.html

This page was last modified on October 30, 2008.

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