An employer wishes to take advantage of the Indian Employment Tax Credit (IEC), which provides employers a tax credit for part of the wages paid to Native American employees who are, or whose spouses are, enrolled members of an Indian tribe and who substantially perform all services within an Indian reservation that they live on or near. May the employer inquire into applicants’ Indian tribal membership during the job application process and give preference to applicants based on their Native American national origin?
Under certain circumstances, employers can. While Title VII prohibits employment discrimination based on race, color, sex, religion and national origin, the statute does not prohibit pre-employment inquiries that directly or indirectly disclose the race, color, religion, sex or national origin of an applicant. Nonetheless, an employer that possesses such information pre-offer and then excludes an individual from employment may be more vulnerable to employment discrimination allegations.
There is a special exemption from Title VII's basic nondiscrimination requirements for businesses on or near Indian reservations. The exemption permits employers, under certain circumstances, to use an employment preference in favor of American Indians. To exercise the protections of this exemption, an employer must meet three conditions:
- the employer must be located on or near an Indian reservation;
- the employer's preference for Indians must be publicly announced; and
- the individual to whom preferential treatment is accorded must be an Indian living on or near a reservation.
Thus, an employer that meets these three conditions may inquire about applicants' status as American Indians during the application process and give a preference to qualified American Indians for employment without running afoul of Title VII.
Source: EEOC Informal Discussion Letter, dated August 19, 2008, released on October 30, 2008