ORDINANCE
No. 03-01
EMPLOYMENT
NON-DISCRIMINATION ORDINANCE OF THE BLUE LAKE RANCHERIA
Ordinance No. 03-01
Date Approved: January 15, 2003
Subject(s): Gaming, Employment
Title 1: Definitions
Throughout
this Ordinance, the following words and phrases shall have the following
meanings:
"Auxiliary
aids and services" includes qualified interpreters or other effective
methods of making aurally delivered materials available to individuals
with hearing impairments; qualified readers, taped texts, or other effective
methods of making visually delivered materials available to individuals
with vision impairments; acquisition or modification of equipment or
devices; and other similar services and actions.
"Disability"
means, with respect to an individual, a physical or mental impairment
that substantially limits one or more of the major life activities of
such individual; a record of such impairment; or being regarded as having
such an impairment.
"Drug"
means a controlled substance, as defined in schedules I through V of
section 202 of the Controlled Substances Act, 21 U.S.C. § 812.
"Employee
benefit plan" shall mean employee benefit plan as that phrase is defined
in 29 U.S.C. § 1002(2).
"Employer"
or "the gaming facility" means any gaming facility or gaming operation,
as those terms are defined in Sections 2.8 and 2.9 of the Tribal-State
Gaming Compact, which is wholly owned by the Blue Lake Rancheria, provided
that it has twenty or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year.
"Illegal
use of drugs" means the use of drugs, the possession or distribution
of which is unlawful under the Controlled Substances Act (21 U.S.C.
§ 801 et seq.). Such term does not include the use of a drug
taken under supervision by a licensed health care professional or
other uses authorized by the Controlled Substances Act or other provisions
of Federal law. "Qualified individual with a disability" means an individual
with a disability who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such
individual holds or desires, with consideration for the employer's judgment
as to what functions of a job are essential. The employer's and any
amendments thereto shall be considered evidence of the essential functions
of the job.
"Reasonable
accommodation" may include making existing facilities used by employees
readily accessible to and usable by individuals with disabilities; and
job restructuring, part-time or modified work schedules, reassignment
to a vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training materials
or policies, the provision of auxiliary aids and services, and other
similar accommodations for individuals with disabilities.
"Tribe"
means the Blue Lake Rancheria, a federally recognized Tribe.
"Undue
hardship" means an action requiring significant difficulty or expense,
when considered in light of the nature and cost of the accommodation
needed under this Ordinance, the overall financial resources of the
department within the Casino involved in the provision of the reasonable
accommodation and the impact on the department resulting from such accommodation.
Title 2: Unlawful Employment Discrimination
Section
201: Discrimination Prohibited
(a) It
shall be an unlawful employment practice for the gaming facility,
because of the race, religious creed, color, national origin, physical
disability, mental disability, or sex of any person, to refuse to
hire or employ the person or to refuse to select the person for a
training program leading to employment, or to bar or to discharge
the person from employment or from a training program leading to employment,
or to discriminate against the person in compensation or in terms,
conditions, or privileges of employment unless based upon a bona fide
occupational qualification.
(b) This
part does not prohibit the gaming facility from refusing to hire or
discharging an employee with a physical or mental disability, or because
of his or her medical condition, or subject the gaming facility to
any legal liability resulting from the refusal to employ or the discharge
of an employee with a physical or mental disability or medical condition,
where the employee, because of his or her physical or mental disability
or medical condition, is unable to perform his or her essential duties
even with reasonable accommodations or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others even with reasonable accommodations.
(c) It
shall be unlawful for the gaming facility, unless specifically acting
in accordance with federal equal employment opportunity guidelines
and regulations approved by an applicable federal agency with authority
to do so, to print or circulate or cause to be printed or circulated
any publication, or to make any non-job-related inquiry of an employee
or applicant, either verbal or through use of an application form,
that expresses, directly or indirectly, any limitation, specification,
or discrimination as to race, religious creed, color, national origin,
physical disability, mental disability, sex, or any intent to make
any such limitation, specification or discrimination.
Section 202: Indian Preference
Indian
preference in employment constitutes a permitted preference system based
upon the political affiliations of Native Americans, and thus is completely
exempted from the prohibitions of this Title. In December 2002, the
Blue Lake Rancheria adopted an Indian Preference Ordinance, which has
been codified in Title 26 of the Tribe's Law & Order Code. That
Ordinance, and any amendment(s) thereto, is incorporated herein by reference.
Section 203: Gender-based clothing requirements
(a) The
gaming facility shall not refuse to permit an employee to wear pants
on account of the employee's gender.
(b) Nothing
in this section shall prohibit the gaming facility from requiring
employees in a particular occupation to wear a uniform or from requiring
an employee to wear a costume while that employee is portraying a
specific character or dramatic role.
Section 204: Sexual harassment
Sexual
harassment is a form of discrimination, and is unlawful under this Ordinance.
In August, 2002, the Tribe's gaming facility adopted an anti-harassment
policy as part of its employment Policies and Procedures. That Anti-Harassment
Policy, and any amendment(s) thereto, is incorporated herein by reference.
Title 3: Prohibition of Age Discrimination
Section
301: Unlawful Employer Practices
It shall
be unlawful for the gaming facility:
(a) to
fail or refuse to hire, or to discharge any individual or otherwise
discriminate against any individual with respect to his or her compensation,
terms, conditions or privileges of employment, because of such individual's
age;
(b) to
limit, segregate or classify any employee in any way which would deprive
or tend to deprive any individual of employment opportunities or otherwise
adversely affect his or her status as an employee, because of such
individual's age;
(c) to
reduce the wage rate of any employee in order to comply with this
Ordinance; or
(d) to
use salary as a basis for differentiating between employees when terminating
employment if use of that criterion adversely impacts older workers
as a group.
Section 302: Lawful Practices
It shall
be lawful for the gaming facility:
(a) to
take any action otherwise prohibited under Section 301 of this Ordinance
where age is a bona fide occupational qualification reasonably necessary
to the normal operation of the particular business, or where the differentiation
is based on reasonable factors other than age;
(b) to
take any action otherwise prohibited under Section 301 of this Ordinance:
(1)
in order to promote legitimate performance-based business needs
that are not intended to evade the purposes of this Ordinance, except
that such needs shall not require or permit the involuntary retirement
of any individual because of the age of such individual; or
(2)
in order to observe the terms of a bona fide employee benefit plan
where, for each benefit or benefit package, the actual amount of
payment made or cost incurred on behalf of an older worker is no
less than that made or incurred on behalf of a younger worker, as
permissible under federal law, or that is a voluntary early retirement
incentive plan consistent with the relevant purpose or purposes
of this Ordinance.
(c) to
discharge or otherwise discipline an individual for good cause or
other legitimate business need.
Section 303: Exceptions
Notwithstanding
Section 301 (b)(2) of this Ordinance, when the following circumstances
are present, they shall not constitute violations of this Ordinance:
(a) an
employee pension benefit plan provides for the attainment of a minimum
age as a condition of eligibility for normal or early retirement benefits;
or
(b) a
defined benefit plan provides for payments that constitute the subsidized
portion of an early retirement benefit; or social security supplements
for plan participants that commence before the age and terminate at
the age (specified by the plan) when participants are eligible to
receive reduced or unreduced old-age insurance benefits under title
II of the Social Security Act (42 U.S.C. et seq.) or other
federal law, and that do not exceed such old-age insurance benefits;
or
(c) following
a contingent event unrelated to age, the value of any retiree health
benefits received by an individual eligible for an immediate pension;
or the value of any additional pension benefits that are made available
solely as a result of the contingent event unrelated to age and following
which the individual is eligible for not less than an immediate and
unreduced pension, or both, are deducted from severance pay made available
as a result of the contingent event unrelated to age; or
(d) for
an individual who receives immediate pension benefits that are actuarially
reduced under paragraph (c), above, the amount of the deduction available
pursuant to paragraph (c) shall be reduced by the same percentage
as the reduction in the pension benefits. For the purposes of this
paragraph, severance pay includes that portion of supplemental unemployment
compensation benefits that constitutes additional benefits of up to
52 weeks, has the primary purpose and effect of continuing benefits
until an individual becomes eligible for an immediate and unreduced
pension; and is discontinued once the individual becomes eligible
for an immediate and unreduced pension.
Section 304: Age limits
(a) The
prohibitions in this Title shall be limited to individuals who are
at least forty (40) years of age.
(b) Nothing
in this Ordinance shall be construed to prohibit compulsory retirement
of any employee who has attained sixty-five (65) years of age and
who, for the 2-year period immediately before retirement, is employed
in a bona fide executive or high policy making position, if such employee
is entitled to an immediate non-forfeitable annual retirement benefit
from a pension, savings or deferred compensation plan, or any combination
of such plans, of the employer of such employee, which equals, that
amount as required by applicable federal law.
Section 305: Continuation of employment beyond usual retirement date
The gaming
facility shall permit any employee who indicates in writing a desire
in a reasonable time and can demonstrate the ability to do so, to continue
his or her employment beyond any retirement date contained in any private
pension or retirement plan. This employment shall continue so long as
the employee demonstrates his or her ability to perform the functions
of the job adequately and the employer is satisfied with the quality
and volume of work performed.
Title 4: Equal Opportunity for Individuals with Disabilities
Section
401: Discrimination
(a) The
gaming facility shall not discriminate against a qualified individual
with a disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.
(b) As
used in this section, the term "discriminate" includes:
(1)
limiting, segregating, or classifying a job applicant or employee
in a way that adversely affects the opportunities or status of such
applicant or employee because of the disability of such applicant
or employee;
(2)
participating in a contractual or other arrangement or relationship
that has the effect of subjecting the gaming facility's qualified
applicant or employee with a disability to the discrimination prohibited
under this Ordinance (such relationship includes a relationship
with an employment or referral agency, labor union, an organization
providing fringe benefits to employees, or an organization providing
training and apprenticeship programs);
(3)
utilizing standards, criteria, or methods of administration that
have the effect of discrimination on the basis of disability or
that perpetuate the discrimination of others who are subject to
common administrative control;
(4)
excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or
association;
(5)
not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless the gaming facility can
demonstrate that the accommodation would impose an undue hardship
on the operation of the business of the gaming facility;
(6)
denying employment opportunities to a job applicant or employee
who is an otherwise qualified individual with a disability, if such
denial is based on the need of the gaming facility to make reasonable
accommodation to the physical or mental impairment(s) of the employee
or applicant.
(7)
using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with
a disability or a class of individuals with disabilities unless
the standard, test or other selection criteria is shown to be job-related
for the position in question and is consistent with business necessity;
and
(8)
failing to select and administer tests concerning employment in
the most effective manner to ensure that, when such test is administered
to a job applicant or employee who has a disability that impairs
sensory, manual, or speaking skills, such test results accurately
reflect the skills, aptitude, or whatever other factor of such applicant
or employee that such test purports to measure, rather than reflecting
the impaired sensory, manual, or speaking skills of such employee
or applicant (except where such skills are the factors that the
test purports to measure).
(c) It
is a defense to a charge of discrimination under this Title that an
alleged application of qualification standards, tests, or selection
criteria that screen out or tend to screen out or otherwise deny a
job or benefit to an individual with a disability has been shown to
be job related and consistent with business necessity, and such performance
cannot be accomplished by reasonable accommodation, as required under
this Title.
(d) Qualification
standards may include a requirement that an individual not pose a
direct threat to the health or safety of other individuals in the
workplace.
Section 402: Medical examinations and inquiries
(a) The
prohibition against discrimination as referred to in Section 401 shall
include medical examinations and inquiries. The gaming facility shall
not conduct a medical examination or make inquiries of a job applicant
as to whether such applicant is an individual with a disability or
as to the nature or severity of such disability. However, the gaming
facility may make pre-employment inquiries into the ability of an
applicant to perform job-related functions.
(b) The
gaming facility may require a medical examination after an offer of
employment has been made to a job applicant and prior to the commencement
of the employment duties of such applicant, and may condition an offer
of employment on the results of such examination if all entering employees
are subjected to such an examination regardless of disability; provided
that all information regarding the medical condition or history of
the applicant is collected and maintained on separate forms and in
separate medical files and is treated as a confidential medical record,
except that:
(1)
supervisors and managers may be informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations;
(2)
first aid and safety personnel may be informed, when appropriate,
if the disability might require emergency treatment; and
(3)
tribal officials investigating compliance with this Ordinance shall
be provided relevant information on request; and
(4)
the results of such examination are used only in accordance with
this Title.
Section 403: Prohibited and acceptable examinations and inquiries
(a) The
gaming facility shall not require a medical examination and shall
not make inquiries of an employee as to whether such an employee is
an individual with a disability or as to the nature or severity of
the disability, unless such examination or inquiry is shown to be
job-related and consistent with business necessity.
(b) The
gaming facility may conduct voluntary medical examinations, including
voluntary medical histories, which are part of an employee health
program available to employees at that work site and may make inquiries
into the ability of an employee or prospective employee to perform
job-related functions. Information obtained under such an inquiry
regarding the medical condition or history of any employee are subject
to the requirements of Section 402.
Section 404: Illegal use of drugs and alcohol
(a) The
term "qualified individual with a disability" shall not include any
employee or applicant who is currently engaging in the illegal use
of drugs, when the employer acts on the basis of such use. However,
nothing in this section shall be construed to exclude as a qualified
individual with a disability an individual who:
(1)
has successfully completed a supervised drug rehabilitation program
and is no longer engaging in the illegal use of drugs, or has otherwise
been rehabilitated successfully and is no longer engaging in such
use;
(2)
is participating in a supervised rehabilitation program and is no
longer engaging in such use or
(3)
is erroneously regarded as engaging in such use, but is not engaging
in such use.
(b) Notwithstanding
the above, it shall not be a violation of this Title for the gaming
facility to adopt or administer reasonable policies or procedures,
including but not limited to drug testing, designed to ensure that
an individual described in paragraph (a), subdivisions (1) or (2)
is no longer engaging in the illegal use of drugs.
(c) The
gaming facility may:
(1)
prohibit the illegal use of drugs and the use of alcohol at the
workplace by all employees;
(2)
require that employees shall not be under the influence of alcohol
or be engaging in the illegal use of drugs at the workplace;
(3)
require that employees behave in conformance with the requirements
of the federal Drug-Free Workplace Act of 1988 (41 U.S.C. §
701 et seq.);
(4)
hold an employee who engages in the illegal use of drugs or who
is an alcoholic to the same qualification standards for employment
or job performance and behavior that it holds other employees, even
if any unsatisfactory performance or behavior is related to the
drug use or alcoholism of such employee.
(d) For
the purposes of this Title, a test to determine the illegal use of
drugs shall not be considered a medical examination. Nothing in this
Title shall be construed to encourage, prohibit, restrict or authorize
the conducting of drug testing for the illegal use of drugs by job
applicants or employees or making employment decisions based on such
test results.
Section 405: Prohibition against retaliation and coercion.
(a) The
gaming facility shall not discriminate against any individual because
such individual has opposed any act or practice made unlawful by this
ordinance or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this Title.
(b) It
shall be unlawful to coerce, intimidate, threaten, or interfere with
any individual in the exercise or enjoyment of; or on account of his
or her having exercised or enjoyed, or, on account of his or her having
aided or encouraged any other individual in the exercise or enjoyment
of, any right granted or protected by this Ordinance.
Section 406: Limitations
(a) [Reserved]
(b) Under
this Ordinance, the term "disability" shall not include: homosexuality
and bisexuality (which are not "impairments"); temporary or transient
impairments such as sprained or broken limbs; transvestitism, transsexualism,
or gender identity disorders not resulting from physical impairments;
pedophilia, exhibitionism, voyeurism or other sexual behavior disorders;
compulsive gambling, kleptomania, pyromania or psychoactive substance
use disorders resulting from current illegal use of drugs.
Section 407: Pregnancy
(a) The
gaming facility shall not, unless based upon a bona fide occupational
qualification, because of the pregnancy, childbirth, or related medical
condition of any female employee, refuse to promote her, or to refuse
to select her for a training program leading to promotion, provided
she is able to complete the training program at least three, months
prior to the anticipated date of departure for her pregnancy leave,
or to discharge her from employment or from a training program leading
to promotion, or to discriminate against her in compensation or in
terms, conditions or privileges of employment.
(b) The
gaming facility shall not refuse to allow a female employee affected
by pregnancy, childbirth or related medical conditions either:
(1)
To receive the same benefits or privileges of employment granted
to other persons not so affected who are similar in their ability
or inability to work, including to take disability or sick leave
or any other accrued leave that is made available to temporarily
disabled employees. For purposes of this section, pregnancy, childbirth
and related medical conditions are treated as any other temporary
disability. However, the gaming facility shall not be required to
provide a female employee disability leave on account of normal
pregnancy, childbirth, or related medical condition for a period
exceeding twenty (20) working days. The gaming facility is not required
to provide employees with health insurance coverage for the medical
costs of pregnancy, childbirth or related medical conditions. The
inclusion in any health insurance coverage of any provisions or
coverage relating to medical costs of pregnancy, childbirth, or
related medical conditions shall not be construed to require the
inclusion of any other provisions or coverage, nor shall coverage
of any related medical conditions be required by virtue of coverage
of any medical costs of pregnancy, childbirth, or other related
medical conditions.
(2)
To take a leave on account of pregnancy for a reasonable period
of time not to exceed four months. The employee shall be entitled
to utilize any accrued vacation leave during this period of time.
Reasonable period of time means that period during which the female
employee is disabled on account of pregnancy, childbirth, or related
medical conditions. This paragraph shall not be construed to limit
the provisions of paragraph (1) of subdivision (b). The gaming facility
may require any employee who plans to take a leave pursuant to this
provision to give reasonable notice of the date the leave shall
commence and the estimated duration of the leave.
(c) The
gaming facility shall provide reasonable accommodation for an employee
for conditions related to pregnancy, childbirth, or related medical
conditions, if she so requests, with the advice of her health care
provider.
(d) If
the gaming facility has or enters into a collective bargaining agreement
requiring or authorizing the transfer of temporarily disabled employees
to less strenuous or hazardous positions for the duration of the disability,
pregnant employees shall be eligible for such transfers upon the employee's
request.
(e) The
gaming facility shall not refuse to temporarily transfer a pregnant
employee to a less strenuous or hazardous position for the duration
of her pregnancy if she so requests, with the advice of her physician,
where that transfer can be reasonably accommodated. However, the gaining
facility is not required by this section to create additional employment
that it would not otherwise have created, nor to discharge any employee,
transfer any employee with more seniority, or promote any employee
who is not qualified to perform the job.
Title 5: Enforcement
Section
501: Tribe is Sole Governmental Power Empowered to Enforce this Ordinance
(a) Nothing
in this ordinance is intended to, nor shall anything in this ordinance
in any way be construed to waive any aspect of the tribe's sovereign
immunity.
(b) The
tribe, as a sovereign nation on whose territory and under whose authority
the gaming facility exists and operates, is the sole unit of government
empowered to enforce this ordinance. Enforcement of this ordinance
shall be possible solely by means of the enforcement mechanisms contained
in this Title.
(c) The
gaming facility shall act to ensure a workplace free 6f unlawful discrimination
and sexual harassment by distributing to all of its employees an information
sheet containing, at a minimum, components on the following:
(1)
the illegality of types of discrimination barred under this Ordinance;
(2)
the illegality of sexual harassment;
(3)
the internal complaint process of the gaming facility available
to the employee; and
(4)
the legal remedies and complaint process available through the tribe.
(d) Tribal
justice system
The Tribe's
gaming facility has adopted and implemented a comprehensive grievance
policy to address and resolve employment-related disputes as part of
its Employee Handbook. That grievance policy, and any amendment(s) thereto,
is incorporated herein by reference.
Certification
| As
the Chairperson of the Business Council for the Blue Lake Rancheria,
I hereby certify that the Business Council adopted this Ordinance
at a duly called meeting at which a quorum was present by a vote
of 5 for, with 0 against, with 0 abstaining,
with 0 absent, on this 15th day of January, 2003. |
_______________/s/________________
Claudia Brundin, Chairperson |
__1/15/03____
Date |
|
_______________/s/________________
Melanie Shelanskey, Tribal Secretary
|
__1/15/03____
Date of Approval |
Back
to Top