NATIVE AMERICANS AND NONDISCRIMINATION LAW
The Montana Human Rights Bureau enforces state laws and certain federal employment laws that protect individuals from discrimination. The Bureau investigates complaints of discrimination in employment, public accommodations, housing, financing and credit transactions, education and discrimination by state and local government agencies. If you believe that you were treated differently in one of these covered areas because you are Native American, please contact the Human Rights Bureau to learn more.
Consider keeping written records of the dates and facts of all discrimination or harassment and the names of witnesses
Please note, if the entity you believe discriminated is a tribal entity, your claim may be outside the jurisdiction of the Montana Human Rights Bureau. Tribes in Montana have their own laws, and you should consider looking to the local tribal court for more information. If the matter is related to employment, you might consider contacting a Tribal Employment Rights Ordinance (or Office) (TERO).
Additionally, pursuant to Mont. Code Ann. § 49-2-303(6), Montana’s prohibition against employment discrimination does not apply to a business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of the business or enterprise required by a contract or other agreement under which preferential treatment may be given to an individual based on the individual’s status as an Indian living on or near a reservation. (Said another way, the law allows, but does not require, a hiring preference for Native Americans on or near a reservation.)
The laws enforced by the Bureau protect individuals based on sex, marital status, race, creed, religion, age, disability, color, and/or national origin. In housing, our state laws protect individuals based on familial status (i.e., residing with children in the household) and in governmental services, our state law protects persons based on political belief.
If you are Native American and want to file a complaint, you can do so under the protected class you feel is appropriate to the circumstances. For example, if you believe you were discriminated against because you are Native American a complaint could be based on race, creed, religion, color and/or national origin. Additionally, the Bureau routinely receives complaints from Native Americans that are filing based on an unrelated protected class. For example, if you are Native American and you believe you were discriminated against based on your age, you can file a complaint an age discrimination complaint.
- Ancestry: Discriminating against a Native American because of his or her ancestry can be a form of race discrimination. This includes complaints by a person asserting s/he is being discriminated against by another Native American(s) based on Native American ancestry.
- Affiliation: Discriminating because an individual is affiliated with a tribe or is Native American. For example, harassing an individual because he or she is a tribal member, or paying an employee less because she is Native American (regardless of tribal enrollment).
- Physical or cultural traits and clothing: Discriminating because of physical, cultural, or linguistic characteristics, such as accent or dress. For example, harassing a woman wearing beaded earrings or regalia, or not hiring a man with a dark complexion and an accent believed to be Native American.
- Perception: Discriminating because of the perception or belief that a person is Native American whether or not that perception is correct. For example, failing to hire an Hispanic person because the hiring official believed that he was Native American, or harassing a Native American man because the harasser thought he was Muslim.
- Association: Discriminating because of an individual's association with a tribe or tribal member. For example, harassing an employee whose husband is Native American.
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It is also illegal to harass a person because he or she is Native American.
Harassment can include offensive remarks about a person's spiritual beliefs or practices, skin color, or accent. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Workplace or job segregation because a person is Native American can also be unlawful. For example, if an employer were to assign a Native American employee to a non-customer contact position because of customer preference.
The law requires an employer to reasonably accommodate an employee's religious or spiritual beliefs or practices. This means an employer may be required to make reasonable adjustments to allow an employee to practice his or her spirituality or religion. This applies not only to schedule changes or leave (for example to allow an employee to attend a Pow Wow) but also to such things as dress or grooming practices that an employee maintains for spiritual or religious reasons. These might include wearing jewelry or regalia (such as earrings or bowties) or certain hairstyles (such as long hair or braids).
What is Prohibited?
In Advertising - Montana laws and federal fair housing laws prohibit anyone from printing, or publishing any advertisement or statement that indicates a limitation or preference in the area of housing based on protected classes.
Retaliation - It is illegal for anyone to retaliate against an individual who has filed a housing complaint, or participated in an investigation of a housing complaint.
In the Sale and Rental of Housing - Housing providers may not take any of the following actions based on a person’s Native American status:
- refuse to rent or sell housing;
- set different terms, conditions or privileges for sale or rental of a housing accommodation;
- ask a person's race, color, national origin, creed or religion;
- represent that housing is not available for inspection, sale or rental;
- provide different housing services or facilities;
- for profit, persuade owners to sell or rent;
- for profit, deny buyers or renters entry into a neighborhood;
- print or publish notices, statements or advertisements indicating a preference;
- it is also unlawful for anyone to aid, abet, incite, compel or coerce the doing of an act forbidden under the Montana housing law.
In Mortgage Lending - Lenders may not take any of the following actions based on Native American status:
- refuse to make a mortgage loan;
- fail to provide information regarding loans;
- impose different terms or conditions on a loan, such as different interest rates, points, or fees;
- discriminate in appraising property;
- refuse to purchase a loan;
- set different terms or conditions for purchasing a loan.
There may be attempts to discourage Native Americans from renting by changing the terms, conditions, services and facilities. Examples include: different rules, charging additional fees, or applying more burdensome lending or rental criteria, such as larger deposits, increased water charges or higher rent. This activity can be a violation of both Montana and Federal Law.
Montana law requires a tribal identification card to be treated the same as a Montana identification card for identification purposes, including but not limited to obtaining a conservation, hunting, or fishing license; recording titles to motor vehicles, trailers, semi-trailers, pole trailers, travel trailers, campers, motor boats, personal watercraft, sail boats, snowmobiles, and off-highway vehicles; applying for a concealed weapon permit; and purchasing alcohol and tobacco products.
PREVENTING DISCRIMINATION AND HARASSMENT
In employment, the following steps will aid in the prevention of discrimination and harassment against Native Americans:
- Employers should clearly communicate to all employees - through a written policy or other appropriate mechanism - that harassment such as slurs or other verbal or physical conduct directed toward Native American employees (and all protected classes) is prohibited;
- Owners, management, and supervisors should all express strong disapproval of any harassing or discriminatory conduct in the workplace, including jokes and comments which may be offensive.
- Employers should have effective and clearly communicated policies and procedures for addressing complaints of discrimination and harassment;
- Employers should train all staff on harassment. Training for supervisors should include information on how to identify and respond effectively to harassment even in the absence of a complaint;
- Employers should have an effective grievance procedure that allows employees to complain without retaliation. This policy should include a prompt investigation into any reported discriminatory activity and notice to employees (including supervisory staff) that any substantiated violation of the employer’s non-discrimination and harassment policies will be dealt with seriously.
In housing, the following steps will aid in preventing discrimination or harassment against Native Americans:
- Include a policy statement of non-discriminatory treatment in all rental agreements, listing agreements and buy-sell agreements;
- Develop a non-discrimination policy that provides a grievance procedure and clearly states if discrimination is found, appropriate corrective action will be taken;
- Provide fair housing policies to potential renters, buyers and sellers;
- Display a fair housing poster;
- Include an equal housing opportunity logotype or slogan in all advertising and exterior signs;
- Attend a fair housing training sponsored by a fair housing group or the Montana Human Rights Bureau.