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Final Draft Tribal Consultation Process

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. The EEOC’s mission is to prevent, end, and remedy unlawful employment discrimination through enforcement of these federal laws as well as outreach and education. In accordance with President Biden’s Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, which directs federal agencies to implement the policies and directives of Executive Order (E.O.) 13175 of November 6, 2000, the EEOC, having consulted with Tribal leaders, hereby establishes the following process for Tribal consultations.

I. Governing Principles

The United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian Tribes to self-government and maintains a government-to-government relationship with federally recognized Tribes. Indian Tribes exercise inherent sovereign powers over their members and territory. The Federal Government has adopted treaties and enacted statutes and regulations that establish and define a trust relationship with Indian Tribes.

In accordance with the government-to-government relationship, the EEOC is committed to working with Indian Tribes in a manner that respects Tribal self-government and sovereignty, honors Tribal treaty and other rights, and meets the Federal Government's Tribal trust responsibilities.

II. Scope

The EEOC will consult with federally recognized Tribes before developing or implementing policies that have Tribal implications, as defined by E.O. 13175. According to E.O. 13175, the phrase “policies that have Tribal implications” refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. (See Section 1(a) of E.O. 13175). The term "policies" does not include matters that are, or may become, the subject of intake activities, investigations, litigation, or settlement negotiations. Nor does it include grants or contracts.

While the EEOC generally lacks jurisdiction over Tribes under most of the laws that it enforces, federal anti-discrimination laws protect Tribal members against discrimination when employed in positions covered under EEOC-enforced laws. The EEOC will take steps to ensure that the various agency components notify the designated agency officials for Tribal consultation, listed below, and the EEOC’s Office of Legal Counsel (OLC) whenever they plan to undertake a new policy that fits within the definition of “policies that have Tribal implications.” Once notified, the EEOC Chair’s designated agency officials, in conjunction with OLC, will review the submission to determine if Tribal consultation is necessary or appropriate. Such consultation will occur at the earliest practicable time.

III. Designation of Agency Officials

The EEOC Chair designates the EEOC’s Director of State, Local and Tribal Programs and the Chair’s Senior Attorney Advisor with responsibility for Tribal matters to coordinate implementation of the requirements set forth in E.O. 13175. The designated agency officials will establish a broad internal process to review planned agency actions and consult with OLC to determine whether Tribal consultation is necessary or appropriate. In addition, Tribes may contact the designated agency officials to request consultation about policies that have Tribal implications. The designated agency officials will initiate consultation with Tribal nations as described below.

IV. Consultation Process

A. Participants

1) EEOC

The EEOC Chair, or other appropriate senior agency officials, including the EEOC’s Director of State, Local and Tribal Programs and the Chair’s Senior Attorney Advisor with responsibility for Tribal matters, will participate in Tribal consultations.

2) Tribal Nations

Tribal officials, as defined by E.O. 13175, and/or their designated proxies, will be invited to participate in the Tribal consultation.

3) Other Federal Agencies

When appropriate, the EEOC will initiate interagency Tribal consultations where overarching topics that merit policy discussions involve other Federal agencies. Examples of such topics might include employment policies regarding hiring and promotional opportunities, and training/education about the anti-discrimination laws relating to employment.

4) Other Tribal Groups

Besides Nation-to-Nation consultations, where appropriate, the EEOC will also engage in discussions with the Council for Tribal Employment Rights (CTER), Tribal Employment Rights Offices (TEROs), and Native American organizations, as appropriate.

CTER is a community-based Indian owned and operated non-profit organization that is comprised of and represents the interests of Tribal and Alaska Native Villages covered by employment rights ordinances. For those Tribes that have enacted employment rights ordinances, the TEROs monitor and enforce the requirements under those ordinances.

B. Regulatory Policies or Regulations

1) Policies

Some EEOC-enforced laws exclude Tribes from the definition of covered employers, but in the event that the EEOC is considering regulatory policies that may have Tribal implications, the agency will engage in consultation with Tribal nations and discussions with other Tribal organizations, such as CTER and TEROs. In addition, the EEOC/TERO Joint Committee may also be consulted regarding policy matters that may have Tribal implications.  

2) Legislation

While the EEOC typically does not present legislative proposals to Congress, in the event the Commission considers a legislative proposal on matters that may have Tribal implications, the EEOC will consult with Tribal nations prior to formally presenting such a legislative proposal. However, if the Commission is asked by members of Congress to comment on proposed legislation on very short deadlines that do not allow time for the agency to engage in Tribal consultation, the agency will suggest that the legislators who contacted the EEOC also consult with Tribal nations.

3) Certification

Any draft final regulation, guidance document, or legislation with Tribal implications will be accompanied by a certification, signed by an appropriate agency official, attesting that the agency has completed consultation with Tribal nations on the draft final regulation or legislation. The EEOC’s Chair will identify and designate an agency official responsible for signing the certification.

The EEOC’s Chair or designee along with the Director of State, Local and Tribal Programs will consult with the EEOC’s Office of Legal Counsel (OLC) and request that OLC include a certification document to be attached to any draft final regulation or legislation with Tribal implications.

4) Requests for Regulatory Waivers

Tribal nations may request regulatory waivers to any policy or legislation with Tribal implications proposed by the EEOC. To request a waiver, Tribal nations should submit a written waiver request within 90 days of notice of proposed legislation or policy that has Tribal implications. The EEOC will endeavor to fully consider such waiver requests within 120 days of receipt.

As a point of clarification, although Tribes are not covered by most of the laws that the EEOC enforces, the EEOC lacks authority to grant waivers from any of the substantive prohibitions in the laws that it enforces, with the exception of the Age Discrimination in Employment Act (ADEA), for which the EEOC may grant “exemptions to and from any or all provisions … as it may find necessary and proper in the public interest.” 29 U.S.C. § 628. Such exemptions must be recorded in regulations, reviewed by the Office of Management and Budget (OMB), approved by the Commission, and published by the Federal Register, and therefore would not be accomplished within 120 days.

C. Timing and Notice

The EEOC will seek to notify Tribal nations regarding upcoming consultations at least 45 days prior to a scheduled consultation, and whenever possible, 60 days in advance. If exceptional circumstances, such as legislative deadlines or other factors beyond the EEOC’s control, warrant a shorter period of advance notice, the EEOC will provide an explanation for the abbreviated notification in its letter inviting Tribes to participate in consultation. The notice will identify the subject matter for the consultation and include a description of the topic(s) to be discussed as well as any supporting materials related to the topic(s). Such notice will be provided to the designated point of contact for each Tribe through various methods, including email address, first-class mail, and/or posting on the agency website.

Tribes may designate a contact and preferred form of notice for receiving information regarding Tribal consultation by submitting an email to TribalFeedback@eeoc.gov.

D. Accessibility

The EEOC will utilize various communication options to ensure Tribal consultations are accessible and convenient to Tribal participants. Tribal consultations may be conducted in person, via video conferencing (i.e., web-based platform), conference calls, or other similar means.

After the Notice identifying the subject matter to be discussed at the Tribal consultation is issued, Tribal leaders may submit written comments regarding that subject matter in advance of the consultation. In addition, following a consultation session, Tribes generally shall have 45 days to submit additional written comments to the agency should they wish to do so. The written comments may be submitted via the following designated email address: TribalFeedback@eeoc.gov.

In addition, to ensure accessibility and active participation in Tribal consultations, the EEOC may schedule regional consultations at different times and dates.

E. Accountability and Transparency

Following the conclusion of a consultation event, and after due consideration, the EEOC’s designated agency officials will prepare a summary of the consultation. This will include a synopsis of Tribal concerns and issues and a description of the EEOC's process for further consideration of these concerns and issues. The EEOC will timely convey this summary to all participants.

F. Tribal Nations’ Administrative Discretion

As part of the EEOC’s commitment to respect Tribal self-government and sovereignty, the EEOC will ensure that it maximizes Tribal nations’ administrative discretion when collaborating and consulting with Indian Tribes.

Since 1980, the EEOC has worked closely with several federally recognized Tribes, some of whom have established TEROs, to maximize employment opportunities and to protect the Title VII and special preference rights of Tribal members. The EEOC annually provides the TEROs with programmatic funding. Funds provided by the EEOC to these TEROs support the objectives of the TERO program to identify, remedy and eliminate employment discrimination occurring on or near a reservation. The EEOC will continue to support the TEROs in this manner. It will also explore other opportunities to engage Tribal members.

1) Development of Policies or Standards for Tribal Nations

The EEOC will encourage Tribal leaders to enact ordinances that prohibit employment discrimination in Tribal nations. Since the establishment of the agency’s Tribal Program, the EEOC has been committed to working closely with Indian Tribes to ensure Tribal members are informed about the anti-discrimination laws and their rights in the workplace. The EEOC has also partnered with several Tribes, who have enacted their own Tribal Employment Rights Ordinances, to provide technical assistance in this area. EEOC is committed to strengthening this relationship with existing Tribal partners while at the same time exploring ways to encourage other Tribes to develop their own policies and standards regarding employment discrimination.