Robert Malabed v. North Slope Borough c. Morris David Welch v. Charles Michael Emerson 99-35684 99-35750 99-35773 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 99-35684, 99-35750, 99-35773 ROBERT MALABED, Plaintiff-Appellee, v. NORTH SLOPE BOROUGH, Defendant-Appellant. MORRIS DAVID WELCH, Plaintiff-Appellee, v. NORTH SLOPE BOROUGH, Defendant-Appellant. CHARLES MICHAEL EMERSON, Plaintiff-Appellee, v. NORTH SLOPE BOROUGH, Defendant-Appellant. On Appeal from the United States District Court for the District of Alaska SUPPLEMENTAL BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE C. GREGORY STEWART, General Counsel PHILIP B. SKLOVER, Associate General Counsel LORRAINE C. DAVIS, Assistant General Counsel ROBERT J. GREGORY, Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202-663-4059 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission) is the agency entrusted with the enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"). On September 16, 1999, the Commission filed a brief as amicus curiae in this case, arguing that Title VII's Indian preference provision (42 U.S.C. § 2000e-2(i)) applies to preference programs established by employers operating on or near Native Alaska land. Following oral argument, the Court issued an order, dated March 10, 2000, directing the parties to file supplemental briefs addressing, inter alia, "[w]hether 42 U.S.C. § 2000e-2(i) preempts the Alaska state, local, and constitutional provisions at issue in this case." As the agency entrusted to enforce Title VII, the Commission has an interest in seeing that Title VII is not undermined by inconsistent state law. The Commission, moreover, as an agency of the federal government, has an interest in preserving the federal government's "unique obligation toward the Indians," Morton v. Mancari, 417 U.S. 535, 555 (1974), as reflected in Title VII and related federal statutes and regulations. To assist the court in resolving the preemption issue raised in its order of March 10, 2000, the Commission offers its views to the Court as amicus curiae. ARGUMENT TITLE VII'S INDIAN PREFERENCE PROVISION PREEMPTS STATE LAW TO THE EXTENT SUCH LAW WOULD INVALIDATE AN INDIAN PREFERENCE PROGRAM THAT MEETS THE STANDARDS OF TITLE VII. Congress enacted Title VII "to assure equality of employment opportunities." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 468 (1982). Aware that many states "had enacted some form of equal employment legislation," id. at 472, Congress adopted a "scheme of interrelated and complementary state and federal enforcement." New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65 (1980). While Congress "viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination," id., Congress made clear its intent to preempt state law in at least two circumstances: first, when state law purports to "require or permit the doing of any act which would be an unlawful employment practice under [Title VII]" (42 U.S.C. § 2000e-7); second, when state law is "inconsistent with any of the purposes of [the Civil Rights Act of 1964], or any provision thereof." 42 U.S.C. § 2000h-4. In California Fed. Sav. and Loan Ass'n v. Guerra, 479 U.S. 272 (1987), the Supreme Court addressed the legal standards for determining the preemptive effect of Title VII. The Court held that Title VII preempts state law to the extent the state law "actually conflicts with federal law." Id. at 281. The Court ruled that an "actual conflict" occurs "either because 'compliance with both federal and state regulations is a physical impossibility' or because the state law stands 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. (citations omitted). The Court stressed that a state law is in "actual conflict" with Title VII where the law "requires or permits employers to violate Title VII" or "is inconsistent with the purposes of [Title VII]." Id. at 283.<1> Under normal circumstances, preemption would not take place merely because Title VII permits or exempts an employment practice that would be unlawful under state law. This is because states are generally permitted to provide greater protection against discrimination than that provided under Title VII. See Guerra,479 U.S. at 280-92; see generally Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 498 (9th Cir. 1984) (stating that a "finding of preemption is particularly inappropriate when the state is regulating conduct permitted by federal regulation, but only as an exception to a broad federal prohibition"). We believe, however, that, under the unique circumstances of this case, preemption is the proper result. This case involves more than just the isolated Indian preference provision in Title VII. The Indian preference provision is part of a large body of federal law designed to promote the economic opportunities of Native Americans. See Brief of EEOC as Amicus Curiae at 12-17 (discussing this law). This body of law includes a number of federal contracting programs, which extend to federal contractors operating on or near Indian reservations, including Native Alaska land. See, e.g., 48 C.F.R. § 352.270-3 (1999); 48 C.F.R. § 370.203 (1999); 48 C.F.R. § 1426.7001 (1999); 48 C.F.R. § 1452.226-71 (1999). These programs either encourage or require federal contractors to adopt employment preference programs for Native Americans. Id. Under these circumstances, Title VII should be read in pari materia with these federal programs, reflecting a comprehensive federal scheme to promote the employment of Native Americans living on or near Native American land. Permitting a state to outlaw preference programs that are encouraged or required under Title VII and these related federal initiatives would stand "'as an obstacle to the accomplishment and execution of the full purposes and objectives of [federal law].'" Guerra, 479 U.S. at 281.<2> This case also implicates the "unique legal status of Indian tribes under federal law" and "Congress' unique obligation toward the Indians." Mancari, 417 U.S. at 551, 555. When the federal government acts in the area of Indian affairs, the federal government's pronouncements typically preempt inconsistent state law. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983) (state jurisdiction is presumptively preempted by the operation of federal law "'if it interferes or is incompatible with federal and tribal interests reflected in federal law'"). This is certainly true where, as here, a federal provision is part of a comprehensive federal scheme designed to regulate certain types of Indian-related activity (in this case, Indian employment on or near Indian land). See, e.g., Warren Trading Post Co. v. Arizona State Tax Comm'n, 380 U.S. 685, 688-89 (1965) (state law preempted by "comprehensive federal regulation of Indian traders"); People of Togiak v. United States, 470 F. Supp. 423, 428-29 (D.D.C. 1979) (state law preempted by a "comprehensive scheme" of federal regulation, which included an exemption for Native Americans). The Indian preference provision is not a "garden variety" statutory exemption, merely excepting certain conduct from the prohibitions of a federal statute. The provision reflects a broad congressional judgment that preference programs established for the benefit of Native Americans are desirable in their own right. See 110 Cong. Rec. 12723 (1964) (remarks of Sen. Humphrey) (stating that the preference provision "is consistent with the Federal Government's policy of encouraging Indian employment and with the special legal position of Indians"); 110 Cong. Rec. 13702 (1964) (remarks of Sen. Mundt) (stating that the preference provision would allow Indians "to benefit from Indian preference programs now in operation or later to be instituted"). That judgment would be upended if states were permitted to define such programs as unlawful acts of discrimination.<3> In enacting Title VII, Congress "envisioned that Title VII's procedures and remedies would 'mes[h] nicely, logically, and coherently with the State and city legislation,' and that remedying employment discrimination would be an area in which '[t]he Federal Government and state governments could cooperate effectively.'" Carey, 447 U.S. at 63-64 (quoting 110 Cong. Rec. 7205 (1964) (remarks of Sen. Clark)). Because "[p]arallel state anti-discrimination laws are explicitly made part of Title VII's enforcement scheme," federal policy often has "the same application to state law claims . . . as it does to Title VII claims." Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1303 n.1 (9th Cir. 1994), cert. denied, 516 U.S. 812 (1995). To preserve the "scheme of interrelated and complementary state and federal enforcement" envisioned by Congress, Carey, 447 U.S. at 65, it is essential that state law "on the same subject matter" not conflict with the purposes of Title VII or "any provision thereof." 42 U.S.C. § 2000h-4. It is reasonable to assume that in enacting the Indian preference provision, thereby furthering the federal government's "unique obligation toward the Indians," Mancari, 417 U.S. at 555, Congress intended to invest that important federal policy with preemptive effect. From the Commission's perspective, preemption is necessary to give meaning to the Commission's interpretation of Title VII's Indian preference provision. The Commission takes the view that the term "Indian reservation," as used in the preference provision, encompasses Native Alaska land. If the Court agrees with that interpretation, employers in Alaska will be permitted to adopt Indian preference programs on or near Native Alaska land without running afoul of Title VII. If, however, the Court were to hold that there is no preemption under Title VII, the state would be free to treat these very same programs as unlawful, meaning that employers operating on or near Native Alaska land would be prohibited from adopting an Indian preference program. If Title VII's Indian preference provision is not given preemptive effect, the Commission's interpretation of the provision, as applying to Native Alaska land, could well be rendered a nullity (in practical terms).<4> Finally, we note that adopting the preemption position in this case would not lead to some widespread preemption of state anti-discrimination statutes. As noted above, this case has several distinguishing features, implicating an area of the law that is "unique[ly]" federal. Mancari, 417 U.S. at 555. Even in the Indian context, moreover, the potential for conflict is not as great as it might appear. Some states do not have their own laws against employment discrimination, meaning that an Indian preference program in those states would not run afoul of state law. Other states have such laws but also have Indian preference provisions that are patterned after Title VII's. See Ariz. Rev. Stat. Ann. § 41-1463(I) (West 2000); Maine Rev. Stat. Ann. tit. 5, § 4573(5) (West 1999); Neb. Rev. Stat. § 48-1112 (1999); Nev. Rev. Stat. Ann. § 613.390 (Michie 1999); S.C. Code Ann. § 1-13-80(I)(4) (Law. Co-op 1999); Utah Code Ann. § 34A-5-106(3)(b) (1999). The important federal interest in this case can be preserved without wreaking havoc with state anti-discrimination law. CONCLUSION If necessary to reach the point, this Court should hold that Title VII preempts any state law that invalidates an Indian preference program falling within the protection of Title VII's Indian preference provision. Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 April 13, 2000 (202) 663 1 In Guerra, Justice Scalia took the position, in a concurring opinion, that preemption under Title VII is governed exclusively by Section 708 of Title VII, 42 U.S.C. § 2000e-7, which provides for preemption in the narrow circumstance in which state law requires or permits conduct that is unlawful under Title VII. See Guerra, 479 U.S. at 295-96. Justice Scalia, however, stood alone. The four-Justice plurality, led by Justice Marshall, adopted a more expansive view of Title VII preemption, relying on the language set forth in Section 1104 of the 1964 Civil Rights Act, 42 U.S.C. § 2000h-4. See id. at 282-83 (preemption exists under Title VII where the state law is "inconsistent with the purposes of the statute"). The remaining Justices, with the exception of Justice Scalia, either assumed or agreed that the broader preemption standard of Section 1104 provides an independent basis for preemption. See id. at 292-93 n.1 (Stevens, J., concurring in part and concurring in judgment) (assuming, for purposes of deciding the case, that the Section 1104 standard applied); id. at 304 n.12 (White, J., Rehnquist, C.J., and Powell, J., dissenting) (analyzing the preemption issue under both Sections 708 and 1104); see also Coalition for Economic Equity v. Wilson, 122 F.3d 692, 709-10 (9th Cir.) (testing Title VII preemption under both Sections 708 and 1104), cert. denied, 522 U.S. 963 (1997). 2 This case is distinguishable from Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), where this Court held that Title VII did not preempt California's Proposition 209, which outlawed affirmative action in public employment. In Wilson, this Court acknowledged that Title VII would preempt a state law, barring an employment preference program, if that law were inconsistent with the purposes of Title VII, "'or any provision thereof.'" Id. at 710 (quoting 42 U.S.C. § 2000h-4). This Court held that preemption was not proper in that case because "Title VII's one command regarding race and gender preferences" was "entirely consistent" with the anti-preference stance of Proposition 209. 122 F.3d at 710 (citing 42 U.S.C. § 2000e-2(j)). In this case, Title VII's "one command" regarding Indian preferences, the Indian preference provision, is not (to say the least) "entirely consistent" with an anti-preference stance. 3 It is debatable whether the so-called "Indian preemption doctrine" applies in this case. See Blunk v. Arizona Dep't of Transp., 177 F.3d 879, 882 n.5 (9th Cir. 1998) (suggesting that the Indian preemption doctrine applies exclusively to activities occurring inside "Indian country"). Even assuming, however, that this is not an "Indian preemption" case, as such, it is still significant that the federal provision at issue was adopted in recognition of "the unique legal status of tribal and reservation-based activities," a recognition that flows from Congress' "unique obligation toward the Indians." Mancari, 417 U.S. at 545-46, 555. At the very least, the presence of such a uniquely federal interest provides additional impetus for the preemption argument. 4 It is not clear whether Alaska law prohibits the type of Indian preference program at issue in this case. The preemption issue becomes relevant only if this Court concludes, as per the second issue in its order of March 10, 2000, that "the Borough's preference ordinance conflicts with the Borough charter or any other applicable Alaska law."