discrimination
Native Amerian Hospitals on Tribal Land and EEOC antidiscrimination laws
<p>My question is regarding Native American Hospitals located on tribal reservation land (Navajo Nation in AZ). The hospital is not IHS run, it is designation self-determination.  However, it receives federal funding, participates in Medicaid/Medicare and is subject to CMS rules/audits.  Would this type of hospital also be subject to EEOC antidiscrimination laws? They have allowed religious exemptions to vaccines until 9/23/22. They have also referred multiple times to title VII.  However, they required employees to provide letters from pastors to verify sincerely held religious beliefs with regard to requesting exemption.  On the other hand, they also claim that because they are a sovereign nation, they don't have to follow the Federal laws.  HR has now stated that they have updated their policy and eliminated such religious exemptions per &quot;CMS requirements.&quot;</p>
<p>However, according to the latest information on the CMS site regarding the IFC (latest dated 4/2022), employers are not required to eliminate religious exemptions.  In fact, that memo states that &quot;The COVID-19 vaccination requirements and policies and procedures required by this IFC must comply with applicable federal non-discrimination and civil rights laws and protections, including providing reasonable accommodations to individuals who are legally entitled to them because they have a disability or sincerely held religious beliefs, practices, or observations that conflict with the vaccination requirement. More information on federal non-discrimination and civil rights laws is available here: <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws" rel="nofollow noreferrer">https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws</a>.</p>
<p>Would the hospital be subject to EEOC rules? Can the hospital legally refuse to consider religious exemptions or could this be considered religious discrimination?</p>

<p><a href="https://www.law.cornell.edu/uscode/text/42/2000e-2" rel="nofollow noreferrer">42 USC 2000e–2</a> prohibits various discriminatory employment practices, for example</p>
<blockquote>
<p>(a) It shall be an unlawful employment practice for an employer— (1)
to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin</p>
</blockquote>
<p>But furthermore,</p>
<blockquote>
<p>(i) Nothing contained in this subchapter shall apply to any business
or enterprise on or near an Indian reservation with respect to any
publicly announced employment practice of such business or enterprise
under which a preferential treatment is given to any individual
because he is an Indian living on or near a reservation.</p>
</blockquote>
<p>In <a href="https://supreme.justia.com/cases/federal/us/417/535/" rel="nofollow noreferrer">Morton v. Mancari</a>, 417 U.S. 535 the Supreme Court discussed the rationale of Indian Preference policies which predated anti-discrimination legislation, concluding that Congress did not intent to repeal those laws, concluding that &quot;As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed&quot;, and considered certain kinds of discrimination to be &quot;an employment criterion designed to further the cause of Indian self-government&quot;.</p>
<p>See also <a href="https://casetext.com/case/eeoc-v-navajo-health-foundation-sage-memorial-hospital" rel="nofollow noreferrer">EEOC v. Navajo Health Foundation-Sage Memorial Hospital</a>, where an employment discrimination suit against a Navajo hospital was dismissed on this basis. Also note the word &quot;employer&quot; relevant to discrimination laws is given a special definition in <a href="https://www.law.cornell.edu/uscode/text/42/2000e" rel="nofollow noreferrer">42 USC 2000e(b)</a>:</p>
<blockquote>
<p>The term “employer” means a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in
each of twenty or more calendar weeks in the current or preceding
calendar year, and any agent of such a person, but such term does not
include (1) the United States, a corporation wholly owned by the
Government of the United States, <strong>an Indian tribe</strong>, or any department or
agency of the District of Columbia subject by statute...</p>
</blockquote>
<p>To the extent that the situation you are asking about relates to employment discrimination, it would seem that the hospital is indeed exempt from 42 USC 20002-2(a). However, relevant details are missing.</p>
