ADEA Ambiguity Allows For Tribal Immunity

By: Jacqueline Vega

This month, the Eleventh Circuit held that Native American tribes enjoy sovereign immunity from claims[1] under the Age Discrimination in Employment Act (“ADEA”).[2] Native American tribes have considered sovereign immunity to be crucial for the effective protection of tribal resources and the promotion of tribal economic and social interests.[3]  But has the concept of sovereign immunity been taken too far when employer liability for employment discrimination escapes through its cracks?

In Williams v. Poarch Band of Creek Indians,[4] the plaintiff, a health department employee of the Poarch Band of Creek Indians, asserted that she was terminated because of her age.  She was over fifty-five years old and was replaced by a twenty-eight year old whom she alleged did not have as much relevant experience as she did.[5] A unanimous three-judge panel later affirmed a district court’s dismissal of the plaintiff’s ADEA claim against the Alabama Native American tribe.  The court stated that there was “no evidence” that the tribe waived its sovereign immunity to the suit and that the whole case rested on whether Congress intended to revoke tribal sovereign immunity when enacting the ADEA.[6]

The plaintiff argued that the ADEA’s ambiguity as to sovereign immunity could be inferred to mean that Congress intended to abrogate tribal sovereign immunity, because Congress had specified tribes on a list of employers under the Civil Rights Act.[7]  However, the court did not find the plaintiff’s argument persuasive because the phrase “an Indian tribe” was not included in the ADEA’s employer list.[8]  The court also held that the ambiguity of the ADEA could also be construed to mean that it doesn’t “delete” tribal sovereign immunity and therefore it could not be strictly interpreted to mean the opposite.[9]

Other circuits have agreed with the outcome of this case and refuse to assume that Congress abrogated tribal sovereign immunity under the ADEA.[10]  The Eighth Circuit, in particular, has continuously held that no evidence of congressional intent to abrogate tribal sovereign immunity can be drawn from a comparison to the Title VII list of employers.[11]  Thus, the weight of authority from federal court decisions only affirms the Eleventh Circuit’s ruling and the protection of the Poarch Band of Creek Indians’ right of sovereign immunity under ADEA.[12]

But where does this leave the plaintiff?  The plaintiff has no way of recovering for the alleged age discrimination that she suffered when her employer terminated her.  Due to the fact that the plaintiff’s employer was a Native American tribe, the plaintiff has no right to bring a claim under the ADEA.  How is that fair?  Though the court stated that Native American tribes are still subject to the law, there is a possibility that they may never be held liable under the ADEA.

[1] Williams v. Poarch Band of Creek Indians, 2016 U.S. App. LEXIS 18717 (11th Cir. 2016).

[2] 29 U.S.C. § 621-634 (2012).

[3] Sue Woodrow, Tribal Sovereign Immunity: An Obstacle For Non-Indians Doing Business In Indian Country?, Fed. Res. Bank of Minneapolis, https://www.minneapolisfed.org/publications/community-dividend/tribal-sovereign-immunity-an-obstacle-for-nonindians-doing-business-in-indian-country (last visited Oct. 30, 2016).

[4] Williams, 2016 U.S. App. LEXIS 18717.

[5] See id.

[6] Christine Powell, 11th Circ. Finds Tribe Immune To Ex-Workers Age Bias Suit, Law 360, http://www.law360.com/employment/articles/853020/11th-circ-finds-tribe-immune-to-ex-worker-s-age-bias-suit, (last visited Oct. 30, 2016).

[7] See id.

[8] See id.

[9] Williams, 2016 U.S. App. LEXIS 18717.

[10] Id.

[11] Id.

[12] Id.

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