EEOC joins Navajo Nation in lawsuit against Peabody Coal

Suit Says Peabody coal discriminated against non-Navajo Native Americans

PHOENIX -- On June 22, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it has added the Navajo Nation to its original lawsuit against Peabody Coal alleging widespread national origin discrimination against non-Navajo Native Americans.

The EEOC's amended lawsuit, EEOC v. Peabody Western Coal Company and Navajo Nation, CV-01-01050-MHM, filed in U.S. District Court for the District of Arizona, specifically alleges that Peabody Coal refused to hire non-Navajo Native Americans at its Kayenta and Black Mesa coal mines, which are located on land owned by the Navajo Nation and Hopi Tribe in northern Arizona. The suit also claims that Peabody failed to retain employment applications, as required by federal law.

The EEOC further alleges that Peabody, which operates a coal mining business and employs more than 700 employees, refused to hire Delbert Mariano and Thomas Sahu, who are both members of the Hopi Tribe; Robert Koshiway, a member of the Otoe Tribe; and a class of other Native Americans because they are not members of the Navajo Nation, even though they were qualified for the positions.

The EEOC originally filed this lawsuit only against Peabody in June 13, 2001. Peabody filed a motion to dismiss the lawsuit, arguing that the Navajo Nation was a necessary and indispensable party to the suit. At the same time, Peabody argued that the Navajo Nation could not feasibly be joined as part of the lawsuit. Peabody further argued that the Navajo employment preference in the lease was a political question that could not be decided in court. For these and other reasons, Peabody argued, the court should dismiss the lawsuit in its entirety. On Sept. 26, 2002, the district court agreed with Peabody and dismissed the EEOC's lawsuit in its entirety.

After this, the EEOC appealed to the Ninth Circuit Court of Appeals.

On March 3, 2005, the Ninth Circuit Court of Appeals in EEOC v. Peabody Western Coal Company 400 F.3d 774 (9th Cir., March 2005) ruled that it was feasible to join the Navajo Nation in the lawsuit in order to effect complete relief between the parties and that the EEOC's claim was not a political question and could be ruled upon in court. The Ninth Circuit also ruled that the district court erred in dismissing the EEOC's claim that Peabody Coal failed to keep records as required by Title VII. The Ninth Circuit reversed and remanded the case to the district court.

Chester V. Bailey, District Director of the EEOC's Phoenix District Office, said, "The EEOC has issued guidance on this matter. Preference by employers for Indians on or near an Indian area is legal under Title VII, but tribal preference is not."

Mary Jo O'Neill, Regional Attorney at the EEOC's Phoenix District Office, said, "We are adding the Navajo Nation as a party in compliance with the Ninth Circuit's decision. The Navajo Nation will then have the opportunity to be heard in this case as it proceeds."

The EEOC's suit seeks monetary relief, including back pay with prejudgment interest, compensator and punitive damages against Peabody Coal. The commission is also seeking an injunction prohibiting future discrimination and any other curative relief to prevent Peabody from engaging in any further discriminatory practices.

The EEOC encourages people who believe they were discriminated against by Peabody in this way to contact Trial Attorney Lucy Rosas at 602-640-5025.

In addition to enforcing Title VII, the EEOC enforces the age discrimination in Employment Act of 1967, which protects workers age 40 and older from discrimination based on age; the Equal Pay

Act of 1963, which prohibits gender-based wage discrimination; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the commission is available on the agency's website at www.eeoc.gov.

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