UPDATE: Officials Defend Native Affairs' Hiring Policy

In our Nov. 6 issue, The Chase reported that ENMU’s Multicultural Affairs department requires each student employee of its Office of Native American Affairs to possess a Certificate of Degree of Indian Blood (CDIB, also called CIB), which certifies ancestry in a U.S. government-recognized Native American tribe.

As mentioned in our report, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on national origin. This includes discrimination against or in favor of members of “national origin groups” such as native tribes.

An exception to Title VII known as a bona fide occupational qualification (BFOQ) may be granted if it is deemed necessary to a business’s normal operation for certain employees to be of a specific national origin, but these exceptions are rare and narrowly defined. Title VII only explicitly allows employers located on or near Indian reservations to give hiring preference to Native Americans.

ENMU Vice President of Student Affairs Jeff Long released the following statement to The Chase in response to our previous article:

“After careful consideration, ENMU has determined that being a Native American (valid certificate of Indian blood {CIB}) is a bona fide occupational qualification (BFOQ) for student worker positions only in the Native American Affairs Department. Native American student workers have special perspectives that qualify them to perform this role in ways that non-Native students cannot. Native American student workers are often called upon to interact with tribal entities and act as a bridge between the tribes and Native American students in various matters.”

Dr. Long, ENMU Human Resources Director Benito Gonzales, Affirmative Action Officer Jessica Small, and Multicultural Affairs Director Diana Cordova were contacted individually for interviews after the statement’s release, but opted to answer questions collectively via email.

The campus officials said that ENMU has chosen to claim a BFOQ exception only for Native American Affairs employees (and not also for African-American, Hispanic, or International Affairs employees) because “Native Americans have been afforded special protections through various federal laws, including Title VII of the Federal Civil Rights Act.” They did not respond when asked to clarify which laws they were referencing apart from Title VII.

The officials also said, “As far as we know the only way to reasonably determine if someone is a Native American is to have them produce a CIB.”

While the determination of a BFOQ’s legitimacy is ultimately a decision for a court or jury, Title VII may not be the only section of the Civil Rights Act relevant to Native American Affairs’ employment situation.

Title VI of the act states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Unlike Title VII, Title VI does not allow national origin-based discrimination in special circumstances.

The term “program or activity” in Title VI includes “all of the operations” of colleges and universities. Title VI also applies “where a primary objective of the Federal financial assistance is to provide employment.”

According to the Office for Civil Rights (OCR), a sub-agency of the U.S. Department of Education, “Title VI prohibits discrimination against applicants for or participants in ‘work-study’ programs that receive Federal assistance.”

ENMU Human Resources Director Benito Gonzales confirmed that all of Eastern’s student work-study positions, including those at the offices of Multicultural and Native American Affairs, are federally funded. However, Gonzales said that these funds go directly to individual students who are eligible for work-study, not to the departments they work for.

Gonzales also explained that the departments are responsible for paying a portion of their work-study employees’ wages. In a past interview, Dr. Long said that the Office of Multicultural Affairs’ labor costs are covered by the university with money obtained from tuition payments, fees, and state appropriations.

The Federal Work-Study Program is administered by participating universities with funds allocated by the Department of Education. Although certain guidelines must be followed, institutions have discretion over the jobs they create with those funds. A policy director for the Federal Association of Student Financial Aid Advisors told Forbes magazine in 2015 that no formal approval process exists for on-campus work-study jobs.

(To read our previous story about the ENMU Office of Native American Affairs’ hiring policy, visit earlier posts at enmuthechaseonline.com)

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