Download GM_11-066_CourtDeclines_to_FindDiscriminationBased_on_ShareholderPreference_in_Alaska.pdf

Contents : 2 120 L Street NW Suite 700 2120 Washington DC 20037 W ashington T 2 02.822.8282 F 2 02.296.8834 H OBBSST RAUS.CO M June 3 2011 GENERAL MEMORANDUM 11-066 Court Declines to Find Discrimination Based on "Shareholder Preference" in Alaska Find In a case brought by an employee against an Alaska Native Corporation in which the In employee alleged that an employment preference given to the Corporation's shareholders constitutes shareholders unlawful discrimination the Ninth Circuit Court of Appeals refused to find any illegal discrimination had occurred. Conitz v. Teck Alaska Inc. 2011 WL 1869957 (May 17 2011). The employee in question worked for Teck Alaska Incorporated at the Red Dog Mine and sought a promotion that he did not get. Red Dog Mine is operated through a joint venture between Teck and the NANA Regional Corporation which is an Alaska Native Corporation formed under the Alaska Native Claims Settlement Act (ANCSA). Teck has a policy in place to give an employment preference to NANA shareholders when two or more equally qualified candidates are being considered olders for a promotion. When the employee did not get the promotion he wanted he sued alleging racial he discrimination because NANA shareholders are Alaska Natives. The lower court held that the discrimination shareholder preference was not racially based but based on political status and that the employee was shareholder not as qualified for the position as the person who won the promotion. ircuit The Ninth Circuit affirmed the lower court's decision. Because Teck's policy of favoring employees was based on shareholder status as opposed to giving preference based on status as an employees Alaska Native the Ninth Circuit found the policy was not discriminatory on its face. The Court thus the examined whether the employee could demonstrate the policy had been applied to him in a monstrate discriminatory manner under the test set forth in McDonnell Douglas Corporation v. Green 411 U.S. discriminatory 792 802 (1973). To establish discrimination under McDonnell Douglas the employee has to show (1) he belonged to a protected class (2) he was qualified for the job he sought (3) he was subjected to an nged adverse decision and (4) similarly situated employees not in his protected class received more favorable treatment. The Ninth Circuit found the employee in question could not prove the policy had been applied to him in a discriminatory way because he was not qualified for the position to which he wanted to be promoted. Moreover because the employee was not qualified the Court declined to consider his argument that Teck's shareholder preference policy constitutes racial discrimination in violation of shareholder Title VII of the Civil Rights Act which prohibits employment discrimination based on race color which religion sex and national origin. Please let us know if we may provide additional information regarding this decision. we ### Inquiries may be directed to: Geoff Strommer (gstrommer@hobbsstraus.com) gstrommer@hobbsstraus.com Starla Roels (sroels@hobbsstraus.com) sroels@hobbsstraus.com HOBBS STRAUS DEAN & WALKER LLP W ASHINGTON DC PORTLAND OR OKLAHOMA CITY OK SACR CRAMENTO CA

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