How Bad Can It Be Before It's Discrimination?

“She thinks she’s Indian…”

She “doesn’t represent the Indian community well…”

She’s “a wanna-be Indian…”

She’s a “big-boobed white woman”

These comments were directed toward a Native American female employee of a health clinic in Oklahoma. Shortly after she filed an EEOC complaint for discrimination, she was fired. While such abusive language may seem as a matter of common sense to be more than sufficient to create a discriminatory environment in the workplace, the US Court of Appeals for the 10th Circuit has held that as a matter of law it does not rise to the level of legal discrimination.

In Nettle v. Central Okla. Am. Indian Health Council Inc., the 10th Circuit reviewed a lower court’s dismissal of the woman’s discrimination claims. The lower held that (1) under the “totality of the circumstances,” no reasonable juror could find that the comments created a hostile work environment,(2) the woman did not make a prima facie showing that she had been treated adversely because of her skin color, and (3) there was no causal connection between her filing the EEOC charge and the Clinic's decision to fire her, hence no retaliatory termination.

On appeal, the 10th Circuit panel noted that Title VII of the Civil Rights Act proscribes employment practices that “permeate the workplace with ‘discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ However, they affirmed the lower court’s decision to dismiss the claim, finding that the comments directed at the woman did not rise to the level of actual discrimination.

We can easily understand that it could be annoying and irritating for a person of one racial mix to be mistaken for another, but there is no precedent for regarding a mistaken racial identifier—not employing any epithetical terminology—as opprobrious or abusive.” The Court also stated that none of the comments “strike us as sufficiently severe or opprobrious (considered objectively) that a reasonable jury would regard them “alter[ing] the conditions of the victim's employment and creat[ing] an abusive working environment.”

Facebook Legal Policy Bans "Fake" Native American Names


The popular internet site Facebook is celebrating its fifth birthday - but not everyone is invited to the party.

Most users of the social networking site spend their time interacting with their friends and posting news about their daily lives. Seldom noticed are the legal disclaimers and requirements set forth at the bottom of the web pages. Facebook’s terms of use require members to agree that they will not “provide any false personal information” on the site or write anything that might “intimidate” other users.

Robin Kills The Enemy, a computer technician who lives on the Rosebud Reservation in South Dakota, used the site for her own social networking – until the day she logged on and realized she no longer had any “friends”. The site administrators at Facebook had suspended her account and accused her of using a false name, in violation of the site’s terms of use. Despite being in the middle of planning a trip with her friends through the site, Ms. Kills The Enemy was compelled to send in copies of government identification papers in order to reconnect.  Melissa Holds The Enemy had the same experience and was banned from the site for a month, while Jeremy Brave-Heart was not even allowed to register until he sent in identification papers.

When questioned about its policy, Facebook Privacy and Public Policy spokesman Simon Axten told the Argus Leader newspaper that “Facebook is based on a real name culture. This helps create an environment where people are accountable for their actions and behavior. Fake names and false identities are actually a violation of the Terms of Use, and we disable fake accounts when they're reported to us by our users."

While promoting the accuracy of information on a website is certainly legitimate, a legal policy and cultural interpretation thereof that bans numerous Native Americans from one of the world’s most popular internet sites is troubling and legally unsustainable. In an era when computers can recognize human voices and analyze DNA, it is certainly not beyond the capacity of technology to recognize Native names that have been in use for centuries. It is nevertheless promising to note that legendary college and professional quarterback Sonny Sixkiller’s Facebook page currently remains active, and that a webpage dedicated to ending discrimination against Native names has been started…on Facebook.