Extraterritorial Effect of U.S. Anti-Discrimination in Employment Law: Reexamining the Goals and Policies Behind the Citizenship Nexus

Abstract

The weak enforcement of the ILO makes its body of international labor law merely an inspiration. Thus labor protection largely remains border- and culture-bound, unless stipulated by treaty. For example, an alleged sexual harasser under American law is subject to Title VII civil liability, whereas in France, such harasser can be jailed, if found guilty. In 1991, the U.S. Supreme Court held, in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), that Title VII did not apply outside the territory of the U.S. (“Aramco”). In response, Congress amended Title VII to change the Aramco holding. Title VII now applies extraterritorially to protect U.S. citizens employed by American employers abroad. 42 USC 2000e(f). Title VII has such extraterritorial effect only when both the employer and the employee have U.S. nationality or citizenship. Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59 (D. D.C. 2002). Under international law, this “citizenship” nexus adequately supports the U.S.’s prescriptive jurisdiction, and supplies the doctrinal basis to justify the exterritorial effect of U.S. anti-discrimination law. Title VII has been extended to a foreign employer outside the territorial jurisdiction of the U.S., if that employer is “controlled” by an American entity. “Control” is determined via a factual “integrated enterprise” analysis. Kang v. U. Lim America, Inc., 296 F.3d 810 (9th Cir. 2002). To accommodate the “conflict-of-law analysis,” courts and the EEOC have approved a “foreign law” exception to Title VII liability, which can fit under the “bonda fide occupational qualification” (BFOQ) paradigm of Title VII jurisprudence. In these scenarios, the foreign employer is deemed an American employer by virtue of “control,” as both employers/entities are considered part of the same “integrated enterprise” bearing U.S. nationality or citizenship. A typical “integrated enterprise” may occur in a U.S. parent-foreign subsidiary relationship. As a result of this extension, now the action of a non-U.S. employer can be subject to Title VII, but non-U.S. employees are not protected by Title VII. This creates an anomaly: a U.S. citizen working overseas for a foreign company is protected under Title VII, if the foreign company is controlled by a U.S. entity, but his or her non-U.S. co-worker sitting in the adjoining cubicle, working for the same company, is not so protected. Yet, the statutory language and legislative intent of Title VII’s Aramco amendment are clear – the citizenship nexus must be satisfied both in the employer as well as the employee for Title VII to apply to the employment relationship.