Sex, Allies, BFOQs: The Case for Not Allowing Foreign Corporations to Violate Title VII in the United States

Abstract

The extent to which foreign corporations as well as their domestic subsidiaries can discriminate against American employees on the basis sex, age, religion, and national origin in a manner that would be acceptable under their own laws and customs but inimical to American law is currently determined by a muddled jumble circuit court opinions interpreting a [w]e express no view Supreme Court footnote. As a result, American victims sexual discrimination have much less protection under Title VII the Civil Rights Act 1964 when the discriminating actor is a foreign corporation or its domestic subsidiary than they do when the discrimination is by a wholly domestic corporation. This results from the courts' interpretations the relationship between a common Treaty Friendship, Commerce and Navigation (FCN) provision that allows foreign corporations to hire executive-level employees of their choice, and Title VII and its 703 bona fide occupational qualification (BFOQ) exception that allows discrimination on the basis religion, sex, or national origin (but not race) for certain jobs. This Article will argue that this result, repugnant to the purpose civil rights laws, is the result a series badly reasoned courts appeal cases and a lack guidance by the Supreme Court.