ABA Section of International Law
Spring Meeting
April 5-8, 2006
Waldorf-Astoria Hotel
New York, New York
“Extraterritorial Application of U.S. Employment Laws”
Erika C. Collins
Paul, Hastings, Janofsky & Walker
New York, NY
TABLE OF CONTENTS
Introduction ............................................................................................... 1
I. History of Extraterritoriality .................................................................. 1
II. Legislative Response .............................................................................. 4
A.
Title VII and its Extraterritorial Application ............................. 4
B.
ADA and its Extraterritorial Application ................................... 5
C.
ADEA and its Extraterritorial Application ................................. 6
D.
FLSA ......................................................................................... 7
III. Standard for Extraterritorial Application of Title VII, ADA
and ADEA ................................................................................................... 7
A.
American Citizens ..................................................................... 8
B.
U.S. Companies or Foreign Subsidiaries ................................... 9
IV.
Conflicting Foreign Law Defense ...................................................... 11
V.
Discrimination Against Whistle-Blowers Under Sarbanes-Oxley ......13
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Extraterritorial Application of United States Employment Laws
This paper will examine the application of United States employment laws
to employers and employees stationed abroad.
Specifically, this paper will
discuss Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with
Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”),
as well as discrimination protection for whistle-blowers under the SarbanesOxley Act.
I.
History of Extraterritoriality.
It is well established that Congress has the authority to enforce its laws
beyond the territorial boundaries of the United States.1 Nevertheless, Congress
and the courts did not extend the protections of Title VII, the ADA, or the ADEA
to American citizens working abroad until the early 1990s.2 Prior to the passages
of the 1991 Civil Rights Act, federal courts held that only workers in the United
States were eligible for protection under Title VII, the ADA or the ADEA.3
At the same time that federal courts were limiting the protection of U.S.
employment laws to employees located domestically, they also protected
domestic employees from foreign discrimination by foreign employers in the
EEOC v. Arabian American Oil Company (1991) 499 U.S. 244, 248 111 S. Ct. 1227, 1230; Torrico
v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390, 396 (explaining that Congress has the authority to
regulate the conduct of its U.S. employers outside the territorial jurisdiction of the United States).
2 Shekoyan v. Sibley Int’l Corp. (D.C. Cir. 2002) 217 F. Supp. 2d 59, 64 (explaining that the
Supreme Court in Arabian American Oil was following the federal court practice of limiting the
interpretation of the scope of Title VII to extend protection only domestically to both American
citizens and aliens working in the U.S.); Iwata v. Stryker Corp. (N.D. Tex. 1999) 49 F. Supp. 2d
600, 603 (explaining that prior to the enactment of the Civil Rights Act of 1991, Title VII did not
apply to United States citizens employed in foreign countries).
3 Arabian American Oil, 499 U.S. at 246.
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U.S.4 In Fernandez v. Wynn Oil, the plaintiff brought a sex discrimination suit
under Title VII against Wynn Oil.5 The employer argued that the plaintiff was
unqualified for the position of Director of International Relations because Latin
American clients would react negatively to a female vice president.6 The Ninth
Circuit rejected this argument for two reasons.
First was that although the
United States could not impose standards of non-discriminatory conduct on
other nations, other nations could not dictate discrimination in the United
States.7 In addition, the Ninth Circuit found that customer preference based on
sexual stereotypes did not qualify for the bona fide occupational qualification
exception to Title VII.8
In 1991, the U.S. Supreme Court decided EEOC v. Arabian American Oil
Company, and held that Title VII did not apply extraterritorially to regulate
employment practices of U.S. employers who employ U.S. citizens abroad.9
Under the Court’s decision, employers were not liable under Title VII for
employment discrimination occurring against United States citizens employed
abroad.10 The Supreme Court followed the federal court practice of limiting the
interpretation of the scope of Title VII to extend protection only domestically to
Fernandez v. Wynn Oil (9th Cir. 1981) 653 F.2d 1273 (stating that no foreign nation can compel
the non-enforcement of Title VII in the United States).
5 Id. at 1275.
6 Id.
7 Id. at 1277.
8 Id. Title VII permits hiring decisions to be based on gender if gender is a bona fide occupational
qualification reasonably necessary to the normal operation of that particular business. Id. at 1276
citing Title 42, U.S.C. § 2000e-2(e). Stereotypic impressions of male and female roles, however,
do not qualify gender as a BFOQ. Id.
9 EEOC v. Arabian American Oil Company (1991) 499 U.S. 244, 246, 111 S. Ct. 1227, 1229.
10 Id.; Iwata v. Stryker Corp. (N.D. Tex. 1999) 49 F. Supp. 2d 600, 603.
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both American citizens and aliens working in the U.S.11
II.
Legislative Response.
A.
Title VII and its Extraterritorial Application.
Congress enacted Title VII of the Civil Rights Act of 1964 to assure equality
of employment opportunities and to eliminate those discriminatory practices and
devices that have fostered racially stratified job environments to the disadvantage
of minority citizens.12 Title VII prohibits employment discrimination against any
individual because of such individual’s race, color, religion, sex or national
origin.13 Discrimination based on sex includes pregnancy discrimination as well
as sexual harassment. There are two types of sexual harassment, hostile work
environment harassment and quid pro quo harassment.
In 1991, in response to the Supreme Court’s decision in Arabian American
Oil, Congress enacted the Civil Rights Act of 199114 and amended Title VII to give
the statute limited extraterritorial reach.15
The amended Civil Rights Act
expanded Title VII’s definition of “employee” to include U.S. citizens employed
abroad.16 Second, Congress explicitly precluded Title VII’s extraterritorial scope
Shekoyan v. Sibley Int’l Corp. (D.C. Cir. 2002) 217 F. Supp. 2d 59, 64.
McDonnell Douglas Corp. v. Green (1973) 411 (U.S. 792, 800, 93 S. Ct. 1817, 36 L. Ed. 2d 668.
13 42 U.S.C. § 2000e-2. Title VII states: “it shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, privileges of
employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. §
2000e-2(a)(1).
14 Civil Rights Act of 1991, Pub. L. No. 102-166, § 109(a) (1991) (codified as amended at 42 U.S.C.
§ 2000e(f)).
15 Shekoyan v. Sibley Int’l Corp. (D.C. Cir. 2002) 217 F. Supp. 2d 59, 64.
16 42 U.S.C. § 2000e(f) (“with respect to employment in a foreign country, such term [employee]
includes an individual who is a citizen of the United States”).
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from covering aliens.17 Finally, this amended language extended Title VII abroad
only to corporations controlled by United States employers.18
B.
ADA and its Extraterritorial Application.
Title I of the Americans with Disabilities Act (“ADA”) makes it unlawful for
any employer to discriminate against a qualified individual with a disability with
regard to job application procedures, the hiring, advancement or discharge of
employees, employee compensation, job training, and other terms, conditions
and privileges of employment.19 Discrimination includes an employer’s failure to
make reasonable accommodations to the known physical or mental limitations of
an otherwise qualified individual with a disability who is an applicant or
employee unless doing so would impose undue hardship on the employer.20
In 1991, Section 109 of the Civil Rights Act of 1991, which amended Title
VII, enacted identical amendments to the ADA to give the statute limited
extraterritorial application.21 The section entitled Protection of Extraterritorial
Employment, amended the ADA’s definition of “employee” to include a citizen of
the United States working in a foreign country.22 In addition, Section 109 of the
Civil Rights Act amended the ADA so that the statute only applies to foreign
42 U.S.C. § 2000e-1.
42 U.S.C. § 2000e(i).
19 42 U.S.C. § 12112(a).
20 42 U.S.C. § 12112(b)(5)(A).
21 Civil Rights Act of 1991, Pub. L. No. 102-166, § 109(a) (1991) (codified as amended at 42 U.S.C.
§ 2000e(f) and 42 U.S.C. § 12111(4); Torrico v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390, 397-98.
22 42 U.S.C. § 12112(4).
17
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operations of U.S. controlled foreign corporations.23
The amendment also
limited the ADA’s extraterritorial application by providing that with respect to an
employee working in a foreign country, actions that would otherwise constitute
discrimination are not unlawful if compliance with the ADA would cause the
covered entity to violate the law of the foreign country.24
C.
ADEA and its Extraterritorial Application.
The Age Discrimination in Employment Act (“ADEA”) prohibits
discrimination based on age in an employment context.25
Prior to 1984, the ADEA did not contain any provision addressing
extraterritorial reach.26 In Cleary v. U.S., the Third Circuit held that the ADEA
could not be applied to Americans employed outside the United States by
American employers.27 In 1984, Congress responded to Cleary and subsequent
cases by amending the ADEA to provide for limited extraterritorial application.28
Examining the 1984 amendments, it is clear that the ADEA applies abroad only
when (1) the employee is an American citizen; and (2) an American employer
controls the foreign employer.29 The purpose of the amendment was to ensure
42 U.S.C. § 12112(c)(2).
42 U.S.C. § 12112(c)(1).
25 29 U.S.C. § 623(a) states It shall be unlawful for an employer . . . to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment, because of such individual’s age.
29 U.S.C. § 623(a).
26 Denty v. Smithkline Beecham Corp. (3d Cir. 1997) 109 F.3d 147, 149.
27 Cleary v. U.S. (3d Cir. 1984) 728 F.2d 607, 610.
28 Denty v. Smithkline Beecham Corp. (3d Cir. 1997) 109 F.3d 147, 149.
29 Denty v. Smithkline Beecham Corp. (3d Cir. 1997) 109 F. 3d 147, 150 (defining the 1984
extraterritorial amendments to the ADEA; Torrico v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390,
398 (the 1984 amendments to the ADEA expanded the definition of “employee” to include “any
23
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that a citizen of the United States who is employed in a foreign workplace by a
U.S. corporation or its subsidiaries enjoys the protections of the ADEA.30
D.
FLSA.
In contrast to Title VII, the ADA and the ADEA, the Fair Labor Standards
Act (“FLSA”) does not apply to work performed in an “exempt area,” such as a
foreign country.31 Under the plain language of the statute, the FLSA specifically
excludes employees working in foreign countries.32 Legislative history indicates
that Congress intentionally excluded U.S. workers employed abroad from
coverage under the FLSA.33 Nevertheless, this exemption for work performed
outside the U.S. applies only where the employee spends all hours of work in a
given workweek in an exempt area.34
III.
Standard for the Extraterritorial Application of Title VII, ADA
and ADEA.
In order for Title VII, the ADA or the ADEA to protect employees working
individual who is a citizen of the United States employed by an employer in a workplace in a
foreign country” and simultaneously limited the ADEA’s extraterritorial reach to exclude foreign
operations of foreign corporations that are not “controlled” by a U.S. employer and discrimination
by employers facing conflicts with the laws of the host countries.)
30 Denty v. Smithkline Beecham Corp. (3d Cir. 1997) 109 F.3d 147, 150.
31 An “exempt area” also includes any territory under the jurisdiction of the United States other
than the following locations: a State of the United States, the District of Columbia, Puerto Rico,
the U.S. Virigin Islands, the Outer Continental Shelf Lands as defined in the Outer Continental
Shelf Lands Act (67 Stat. 462), American Samoa, Guam, Midway Atoll, Wake Island, Johnston
Island, and Palmyra. 29 U.S.C. § 213(f)); see Torrico v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390,
398 (stating that the statute specifically exempts from its coverage, any employee whose services
during the workweek are performed in a workplace within a foreign country).
32 29 U.S.C. § 213(f).
33 Torrico v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390, 398 (explaining that application of FLSA to
foreign countries is unusually inconsistent with local conditions of employment, the level of the
local economy, the productivity and skills of indigenous workers and is contrary to the best
interest of the United States and the foreign areas).
34 5 C.F.R. § 551.209.
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abroad, the general rule is that the employee, (1) must be an American citizen;
and (2) must either work for a corporation incorporated in the United States or
work for a foreign corporation controlled by a United States company.35
A.
American Citizens.
In 1991, the amendments to the ADA and Title VII, expanded the
definition of “employee” in both statutes with respect to employees working
abroad to include an individual who is a citizen of the United States. 36 While the
language in the 1984 amendments to the ADEA is not exactly identical, courts
have held that the ADEA was designed to extend coverage only to United States
citizens abroad.37 The requirement that an employee be a citizen of the United
States means that permanent legal residents (i.e. individuals holding green cards)
are not subject to the protections of Title VII, the ADA, or the ADEA while
working abroad.38
Torrico v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390, 397-98 (explaining that Section 109 of the
Civil Rights Act of 1991, which amended Title VII, enacted, identical amendments to the ADA);
Iwata v. Stryker (N.D. Tex. 1999) 59 F. Supp. 2d 600, 604 (stating that the general rule is that
with respect to foreign employment, Title VII applies only to American citizens employed abroad
by American companies or their foreign subsidiaries); Denty v. SmithKline Beecham Corp. (E.D.
Pa. 1995) 907 F. Supp. 879, 883 (applying the ADEA abroad only when: (1) the employee is an
American citizen; and (2) the employer is controlled by an American employer).
36 Torrico v. IBM (S.D. NY 2002) 213 F. Supp. 2d 390, 397-98 (explaining that the amendments
to the ADA and Title VII are identical). Examination of the plain language of the Civil Rights Act
of 1991 demonstrates that Title VII will only apply extraterritorially to United States citizens.
Shekoyan v. Sibley Int’l Corp. (D.C. Cir. 2002) 217 F. Supp. 2d 59, 6.
37 ADEA provisions defining “employee” and outlining foreign employment are virtually identical
to those contained in Title VII. Iwata v. Stryker (N.D. Tex. 1999) 59 F. Supp. 2d 600, 604.
Therefore most courts use the same analysis for both ADEA and Title VII claims. Iwata v. Stryker
(N.D. Tex. 1999) 59 F. Supp. 2d 600, 604; Denty v. SmithKline Beecham Corp. (E.D. Pa. 1995)
907 F. Supp. 879, 883 (applying ADEA abroad only when (1) the employee is an American citizen
and (2) the employer is controlled by an American employer).
38 Shekoyan v. Sibley Int’l Corp. (D.C. Cir. 2002) 217 F. Supp. 2d 59, 68 (holding a permanent
legal resident working abroad for an American company ineligible for protection under Title VII).
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B.
U.S. Companies or Foreign Subsidiaries.
In addition, the employee must work for a corporation incorporated in the
United States, or for a foreign subsidiary owned or controlled by the U.S.
Company.39 If the corporation is not incorporated in the United States, Title VII,
the ADA, and the ADEA will apply if a United States company controls the
foreign corporation for which the U.S. citizen works.40 Both Title VII and the
ADEA contain language that explicitly states that the protections of the statutes
do not apply to foreign operations not under an American employer’s control.41 If
the employee is working for a foreign corporation, courts consider the following
four factors to determine whether there is sufficient control by an American
employer:
(1)
interrelation
of
operations;
(2)
common
management;
(3) centralized control of labor operations (most important); and (4) common
ownership or financial control.42
A recent case, Watson v. CSA, Ltd., sheds light on the application of the
Denty v. Smithkline Beecham Corp. (3d Cir. 1997) 109 F.3d 147, 150 (explaining that the
amendment to the ADEA is carefully worded to apply only to U.S. citizens who are working for
U.S. corporations or their subsidiaries).
40 The 1991 Civil Rights Act amended the language to extend Title VII abroad only to corporations
controlled by United States Employers. Shekoyan v. Sibley Int’l Corp. (D.C. Cir. 2002) 217 F.
Supp. 2d 59, 65 (explaining that Title VII shall only have extraterritorial application when the
employee’s company is controlled by an American employer). Iwata v. Styker (N.D. Tex. 1999) 59
F. Supp. 2d 600, 604 (explaining that Title VII and the ADEA apply abroad only when the
corporation is controlled by an American employer).
41 Title VII § 2000e-1(c) provides that: Sections 200e-2 and 2000e-3 of this title shall not apply
with respect to the foreign operations of an employer that is a foreign person not controlled by an
American employer; ADEA Title 29 U.S.C. § 623(h) provides that: The prohibitions of this
section shall not apply where the foreign employer is a foreign person not controlled by an
American employer.
42 Title VII 42 U.S.C. § 2000e-1(c); ADEA 29 U.S.C. § 623(h).
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four factor test.43
The plaintiff, an African-American U.S. citizen, sued his
employer, a foreign employer in Kuwait, for discrimination under Title VII.44 The
employer in Kuwait, CSA,
was a corporation headquartered in the Cayman
Islands.45 This employer was a wholly owned subsidiary of a joint venture, in
which three U.S. companies, also defendants, were partners.46 CSA sought to
dismiss the action on the basis that it was not an “employer” under Title VII.47
The court evaluated the defendant’s status as an “employer” under the four factor
test described above, relying on the application of these four factors in previous
discrimination cases in determining whether separate entities could be
considered an “integrated employer.”48 Consistent with these prior applications
of the integrated employer analysis, the court focused on the degree to which
labor relations were centralized among the entities.49 The court found that the
plaintiff had submitted sufficient evidence of control of the foreign employer by
the American corporations to continue with the case, noting that: (1) the foreign
employer and its parent shared a human resources department that was
responsible for employees in both companies, and that human resources
department had involvement in personnel matters that were directly related to
the lawsuit; (2) the parent had substantial input into the subsidiary’s
employment policies and procedures; (3) the high level management of the
Watson v. CSA, Ltd., 376 F. Supp.2d 588 (D. Md. 2005).
Id. at 590
45 Id.
46 Id.
47 Id. at 593.
48 Id. at 594.
49 Id.
43
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foreign employer and parent had management responsibilities related to both
entities; and (4) the supervisor that was responsible for denying employment to
the plaintiff was a “dual status” employee of the foreign employer and the
American parent.50 Based on the facts presented, the court concluded that the
two entities were “so intertwined as to be virtually indistinguishable.” 51
IV.
Conflicting Foreign Law Defense.
The conflicting foreign law defense allows a U.S. employer to take
otherwise unlawful action under U.S. law if compliance with U.S. law would cause
the employer to violate the law of the foreign country where the workplace is
located.
In other words, it may be legally acceptable to violate U.S. law if
compliance would inevitably cause violation of local law.52 The purpose of this
defense is to avoid placing an overseas employer in the impossible position of
having to conform to two inconsistent legal regimes, one imposed from the U.S.
and the other imposed by the country in which the company operates.53
The conflicting foreign law defense arises in two situations. The first is
when the defendant may legitimately rely upon the bona fide occupational
Id. at 595-600.
Id. at 596.
52 “It shall not be unlawful for an employer, employment agency or labor organization (1) to take
any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where . . .
such practices involve an employee in a workplace in a foreign country, and compliance with such
subsections would cause such employer, or a corporation controlled by such employer, to violate
the laws of the country in which such workplace is located.” 29 U.S.C. § 623(f)(1).
53 Mahoney v. RFE/RL, Inc. (D.C. Cir. 1995) 47 F.3d 447, 450.
50
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qualification exception to Title VII.54 In Kern v. Dynalectron Corp., the Texas
district court examined Dynalectron’s requirement that all helicopter pilots be
Muslim, and deemed the religious affiliation a bona fide occupational
qualification.55 Dynalectron employed helicopter pilots to fly in Saudi Arabia and
required certain pilots to fly over Mecca.56 Saudi Arabian law prohibited the
entry of non-Muslims into Mecca under penalty of death, and any non-Muslims
caught flying into Mecca were beheaded.57 The district court found that nonMuslim pilots were not safely stationed in Saudi Arabia compared to Muslim
pilots, therefore, Dynalectron’s requirement that all of its helicopter pilots be
Muslim was not religious discrimination in violation of Title VII.58
The second situation when employers may rely on the conflicting foreign
law defense is when there is an actual conflict of foreign law.59 In Mahoney v.
RFE/RL, Inc., RFE/RL, Inc. was a radio broadcast company incorporated in
Delaware but broadcasting out of Munich, Germany.60 RFE/RL entered into a
collective bargaining agreement with unions representing employees in Munich
Title VII § 703(a) states: “Notwithstanding any other provision of this title . . . it shall not be an
unlawful employment practice for an employer to hire and employ employees . . . on the basis of
religion, sex or national origin in those certain instances where religion, sex or national origin is a
bona fide occupational qualification reasonably necessary to the normal operation of that
particular business or enterprise.”
55 Kern v. Dynalectron Corp. (N.D. TX. 1983) 577 F. Supp. 1196, 1203.
56 Kern v. Dynalectron Corp. (N.D. TX. 1983) 577 F. Supp. 1196, 1198.
57 Kern v. Dynalectron Corp. (N.D. TX. 1983) 577 F. Supp. 1196, 1200.
58 Kern v. Dynalectron Corp. (N.D. TX. 1983) 577 F. Supp. 1196, 1203.
59 29 U.S.C. § 623 (f)(1) states: “It shall not be unlawful for an employer . . . to take any action
otherwise prohibited under this act where . . . such practices involve an employee in a workplace
in a foreign country, and compliance with such subsections would cause such employer . . . to
violate the laws of the country in which such workplace is located.”
60 Mahoney v. RFE/RL, Inc. (D.C. Cir. 1995) 47 F.3d 447, 448 (RFE/RL was best known for its
broadcast services, Radio Free Europe and Radio Liberty).
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requiring all employees, including United States citizens working in Munich, to
retire by the age of 65.61 The D.C. Circuit court held that RFE/RL’s compliance
with the collective bargaining agreement did not violate the ADEA because the
collective bargaining agreement was legally enforceable and breaching the
agreement would constitute a violation of German law.62
V. Discrimination Against Whistle-Blowers Under Sarbanes-Oxley.
The Sarbanes-Oxley Act (“SOX”) provides protection from dismissal for
employees of companies subject to the Securities Exchange Act of 1934 that
lawfully cooperate with an investigation concerning its violations or fraud on
shareholders.63 Though SOX’s application to “issuers,” which can include foreign
corporations, has made its other provisions applicable extraterritorially, the
employee whistle-blowing protections have not been applied extraterritorially.64
In Concone v. Capital One Financial Corp. and Carnero v. Boston Scientific Corp.,
employees of foreign companies subject to SOX brought suit for damages for
discriminatory dismissal based on their reporting of accounting irregularities and
violations of the Securities Exchange Act of 1934.65 In both cases, the employees
Mahoney v. RFE/RL, Inc. (D.C. Cir. 1995) 47 F.3d 447, 448. Plaintiffs were employees and
United States citizens forced to retire under the terms of the collective bargaining agreement, at
age 65. Id.
62 Mahoney v. RFE/RL, Inc. (D.C. Cir. 1995) 47 F.3d 447, 450 (explaining that the purpose of the
ADEA foreign laws exception was to avoid placing overseas employers in the impossible position
of having to conform to two inconsistent legal regimes).
63 18 U.S.C. §1514A(a).
64 Concone v. Capital One Fin. Corp., No. 2005-SOX-00006, 2004 WL 3127233 (O.S.H.R.C.A.L.J.
Dec. 3, 2004); Carnero v. Boston Scientific Corp., No. Civ.A.04-10031-RWZ, 2004 WL 1922132
(D. Mass. Aug. 27, 2004).
65 Id.
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were denied discrimination protection under SOX.66 The issue of whether SOX
applied to employees in a foreign jurisdiction turned on the intent of Congress to
apply the whistle-blowing protections extraterritorially, with the conclusion in
both cases that the necessary intent was not evident.67
Id.
Concone, 2004 WL 3127233, at *3 (ruling by OSHA Administrative Law Judge that whistleblower protections of Sarbanes Oxley Act do not apply to workers who are employed in foreign
countries); Carnero, 2004 WL 1922132, at *2 ("Nothing in Section 1514A(a) remotely suggests
that Congress intended it to apply outside of the United States.").
66
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