Extraterritorial Application of United States Discrimination Laws
Attorneys helping clients with Extraterritorial Applications of Title VII
In 1991, the United Supreme Court ruled that the protections of Title VII did not apply to Americans whose primary workstation was outside the United States. Following this ruling, Congress amended a number of employment discrimination laws to protect Americans in other countries. Today, numerous employment statutes are applied extraterritorially, including Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act. Notably, the Family Medical Leave Act does not apply to employees whose primary worksite locations are outside the United States.
When an employee works outside the United States a threshold inquiry is whether his “primary workstation” falls inside or outside the United States. If the primary workstation is within the United States, then the employee is entitled to the normal protection of employment statutes. If, however, the primary workstation is outside the United States, to show entitlement to the protection of an employment statute, the employee will have to show the extraterritorial application of such statute.
To determine whether an employee’s primary workstation falls inside the United States, courts will consider five non-exclusive factors:
- (1) the site, or sites, where the employment relationship was negotiated and completed
- (2) the intent of the employer and employee as to the location of employment
- (3) the location, or locations, of the supervisors the employee reported to
- (4) the actual locations the employee worked, and the amount of time the employee worked at each location
- (5) where the employee was domiciled during the relevant time period.
While a court may consider additional factors in determining the location of the primary workstation, courts have held that the location of employment decisions concerning a plaintiff is not sufficient to locate a primary workstation in the United States. Thus, the fact that the person responsible for the alleged discriminatory action worked in the United States will have little, if any, bearing on the workstation inquiry.
If it is determined that an employee’s primary workstation falls outside the United States, to sustain a cause of action, the employee must establish extraterritorial application of the relevant statute. To show the extraterritorial application of Title VII, the FMLA, the ADA and the GINA, a plaintiff must establish two facts:
- (1) she is a United States citizen; and
- (2) her employer is controlled by an American employer. To establish citizenship, a plaintiff must show that she is a citizen by birth, or that she was naturalized through one of the many avenues for citizenship.
At its most basic, the employer test requires that plaintiff be employed by an American employer or by a foreign employer that is controlled by an American employer. When considering whether a foreign employer is controlled by an American employer, courts will consider:
- (1) whether the operations of the companies overlap;
- (2) whether the companies’ are controlled by the same people;
- (3) whether employment decisions within the companies are controlled by the same people;
- (4) whether the companies are owned or controlled by the same entities.
If the statute applies extraterritorially then the plaintiff’s case will proceed as if the employee was located in the United States.
American Law Protects American Employees Working In Any Country From Discrimination And Sexual Harassment.
- Sexually Harassed or Discriminated against?
- Wrongfully terminated for complaining of discrimination?
- Failure to Promote?
- Failure to Hire?
- Unlawful Retaliation?
Title VII of the Civil Rights Act of 1964 is the federal law covering discrimination against employees in the workplace. Most people do not know that this law protects not only employees in the United States but also an American employee working outside the United States for an American company or for a subsidiary that is controlled by an American Company.
For example, a woman working in Paris for an American Company (or subsidiary of) may sue that American Company in the United States for discrimination or sexual harassment. Of course, we always try and settle your case prior to having to start the lawsuit, but having the ability to sue in American Federal Court and subjecting the American company to liability for discrimination or sexual harassment that occurred abroad gives us substantial leverage when it comes to negotiations. If we are unsuccessful at pre-suit negotiations, we could always start the lawsuit and litigate the case.
Thus, you should not consider yourself limited to the laws of the country in which you are working. However, it is very important to speak to a lawyer knowledgeable in this area and you should call us now for a free consultation.
The DEREK SMITH LAW GROUP, PLLC handles many cases that involve extraterritorial application of United States discrimination laws. For further information, We have offices in New York City, Philadelphia, New Jersey as well as in Maimi, Florida. In the United States, call 877-469-5297. To reach us online fill out the contact form at the top right of this page.