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Keith Sealing

Abstract

The extent to which foreign corporations as well as their domestic subsidiaries can discriminate against American employees on the basis of 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 of circuit court opinions interpreting a “[w]e express no view” Supreme Court footnote. As a result, American victims of sexual discrimination have much less protection under Title VII of the Civil Rights Act of 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 of the relationship between a common Treaty of 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 of religion, sex, or national origin (but not race) for certain jobs. This Article will argue that this result, repugnant to the purpose of civil rights laws, is the result of a series of badly reasoned courts of appeal cases and a lack of guidance by the Supreme Court. However, because of the current Court's stance in civil rights cases, now is perhaps not the best time for certiorari on any of the issues raised herein. This Article will focus generally on sex discrimination under Title VII, and will focus specifically on Japanese companies and their subsidiaries, although the cases involve other countries and other antidiscrimination provisions.

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