This study analyzes the prior and current practice of the judiciary in deciding cases of extraterritorial applications of U.S. anti-discrimination statutes, such as Title VII, the ADA, and the ADEA. Specifically, it analyzes when and to what extent courts have applied the protections of these Acts to foreign elements. In 1991, Aramco held that legislation of Congress, unless a contrary intent is shown, is meant to apply only within the territorial borders of the United States. Because of the congressional silence in Title VII, the Supreme Court in Aramco dismissed the case even though it involved a claim of discriminatory employment practices asserted by a U.S. national against a U.S. employer operating abroad. However, what is interesting in the context of employment law is that Congress has explicitly amended these statutes to provide for an extended geographic reach of its protections and has done so particularly after the judiciary had decided cases interpreting congressional intent contrary to what Congress had in fact intended. This is what had transpired in Aramco. Despite the increased protections provided by the statutory amendments, several gaps and inconsistencies remain. Among such gaps and inconsistencies include the uncertain status of U.S. legal permanent residents employed abroad for U.S./U.S.-controlled employers. This study, while ultimately concluding that the solution lies in efforts at harmonizing employment practices, recommends a new statutory amendment as an immediate solution to alleviate these harsh implications. The proposed amendment seeks to make U.S. extraterritorial regulation more consistent. The proposed amendment advanced promotes one very significant change. It extends the protections of the anti-discrimination statutes to U.S. permanent legal residents employed abroad by U.S./U.S.-controlled employers. This recognizes the inherent local nature of labor regulation by refusing to extend the statutes’ protections further but also recognizes the bond that U.S. permanent legal residents have with the United States, thus necessitating the extended protections for them. This proposed amendment creates a system of regulation that does not discriminate based on the U.S. permanent resident’s nationality and makes the application and protections under U.S. law more consistent in its administration. Lastly, it better comports with our globalized world that is characterized by international business expansion, transitory employment, and mobility.
Alina Veneziano, Advancing a Feasible Solution to Cross-Border Employment Enforcement Mechanisms, 22(1) Marq. Ben & Soc. Welfare L. Rev. 85 (Fall 2020)