EMPLOYMENT LAW IN A GLOBAL CONTEXT

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Introduction

In light of efforts toward globalization, it has become increasingly important for business professionals to plan, budget, hire and operate in global terms. Consequently, employment and termination decisions made by both foreign employers operating in the United States and by American firms functioning abroad have become increasingly more complicated. Further, even Atried-and-true@ rules of thumb have, in many cases, fallen prey to a recent spate of judicial activism and Congressional Amendments. In some ways, formerly murky lines have achieved clarity. In other ways, new ambiguities have emerged in previously settled areas of international employment law.

This article attempts to smooth the bebouldered legal landscape for attorneys representing prospective plaintiffs and potential defendants. It approaches this onerous task by interpreting important trial court and appellate decisions regarding the application of the Civil Rights Act of 1964 (ATitle VII@)[2], the Age Discrimination in Employment Act (AADEA@)[3], and the Americans with Disabilities Act (AADA@)[4] by foreign employers and their subordinate units in this country, and by American employers who engage American workers abroad. It considers the effect of Friendship, Commerce, and Navigation (AFCN@) treaties in the context of such legislation, and the significance of a changing bona fide occupational qualification (ABFOQ@) standard in American courts. Finally, this article discusses recent trends in federal district courts regarding American anti-discrimination law as applied to U.S. companies operating abroad with American workers.

Anti-Discrimination Primer

Under the Americans with Disabilities Act, employers must not:

• Fail to make reasonable accommodations for otherwise qualified individuals' known physical or mental impairments
• Deny job opportunities (or raises, promotions, etc.) to prospects based upon the prospects' need for reasonable accommodation
• Terminate employees because of a disability
• Discriminate in job application procedures, hiring, job training, advancement, compensation, or other terms, conditions, or privileges on the basis of prospects' disability
• Limit, segregate, or classify applicants or employees in a way that adversely affects their opportunities or status because of their disabilities
• Coerce, intimidate, or interfere with the exercise of rights under the ADA, or
• Retaliate against those who oppose unlawful practices or participate in ADA investigations or hearings[5]

These rules were extended to covered entities in foreign countries by the 1991 Amendments.[6] The revised statute now covers American corporations in foreign territories, except "if compliance with this section would cause such covered entity to violate the law of the foreign country in which such workplace is located."[7]

Under the Age Discrimination in Employment Act, employers must not:

• Refuse to hire or otherwise discriminate against people regarding their compensation or other terms, conditions, or privileges of employment on the basis of their age
• Limit, segregate, or classify applicants or employees in a way that adversely affects their opportunities or status because of their age
• Lower the rate of pay of higher-paid employees to comply with the ADEA (in a case where a younger worker makes more than an older, equally qualified older worker).
• Retaliate or discriminate against those who oppose unlawful practices or participate in ADA investigations or hearings, or
• Print, publish, or cause to be printed or published job notices that specify preferences or limitations on age[8]

Under Title VII of the 1964 Civil Rights Act, employers must not:

• Refuse or fail to hire, cause to be discharged, or otherwise discriminate against people in regards to compensation, or other terms, conditions or privileges of employment because of their race, color, religion, sex, or national origin
• Limit, segregate, or classify applicants or employees in a way that adversely affects their opportunities or status because of their age
• Lower the rate of pay of higher-paid employees to comply with the ADEA (in a case where a younger worker makes more than an older, equally qualified older worker).
• Retaliate or discriminate against those who oppose unlawful practices or participate in ADA investigations or hearings, or
• Print, publish, or cause to be printed or published job notices that specify preferences or limitations on age[8]

Under Title VII of the 1964 Civil Rights Act, employers must not:

• Refuse or fail to hire, cause to be discharged, or otherwise discriminate against people in regards to compensation, or other terms, conditions or privileges of employment because of their race, color, religion, sex, or national origin
• Limit, segregate, or classify applicants or employees in a way that adversely affects their opportunities or status because of their race, color, religion, sex, or national origin
• Discriminate against applicants or employees in any apprenticeship or other training program on the basis of their race, color, religion, sex, or national origin
• Retaliate or discriminate against applicants or employees because they have opposed unlawful practices or participated in Title VII investigations or hearings, or
• Initiate printed or published job notices or advertisements that indicate any preference, specification, limitation, or other discrimination on the basis of race, color, religion, sex, or national origin[9]

These rules were given extraterritorial effect by the Amendments of 1991.[10] The newly revised statute now:

• Does not apply to aliens employed by U.S. companies outside of the United States; and
• Shall be binding on American employers with respect to American employees, so long as complying does not cause the employer to violate relevant local laws in the foreign country.[11]

There are, of course, other anti-discrimination laws that are relevant to domestic situations, and which may impact on foreign corporations doing business in the United States, but they are not being addressed because this paper cannot be an exhaustive exposition of the subject. They include the Equal Pay Act ("EPA"), the Reconstruction-Era Civil Rights Acts, the Family Medical Leave Act ("FMLA") and other federal laws that outlaw discrimination by federally assisted programs and by federal contractors. Most states likewise have their own versions of these laws.[UU1]

Who is an "Employer" Under U.S. Law?

At the risk of sounding overly simplistic, no worker can bring an employment action against an employer if, in fact, no employment relationship exists. While other types of actions may present themselves in the case of a contract-work relationship gone awry, many avenues of redress are closed to all but actual employee/employer situations. To determine whether such a relationship exists, the courts will look to many aspects of the relationship. The Seventh Circuit, for example, has applied the following test:

(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.[12]

Each circuit has applied its own test of employer-employee relationships, and the elements can range in number from four to eleven. The most prevalent elements are control and supervision and compensation and benefits.

Another consideration in determining whether an employer is an employer under the anti-discrimination statutes is the number and identity of people who work for the entity. The ADEA says, at ¿ 630(b) that "a business entity must have at least 20 employees to be an employer."[13] Several courts have held that overseas and American offices'/locations' employees will be counted together to arrive at the number.[14] The definition of "employer" under Title VII and under the ADA each require 15 employees.[15][UU2]

Upon determining that an employment relationship does, in fact, exist, and that the employer has enough employees to be held liable under the relevant law, the courts generally assume subject matter jurisdiction over the case. Among the next questions that must be answered are: 1) What is the identity of the plaintiff?; 2) What is the nationality/place of incorporation of the employer?; 3) Where did the employment occur?; 4) Is there a Friendship, Commerce, and Navigation (or other relevant) Treaty in operation between the U.S. and the foreign country?; 5) Does the particular anti-discrimination law under which the claim is brought speak about its applicability to this particular mix of location and citizenship of the parties?; and 6) Is the defendant a) a branch office or b) a U.S.-incorporated subsidiary of a foreign-incorporated parent company, and, if "b", 7) which entity makes the hiring decisions? There are as many additional considerations as there are prospective plaintiffs and defendants, but these are among the primary questions that should be investigated before the assertion of a claim or at the point when a defendant is served a charge or complaint.

Foreign Employers and Their Subordinate Units Operating in the U.S.

Freedom from discrimination on the basis of an individual=s race, color, religion, sex, national origin, age, or disability in employment decisions has become a hallmark American liberty. Generally speaking, Title VII[16], the ADA[17], and the ADEA[18] prevent any employer operating on American soil from including or excluding prospective employees on these bases. American employers operating here have a legal obligation to treat native-born, naturalized, and resident alien workers all in accordance with these statutes.[19] Many foreign employers operating here face a somewhat more discretionary legal standard, assuming they hail from a country that has an active treaty with the United States.

The most commonly invoked type of treaty is the FCN treaty. FCN treaties allow foreign employers to discriminate on the basis of citizenship when selecting and engaging certain categories of technical and executive employees.[20] The reasoning behind such an important exception has been that this reciprocal arrangement enables foreign investors to protect their interests by hiring key personnel who are best equipped to represent those interests adequately in the host country marketplace. Many cases have interpreted the concept of "key personnel".[21] The courts have universally held that FCN treaties were not meant to extend the "of their choice" language to all hiring decisions. In Wickes v. Olympic Airways, for example, the Sixth Circuit explained that, 

        The juxtaposition of the words "of their choice" and "regardless of nationality" has been interpreted by the State Department as creating both a right to employ and a limitation on that right.... Under this interpretation, companies of either party are permitted to discriminate in favor of their own nationals or citizens for certain high level positions, but not to discriminate against others in the labor force of the host country on any other basis. The words "of their choice" merely reflect the intent of both the United States and [the foreign country] to give the other's companies the freedom to fill designated critical positions without Interference from local laws and regulations.[22] [Citations omitted][Emphasis added].

The burden is on the employer to prove that the position that was filled or sought to be filled was a so-called key position as is alluded to in the FCN treaty for the country involved. This "allusion" does not explicitly employ the "key personnel" language, but instead uses categories, such as "accountants and other technical experts, executive personnel, attorneys, agents and other specialists..."[23] The language tends to leave broad discretion to the employer, however, the presumption is weighted against the employer's position in any borderline hiring situation.

Several cases have sought to challenge the validity of FCN Anationality@ discretionary choice as discrimination on the basis of national origin.[24] It is important to note that the terms "nationality" and "national origin" are not synonymous here. The relevant definition of "nationality" is "[t]hat quality or character which arises from the fact of a person's belonging to a nation or state."[25] Therefore, "nationality" refers to one's citizenship. The relevant definition of "national origin", on the other hand, is "[t]he country where a person was born, or, more broadly, from which his or her ancestors came."[26] Although a person's nationality and her national origin can be the same country, given the global portability of the modern employee's life and career, such is not always the case.

The majority of federal courts have held that the FCN choice clauses were congressionally-sanctioned permission to hire executives and key personnel on the basis of citizenship and, therefore, they have upheld the practice as non-discriminatory under current U.S. law.[27] In MacNamara, for example, the Third Circuit said,

Inherent in the Court=s reading of Title VII and its history, is a Congressional determination that a trier of fact can distinguish national origin discrimination from citizenship discrimination and, accordingly, that courts can impose liability on the basis of the former without imposing it for the latter.[28]

Generally, however, an employer must show Abusiness necessity@, which places nationality/citizenship into the realm of BFOQ.[29] In fact, Title VII requires a showing of BFOQ by foreign employers claiming immunity under an FCN treaty.[30]

Not all jurisdictions have chosen to treat the citizenship/nationality requirement of foreign employers in America using explicit BFOQ language. Almost universally, however, the courts have applied related principles. In Shane v. Tokai Bank, for example, the Southern District Court of New York required the following: 

        [T]he employment decisions would have to be justified on the basis of the unique requirements of a [foreign] company doing business in the United States, including such factors as a person=s (1) [foreign] linguistic and cultural skills, (2) knowledge of [the foreign country's] products, (3) familiarity with the personnel and workings of the principal or parent enterprise in [the foreign country], and (4) acceptability to those persons with whom the Company or branch does business. [Citations omitted].[31]

The latter prong of this standard has been rejected by a federal regulation to the contrary.[32] Foreign businesses may no longer respond to customer and associate preferences as a BFOQ.

The situation becomes much more complicated when the foreign business entity is not a branch office (i.e. a satellite division of a business incorporated elsewhere in the world), but is instead a U.S.-incorporated subsidiary. Generally speaking, branch offices, since they are part of foreign corporations, can claim FCN treaty immunity from U.S. anti-discrimination laws on the aforementioned basis of citizenship/nationality when hiring for key positions. U.S.-incorporated subsidiaries can claim no such immunity unless it can be proven that employment decisions are made by the foreign-based parent company and not by the U.S.-based subsidiary.[33] In Papaila, for example, the Fifth Circuit said, 

        A judgment that forbids [an American subsidiary of a foreign corporation] to give preferential treatment to the expatriate executives that its parent sends would have the same effect on the parent as it would have if it ran directly against the parent: it would prevent [the parent] from sending its own executives to manage [the subsidiary] in preference to employing American citizens in these posts.[34]

This court, and most others, have been reticent to apply that level of usurpation over foreign investors' right to manage their companies.

Even if a treaty is in place, and the hiring company is a U.S.-incorporated, wholly-owned subsidiary whose foreign parent makes all employment decisions, the discriminatory employment decisions will not necessarily be upheld if the corporation is inappropriately claiming FCN immunity. If, for example, the allegation of employment discrimination is based upon some reason other than nationality (even if it is based, in part, on nationality), the burden will shift back to the corporation to prove the allegation false. See Santerre v. Agip Petroleum.[35] In Santerre, a worker sued her U.S.-incorporated subsidiary employer for violating her Title VII rights on a gender basis. Because the parent company was Italian and the subsidiary claimed that all major employment decisions were made in Italy, the defendant company moved to have the charges dismissed. The court denied the motion, saying: 

        While [an FCN] treaty may protect a subsidiary from liability for employment decisions dictated by its parent, the protection extends only to employment decisions based on citizenship... In this case, Santerre alleges discrimination based on her gender and her participation in Title VII-protected activity, not her citizenship. Therefore, the [FCN] Treaty does not shield Agip from liability to Santerre under Title VII.[36]

Courts will not simply accept as truth the claim of a U.S.-incorporated subsidiary that the foreign parent makes the key personnel decisions. One test that is often applied in such situations is called the "single employer-integrated enterprises test." The Sixth Circuit applied such a test in Armbruster v. Quinn,[37] to determine whether Syntax Corp., a wholly-owned subsidiary, and Pure Corp., its parent, were in fact acting as a single employer.[38] The court explained, 

        [T]he most important indicia of an interrelationship between the immediate corporate employer and the affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated corporation is jointly responsible for the acts of the immediate employer. When such a degree of interrelatedness is present, we consider the departure from the "normal" separate existence between entities an adequate reason to view the subsidiary's conduct as that of both.[39]
 *** 

        [T]his test [] assesses the degree of (1) interrelated operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership.

If a U.S.-incorporated subsidiary and a foreign parent are deemed a single employer, the FCN immunity descends to the subsidiary for the purposes of nationality-based, key personnel hiring decisions only.[40]

Age discrimination is a particularly nettlesome issue for foreign corporations operating here. Many countries have mandatory or permissible forced retirement ages which most foreign companies, when operating in their home territory, do not (or cannot) waive. When these companies seek to enforce such regulations and policies here, whether with American or same-country workers, they are legally forbidden to do so. The ADEA requires U.S.-incorporated subsidiaries and U.S. branches of foreign companies to overlook age in hiring and firing decisions. When they have elected not to ignore age, some foreign employers have looked to the text of the ADEA itself for relief.

The ADEA says, in relevant part: "The prohibitions of this section shall not apply where the employer is a foreign person not controlled by an American employer."[41] While this wording seems to imply immunity for foreign employers operating here, American courts have ruled that it does not, in fact, imply that at all.[42]

In the Hansen case, for example, the plaintiff, a 60-year-old Danish citizen and permanent U.S. resident, alleged, among other things, age-based harassment and termination by her employer, a New York-based branch of the Danish Tourism Board. The Tourist Board argued that it was exempt from lawsuits brought pursuant to the ADEA and Title VII by Danish citizens in the United States, because it was "a foreign person not controlled by an American employer."[43] In holding against this affirmative defense, the court cited the Second Circuit in Morelli, which said "the ADEA 'generally applies' to foreign firms operating on U.S. soil." [44] After an exhaustive analysis of the legislative history and a comparison with the analogous language in the ADA, the Morelli court determined that the actual meaning of the provision was that only foreign employers not operating on U.S. soil were to be so exempted. The Hansen court consequently held that its plaintiff could not be barred from bringing her action on such grounds. It said, 

        [T]he Court finds that the Tourist Board is subject to the provisions of the ADEA and Title VII and may be hailed into Court for alleged violations of these statutes. [Further, [t]he Court rejects the argument by the Tourist Board that it cannot be sued by Hansen because she is not a United States citizen. It is well settled that permanent residents of the United States, such as Hansen, are accorded the protection of this country's laws and the benefit of access to its courts.[45]

Many other courts have allowed foreign and American employees to sue their U.S.-operating foreign employers for age discrimination.[46] A few courts have not allowed such suits to proceed (under distinguishable circumstances). In Robinson v. Overseas Military Sales Corp.,[47] the plaintiff was an American living and working in Korea for defendant, a Swiss corporation that operated a branch on a U.S. military installation.[48] Plaintiff sued his employer under the ADEA after he was terminated and rehired multiple times. The court disallowed the suit and granted a dismissal for "failure of the pleading to state a claim upon which relief can be granted"[49] Plaintiff's citizenship and his employer's affiliation with the U.S. military base notwithstanding, defendant was indeed "a foreign person not controlled by an American employer" and therefore not subject to regulation by the ADEA.

American Companies and their American Employees in Foreign Territories

The ADEA, Title VII and the ADA apply also to American employers of American citizens assigned overseas. Prior to the relevant amendments[50] these laws did not apply to any employer, American or otherwise, overseas. For example, in the landmark opinion of E.E.O.C. v. Arabian American Oil Co.[51], which was announced in 1991, the Court stated emphatically that Title VII did not apply extraterritorially to the regulate employment practices of American employers with American employees abroad. The Court said that, absent any such intention, explicitly stated by Congress, it would give no such effect to the statute. Later that same year, the amendments addressing this issue in both the ADA and Title VII were added to these laws, and the extraterritoriality of these laws was taken out of the hands of the courts. The ADEA had undergone a similar transfiguration seven years earlier.

Right on the heels of these important amendments came a bevy of claims by American workers, employed by American companies, whose harms had allegedly taken place shortly before the passing of the amendments. For example, the D.C. Circuit decided Ralis v. RFE/RL, Inc.[52] in 1985. In this case, an American radio programmer who was stationed in Europe was forced to retire in 1981 at age 65 by Radio Free Europe's mandatory policy. To his demand for redress, the court said, 

        For reasons that are enshrouded in mystery, Congress saw fit to limit the ADEA's compass for many years to the territorial confines of the United States.... [T]he pre-1984 ADEA's reach stopped where the jurisdiction of a foreign country began[53].... We conclude .... that the 1984 amendment expanding the ADEA's compass to foreign jurisdictions should not be retroactively applied. Inasmuch as the pre-1984 statute did not apply to RFE/RL, Inc., ... we hold that the ADEA had no applicability to Dr. Ralis's involuntary retirement in 1981.[54]

The 11th Circuit addressed a similar issue in Lopez v. Pan Am World Services, Inc.[55] In Lopez, the court likewise came to the conclusion that retroactive application of the ADEA was not permissible, no matter how equitable it might seem as applied to plaintiff's case.

As the courts foreclosed this means of remediation, plaintiffs became more creative in their complaints. In Arno,[56] plaintiff, a California resident and former employee of a Club Med resort in France, claimed a violation of her rights under Title VII when the New York Club Med office failed to take appropriate action when she complained of being raped by her supervisor in France. The Ninth Circuit said, 

        In E.E.O.C. v. Arabian American Oil Co.,[57] the Court held that an employer is not liable under Title VII for employment discrimination that occurs outside the United States. Though Congress changed that law in the Civil Rights Act of 1991, the amendment does not retroactively apply.... [Plaintiff] suggests that Club Med employees in New York violated Title VII in the United States by failing to take appropriate investigative or remedial action in response to her complaints of sexual harassment.... [However, a]n employer has no obligation under Title VII to provide a remedy where the complained-of conduct is not covered by the statute. Here, the underlying conduct ... didn't violate Title VII because it occurred outside the territorial United States before the Civil Rights Act of 1991 took effect. Thus, the alleged responses of Club Med's New York employees may have been callous, but they don't amount to a Title VII violation.[58]

These laws, in an overseas context, cover situations involving American-controlled corporations/companies[59] that employ American nationals in overseas assignments. Perhaps the most important exception to the anti-discrimination statutes overseas is the so-called foreign laws exception[60] that is embodied in these three laws. The foreign laws exception, which is codified separately in each of these statutes, says, basically, that if an American company operating in a foreign country would violate the laws of that country by complying with the provisions of the anti-discrimination laws, the company need not comply with the relevant statute. The DC Circuit addressed the foreign laws exception in Mahoney v. RFE/RL, Inc.[61] In that case, the court was forced to determine whether a collective bargaining agreement was a "law" for ADEA purposes, and, if so, whether defendant (again, Radio Free Europe, an American corporation), was right to forgo the ADEA in order to comply with a union-mandated retirement age. The court upheld defendant's actions saying "[t]he collective bargaining agreement here was valid and enforceable at the time of plaintiff's terminations, and RFE/RL had a legal duty to comply with it."

Another challenge occasionally made by defendant involves the "American-controlled corporation" requirement of the statutes. The Southern District Court of New York faced this issue in the context of a merger. A vice president/general counsel of a foreign corporation that was later absorbed by an American corporation negotiated an employment contract that was violative of the ADEA on its face. The court held that since the successor corporation was American, the claim against it was not precluded under the ADEA, saying "[a]n employer that merely controls, and does not own, an entity that has violated the ADEA may still be held liable under the Act."[62] [Citation omitted].

Foreign nationals who are employed by American corporations often attempt to gain redress via the ADA, ADEA, and Title VII, to no avail. In Midwest-Werner,[63] the District Court of Kansas explained the rule as follows: "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."[64] The court also added, "Unless an American citizen, a person employed abroad is not an "employee" under Title VII."[65]

In Chaudhry,[66] a foreign national who was employed by an American oil company overseas brought an action against his employer because his employer refused to transfer him to an American assignment. The Fourth Circuit noted that plaintiff was, in no way, qualified for employment in America since he lacked the necessary paperwork required by American immigration laws. The court, after expressing a "strong presumption against the extraterritorial application of federal law,"[67] explained that "[t]o be eligible for Title VII protection, a plaintiff must show that he was qualified for employment." Later in the opinion, the court rejected his ADEA claim for the same reasons.[68] While no court has addressed the question head-on since this decision, the court seemed to imply that Chaudhry might have made out a claim were he eligible to work in the United States.[69] Still, this possibility bears little on the rule that foreign nationals are not eligible for protection under these laws when they work overseas.

In Iwata v. Stryker Corp.,[70] the Northern District of Texas reached a similar conclusion despite plaintiff's argument that as a resident alien of the United States prior to and after his employment, he should receive protection under the ADEA and Title VII. The court rejected his demand because plaintiff was a citizen of Japan, worked in only Japan during all relevant times, and was at no time a citizen of the United States.

Before closing it is also important to give consideration to whether State, County or Local laws against discrimination will impose other or further obligations on locally situated foreign employers, foreign employees or on former local employees now working abroad. The national focus of this paper precludes an analysis on a state by state basis, but it should serve to encourage the reader to explore all possibly relevant sources of legal controls. This is a complicated and evolving area with tricks and turns in the most unexpected of places.

Dated: March 14, 2003

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[1] The assistance of Steven Savage, a third year law student, is gratefully acknowledged. Without his assistance this paper would not be as terrific as it is.
[2] 42 U.S.C. ¿ 2000e-2 et seq.
[3] 29 U.S.C. ¿ 623 et seq.
[4] 42 U.S.C. ¿ 12112 et seq.
[5] ADA, supra at 3.
[6] 1991 Amendments to the Americans with Disabilities Act.
[7] 42 U.S.C. ¿ 12112(c).
[8] ADEA, supra at 2.
[9] Title VII, supra at 1.
[10] 1991 Amendments to the Civil Rights Act of 1964.
[11] 42 U.S.C. ¿ 2000e-1.
[12] Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377 (7th Cir. 1991).
[13] 29 U.S.C. ¿ 630(b).
[14] Morelli v. Cedel, 141 F.3d 39 (2d Cir. 1998).
[15] 42 U.S.C. ¿ 2000e(b), 42 U.S.C. ¿ 12111(5)(A).
[16]42 USC ¿ 2000e et seq.
[17]42 USC ¿ 12111 et seq.
[18]29 USC ¿ 621-634
[19] Native-born citizens are covered by the statutes by definition. Naturalized citizens are covered by virtue of 8 USC '1102(23), which defines "naturalization" as "the conferring of nationality...upon a person after birth" and, e.g., In re Bishop, 26 F.2d 148 ("Naturalization is the act of adopting an alien and clothing him with the privileges of citizenship.") Resident aliens are covered, subject to the documentation provisions set out in immigration law, 8 USC ' ' 1324 et seq. Undocumented aliens may have a limited coverage under these laws, per Hoffman Plastic Compounds, Inc. v. N.L.R.B., 122 S.Ct. 1275 (2002).
[20]See, e.g., U.S.-Japan Friendship, Commerce, and Navigation Treaty, 4 U.S.T. 2063, 2070 at Article VIII (1). It says: ANationals and companies of either Party shall be permitted to engage, within the territories of the other Party, accountants and other technical experts, executive personnel, attorneys, agents and other specialists of their choice.@ [Emphasis added].
[21] See, e.g., Wickes v. Olympic Airways, 745 F.2d 363, 367 (6th Cir. 1984)
[22] Id.
[23] U.S.-Japan FCN Treaty, supra at 4.
[24] See, e.g., Avagliano v. Sumitomo Shoji America, 638 F.2d 552 (2d Cir. 1981)[24] and MacNamara v. Korean Air Lines, 863 F.2d 1135 (3d Cir. 1988).
[25] black's Law Dictionary 1025(6th ed., 1990 - Joseph R. Nolan and Jacqueline M. Nolan-Haley, co-authors).
[26] Id.
[27]See e.g., Espinoza v. Farah Manufacturing, 414 U.S. 86 (1973), Papaila v. Uniden America, 51 F.3d 54 (5th Cir. 1995), Weeks v. Samsung Heavy Industries Co., 126 F.3d 926 (7th Cir. 1997), and Fortino v. Quasar, 950 F.2d 389 (7th Cir. 1991).
[28]MacNamara, at 1146-47.
[29] See Avigliano, 638 F.2d at 559.
[30] 42 U.S.C. ¿ 2000e-2(e)
[31] Shane, 1997 WL 639255 (SDNY 1997).
[32] 29 CFR ¿ 1604.2(a)(1)(iii).
[33] See, i.e., Fortino v. Quasar Co. 950 F.2d 389, 393 (7th Cir.1991). See also Papaila v. Uniden Corp., 51 F.3d 54, 55-56 (5th Cir. 1995) and Bennett v. Total Minatome Corp., 138 F.3d 1053 (5thCr. 1998).
[34] Papaila, at 55-56.
[35] Santerre v. Agip Petroleum Co., 45 F.Supp. 558, 575-577 (S.D.T.X. 1999).
[36] Id, at 577.
[37] Armbruster v. Quinn, 711 F.2d 1332, 1337-39 (6th Cir. 1983).
[38] In this case, there was no FCN treaty involved. The purpose of the single employer determination was to pierce the corporate veil and to hold a viable concern financially and legally responsible for its defunct former subsidiary.
[39] Armbruster, at 1337.
[40] Id. See also Robins v. Max Mara, 914 F.Supp. 1006 (SDNY 1996), abrogated by Morelli v. Cedel, 141 F.3d 39 (2d Cir. 1998) on other grounds.
[41] 29 USCA ¿ 623 (h) (2).
[42] See, e.g. Elliott v. British Tourist Authority, 986 F.Supp. 189 (SDNY 1997) and Hansen v. Danish Tourist Bd., 147 F.Supp.2d 142 (EDNY 2001).
[43] Hansen, at 147.
[44] Id, at 148, citing Morelli, at 43-44.
[45] Hansen, at 148.
[46] See, e.g. Morelli, supra at 20. See also Elliott v. British Tourist Authority, 986 F.Supp. 189 (SDNY 1997); Robins, supra at 20; E.E.O.C. v. Kloster Cruise Ltd., 888 F.Supp. 147 (SD Fla. 1995); and Helm v. South African Airways, 1987 WL 13195 (SDNY 1987).
[47] Robinson v. Overseas Military Sales Corp., 827 F.Supp. 915, 920-21 (EDNY 1993).
[48] Although plaintiff was employed on the American military base in Korea, and U.S. military bases overseas are often subject to the jurisdiction of U.S. courts, the suit was disallowed because the corporation was Swiss.
[49] Fed R. Civ. P Rule 12(b) (6).
[50] Title VII and ADA as amended by the "1991 Amendments to the Civil Rights Act of 1964" and the "1991 Amendments to the Americans with Disabilities Act" respectively. The ADEA as amended by the "1984 Amendment to the Age Discrimination in Employment Act".
[51] 499 U.S. 244, 113 L.Ed2d 274, 111 S.Ct. 1227 (1991).
[52] 770 F.2d 1121 (D.C. Cir. 1985).
[53] Id at 1124.
[54] Id at 1131.
[55] 813 F.2d 1118 (11th Cir. 1987).
[56] Arno v. Club Med, Inc., 22 F.3d 1464 (9th Cir. 1994).
[57] Supra at 43.
[58] Arno, at 1472.
[59] Subject to the statutory size/employee count limitations.
[60] Codified at 42 USC ' ' 2000e-1(b) and 12112(c)(1), and at 29 ' 623(f)(1).
[61] 47 F.3d 447 (DC Cir 1995).
[62] Id at 326.
[63] Russell v. Midwest-Werner & Pfleiderer, Inc., 955 F.Supp. 114 (D.C. Kan. 1997).
[64] Id at 115.
[65] Id. See also Iwata v. Stryker Corp., 59 F.Supp.2d 600 (N.D.Tex. 1999) (Japanese former employee of American corporation and Japanese subsidiary sued both, alleging Title VII and ADEA violations. Court ruled that plaintiff was not American citizen and, therefore, not eligible for protection under these statutes) and Reyes-Gaona v. North Carolina Growers Ass'n, 250 F.3d 861 (4th Cir. 2001) (Mexican national sued American business and its Mexican agent under ADEA because he was precluded, during recruitment in Mexico, from employment opportunities in the United States based upon his age. The court said "[n]othing in the amendments regulates age discrimination by U.S. corporations against foreign nationals in foreign countries.").
[66] Chaudhry v. Mobil Oil Co.186 F.3d 502 (4th Cir. 1999).
[67] Id at 504.
[68] Id at 505.
[69] Id at 504.
[70] Iwata, 59 F.Supp.2d 600 at 604 (NDTX 1999).

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[UU1] I HAVE PERFORMED NO SPECIFIC RESEARCH INTO STATE LAWS AND WHAT EXACTLY THEY COVER. THIS STATEMENT MAY BE TOO BROAD.
[UU2] TRY AS I MIGHT, I COULD FIND NO SUCH ANALOGOUS PROVISION IN THE ADA, BUT AM CERTAIN THAT ONE MUST EXIST. WHY WOULDN'T IT?