CHAPTER 20 Labor and Employment Discrimination Law

1. CHAPTER 20 Labor and Employment Discrimination Law

2. General Directions of Labor Law Abroad • Employee Participation in Strategic Decisions: • U.S. View (plants with more than 100 employees need 60 days notice). • German Approach: grants workers a right of consultation. • Mandatory Employee Representation on Boards of Directors. • Japanese Approach.

3. Impediments to Dismissal • U.S.: “at will” employment very flexible, can be fired at any time, some exceptions (contracts, plant closing law). • Europe: just cause termination, employee representation on boards. • Impact of different legal constraints on business? Job creation? See the Kochi Hosocase.

4. Employment Discrimination Outside the United States • Extraterritorial Application of U.S. Employment Discrimination Law. • VII and 1991 Civil Rights Act applies to firms outside the U.S. that are “under control” of U.S. firm. See the EEOC v. AramCo (Arab American Oil Co) case. • Exception if practice would violate law of host country. • In 2005, Shekoyan v. Sibley Int’l Corp. excluded a permanent US resident who worked abroad for US company.

5. Reyes-Gaono v. North Carolina Growers • A Mexican national was told by NCGA official in Mexico that he was over 40 and thus not eligible for a job in N.C. • Issue: Does the ADEA apply extraterritorially? • Holding: No. Foreign nationals in foreign countries are not covered by the law.

6. Defenses to Extraterritorial Application of U.S. Law • Three Defenses: • (1) Control By Foreign Person: Decision is made by “foreign person not controlled by an American employer”, • (2) Foreign Compulsion: The US Equal Employment law conflicts with host country’s laws so employer faces foreign compulsion (see the Mahoney case ), and • (3) BFOQ: Job requires specific trait such as religion or gender. Contained in both Title VII and ADA.

7. Foreign Compulsion Defense • Mahoney v. RFE/RL, Inc. • The Court found that adherence to a foreign collective bargaining agreement requiring mandatory retirement at 65 was sufficient and although not a foreign law met the requirements of the statute.

8. Antidiscrimination Laws Outside the United States • Some convergence in outlawing discrimination, even in Japan, but different enforcement mechanisms. • EU Maternity Directive- 14 weeks at 75% - 80% net salary (more generous than U.S. which does not require payment). • What about laws favoring discrimination based on national origin (Besguia Adoi case) or religion (the Bilka case )?

9. National Origin: Bilka-Kaufhaus GmbH v. Karin Weber • Exclusion of part-time employees from benefits and pension. • Is this discrimination when most of those part-time employees are women? • Court articulates an “effects” test justified for economic reasons.

10. Foreign Laws Permitting Difficult Work Conditions • Work safety- how safe need the work environment be? What standards? • Unsafe Labor Conditions. • Child Labor. • Prison Labor. • Codes of Conduct. • What is the international norm for jurisdiction? See the Rio Tinto and Bridgestonecases.

11. Conclusion • US has proposed amendments to the WTO trade rules that tie labor standards to international trade. • 1997: Sanders Amendment: bans imports of goods made by forced child labor. • Role of NGOs? • Government Codes of Conduct?