1. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. CHAPTER 20 Labor and Employment Discrimination Law

2. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 3 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 Hoso case. Impediments to Dismissal

4. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 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 Bridgestone cases.

11. Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 11Conclusion 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?