A Constitutional Dilemma: The Conflict of the Title VII Alien Exemption Clause with the Civil Rights Act of 1991

Article excerpt

  I. INTRODUCTION
 II. BACKGROUND OF CURRENT LAW
     A. The Aramco Decision
        1. The Presumption against Extraterritoriality
        2. Congress Responds to ARAMCO
     B. The Courts' Interpretation of the Civil Rights Act
        of 1991
        1. Iwata v. Stryker Corp
        2. Shekoyan v. Sibley Int'l Co.
        3. Gantchar v. United Airlines
        4. No Case Has Considered the Conflict Between
           the Alien Exemption Clause and the
           Constitution
III. THE ALIEN EXEMPTION CLAUSE, AS ENFORCED, IS AN
     UNCONSTITUTIONAL DENIAL OF EQUAL PROTECTION
     A. STATE CLASSIFICATIONS ON THE BASIS OF
        ALIENAGE ARE SUBJECT TO STRICT
        SCRUTINY
     B. ACTIONS BY THE FEDERAL GOVERNMENT
        THAT CLASSIFY PEOPLE BASED ON
        ALIENAGE ARE ALSO SUBJECT TO STRICT
        SCRUTINY
     C. APPLYING STRICT SCRUTINY TO THE ALIEN
        EXEMPTION CLAUSE
        1. Strict Scrutiny Applied to the Alien Exemption
           Clause Would Invalidate the Clause
     D. A COURT MUST INTERPRET A STATUTE IN A
        WAY THAT AVOIDS A CONSTITUTIONAL
        QUESTION
 IV. THE IMPACT ON THE APPLICATION OF TITLE
     VII'S ALIEN EXEMPTION CLAUSE
     A. IF THE ALIEN EXEMPTION CLAUSE IS
        SIMPLY AMBIGUOUS, COURTS WILL HAVE
        TO DETERMINE WHICH ALIENS ARE
        EXCLUDED FROM COVERAGE
     B. IF THE ALIEN EXEMPTION CLAUSE IS
        UNCONSTITUTIONAL, THE COURTS
        SHOULD APPLY A CONFLICT OF LAWS
        ANALYSIS TO DETERMINE COVERAGE
        1. The Federal Choice of Law Rule
        2. Application of the Choice of Law Rule
  V. CONCLUSION

I. INTRODUCTION

Global commerce began on a small scale in the fifteenth and sixteenth centuries, and, since the early nineteenth century, the world's economies have been highly integrated. (1) Today, several factors allow the world's economies to benefit from a new dimension of globalization. (2) First, the removal of trade restrictions has greatly influenced companies' decisions to expand trade to other countries. (3) Over the last fifty years, the global economy has seen an increase in multilateral and regional agreements that have stimulated global trade. (4) The second factor increasing the incentives to globalize is the privatization first seen in the 1990s. (5) Privatization drives globalization by creating aggressive competition in domestic markets. (6) In turn, competition drives local industries to search the world for new markets and cheaper materials. (7) Finally, recent internet-related technologies drive globalization by boosting efficiency and growth. (8) These technologies catalyze rapid industrialization of developing regions by increasing information and improving access to markets. (9) What would have taken fifty to one-hundred years is now possible in five years or less, thanks to today's superior technology. (10) This increase in globalization raises many interesting legal issues.

The numerous U.S. companies operating internationally initiate much litigation about which U.S. laws apply outside the United States. (11) Notably, part of this litigation addresses the employer-employee relationship. (12) To complicate the issue, there is a presumption that the "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." (13) Thus, debate over extraterritorial application of U.S. law persists.

One important area in the international application of U.S. law is the development of Title VII protection for workers outside of the United States. (14) In the early 1990s, the Supreme Court held that Title VII does not apply to workers outside of the United States. (15) Congress quickly enacted the Civil Rights Act of 1991 "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination", (16) The Act extends Title VII coverage to U. …