EEOC Guidelines on Seniority and Extraterritoriality
Murphy, Betty Southard, Barlow, Wayne E., Hatch, D. Diane, Personnel Journal
On October 20, 1993, the Equal Employment Opportunity Commission (EEOC) unanimously approved enforcement guidance memoranda explaining the agency's position on seniority systems and extraterritorial application of Title VII of the Civil Rights Act of 1964, as amended, (CRA) and the Americans with Disabilities Act (ADA). This is the first policy guidance from EEOC that interprets amendments to Title VII by the Civil Rights Act of 1991.
In the first policy guidance, the Commission outlines its enforcement approach on the issue of seniority in light of Section 112 of the amended Title VII, intended to undo the U.S. Supreme Court's 1989 Lorance v. AT&T Technologies decision. (See Manager 's Newsfront, August 1989.) That amendment states that a seniority system adopted with discriminatory intent may be timely challenged from either the date it was adopted or when it has a discriminatory effect on a member of a protected class.
EEOC concludes that when a charging party alleges that a seniority system has been adopted for an intentionally discriminatory purpose, the charge will be timely if filed within 180 (or 300) days of the date that: "[t]he seniority system or the challenged provision is adopted in a [CBA] or unilaterally adopted by an employer; the charging party becomes subject to the seniority system or one of its provisions; or the charging party is injured by application of the seniority system." Enforcement Guidance on the Effect of Section 112 of the [CRA], reprinted at Daily Labor Report (BNA) No. 203, (Oct. 22, 1993).
In the second policy guidance, EEOC spells out how it will enforce Title VII as amended and the ADA with respect to conduct outside the U.S., and the application of these two laws to foreign employers operating in the U.S.
According to the EEOC, Title VII as amended, and the ADA cover an individual who is a citizen of the U.S. with respect to employment in a foreign country and prohibit discrimination against U.S. citizens abroad by an American employer, or by a foreign corporation controlled by an American employer.
The EEOC makes clear, however, that neither Title VII nor the ADA applies to foreign operations of an employer that is foreign and not controlled by an American employer. …