Magazine article HRMagazine

State of the States

Magazine article HRMagazine

State of the States

Article excerpt

In today's mobile workforce, it's not uncommon for employees to commute from one state to another or to work remotely for an employer in a different state. Thus, it's important for employers to be able to navigate which state's anti-discrimination statutes apply. It's a challenge that is compounded for employers that operate in multiple states.

Federal vs. State Limits

While both federal and state governments can regulate certain types of conduct, they generally don't have the right to reach beyond their borders to do so. Both the courts and Congress have grappled with the authority of federal antidiscrimination statutes.

In EEOC v. Arabian Oil Co., 499 U.S. 244 (1991), the U.S. Supreme Court determined that Title VII of the Civil Rights Act of 1964, which prohibits race, sex, national-origin and religious discrimination, did not apply to U.S. citizens working abroad for U.S. employers. The court reasoned that, unless a federal statute indicates an intent that it be applied outside the United States, the courts will not extend the reach.

Congress responded promptly by amending Title VII, as well as the Americans with Disabilities Act, which prohibits disability discrimination. The amendments expressly extend the protection of these laws to citizens working abroad for U.S. employers or for foreign entities controlled by them. Similarly, the federal Age Discrimination in Employment Act was amended in 1984 to provide for the application of that statute to U.S. citizens working overseas for U.S. employers.

Each of these statutes provides a defense for U.S. employers if they take actions that violate U.S. law but are mandated by foreign law or are protected by a treaty or international agreement between the U.S. and another country.

While the extraterritorial application of federal anti-discrimination statutes is well-established, the reach of state laws is inconsistent. Indeed, courts analyzing them have taken different approaches, leading to varying results.

The states all start with the same premise, namely recognizing the general principle against extraterritorial application of laws. The divergence appears when the courts formulate standards for determining the reach of their anti-discrimination statutes.

California Requirements

California courts have been reluctant to apply the state's Fair Employment and Housing Act (FEHA) beyond its borders but have kept the door open. In Campbell v. Arco Marine Inc., 42 Cal. App. 4th 1850 (1996), the California Court of Appeal stated that FEHA was not intended to apply to nonresidents where the conduct constituting a tort took place outside the state.

In Campbell, the plaintiffwas a Washington state resident who worked aboard a ship transporting oil from Alaska to various points in Washington and California, with brief stopovers in California and elsewhere. The plaintiffalleged that harassment occurred while she worked on the ship at sea and in Washington state.

The plaintiffmade a sexual harassment claim against her employer under California law, since the company's headquarters were in California. Because the plaintiffdid not allege that anyone at the headquarters participated in or ratified the allegedly unlawful conduct, the court found an insufficient nexus with California and dismissed the FEHA claim.

In Gonsalves v. Infosys Technologies Ltd., No. C09-04112 (N.D. Cal. May 6, 2010), the federal district court for the Northern District of California was faced with a closer call than in Campbell but ultimately dismissed a FEHA claim by a nonresident.

The plaintiff, an executive at an information services and consulting company, was an Ohio resident claiming age discrimination and retaliation. Unlike the plaintiffin Campbell, he traveled to California several times during his employment and managed clients based there. He also made general allegations that the decision to terminate his employment was made and approved in California. …

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