Protection for Alien Workers Under U.s. Employment Discrimination Laws
| Publication year | 1993 |
| Pages | 1911 |
| Citation | Vol. 22 No. 9 Pg. 1911 |
1993, September, Pg. 1911. Protection for Alien Workers Under U.S. Employment Discrimination Laws
However, the employer who assumes such a cautious approach could find himself or herself defending a national origin or citizenship discrimination lawsuit. As discussed in this article, the law is evolving so as to grant alien workers increasing rights under U.S. employment discrimination laws.
In Fortino v. Quasar Co.,(fn1) the plaintiffs charged Quasar with discriminating against its American executives on the basis of their age and national origin, in violation of the Age Discrimination in Employment Act(fn2) and Title VII of the Civil Rights Act of 1964.(fn3) Quasar is an unincorporated division of a U.S. corporation wholly owned by Matsushita Electric Industrial Company. Quasar markets products in the United States that are made in Japan by Matsushita. Matsushita regularly assigns several of its own financial and marketing executives to Quasar on a temporary basis. They are employees of Quasar but also retain their status as employees of Matsushita. It is Matsushita, rather than Quasar, that evaluates their performance, fixes their salaries and keeps their personnel records.
There were ten of these Japanese executives working at Quasar in 1986, when the company was reorganized. Plaintiffs in the case were among several American executives discharged at that time. None of the Japanese executives was discharged then. The main issue was whether a claim of discrimination based on national origin is tenable when the discrimination is in favor of foreign citizens employed temporarily in the United States as authorized by a treaty between the United States and Japan. The subject treaty permits "companies of either Party [the United States and Japan] to engage within the territories of the other Party. . . executive personnel. . . of their choice."(fn4)
The Seventh Circuit Court of Appeals distinguished national origin discrimination from citizenship discrimination. It held that the actual discrimination had been in favor of Japanese citizens, rather than those of Japanese national origin, and citizenship discrimination is not forbidden by Title VII. National origin, which refers to the country where a person was born, or from which his or her ancestors came, is likely to be identical to the person's citizenship in the case of a homogeneous country such as Japan. However, the court found that
[n]o favoritism was shown Quasar's Japanese-American employees, which would have been true national-origin discrimination since they are not citizens of Japan. . . .(fn5)
Although the court based its holding on the fact that there was no clash between Title VII and the discrimination permitted by the treaty, the court was clearly influenced by the fact that Quasar was controlled by its Japanese parent, Matsushita, and was, thus, not in a position to refuse to give preferential treatment to the executives sent by Matsushita. In fact, Quasar was treated as though it were asserting the treaty rights of Matsushita.
The case of Sumitomo Shoji America, Inc. v. Avagliano(fn6) is another case involving a U.S. subsidiary and a Japanese parent. However, in Sumitomo, the U.S. Supreme Court determined that Sumitomo was not a company of Japan and, therefore, could not rely on the treaty to insulate it from discrimination.
The Court reasoned that because Sumitomo was incorporated in the United States and not merely a branch of its...
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