CHAPTER 19
LABOR AND EMPLOYMENT DISCRIMINATION LAW
CASES IN THIS CHAPTER
Kochi Hoso (Broadcasting Co.)
Equal Employment Opportunity Commission v. Arabian American Oil Co.
Reyes-Gaona v. North Carolina Growers Ass’n, Inc.
Mahoney v. RFE/RL, Inc.
European Commission Proceedings against Czech Republic . . . .
Aldo Malgorzata Jany & Others v. Staatssecretaris van Justitie
Hill and Stapleton v. Revenue Commissioners . . .
Sumitomo Electric Industries, Ltd.
Kiobel v. Royal Dutch Petroleum Co.
TEACHING SUMMARY
Employers setting up shop in foreign countries may be surprised to find a number of very
different employment and discharge laws with which they must comply. Particularly in Western
Europe, U.S. businesses will find laws requiring management to consult with labor consuls on
many decisions, to provide enhanced information to such consuls, and even to accept a degree
of consul input. Additionally, many countries have laws restricting the number of hours that may
be worked in a week and the number of weekends worked in a month, anti-discrimination and
civil union provisions (thus requiring benefits for life partners), and various leave and
remuneration statutes. In a few instances, such as with requirements regarding disclosure to
employees of plant closings and the Family and Medical Leave Act, U.S. law has been
amended to add foreign aspects. Instructors or students may also wish to review the
Supplemental Information on FCN Treaties, as these may alter a foreign employer’s obligations
under domestic employment law.
CASES AND QUESTIONS
Kochi Hoso (Broadcasting Co.)
1. If a firm were establishing an office in Japan, how would it determine the “socially
accepted” view on the discharge of employees for tardiness? Would it look to the
relevant statutes?
Chapter 19: Labor and Employment Discrimination Law
2. Traditionally, Japanese work for an employer their entire careers. How does that
influence the “socially accepted” view reflected in this opinion? Is employment law
affected by social norms in the United States?
3. In a country that views employment as strictly a contractual relationship, how would this
case have come out?
Equal Employment Opportunity Commission v. Arabian American Oil Co.
1. Is the presumption that a federal law will or will not have extraterritorial application, if not
otherwise stated?
2. What type of a legal analysis did the court apply, literal construction or contextual
construction?
3. In light of immediate, subsequent action by Congress, did it appear that the statute had
accurately reflected (and the court had iterated) Congress’s intent?
Reyes-Gaona v. North Carolina Growers Ass’n, Inc.
1. Why did the EEOC file a complaint against NCGA for a position Reyes-Gaona was
applying for in Mexico?
2. Could American firms avoid the ADEA by conducting the hiring process in Mexico?
Chapter 19: Labor and Employment Discrimination Law
3. What was the court’s reasoning to deny the EEOC complaint? How did the legal
presumptions factor into its decision?
Mahoney v. RFE/RL, Inc.
1. Does the court’s decision mean that any collective bargaining agreement falls within the
“foreign laws” exception? What if refusal to recognize CBA had been acceptable under
German law?
2. Recalling the Denty court’s comments about attempts to avoid the ADEA, why could it
not be said that RFE/RL agreed to the CBA provision in order to circumvent the ADEA?
When was the CBA entered into?
3. What does this decision reflect about courts’ tendencies when faced with a potential
conflict of laws?
European Commission Proceedings against Czech Republic . . .
1. The Czech Republic is about 95 percent ethnic Czech. Knowing this, do you think that
there was much racial or ethnic discrimination? Do you think that might have been why
no written laws forbade it? What was accomplished by having such laws passed in
accordance with the Directive?
Chapter 19: Labor and Employment Discrimination Law
2. What does this case reflect about EU recognition of gay and lesbian rights?
3. Do you think that official government offices to promote discrimination are helpful? In
what way?
Answer: This question calls for an opinion from students.
Aldo Malgorzata Jany & Others v. Staatssecretaris van Justitie
1. What would have been the result of the case if prostitution in the Netherlands was illegal
for Dutch women? Is this a case about privacy rights or ethnic discrimination?
2. What would have been the result of the case if the plaintiffs had been Russian nationals
rather than nationals of Poland and the Czech Republic?
3. Would Czech and Polish nationals be equally free to practice other professions, such as
law? What legitimate barriers might there be to entry into those professions?
Hill and Stapleton v. Revenue Commissioners . . .
1. What would have been the result in this case if more men had availed themselves of the
job-sharing option?
2. If in the future more men take care of the children and the percentage of women job-
sharers drops, could the employer change its rules back to what they were before this
case in order to reduce expenses?
3. What effect will this ruling have on Irish taxpayers? Would this decision prevent the
government agencies from eliminating the job-sharing program to save expenses?
Chapter 19: Labor and Employment Discrimination Law
Sumitomo Electric Industries, Ltd
1. How is this employment law determination similar to that in the Kochi Hoso case earlier
in this chapter? Was the judge overruling written law with his view of a “socially
accepted” view?
2. Do “socially accepted” views change over time? What would you expect the result to
have been next time a similar suit was brought in this court?
Answer: The question calls for student opinion. Students may wish to review the history
of attitudes on racial discrimination in the United States in formulating their answers.
3. Is it appropriate for different cultures to have different laws relating to gender
employment regulation?
Answer: This question calls for student opinion.
Kiobel v. Royal Dutch Petroleum Co.
1. Kiobel limits the availability of ATS claims premised on overseas conduct, but the
decision “leaves for another day the determination of just when the presumption
against extraterritoriality might be ‘overcome.’” Should multinational companies
expect plaintiffs to continue asserting ATS claims premised on at least some U.S.-
based conduct in connection with the underlying tort?
2. Do you think plaintiffs will try their chances with ATS claims against corporate
defendants that have a more substantial connection to the United States than “mere
presence” through an investment office, securities exchange listing, or the like?
3. Kiobel did not rule on the availability of aiding and abetting liability under the ATS. Do
you think that ATS claims premised on indirect acts of “help[ing] others” to commit
human rights abuses are likely to be recognized?
Chapter 19: Labor and Employment Discrimination Law
Answer: This answer calls for student opinion.
ANSWERS TO CASE PROBLEMS
1. Answer: A U.S. court seeking to apply a federal law or constitutional protection
2 . Answer: Since her business will be physically present and operating in Germany,
Currie will have to comply with German labor and environmental laws. German labor law
MANAGERIAL IMPLICATIONS
Students should distinguish the legal issues pertaining to discrimination, i.e., those governed by
Title VII (gender, race, ethnicity, religion, national origin) from the ethical issues. Additionally,
students should note that a company can raise the defense of BFOQ (bona fide occupational
qualification) exception to the non-discrimination command of Title VII, and would probably win.
Further, the Supreme Court will not interpret Title VII to require the company to break the law of
the host country. With regard to the Catholic employee, however, the legal question is somewhat
different. There would be no discrimination in failing to make the foreign assignment if a Christian
accepted the job in South Moravia. If the Catholic employee were put in a South Moravian jail for
worshipping on Sunday in pubic, a cause of action for the company’s discriminatory behavior
would not arise. But the alleged discrimination might be the employer’s failure to allow Christian
employees an opportunity to worship at the place of employment.
ETHICAL CONSIDERATIONS
This consideration calls for student opinion. Students may be questioned whether any of the
results of the Global Gender Gap are surprising to them, especially with respect to the ranking
of the United States. In conducting an ethical analysis of the results, students may utilize
teleological frameworks from which they may conclude that, while perhaps understandable from
a moral relativist or cultural relativist point of view, continued distinctions on the basis of gender
do not serve the greatest good for the greatest number in a manner consistent with
utilitarianism. Furthermore, such continued discrimination is contrary to the fundamental rights
upon which the natural law school is based, is an undesirable universal rule pursuant to the
categorical imperative and is inequitable in a manner in violation of the principles of
contractarianism.
Chapter 19: Labor and Employment Discrimination Law