Passport to Discriminate

by Peter Spiro

Here’s a recent decision out of the Ninth Circuit finding a Friendship, Commerce, and Navigation treaty not to preempt state employment law, at least not with respect a whistlerblower statute. (H/T: David Zaring and the Administrative LawProf Blog.) But I was unaware that FCN treaties do allow discrimination on the basis of nationality, in favor of nationals of the sending state’s corporation. So a Japanese company doing business in the US can fire an American and replace her with a Japanese national on no basis other than citizenship.

That has to be one of the few contexts today in which citizenship makes a difference to employment, at least in the US. Outside the FCN context, businesses can’t discriminate on the basis of national origin. Title VII prohibits discrimination on the basis of citizenship, so that companies can’t favor Americans over authorized aliens. Of course, foreign diplomatic operations here will discriminate on the basis of citizenship, as can international organizations. It’s notoriously difficult for Americans to get jobs at the United Nations, for example, where nationality quotas work to the advantage of people from smaller, far-away places.

2 Responses

  1. Not sure it says that. If they hire the Japanese person but in doing so discriminate on the basis of citizenship national origin then they will be liable for violation of state anti-discrimination laws. The Japanese company is able to hire Japanese when it wants to – it just is not able to discriminate against someone in doing that. That seems like a reasonable balance for the concerns of FCN’s – nationals are not excluded for host state rules but company can not exclude persons in violation of host state law.



  2. How can this replacement worker meet work visa requirements?

    Wouldn’t the replacement worker occupy a position that a citizen can be hired to fill? Aren’t foreign workers required to fill positions when citizens can not be found to meet the demand?

    Wouldn’t the company be open to liability when the citizen can show nationality discrimination occured?

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