Passport to Discriminate

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.