EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Coverage of Americans Overseas

Dear

This is in response to your letter of October 10, 2003, to Chair Cari Dominguez regarding coverage under the federal employment discrimination laws. Chair Dominguez has requested that our office respond directly to you. Pursuant to your request, we have reviewed a passage that you drafted for an article regarding the application of the federal employment discrimination statutes to Americans employed overseas. Our informal comments are summarized below. We have also enclosed two policy documents that provide more detailed information on the coverage of Americans overseas under the federal employment discrimination laws.

The Equal Employment Opportunity Commission (EEOC) enforces the federal employment discrimination laws, including Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., which prohibits employment discrimination on the bases of race, color, sex, religion, and national origin; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., which protects individuals age 40 and older from employment discrimination because of age; Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., which bars employment discrimination against qualified individuals with disabilities on the basis of disability; and the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d), which requires that men and women be given equal pay for equal work in the same establishment.

• Section 109 of the Civil Rights Act of 1991: As you note in the passage you asked us to review, the Civil Rights Act of 1991 (CRA) protects U.S. citizens overseas if they are employed by American employers or by foreign employers controlled by American employers. Section 109 of the CRA, however, is codified as amendments to Title VII and the ADA. Pub. L. No. 102-166, § 109(a), 105 Stat. 1071, 1077 (1991). Therefore, we recommend that you identify Title VII and the ADA as the statutes that provide for coverage of U.S. citizens employed overseas. Coverage of U.S. citizens employed overseas under Title VII and the ADA is codified at 42 U.S.C. §§ 2000e(f) and 12111(4), respectively. Coverage under Title VII and the ADA of foreign employers overseas that are controlled by American employers is codified at 42 U.S.C. §§ 2000e-1(c) and 12112(c)(2), respectively.
• Section 115 of the CRA: As you note in the passage, the ADEA protects U.S. citizens employed overseas who are 40 or over against employment discrimination based on age. While you also note correctly that section 115 of the CRA addresses the ADEA, that provision addresses time limitations under the ADEA rather than coverage of U.S. citizens employed overseas. The provisions under the ADEA covering employment outside the United States were adopted as part of the Older Americans Act Amendments of 1984, Pub. L. No. 98-459, § 802(a), 98 Stat. 1767, 1792 (1984). Coverage of U.S. citizens employed overseas under the ADEA is codified at 29 U.S.C. § 631(f), and overseas coverage of foreign employers controlled by American employers is codified at 29 U.S.C. § 623(h)(1). Therefore, we recommend that you omit any reference to section 115 of the CRA in your discussion of the ADEA. If you wish to discuss the basis for the ADEA provisions that protect U.S. citizens employed overseas, then we recommend that you reference the Older Americans Act Amendments of 1984.
• Foreign laws: As you note, none of the federal employment discrimination laws protects workers employed overseas by foreign employers. You further note that "local (host country) laws predominate in this case." In our view, this last passage may suggest that U.S. citizens employed overseas by American employers are only protected by U.S. employment discrimination laws, and not by any employment discrimination laws of the foreign country where the worker is employed. Since coverage under federal employment discrimination laws does not affect any rights that U.S. citizens employed overseas have under local laws, we recommend that the passage be revised to state that U.S. citizens employed overseas also may be protected by local employment discrimination laws, regardless of whether they are protected by U.S. employment discrimination laws.

  In addition, we recommend that you clarify that American employers do not violate the federal employment discrimination laws if compliance would cause an employer to violate the laws of the foreign country in which the workplace is located. This is commonly called the "foreign laws defense." The defense is codified in Title VII, the ADEA, and the ADA at 42 U.S.C. § 2000e-1(b), 29 U.S.C. § 623(f)(1), and 42 U.S.C. § 12112(c)(1), respectively.

• Workers who are not U.S. citizens: Title VII, the ADEA, and the ADA do not cover workers who are not U.S. citizens and are employed abroad, regardless of whether the employer is American or foreign. However, workers who are not U.S. citizens but are employed in the United States are covered to the same extent as U.S. citizens. We recommend that you include these points clarifying the coverage of non-U.S. citizens under the federal employment discrimination laws.
• Equal Pay Act: The Equal Pay Act only covers workers employed in the United States. We recommend that you include this point for clarification.

We hope this information has been helpful. Please note that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of section 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b), or §10 of the Portal-to-Portal Act of 1947, incorporated in § 7(e) of the ADEA. If you have any questions, please call Ernest Haffner at (202)663-4644.

Sincerely,

Dianna B. Johnston
Assistant Legal Counsel

Enclosures

This page was last modified on April 27, 2007.