How American Employment Law May Affect Recruiting Processes Abroad

Updated May 2008 - Several years ago, I was unemployed in London for almost a full-year after moving to the U.K. to marry a U.K. citizen. I quickly noticed an obvious difference in the employment process I encountered in London during my job search as compared to the process on job searches I had conducted in the United States. As a longtime recruitment professional (with major American corporations) all of this seemed very odd and strange to me; I intuitively thought somehow American federal employment law must (or at least should) certainly apply (even in the U.K.) since I was being interviewed and screened for (or seeking to interview with) American firms. I vowed someday to find out about the international reach and applicability of American employment laws.

After all, as an American living in Britain, I did not have the inherent right to criticize or challenge the employment practices of British firms, I am not British! However, as a native born American I possess the inalienable right to question, criticize, and challenge the employment practices and behavior of my country's firms (no matter where they operate)! And I have the absolute right as an American citizen to hold them accountable for their employment behavior even in the U.K. since it was different than what I had experienced in the States.

After returning to my homeland and quickly securing an excellent position as Head of Recruiting with a Chicago company, I got to thinking about how I might assist those recruiters in other countries - who work with applicants who are American citizens abroad who are seeking employment exclusively with American firms. I wanted to help these recruiters (unfamiliar with the reach of American Law) avoid making gaffes which might expose their firms to possible U.S. employment discrimination litigation.

I also wanted to help inform other American citizens who find themselves in a foreign land (U.K. or otherwise) as a result of marriage and relocation about their rights under American law - while seeking employment with an American employer in a foreign land or a foreign corporation controlled by an American employer.

Since leaving London I have done many hours of extensive legal research. I have also spoken and corresponded with the U.S. Equal Employment Opportunity Commission (EEOC) in Washington, D.C. about the extent to which American laws applies to American citizens seeking employment with American firms while living overseas.

The U.S. Equal Employment Opportunity Commission (EEOC) in Washington provides enforcement, oversight and coordination of all U.S. federal equal employment opportunity regulations, practices, and policies.

It appears from what I have researched and studied that the following U.S. statues cover discrimination abroad against U.S. citizens applying for employment with American employers or for employment with American-controlled foreign employers; this coverage extends to recruitment, the application process, and hiring. Specifically:

Age Discrimination in Employment Act of 1967 - which protects U.S. citizens who are 40 years of age or older against employment discrimination based on age - (ADEA); And sec. 623(b) of ADEA states that it shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age. And sec. 630(c) of ADEA defines employment agency to mean: any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person.

• the older Americans Act Amendments of 1984;
• Title VII of the Civil Rights Act of 1964 as amended, which prohibits employment discrimination on the basis of race, color, sex, religion, and national origin; "Protected Class" concept developed based on the above categories race, color, national origin, etc
• Title I of the Americans with Disabilities Act of 1990 which bars employment discrimination against qualified individuals with disabilities on the basis of the disability.

Obviously, these are not new U.S. statues; they have been on the books for many years! And the same statues also cover U.S. citizens who are already employed aboard by American employers or by American-controlled foreign employers.

However, these statues do not cover any individuals overseas who are not U.S. citizens. "For 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 aboard, 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."

Greater detail is provided on the EEOC website. The website explains the many discriminatory practices which are prohibited against U.S. citizens under U.S. law vis-a-vis overseas American employers and American controlled foreign employers. The EEOC states that pursuant to "Title VII, the ADA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:

• hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; etc.."

Moreover, some of the discriminatory practices (from the EEOC website) under these laws include:

• "employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
• denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
• Title VII prohibits practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.
• It is illegal to discriminate on national origin, specifically against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
• ADEA bars age discrimination and also explicitly prohibits: statements or specifications in job notices or advertisements of age prefe rence and limitations".

As you can see above, specific American statues come into play when dealing with American citizens in foreign locations in relation to American employers abroad and American-controlled foreign employers. Any U.S. citizen who believes that their employment rights have been violated may file a charge of discrimination with the EEOC.. A charge must be filed with EEOC within 180 days from the date of the alleged violation. While investigating a claim of discrimination the EEOC can make written requests for information, talk to people, secure and review documents, etc. - obviously, company documents and data reporting would need to be accurate and available. Lastly, sometimes prima-facie evidence and adverse impact may cause glaring attention to a company's statistics of under utilization of a particular group of people at the work location.

Hopefully, this information could assist recruitment professionals who deal locally with American citizens. In sum, this information points out that there could be direct and punitive consequences for illegal employment behavior when dealing with American citizens on behalf of American employers abroad and American-controlled foreign employers