When Does a Foreign Law Compel a U.S. Employer to Discriminate Against U.S. Expatriates?: A Modest Proposal for Reform

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A large U.S. multinational corporation announces a major joint venture in Saudi Arabia and strongly encourages certain employees to relocate there for three to four years. It could be a smart career move. It could be a terrific experience, both professionally and personally. The Saudi Government, however, refuses to process work visas for young, single women; openly homosexual employees; Jews; disabled employees; and all employees over the age of 50. Can the U.S. employer intentionally discriminate on the basis of gender, marital status, sexual orientation, religion, disability and age, by denying transfers to all employees on these protected bases? Unfortunately, despite Congress’ amendments of Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (“ADA”) in 1991, and the Age Discrimination in Employment Act (“ADEA”) in 1984,[1] to provide for extraterritorial application of these landmark antidiscrimination laws, the answer is still unclear.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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