WHEN DOES A FOREIGN LAW COMPEL A U.S. EMPLOYER TO DISCRIMINATE AGAINST U.S. EXPATRIATES?: A MODEST PROPOSAL FOR REFORM

As the global economy continues to develop rapidly, more and more courts will grapple with the contours of the so-called "foreign compulsion" defense. This article analyzes the legislative history and some of the evolving case law interpreting the foreign compulsion defense to otherwise clear violations of Tile VII, the Age Discrimination in Employment Act (ADEA) and the Americans With Disabilities Act (ADA). Neither Congress nor the courts have provided clear guidance to multinational employers and expatriates as to when the foreign laws defense permits employers to deny employment opportunities to employees in protected classes. This article proposes a practical solution to help employers, employees and the courts determine when the foreign compulsion defense applies to immunize US employers from liability under Tile VII, the ADEA and the ADA. Congress ought to amend these three antidiscrimination statutes again to permit employers and employees to seek intervention by the US Department of State in cases of conflict or perceived conffict between US and foreign employment discrimination laws.