Yankees Out of North America: Foreign Employer Job Discrimination Against American Citizens
This Note explores Title VII’s relationship to the hiring practices of foreign employers. It focuses on Japanese employers, who might face the toughest Title VII challenge to a business and cultural familiarity or citizenship requirement. Part I sets out arguments for and against finding intentional discrimination – disparate treatment – in either of these hiring requirements. It suggests that a court should refuse to find national origin discrimination when the employer imposes a business and cultural familiarity requirement. However, when an applicant is denied employment solely on the basis of citizenship, a strong argument may be made that the employer is using the citizenship requirement as a pretext for intentional discrimination. Part II considers whether prohibited discrimination may exist on disparate impact grounds when a court has not found discriminatory intent and has held that the preferential hiring practice is facially neutral. This Part concludes that there is a clear basis for a disparate impact finding only when the employer strictly enforces a Japanese citizenship requirement. Part III considers whether the employer may successfully assert the appropriate Title VII defense – either the bona fide occupational qualification (bfoq) exception to intentional discrimination or the business necessity defense to disparate impact discrimination – in the event that a plaintiff establishes a prima facie case of national origin discrimination. This Part concludes that, based on unique attributes of Japanese management style and foreign trade considerations, the defenses should be available to an employer who turns away an American lacking the requisite business and cultural familiarity. But, when the applicant is refused employment solely on the basis of citizenship neither defense should be available. A citizenship requirement is usually an arbitrary prerequisite for job qualification and is likely to be a pretext for national origin discrimination.