Americans overseas and the EEOC (Part 2)

A little more detail about the topic from last week. Sorry if it gets boring–there is a lot of law in it.

Debito was kind enough to put the news out to the Americans in the expat community that the civil rights laws cover you when you are working for an American “controlled” company here.

I quoted the relevant guidance from the Equal Opportunity Employment Commission (EEOC) which is here, and pointed out that you really need to get the facts out front about control as it’s defined.

Quite a few American companies doing business in Japan play a little game. And that’s that they say something like “culturally we must fit in with the Japanese market”. Or “we are a very Japanese company!”

But really that’s just a red herring when it comes to following the laws from back home. You can still be a very Japanese company and yet follow U.S. civil rights laws.

And this is where the EEOC is fit to come in.

As I had said, since 1991 Congress has made it really clear that “controlled” overseas companies are subject to employment discrimination laws. Particularly, these are:

Title VII of the U.S. Civil Rights Act, concerning such discrimination as by race, sex, national origin, etc.;

The Americans with Disabilities Act (1991), now including the 2008 amendments;

The Age Discrimination in Employment Act (1967), protecting workers and job seekers over age 40.

(I haven’t read the new Genetic Information Nondiscrimination Act, but that might be a fourth area.)

If the American-controlled company here isn’t willing to do anything about a situation or incident that falls under these three, there are remedies back home.

How it works is the EEOC is given first crack at investigating discrimination. Again, this is repeat, but the person who feels they have been such a victim files a charge with the EEOC. It must be done within 180 days of the incident. Alternatively, the victim is given 300 days if the company would be subject to a similar state civil rights law. Better safe than sorry, I think someone would go with the 180-day limit.

The person who files the charge is the Charging Party. The company is the Respondent. In cases of overseas discrimination, it is actually the parent company in America that becomes the Respondent.

Debito’s caption says “people” who are discriminated against. But remember this is for American citizens who are discriminated against. I am sure the Canadians, Australians and Europeans also have these sort of expat coverages for their own overseas branches of companies–I just don’t know much to say about these.

A charge of discrimination can be initiated by letter, as long as it’s a signed letter and you put the reasons you believe the company’s action violates the discrimination laws. More here.

Before the Obama Administration, this was not all that clear from the EEOC website. In fact, in the Bush years, the EEOC had an online Intake Questionnaire that directly indicated the person filing the questionnaire was also filing a charge. It caused a lot of confusion and, inevitably, even a Supreme Court case, Federal Express v. Holowecki. So now the EEOC makes clear that the online “assessment form” is not itself a charge, and now requires at minimum the signed statement containing the specifics of the charge.

For an overseas American affiliate, the charge could be filed at any EEOC office in the States; but ideally, in the one where the parent company is located.

The EEOC, as mentioned, gets first crack. That means, if you ever intended to bring a lawsuit, you must give the EEOC first crack at your situation. Most people don’t know this. You can’t just waltz into federal district court with a claim.

Only after the EEOC does its investigation–which it is given 6 months minimum to do–can you receive a Notice of Right to Sue. If the EEOC hasn’t concluded anything in 6 months, you can then either give it more time or file in the federal court.

What’s important to note is that most employment discrimination plaintiffs that proceed to federal court LOSE. Someone ran statistics on this two or three years back, and found the chance of success to be very low, even with a jury trial. Companies obviously know this, and so there you go. And judges don’t want the case load.

So you let the EEOC do its job.

The other point worth noting is, I’ve said, the American discrimination laws cover “controlled” overseas affiliates. The EEOC in its guidance interprets this broadly. See the Tangoods example in the EEOC guidance, as well as other fact patterns in the same guidance that would lead EEOC to say that an overseas affiliate is controlled.

But, you know, the overseas affiliate operating outside America is going to say everything they can think of to argue that they are not “controlled’ by the American parent. So you have to be able to show, with solid evidence, where the connection is. There is a four-part test. It was adopted from the heyday years of labor union organizing to determine how related companies were connected. You don’t have to meet all four items in the test, but you need to speak intelligently about why your affiliate is connected to the American one.

Some lawyers who handle these overseas cases blow it by not doing that. The victim is in such a hurry to get into federal court that everyone overlooks the “control” test. Additionally, the EEOC office that handles your claim is used to dealing with ones just locally back home. They may need this supplemental information to make it clear to the respondent company that they are under U.S. laws with regard to overseas operations.

Knowledge is power. Nobody here wants or looks for workplace headaches. But they happen, and not just because it’s Japan.

You should also know what remedies are available if you get into such a jam.