American Civil Rights Law extraterritoriality (Part 5)

It’s part five if I’m counting right. Parts 3 and 4 were back in the summer.

I am going to repeat a bit on this, but first some administrative notes:

My commenter using the Tor anonymizing software left a comment (actually, a battery of them over the last 2 weeks), which touched on this issue of extraterritoriality. I am still debating what to do about Tor comments, but am about 95% certain that they are not going to be approved here. I think this was an issue over at Debito’s site, that some people felt they had the right to “say whatever they wanted” and that Debito was supposed to just let that go. I am concerned, especially with the Arena v. Doe litigation that is ongoing, that the Tor commenter (clearly, now, it’s just one person) is actually a partisan over at the rival Tepido site. And, possibly, the John Doe that the Arena plaintiffs are looking for. So, I appreciate comments, but, unfortunately, I can’t honor comments that are coming out of the internet ether under IP’s that identify as part of the Tor network. Sorry.

One comment contained an item that is so factually wrong, though, that I felt it needed to be addressed—only because I saw the exact same thing repeated on Tepido last September 24 or 25th. This person obviously does not understand how extraterritoriality works, or they have it confused with other concepts.

As I wrote earlier, in 1991, the U.S. Congress emphasized, through specific legislation, that the American civil rights laws apply to American-controlled companies, with regard to their American employees, in their affiliates abroad. (“Overseas affiliates”, “foreign affiliates”, what have you.) This means, for instance, in the situation of IBM, that the Civil Rights Law applies in its foreign affiliates that are “controlled” by IBM.

Somehow, this commenter thinks that this is a “loophole”. But no. Because there was actually a big fight about whether the Civil Rights Act’s Title VII applied to American companies outside of America. For most of the Act’s existence through to 1991, scholars thought that yes, it did. The U.S. Supreme Court, in EEOC v. Arabian American Oil Company, ruled “no”. Congress strongly disagreed, and amended the Civil Rights Act to expressly include coverage of Americans working overseas for Americans or American-controlled affiliates.

The 1991 amendments, which also overturned other U.S. Supreme Court rulings and made jury trial and damages adjustments to the law, were a big thing. Congress had previously debated many of these issues during the 1990 session, and it was apparent to many observers that these reforms and corrections were going to be in the law. Express extraterritoriality has been the rule now for over 20 years. The only people who it should surprise, besides lay people, are inadequate in-house counsel, or their outside law firms who are too busy trying to ramp up billable hours than actually help honor the laws that are clearly and rightly on the books.

My feeling is that any American working in Japan for a decent-sized company, that has that U.S. control, should know that the Civil Rights Act applies to them. This is hardly “circumventing” the Japanese system. In fact, it supplements that system, because if, supposedly, Japanese anti-discrimination protection were so great for foreigners, you’d wouldn’t have to rely on Uncle Sam at all. So the extraterritoriality would only catch those cases that fall through the cracks in that Japanese safety net. (Call a canyon a crack, that’s its own debate.)

When someone files with the Equal Employment Opportunity Commission in America, the only other thing to keep in mind is that they cannot do Japanese civil litigation. They have to wait out the Commission, or, they wait the six months and ask the Commission for a Notice of Rights letter. If they do use the Japanese courts, they may screw up the Commission’s efforts, because of things called issue preclusion and claim preclusion. Basically, the “charging party” to the EEO would be setting some second thing in motion, in a court, that would interfere with the EEO’s own investigation.

This has somehow been twisted, in the Tor commenter’s mind, as “disrespecting the Japanese court” or “doing an end run” (I believe was the exact phrase) around a Japanese court. No, it’s actually respecting the Japanese court, because it’s bringing the American discrimination issue to an American unit of government, where it can be handled according to U.S. statutes. The burden is on us, and not on Japan. Japan’s courts’ dockets are free, then, to handle purely Japanese matters.

Readers who remember the Moises Garcia case may recall that Garcia received a custody award in Wisconsin, (a U.S. state). He took that award to Japan, and Japan recognized the award. Mr. Garcia did not do something in Japan, and then, go to Wisconsin and do the same thing (which I think is Commander Toland’s situation). That’s particularly what you don’t do—because of the issue and claim preclusion that I mentioned before. Additionally, if you have other matters that arise from the “common nucleus of facts”, you have to put them together in the one case. This is basic stuff for a lawyer, but maybe not for a layman. (Maybe not for some lawyers, either.)

I am very sorry to conclude that the anonymous person out there– with the Tor software who’s thinking it’s 100% foolproof—that he/she (he) simply doesn’t like the fact that Congress granted the extraterritoriality on Civil Rights in 1991.