Reyes-Gaona v. North Carolina Growers' Assn., et al.: Foreign Nationals Not Protected against Age Discrimination Outside U.S.

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

REYES-GAONA V. NORTH CAROLINA GROWERS' ASSN., ET AL.: FOREIGN NATIONALS NOT PROTECTED AGAINST AGE DISCRIMINATION OUTSIDE U.S.
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

In a decision with great ramifications for "guest workers" and other nonimmigrant employees in the United States, the Fourth Circuit Court of Appeals has held that the Age Discrimination in Employment Act of 1967 (ADEA) does not protect non-U.S. citizens who are discriminated against in a foreign country by a U.S. employer. The ADEA protects workers who are over 40 years old from age discrimination in the workplace.

There is no dispute that when the petitioner in the case before the Fourth Circuit, a Mexican national named Reyes-Gaona, applied to perform agricultural work in North Carolina under the H-2A program he was told that the North Carolina Growers' Association (NCGA) does not hire individuals over 40 unless they have previously worked for the NCGA. However, the federal district court dismissed Reyes-Gaona's complaint because he was not authorized to work in the U.S. at the time he applied for the job with the NCGA. In affirming the lower court's decision, the Fourth Circuit first noted that the ADEA requires that plaintiffs show they are qualified for the job they applied for, and in order to be a "qualified" job applicant under Fourth Circuit precedent an applicant must be authorized to work in the U.S. (The court cited Egbuna v. Time Life Libraries, Inc., 153 F.3d 184, 187 (4th Cir. 1998), en banc (per curiam), cert. denied, 525 U.S. 1142 (1999) (unauthorized workers are not protected by Title VII against employment discrimination in the hiring stage).)

While the Fourth Circuit affirmed the dismissal of Reyes-Gaona's complaint, it did so on other grounds. It based its decision on the presumption that a U.S. law protects only individuals residing in the U.S. or one of its territories unless Congress clearly indicates that the law is to have "extraterritorial" application. The court found that prior to 1984 the ADEA "had a purely domestic focus" and did not even cover U.S. citizens working for U.S. companies overseas. However, in 1984 Congress amended the ADEA to expressly extend its protections to U.S. citizens working abroad for U.S. businesses. Under the ADEA, the post-1984 definition of "employee" includes "any individual who is a citizen of the United States employed by [a U.S.] employer in a workplace in a foreign country." The Fourth Circuit found that because Congress specifically limited the application of that amendment to U.S. citizens in foreign countries and did not to include non-U.S. citizens residing abroad, Reyes-Gaona does not have a claim under the ADEA.

Reyes-Gaona and the Equal Employment Opportunity Commission, which, as the agency responsible for enforcing the ADEA, appeared as amicus curiae, argued that this case does not involve the extraterritorial application of the ADEA, since the petitioner was applying for a job within the U.S., not in a foreign country. They asserted that, in determining whether or not the ADEA applies to a specific instance of discrimination, courts look to the actual or proposed place of employment rather than to where the discriminatory decision was made. However, the court dismissed these arguments, stating that simply submitting a résumé or application abroad does not afford an individual the right to file a claim under the ADEA.

In a concurring opinion, Judge Motz emphasized that the majority's opinion does not undermine the rights of foreign nationals who are "legally employed" in the U.S. to be protected by the ADEA and other employment discrimination statutes. Reyes-Gaona was represented by the AARP Foundation Litigation, the Farmworker Justice Fund, Inc., and the Law Firm of Distefano & Erca.

Reyes-Gaona v. North Carolina Growers' Assn., et al., No. 00-1963, 2001 U.S. App. LEXIS 10524, (4th Cir. May 22, 2001).