Cross border employment can be a very complex matter because oftentimes employers and employees alike are unclear of which laws apply to their situation. All parties should make themselves familiar with the term ‘Extraterritorial Jurisdiction’, which is a government’s ability to exercise authority beyond its normal boundaries. In this article, we will discuss specifically the US discrimination laws, which can be held applicable to work performed in the State of Kuwait.
The US Congress has held Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) apply extraterritorially to US citizens working overseas. Title VII prohibits discrimination based on race, color, nationality, religion and sex. ADA prohibits discrimination based on a disability, whether is it on record or perceived. ADEA prohibits discrimination against person age 40 or older.
In order for an employee to raise a discrimination claim under any of the above laws, he/she must be a US citizen and an employee in accordance with the law. Thus, non-US citizens that are working as independent contractors, volunteers, etc, are not protected by these laws and ineligible to file a claim under such.
Furthermore, some US-based employers may fall outside the scope of Title VII, ADA and ADEA due to the size of the company and place of incorporation. However, employers operating outside of the US may be subject to the anti-discrimination laws, based on contacts with the US and control by a US company, in addition to the above-mentioned requirements.
While US-based companies hiring employees in the State of Kuwait should be very familiar with anti-discrimination laws, Kuwait-based employers hiring US citizens should do their due diligence to make sure they are in compliance with such as to avoid any unwanted law suits. Also, for the sake of clarity, the employment contract should state which jurisdiction shall govern such contract, as to prevent weak lawsuits due to a lack of jurisdiction.
By Najmah Mateese Brown, Esq