Hastings International and Comparative Law Review


Where foreign multinational enterprises do business in the United States through locally incorporated subsidiaries, the employer's equal employment opportunity obligations under the U.S. laws may be tempered by international commercial treaties that permit foreign employers to freely choose key personnel such as accountants, technical experts, executives, attorneys, agents and other specialists. While the free choice exemption contained in the many bilateral treaties of friendship, commerce and navigation to which the United States is signatory protects the economic and legal interests of foreign investors, it allows foreign-owned companies to prefer their own nationals, which may disadvantage U.S. nationals. Because employment patterns in some foreign countries restrict opportunities for women, the use of free choice exemptions may also disparately impact women. This Article examines the interrelationship of Title VII and these commercial treaties. The authors discuss each of the cases construing the two laws, and he government's position. Finally, the authors recommend an interpretation of the treaties that reconciles domestic anti-discrimination laws with international concerns of comity in the global marketplace.