Title VII Might Not Always Protect Overseas Employees…But the D.C. Human Rights Act Does



A recent employment law decision in a D.C. federal court highlights the differences between the jurisdictional reach of Title VII and that of various state employment discrimination laws.

A D.C.-based company fires an overseas employee

After it had been awarded a contract by the U.S. Agency for International Development, Checchi & Company Consulting, Inc., a Washington, D.C.-based consulting firm, hired Olivier Kambala as a contract administrator.  Kambala, a black citizen of Congo, performed his work exclusively in Mali.  After an “altercation” with a white, French co-worker, the company fired Kambala.

Among a myriad of claims, Kambala brought Title VII race and national origin discrimination claims against the company, which sought dismissal on the grounds that Title VII did not protect him because he was not a U.S. citizen and did not work in the U.S.  The court agreed. 

Explaining that while Title VII does protect U.S. citizens employed abroad who are working for U.S. employers, it does not afford the same protection to “[aliens employed in positions, or who apply for positions, located outside the United States.” [citing 29 C.F.R. Sect. 1614.103(d)4]  

Kambala argued that his claims came within the ambit of Title VII as a result of the EEOC’s handling of his charge and issuance of a right-to-sue letter.  But the court disagreed, stating that “[a] right-to-sue letter cannot […] confer rights that the statute does not.”

Survival under the broad reach of the DCHRA

Though Kambala’s attempt to invoke the protections of Title VII proved unsuccessful, the court allowed him to proceed on his claims under the District of Columbia Human Rights Act, which has much broader coverage and only requires that “either the discriminatory employment decision [be] made in the District of Columbia or that the effects of that discriminatory decision were felt in the District.”

Kambala alleged that the company’s investigator told him the D.C. office made the decision to fire him and that the company’s termination letter, signed by the company’s vice president, was printed on letterhead bearing a D.C. address.  Those allegations were sufficient to show that the company made its decision in D.C., triggering Kambala’s rights under the DCHRA.

The company countered by arguing that D.C. council envisioned to limit the statute’s reach to the District’s borders as it specified in its statement of intent that the goal of the statute was to promote the opportunities to “participate fully in the economic, cultural and intellectual life of the District.” But the court disagreed, explaining that the D.C. Court of Appeals had already rejected that argument in Monteilh v. AFSCME, 982 A.2d 301, 107 FEP Cases 561 (D.C. 2009).

Developments in other jurisdictions

While D.C. law is pretty clear on this issue, there is a strong presumption against the extraterritorial reach of state statutes for reasons of comity and to “protect against unintended clashes” between the laws of the states.  Union Underwear Co. v. Barnhart, 50 S.W.3d 188, 85 FEP Cases 835 (Ky. 2001).

However, states very widely in both the language used in their own employment discrimination statutes as well as their courts’ interpretations of the jurisdictional reach of those statutes.   In Judkins v. Saint Joseph's College of Maine, 483 F. Supp. 2d 60 (D. Me. 2007), for example, a Maine federal court sided with a Maine-based college in interpreting the Maine Human Rights Act to not extend to the sex and age discrimination claims of a former employee based in the Cayman Islands.  

A court can also establish jurisdiction under both Title VII and state law if an employment agreement allows it to do so.  For example, in Rabe v. United Air Lines, Inc., 636 F.3d 866, 111 FEP Cases 1094 (7th Cir. 2011), the court held that a Rabe thus teaches employment lawyers that not all hope is lost if a state statute does not by its own terms allow for extraterritorial employment discrimination claims.

As U.S.-based companies continue to look internationally to fill their staffing needs, this issue is sure to get more attention in both state legislatures and the courts.  Make sure to follow Bloomberg for all the latest developments!

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