Fourth Circuit holds that ADEA does not apply to foreign citizens

Fourth Circuit holds that ADEA does not apply to foreign citizens over forty who apply overseas to agents of U.S. companies for jobs in United States
Luis Reyes-Gaona (plaintiff) is a citizen of Mexico over forty years of age. North Carolina Growers Association (NCGA) is a U.S. corporation engaged in helping farming business in North Carolina to obtain laborers through the federal H-2A agricultural worker program. Del-Al recruits such workers as agent for NCGA and its members.

In May 1998, plaintiff went to a Del-Al office in Mexico to get on a list of workers looking for jobs in North Carolina through the H-2A program. Del-Al told plaintiff, however, that NCGA would not take workers over forty if they had never worked for NCGA before. Plaintiff then filed an action in a North Carolina federal court against both NCGA and Del-Al, claiming a breach of the Age Discrimination in Employment Act (ADEA).

The district court granted defendants’ motion to dismiss under Civil Rule 12(b)(6) for failure to state a claim upon which relief may be given because plaintiff was indisputably unauthorized to work in the U.S. at the time of his application. The court failed to decide a threshold contention that the presumption against the extra-territorial application of federal statutes stood in the way of applying the ADEA to this case. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit which affirms on other grounds.
Under the ADEA, it is unlawful “for an employer” to “fail or refuse to hire” or “otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” By virtue of the 1984 amendments, the present statutory definition of an employee: “includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.” This language overruled the many prior precedents limiting the ADEA to a purely domestic focus, thus presumptively ruling out its application to American citizens working for American companies in foreign nations. Principles of sovereignty, however, persuaded Congress not to extend extraterritorial prescriptive jurisdiction beyond this point.

“Notably missing from the 1984 amendments, however, is any provision regulating the conduct at issue here. Congress explicitly gave the ADEA extra-territorial application with respect to certain U.S. citizens while simultaneously declining to extend coverage to foreign nationals like Reyes-Gaona. Nothing in the amendments regulates age discrimination by U.S. corporations against foreign nationals in foreign countries. And the doctrine of expressio unis [sic] est exclusio alterius instructs that where a law expressly describes a particular situation to which it shall apply, what was omitted or excluded was intended to be omitted or excluded.”

“... [W]e can find [no case] ourselves, where the ADEA was interpreted to reach a situation analogous to the case at bar. Thus, a faithful reading of the plain text of the statute, especially in light of the 1984 amendments, compels the conclusion that Reyes-Gaona's claim is not sustainable under the ADEA.” [N/A]

The Court also points to the staggering implications of judicially extending the ADEA to the millions of foreign citizens who simply file job resumes abroad for U.S. employment. Nor does the fact that the employment sought was itself stateside alter the case. “Congress [amended] the Act to provide for limited extra-territorial reach. Since these amendments do not reach the case at bar, there remains nothing in the text of the ADEA to rebut the presumption against extending it to cover Reyes-Gaona. And the limited nature of the 1984 amendments indicates that foreign nationals in foreign countries are not covered by the ADEA, regardless of whether they are seeking employment in the United States or elsewhere.” [N/A]

Citation: Reyes-Gaona v. North Carolina Growers Assn., Inc., 250 F.3d 861 (4th Cir. 2001).

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