This Note explores the possibility of applying Title VII's disparate impact liability theory against foreign companies operating under Treaties of Friendship, Commerce, and Navigation (FCN Treaties). The author questions the reasoning of MacNamara v. Korean Air Lines, which applied disparate treatment, but not disparate impact, against a Korean company operating under an FCN Treaty. According to MacNamara, if courts permit plaintiffs in Title VII-FCN Treaty cases to utilize the disparate impact theory and cite statistical disparities in the racial composition of the work force as evidence of discrimination, employers could be held liable merely for exercising their FCN Treaty rights. This Note concludes that the MacNamara court ignored the complexity and costliness of presenting statistical data. More importantly, recovery under the disparate impact theory has become extremely difficult as a result of the Supreme Court's subsequent decision Wards Cove Packing v. Atonio. Furthermore, the author concludes that any increase in Title VII liability--because of either narrowed FCN Treaty rights or the application of disparate impact analysis--likely will not affect foreign investment in the United States. Fear of widespread divestment in the United States should not be the controlling factor in the resolution of tension between Title VII and FCN Treaties. The author advocates that victims of employment discrimination should be entitled to bring disparate impact, as well as disparate treatment, claims in cases involving foreign corporations operating under FCN Treaties.
Steven M. Tapper,
Building on MacNamara v. Korean Air Lines,
24 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol24/iss4/5