Jurisdiction (Prescriptive)

Author:International Law Group

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.


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