Tuesday, September 29, 2015

Can a Non-American Employee of a Foreign Embassy Sue the Embassy in the United States?

Living in Washington D.C. there is no shortage of embassies – and no shortage, therefore, of employees who may have reason to bring a complaint against their foreign employers. Recently, one such employee, a resident but not a citizen of the U.S., brought me an employment contract he had entered into with a foreign embassy. Is it possible, I wondered, to sue a foreign embassy in a U.S. court?  

The Foreign Sovereign Immunities Act (“FSIA”) is the “sole basis for obtaining jurisdiction over a foreign state in our courts.” Ashraf-Hassan v. Embassy of France in the United States, 40 F.Supp. 3d 94, 99 (D.D.C. 2014) (quoting Argentine Republic v. Amerada Hess Shipping Corp. 488 U.S. 428, 434 (1989)). Federal district courts have jurisdiction over “any claim . . . with respect to which the foreign state is not entitled to immunity . . . under [the listed sections of the Act].” Id. (citing 28 U.S.C. § 1330(a)).   

The FSIA contains a commercial activities exception providing that:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

Id. at § 1605(a)(2). The D.C. Circuit has held that the commercial-activities exception may apply to employment relationships under some circumstances. El-Hadad v. United Arab Emirates, 216 F.3d 29, 34 (D.C. Cir. 2000) (proposing a “multi-factor inquiry” to determine the application of the exception). While the employment of civil servants is non-commercial for the purposes of the FSIA (see Broadbent v. Organization of American States, 628 F.2d 27, 34 (D.C. Cir. 1980), the federal courts in Washington, D.C. have suggested that, “if an employee is contracted to work as a non-civil servant and has duties of a clerical nature, the foreign state cannot claim immunity from any suits brought by her that are based upon this employment relationship.” Ashraf-Hassan, supra, 40 F.Supp. at 102 (citing 28 U.S.C. § 1605(a)(2)). Thus, a clerical worker, hired in a purely administrative position, who is neither a civil servant nor involved in governmental decisions, may have a right to sue a foreign embassy on claims arising out of the employment relationship.

The FSIA also provides that:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver.

Id. § 1605(a)(1). A foreign state may provide the explicit waiver mentioned in the statute in a treaty or a contract, by stating that the state waives immunity as to a certain class of disputes. 

The implied waiver of section 1605(a)(1)  is construed narrowly. Ashraf-Hassan, 40 F. Supp. 3d at 100. As the D.C. Circuit explained:

The FSIA does not define an implied waiver. We have, however, followed the “virtually unanimous” precedents construing the implied waiver provision narrowly. Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1017 (2d Cir. 1991). In particular, we have held that implicit in § 1605(a)(1) is the requirement that the foreign state have intended to waive its sovereign immunity. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174 (D.C. Cir. 1994) (“[A]n implied waiver depends upon the foreign government's having at some point indicated its amenability to suit”); Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 444 (D.C. Cir. 1990) (“courts rarely find that a nation has waived its sovereign immunity . . . without strong evidence that this is what the foreign state intended”).

Creighton Ltd. v. Gov't of State of Qatar, 181 F.3d 118, 122 (D.C. Cir. 1999).

Courts have found a waiver to be implied in three circumstances: (1) where a foreign state is party to a contract that contains a choice-of-law provision for U.S. law; (2) where a foreign state files a responsive pleading without raising the defense of sovereign immunity; and (3) when a foreign state agrees to submit a dispute to arbitration in the United States. Id.

A choice-of-law provision for U.S. law will act to waive the foreign power’s sovereign immunity for claims arising under the contract. Even before the FSIA, courts had recognized that a foreign power, “when it consents to subject its contractual dealings to U.S. law . . . voluntarily assume[s] obligations under [that] law.” Id. (citing Transamerican S.S. Corp v. Somali Democratic Republic, 767 F.2d 998, 1006 (D.C. Cir. 1985)). “[C]hoice of law clauses designating U.S. law as applicable appear to ‘contemplate a role for United States courts’ in resolving disputes.” Id. (citing Maritime Int’l Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1103 (D.C. Cir. 1982); see also Joseph v. Office of Consulate Gen. Of Nigeria, 830 F.2d 1018, 1023 (9th Cir. 1987). 

In a similar way, a foreign government’s agreement to arbitrate acts as a waiver of sovereign immunity. Creighton Ltd. v. Gov't of State of Qatar, 181 F.3d at 123-24 (citing Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1018 (2d Cir. 1993); Chromalloy Aeroservices v. Arab Republic of Egypt, 939 F.Supp. 907, 909 (D.D.C. 1996)). Unsurprisingly, a foreign power’s failure to assert sovereign immunity as a defense also acts as a waiver. See Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1, 4 and note 5 (D.D.C. 1990).

The contract I reviewed provided – in French –  (roughly) that “the tribunals competent in the event of litigation are American tribunals” and that “the contract is subject to the American laws in effect” – a choice of laws clause for U.S. law, and a waiver of sovereign immunity in favor of U.S. courts for disputes under the contract. Under the FSIA, the foreign employer has waived its immunity from suit and negotiations can begin.

-This blog was written by Mary Kuntz  

Wednesday, September 2, 2015

Employees’ Religious Beliefs and Practices are Gaining Protection

Despite the appearance that our society is becoming increasingly more secular, recent court decisions show an increasing protection of religious beliefs and practices in the workplace. On August 21, 2015, a federal district court awarded more than one-half million dollars of compensation to a former employee of an energy company in West Virginia on the employee’s Title VII claims of religious discrimination based on the company’s failure to accommodate his religious beliefs and practices. In U.S. Equal Employment Opportunity Commission v. Consol Energy, Inc., No. 1:13-cv-215 (N.D. W. Va. August 21, 2015), the court awarded back and front pay in the amount of $436,860.74, which was in addition to the $150,000 in compensatory damages the jury had awarded in January 2015.

The jury found in favor of the EEOC on its claim that Consol Energy denied Beverly Butcher, Jr., a religious accommodation involving an exemption to a mandated use of a biometric hand scanner. The biometric hand scanner was installed for tracking employees’ time and attendance. Butcher is an Evangelical Christian with a “genuinely held religious belief” that he was not “permitted to submit either of his hands for scanning because such scanning would make him take on the Mark of the Beast.” U.S. Equal Employment Opportunity Comm’n v. Consol Energy, Inc., 2015 WL 106166, at *1 (N.D. W. Va. Jan. 7, 2015). Butcher had informed his supervisors several times of his belief concerning the Mark of the Beast, and he had suggested two alternatives to using the biometric scanner—that he either continue to manually submit his time and attendance, or use a time clock. Id. at *1. Butcher’s supervisors were aware that the company permitted two other employees with missing fingers to override the hand scanner and manually type-in their employee numbers. However, the supervisors did not offer this exemption to Butcher, apparently thinking that Butcher would not use the system at all, even if permitted to manually type-in his employer number. Id. at *8. Because he was required to submit to the biometric hand scanner, Butcher claimed he was forced into a premature retirement from the company.

On June 1, 2015, the Supreme Court took up the issue of whether Title VII’s prohibition against religious discrimination prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice, even when an applicant has not informed the employer of his need for an accommodation. U.S. Equal Employment Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015). Samantha Elauf, a devout Muslim, had applied for a job as a salesperson at Abercrombie & Fitch. For her interview with the assistant store manager, she wore jeans, a T-shirt, and a headscarf. Elauf had worn a headscarf since she was 13, believing it was required by her faith. When she was turned down for the job, a friend of hers who worked at the store inquired into the decision, and was told that Elauf had not been hired because of her headscarf. Abercrombie had a “Look Policy” that was intended to promote a “preppy aesthetic,” which prohibited caps and black clothing.

The Supreme Court rejected Abercrombie’s argument that Elauf could not show she was the victim of discrimination unless she could demonstrate that the store had actual knowledge that she was wearing the scarf for religious reasons and had requested a religious accommodation. Id. at 2033. The Supreme Court held instead that an employer can be liable for failure to make a religious accommodation, even when the employer does not have actual knowledge of the applicant’s need for an accommodation. Instead, an employer is liable when the need for an accommodation is merely a motivating factor in the employer’s decision. Id. at 2032. In arriving at this conclusion, the Supreme Court looked at Title VII’s language which prohibits discrimination “because of” an individual’s religion. 42 U.S.C. § 2000e-2(a). The Court reasoned that, unlike the Americans with Disabilities Act of 1990, “which defines discrimination to include an employer’s failure to make ‘reasonable accommodations to the known physical or mental limitations’ of an applicant[,] § 12112(b)(5)(A)…[,] Title VII contains no such limitation.” Abercrombie, 135 S. Ct. at 2033 (emphasis in original). Accordingly, the Court stated, “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Id.
Even with this relaxed notice standard, an employee must give some indication that a religious accommodation is needed. In Nobach v. Woodland Village Nursing Center, Nos. 13-60378, 13-60397, 2015 WL 4978749 (5th Cir. Aug. 20, 2015), the court held that the evidence was insufficient to support a finding that the nursing home knew or suspected that the former employee’s religious beliefs required accommodation in the form of an exemption from having to pray the Rosary at a resident’s request. When a non-supervisory employee told Nobach a resident had requested that the Rosary be prayed to her, Nobach told the assistant she could not because it was against her religion. When the resident complained to Nobach’s supervisor, her supervisor called Nobach into a meeting, wherein the supervisor informed Nobach she was being terminated because she failed to assist a resident with the Rosary. It was only after she was terminated that Nobach told her supervisor performing the Rosary was against her religion. After a jury tried the case, the district court denied Woodland’s motion for judgment as a matter of law. On appeal to the Fifth Circuit, Woodland argued that the district court erred because Nobach failed to put on any evidence, direct or circumstantial, that Woodland was motivated by her religion or religious beliefs before it discharged her. The Fifth Circuit agreed with Woodland, stating, “We simply cannot find evidence that, before her discharge, Nobach ever advised anyone involved in her discharge that praying the Rosary was against her religion. Nor can we find evidence that anyone involved in her discharge suspected that Nobach’s refusal to pray the Rosary was motivated by a religious belief…Nobach has never claimed that the assistant told anyone of her reason for refusing to aid the resident.” Nobach, 2015 WL 4978749, at *4. Simply, the court explained, “[i]f Nobach had presented any evidence that Woodland knew, suspected, or reasonably should have known the cause for her refusing this task was her conflicting religious belief–and that Woodland was motivated by this knowledge or suspicion–the jury would certainly have been entitled to reject Woodland’s explanation for Nobach’s termination. But, no such evidence was ever provided to the jury.” Id. at *4.

Under Abercrombie, Nobach, and Consol Energy, employers may be liable for religious accommodation discrimination under Title VII when they either (1) know, (2) suspect, or (3) reasonably should know that an employee needs an accommodation, and act with the motive of avoiding that accommodation, even what that action entails a failure to offer a religious accommodation that has not been specifically requested by the employee. Employees, on the other hand, have a duty (albeit a very easy one) to provide their employer with some notice or indication of the need for an accommodation, which notice can be deduced from their dress. See Abercrombie. Once the employer has even “an unsubstantiated suspicion that accommodation would be needed,” Abercrombie, 135 S. Ct. at 2033 (emphasis added), if the employer fails to provide the religious accommodation–absent a showing of undue hardship–the employer may have to pay hefty damages. See Consol Energy, No. 1:13-cv-215 (August 21, 2015).