Mitigate Discrimination Claims in the United States to Reduce Risk for the International Organization

Abstract

The vulnerability of an international organization to the charge of discrimination in the workplace is more problematic than a similar charge levied against a domestic organization. This is true for several reasons. International organizations may have overseas senior management thus creating logistical challenges for responsiveness to regulatory (e.g. Equal Employment Opportunity Commission “EEOC)” inquiries. The foreign corporation may lack cultural familiarity with the forum on both a legal and factual basis. This creates a potent threat to the international organization that the safeguards afforded by diversity jurisdiction can protect in only the most modest of ways. True protection is begun at the earliest stages of the employment relationship (recruitment) and continues until termination and beyond. This article is written from the perspective of an attorney with a practice history of over 27 years. In my career I have been on different sides of a wide range of litigation arising from the workplace and have had the advantage of perceiving similar fact patterns from the perspective of counsel for the employer at some times and for the employee at other times. On occasion, my professional role has even been as the neutral as the Court assigned Mediator. One common perception thread from all three roles is the direct and indirect cost of such litigation to the organization and, without exception, the avoidability of such matters had one or both sides taken a slight detour from the path that brought them to conflict. This article examines the cultural and legal history that is the foundation for the present environment for workplace rights in the United States and then outlines practical applied strategy to avoid the missteps that may have brought parties to conflict in the form of an EEOC claim or court in matters sounding in workplace based discrimination.