This Note argues that the Third Circuit's definition for unpermitted national origin discrimination best balances the purposes of the FCN Treaty and Title VII, and that U.S. courts should focus on factors such as visa status and differential treatment of executives in applying this definition. Part I discusses the interaction of the FCN Treaty with Title VII. Additionally, Part I focuses on the prevailing doctrine articulated by U.S. circuit courts that the FCN Treaty's “of their choice” provision grants a right to discriminate only on the basis of citizenship, not on the basis of national origin. Part II analyzes the conflicting attempts by U.S. circuit courts to define the scope of national origin discrimination not protected by the FCN Treaty. Part III argues that the Third Circuit has developed the best definition for national origin discrimination and discusses factors that U.S. courts should consider in applying this definition. This Note concludes that U.S. courts evaluating Title VII claims against Japanese companies must focus on the circumstances surrounding employment decisions as well as the companies' decision-making processes in order to effectuate the purposes of the FCN Treaty and Title VII of the Civil Rights Act.
Defining Discrimination on the Basis of National Origin Under Article VIII(1) of the Friendship Treaty Between the United States and Japan,
15 Fordham Int'l L.J. 1099
Available at: http://ir.lawnet.fordham.edu/ilj/vol15/iss4/6