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The Age Discrimination in Employment Act does not prohibit U.S. corporations from discriminating against foreign nationals on the basis of age, ruled the 4th U.S. Circuit Court of Appeals. In this case, the plaintiff was a Mexican national who applied in Mexico for a job with an American company in the United States under a federal H-2A agricultural workers program. The employer’s agent in Mexico told the plaintiff that the company did not accept workers over the age of 40, unless they had worked for the company in the past. In response, the plaintiff filed an age bias claim against the company and the agent. Reyes-Gaona v North Carolina Growers Association (4th Cir., 80 EPD 40,550). The 4th Circuit started its analysis by stating that there is a “longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” Prior to 1984, the ADEA’s definition of employee excluded “ any individual ‘whose services … were performed in a workplace within a foreign country’ ” from coverage. The definition was amended in 1984 to include anyone who was a U.S. Citizen employed by an employer in a foreign workplace. The court noted that the amendment explicitly prohibited U.S. companies from discriminating against U.S. citizens employed in foreign countries. However, the amendments did not extend coverage to foreign nationals. Therefore, the amendments do not regulate age bias by U.S. companies against foreign nationals. The plaintiff contended that the court should look to the place where the job is located rather than were the decision not to hire the plaintiff was made. The 4th Circuit rejected this argument because the language of the ADEA does not state that the statute applies anytime the workplace is within the U.S. regardless of the applicant’s nationality or the country where the application was submitted. In conclusion, the court stated that the 1984 amendments to the ADEA indicated that foreign nationals in foreign countries were not covered by the statute, regardless of whether they are applying for a job in the United States or anywhere else. � 2001, CCH INCORPORATED. All Rights Reserved.

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