Extraterritorial Application of the ADA

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Extraterritorial Application of
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Extraterritorial Application of the Americans with Disabilities Act
I. INTRODUCTION
II. THE AMERICANS WITH DISABILITIES ACT
A. The ADA, Title I: Employment Provisions
B. Title III: Public Accommodations
III. DOCTRINE OF EXTRATERRITORIALITY
IV. EXTRATERRITORIAL APPLICATION OF THE ADA
A. Extraterritorial Application of Title I
1. The ADA Applies to Certain Employers
2. U.S. or U.S.-Controlled Multinational Employers
3. Foreign Multinational Employers
B. Extraterritorial Application of Title III
V. CONCLUSION
I. INTRODUCTION
The increasing globalization of business activities presents
unparalleled opportunities for international investment and expansion
worldwide. The proliferation of opportunities also entails potential for
increased liability and employment-related costs for multinational
employers that fail to comply with the host country’s labor and
employment laws. Multinational corporations are a significant and
growing part of the U.S. economy:
Workers in Mexico, Brazil, and South Korea . . . make cars,
car parts, and steel products. . . . Chinese workers make
our toys. Central Americans make clothes . . . and
Indonesians and Vietnamese make shoes . . . for Nike and
other shoe manufacturers. Lingerie for Victoria’s Secret
now originates in Sri Lanka. 1
U.S.-based multinational corporations employed 28.5 million Americans
in worldwide operations generating more than $2.1 trillion; 2 foreign
1 Henry H. Drummonds, Transnational Small and Emerging Business in a
World of Nikes and Microsofts, 4 J. SMALL & EMERGING BUS. L. 249, 255-56 (2000)
(citations omitted).
2 Raymond J. Mataloni, Jr., U.S. Dep’t of Commerce, U.S. Multinational
Companies: Operations in 1998, SURV. OF CURRENT BUS. 26, 26 (2000),
http://www.bea.doc.gov/bea/ai1.htm. Figures given are for non-bank United States
multinational corporations; gross product includes both foreign and domestic operations.
Id. U.S. parent corporations generated $1.6 trillion gross product from U.S.-based
operations, while majority-owned foreign affiliates generated $510 million from
operations outside the United States. Id. The Bureau of Economic Analysis (BEA), an
agency of the U.S. Department of Commerce, analyzes and disseminates statistical
information relating to national, regional, and international economic activity. See id. at

260 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
multinational corporations and their U.S.-based affiliates employed 5.6
million Americans in the United States, accounting for 5.2% of all private
sector employment in the United States in 1998. 3 Asian multinational
corporations, through their U.S. affiliates, employed 1.1 million
Americans in the United States in 1997. 4
With this increased activity, however, has come increased potential
for liability. Multinational employers, such as Nike and Microsoft, have
recently been accused of failing to comply with minimum employment
standards in their non-U.S. operations. 5 As more companies enter the
global marketplace and do business with (or from) the United States,
28 (citing Raymond J. Mataloni, Jr., U.S. Dep’t of Commerce, A Guide to BEA Statistics
on U.S. Multinational Companies, SURV. OF CURRENT BUS. 38-55 (1995),
http://www.bea.doc.gov/bea/ai1.htm).
The BEA report defines a “U.S. multinational company” as “the U.S. parent
[company] and its majority-owned foreign affiliates.” Id. at 27. A “U.S. parent” is a
business entity, based in the United States, “who owns or controls 10 percent or more of
the voting securities, or the equivalent, of a foreign business enterprise. . . . [and]
comprises the domestic operations of a U.S. multinational company.” Id. A “majorityowned
foreign affiliate” is a “foreign business enterprise in which the combined
ownership of all U.S. parents exceeds 50 percent . . . [and] comprises the foreign
operations of U.S. multinational companies that are controlled by U.S. parent(s).” Id.
The term “domestic” in this context refers to business operations located within the “50
States, the District of Columbia, the Commonwealth of Puerto Rico, and all other U.S.
areas.” Id. “Foreign” refers to business operations that are located anywhere else. Id.
3 William J. Zeile, U.S. Dep’t of Commerce, U.S. Affiliates of Foreign
Companies: Operations in 1998, SURV. OF CURRENT BUS. 141, 142, 146 (2000),
http://www.bea.doc.gov/bea/ai1.htm. The term “U.S. affiliate” refers to “a U.S. business
enterprise in which there is foreign direct investment—that it, in which a single foreign
[entity] owns or controls, directly or indirectly, 10 percent or more of the voting
securities of an incorporated U.S. business enterprise or an equivalent interest in an
unincorporated U.S. business enterprise.” Id. at 142. The figures given are for non-bank
U.S. affiliates of foreign companies. Id. at 146.
4 Id. at 157. This figure includes employment data of foreign companies from
the following countries: Australia, China, Hong Kong, Indonesia, Japan, Republic of
Korea, Malaysia, New Zealand, Philippines, Singapore, Taiwan, and other non-specified
states. Id.
5 Philip M. Berkowitz, Avoiding Perils of Overseas Employment Practices, 1057
PRAC. L. INST ./CORP. LAW & PRAC. 1213, 1217 (1998). The adverse publicity generated
by media reports has resulted, at least in some instances, in limited reforms being
voluntarily implemented by U.S. multinational corporations at worksites outside the
United States. Drummonds, supra note 1, at 281 n.115, 219, 225 and accompanying text
(discussing adverse publicity after media revealed details of Nike’s employment practices
in Vietnam; as a result Nike voluntarily implemented, among other things, health and
safety requirements). Still, only the most egregious cases will likely ever receive the
level of publicity that would stimulate voluntary change; thus, federal laws exist to
provide consistent, enforceable standards in the workplace.

Extraterritorial Application of the ADA 261
multinational corporations must consider whether, and to what extent,
federal labor laws apply to their workforce. 6
The Americans with Disabilities Act of 1990 (“ADA”), 7 hailed as
“the most sweeping piece of civil rights legislation possible in the history
of our country,” 8 protects the civil rights of individuals with disabilities
and prohibits discrimination on the basis of disability in employment,
State and local government services, public accommodations,
transportation, and telecommunications. 9 In 1991, Congress added
explicit language to the statute that made the ADA enforceable
extraterritorially, that is, outside the physical boundaries of the United
States. 10 With the increasing globalization of business activities, the
expansive reach of the ADA and related federal anti-discrimination
statutes 11 could potentially have a significant impact on employmentrelated
costs, operations and profitability. Ultimately, these federal
statutes will also affect the success or failure of multinational corporations
that hire American citizens or do business in the United States. 12
6 For the purposes of this article, the term “multinational corporation” refers to
any business entity that has its headquarters in one country and has operations or facilities
in another country. A U.S. multinational corporation is a business entity that was
incorporated and has its principal offices in the United States. A foreign multinational
corporation is a business entity that was incorporated and is headquartered in a country
other than the United States.
7 The Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat.
328 (codified as amended at 42 U.S.C.A. §§ 12101-12213; 47 U.S.C.A. §§ 225, 611
(West 2000)) [hereinafter ADA].
8 135 Cong. Rec. S. 10708 (Sept. 7, 1989) (statement of Sen. Hatch).
9 EQUAL EMP. OPPORTUNITY COMM’N & U.S. DEP’T OF JUSTICE, THE
AMERICANS WITH DISABILITIES ACT : QUESTIONS AND ANSWERS, under heading
Introduction (1997), at http://www.usdoj.gov/crt/ada/qandaeng.htm.
10 See infra notes 93-102 and accompanying text.
11 Related anti-discrimination statutes include: Title VII of the Civil Rights Act
of 1964, Pub. L. No. 88-352, tit. VII, §§ 701-716, 78 Stat. 241 (1964) (codified as
amended at 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2000)) [hereinafter Title VII], and
the Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602
(1967) (codified as amended at 29 U.S.C.A. §§ 621-634 (West 2000)) [hereinafter
ADEA].
12 Gerald L. Maatman, Jr., A Global View of Sexual Harassment, HUM. RTS.
MAG., July 1, 2000, at 151, 158, available at 2000 WL 13760702 (“Employment-related
costs and exposure to liability often play a pivotal role in the success or failure of
businesses that decide to operate across borders and time zones”); Jordan W. Cowman,
The Rules Around the World: U.S. Companies Doing Business Abroad Must Follow U.S.
and Host Country Labor and Employment Laws, 146 N.J. L.J. 469 (1997) (“[M]any U.S.
companies have found themselves in legal and financial trouble when they fail to take
into account the real cost of employment abroad compliance . . .”).

262 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
A growing number of individual nations have enacted antidiscrimination
laws that protect workers. At this time, however, the
United States is one of only a handful of countries that affords such
comprehensive protections against disability discrimination. 13 Now, a
decade after the enactment of the ADA, it is appropriate to reexamine the
scope of protection that this landmark legislation provides to differentlyabled
Americans working for multinational employers, both at home and
abroad. Part II of this article will provide an overview of the relevant
provisions of the ADA. Part III will examine the doctrine of
extraterritoriality 14 and its application to the ADA as well as related U.S.
anti-discrimination laws. 15 Part IV will analyze the potential impact of the
extraterritorial application of the ADA and related U.S. anti-discrimination
laws on multinational employers operating both within the United States
and abroad. This paper concludes that the ADA protects U.S. citizens
who are employed by: 1) a U.S. or U.S.-controlled corporation, anywhere
The application of U.S. anti-discrimination laws to U.S. and U.S.-controlled
multinational employers of U.S. citizens and foreign multinational corporations whose
U.S. affiliates employ U.S. citizens is even more reasonable in light of growing
international recognition of the legal rights of individuals with disabilities. The United
Nations (U.N.) heralded the International Decade of Disabled Persons (1983-92), which
was followed immediately by the U.N. Decade of Disabled Persons in Asia (1993-2003).
Katharina Heyer, From Special Needs to Equal Rights: Japanese Disability Law, 1
ASIAN-PAC. L. & POL’Y J. 7:2 (2000), at http://www.hawaii.edu/aplpj/pdfs/07-heyer.pdf.
In 1993, the U.N. General Assembly adopted the “Standard Rules on the Equalization of
Opportunities for Persons with Disabilities,” a series of rules aimed at ensuring that
individuals with disabilities “exercise the same rights and obligations as others.” U.N.
CHRON., Mar. 1, 1994, at 86, available at 1994 WL 13634754. See also Fundamental
Rights of Disabled Persons Consistently Violated Around World, Commission for Social
Development Told, M2 PRESSWIRE, Feb. 10, 2000, available at 2000 WL 12933477
(discussing status report on implementation of the Standard Rules). The Standard Rules
are comprised of 22 resolutions, providing guidance to nations in the achievement of “full
participation and equality” for individuals with disabilities in education, employment,
recreation, and sports. Id. The U.N. Standard Rules complement U.S. disability-related
laws, including the ADA, and strengthen the argument for extraterritorial application of
these laws to protect American workers.
13 Other countries that have enacted legislation similar to the ADA include Great
Britain, Canada, Australia, and New Zealand. Heyer, supra note 12, at 3. As more and
more nations responsibly act to protect the rights of individuals with disabilities in all
areas of life, including employment, such protections will increasingly become the rule,
rather than the exception, across the globe.
14 The doctrine of extraterritoriality controls whether a country can apply its
laws outside its territorial boundaries. See generally infra Section III; also notes 60-83
and accompanying text.
supra note 11.
15 Related anti-discrimination statutes include Title VII and the ADEA. See

Extraterritorial Application of the ADA 263
in the world; 2) a foreign corporation controlled by a U.S. multinational
corporation at a location abroad; 3) U.S.-based subsidiary company of a
foreign multinational corporation at a location in the United States.
II. THE AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act, enacted in 1990, provides “a
clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.” 16 The ADA uniquely
guarantees the civil rights of individuals with disabilities, building on a
series of federal anti-discrimination laws enacted within the last forty
years. The Civil Rights Act of 1964, 17 which prohibited discrimination on
the basis of race, color, religion, sex, or national origin, was the first such
statute to be enacted and served as the statutory model for the Age
Discrimination in Employment Act of 1967 (“ADEA”), 18 which added age
as a protected class. 19 The ADA extends these protections to individuals
with disabilities and, further, envisions the “Federal Government play[ing]
a central role in enforcing the standards established” by the statute. 20
The ADA consists of five sections. Title I prohibits discrimination
against otherwise qualified individuals with disabilities in employment
and requires the provision of reasonable accommodations. 21 Title II
prohibits discrimination by state and local governments in employment,
architectural access, public transit, and delivery of public services. 22 Title
III mandates accessibility when “readily achievable” in places of public
accommodation, including private transportation systems. 23 Title IV
requires access to telecommunications systems for individuals with
disabilities. 24 Title V contains miscellaneous provisions detailing how the
16 42 U.S.C.A. § 12101(b)(1) (West 2000).
17 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2000).
18 29 U.S.C.A. §§ 621-634 (West 2000).
19 See infra note 102 and accompanying text (discussing relationship between
the ADA, Title VII, and the ADEA).
20 42 U.S.C.A. § 12101(b)(3).
21 42 U.S.C.A. §§ 12111-12117 (West 2000).
22 42 U.S.C.A.§ 12131-12162 (West 2000).
23 42 U.S.C.A. § 12181-12189 (West 2000).
24 47 U.S.C.A. §§ 225, 611 (West 2000).

264 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
previous titles are to be applied. 25 The most relevant provisions for the
purposes of this article are Titles I and III.
A. The ADA, Title I: Employment Provisions
Title I of the ADA guarantees equal opportunity in employment for
“otherwise qualified” individuals with disabilities, providing that:
No covered entity shall discriminate against a qualified
individual with a disability . . . in regard to job application
procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training and other
terms, conditions, and privileges of employment. 26
An individual with a physical or mental impairment that
substantially limits one or more major life activities, or who has a record
of having such impairment, or who is regarded as having such impairment
is considered “disabled” within the meaning of the ADA. 27 If the
individual can perform the essential functions of the position with or
without reasonable accommodation, he is considered a “qualified
individual with a disability” who is covered by Title I. 28
The ADA requires an employer to provide reasonable
accommodation for a qualified individual’s known physical or mental
limitations unless doing so would cause an undue hardship. 29 The ADA
defines “employers” as “a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of
20 or more calendar weeks in the current or preceding calendar year, and
any agent of such person.” 30
25 42 U.S.C.A. §§ 12201-12213 (West 2000).
26 42 U.S.C.A. § 12112(a).
27 42 U.S.C.A. § 12102(2).
28 42 U.S.C.A. § 12111(8).
29 See 42 U.S.C.A. §§ 12113(a), 12111(9) and (10); 229 C.F.R. § 1630 (2000).
30 42 U.S.C.A. § 12111(5). See also Equal Emp. Opportunity Comm’n &
Walters v. Metro. Educ. Enter. Inc., 519 U.S. 202, 117 S. Ct. 660 (1997), for the method
to be used to calculate the number of employees for the purposes of Title VII claims. The
same analysis would be used for claims under the ADA, since the definition of
“employer” in both statutes is identical. BONNIE P. TUCKER & BRUCE A. GOLDSTEIN,
LEGAL RIGHTS OF PERSONS WITH DISABILITIES: AN ANALYSIS OF FEDERAL LAW ch. 15 §
1 n.4 (Supp. 1999). The United States, Indian tribes, and bona fide membership clubs
with IRS 501(c)(3) (not-for-profit, tax-exempt) status are exempted from the employment
provisions of the ADA; state and local governments, however, must comply with Title I.
42 U.S.C.A. § 12111(6).

Extraterritorial Application of the ADA 265
The Equal Employment Opportunity Commission (“EEOC”) is the
federal administrative agency designated by Congress to enforce civil
rights laws prohibiting discrimination in employment based on race, color,
religion, sex, national origin, age, and physical and mental disabilities. 31
The EEOC received over 100,000 employment discrimination claims
between October 1, 1996 and September 30, 1997, and estimates that the
number of claims will increase by 60% annually. 32 Of that number, 20%
are estimated to be ADA-related claims. 33
Congress granted the EEOC the authority to issue regulations to
carry out the employment provisions contained in Title I and to offer
technical assistance about the requirements of this section of the ADA. 34
Accordingly, the EEOC has produced enforcement guidelines to assist the
multinational employer to understand and comply with its legal
obligations under these federal laws. 35
The regulations require that administrative remedies be exhausted
before an employment discrimination claim can be brought in U.S. courts.
A written charge of unlawful employment discrimination must be filed
with the EEOC within 180 days of the date the discriminatory conduct
occurred. 36 The EEOC will first determine whether the U.S. law applies to
31 42 U.S.C.A. §§ 12116-12117 (ADA); 42 U.S.C.A. §§ 2000e-4 to e-5 (Title
VII); 29 U.S.C.A. § 628 (ADEA); Exec. Order No. 12,106 § 3, 44 Fed. Reg. 1,053 (Dec.
26, 1978) (ADEA).
32 W. Muzette Hill, Insurance Law: What Every Lawyer & Businessperson
Needs to Know: Employment Practices Liability: The Other Year 2000 Problem?, 584
PRACT . L. INST ./LIT. & ADMIN. PRACT . 293, 293 (1998).
33 Id.
34 42 U.S.C.A. §§ 12116, 12206(c)(1); 42 U.S.C.A. §§ 2000e-4 to e-5.
35 The EEOC recently issued the new Compliance Manual, which aims to
consolidate and streamline the Commission’s guidance on federal anti-discrimination
laws. Section 2 of the new Compliance Manual, issued in May 2000, addresses threshold
issues such as cognizable claims and covered parties. See Threshold Issues, 2 EQUAL
EMP. OPPORTUNITY COMM’N COMPLIANCE MANUAL § 2 (July 27, 2000) [hereinafter
Threshold Issues]. For detailed guidance on the application of U.S. anti-discrimination
laws to multinational employers, see also Enforcement Guidance on Application of Title
VII and ADA to American Firms Overseas and to Foreign Firms in the United States, 2
EQUAL EMP. OPPORTUNITY COMM’N COMPLIANCE MANUAL § 605 (1993) [hereinafter
EEOC Enforcement Guidance on Title VII and ADA], and Policy Guidance on
Application of the Age Discrimination in Employment Act of 1967 and the Equal Pay Act
of 1963 to American Firms Overseas, Their Overseas Subsidiaries, and Foreign Firms, 2
EQUAL EMP. OPPORTUNITY COMM’N COMPLIANCE MANUAL § G (1989) [hereinafter
EEOC Guidance on ADEA].
36 42 U.S.C.A. § 2000e-5; 29 C.F.R. § 1601.13(a) (2000). See generally Gerald
L. Maatman, Jr., A Legal Guide for Multinational Corporations on Dealing with the
Extraterritorial Application of U.S. Employment Discrimination Laws, 3 DIG. INT’L L. 1,

266 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
the employer and conduct charged. 37 The EEOC may conduct an
investigation to determine whether there is probable cause to support the
charge. 38 If it determines that there is probable cause or six months have
elapsed since the charge was filed, it will issue a “right to sue” letter. 39
Then, and only then, may the claimant file suit in a U.S. court. 40
A multinational employer that is found liable for violations of U.S.
anti-discrimination laws may face significant penalties. A company found
to have intentionally engaged in employment discrimination, in violation
of the ADA or Title VII, may have to reinstate the employee and pay
monetary damages (subject to statutory limits). 41 In addition, punitive
damages may be assessed against an employer that fails to reasonably
accommodate an employee’s known disability. 42 Lastly, an employer that
available at WL 3 DIGINTL 1 (1996). The ADA expressly adopts the remedies and
procedures provided for enforcement of Title VII. 42 U.S.C.A. § 12117.
37 Threshold Issues, supra note 35, § 2-I, 7,103 (2000). Note, however, that
even if threshold requirements are not met and the EEOC investigator dismisses the case,
the EEOC will still issue a “right to sue” letter, allowing the claimant the option to file
suit in a U.S. court. 29 C.F.R. § 1601.28(b)(3) (2000).
supra note 36.
38 42 U.S.C.A. § 2000e-5(b); 29 C.F.R. §§ 1601.15-1601.21 (2000).
39 42 U.S.C.A. § 2000e-5(f)(1); 29 C.F.R. § 1601.28 (2000). See also Maatman,
40 Id. The claimant has 90 days after receiving the right-to-sue letter to file such
a suit. 42 U.S.C.A. § 2000e-5(f)(1); 29 C.F.R. § 1601.28 (2000). Title VII and ADA
claims may be filed “in the judicial district where the complainant lives or works (or
would have worked), where the employment records are kept, . . . where the employment
action occurred . . . . [or] wherever the employer has its principal office.” 42 U.S.C.A. §
2000e-5(f)(3). See also Maatman, supra note 36.
In addition, in cases involving foreign multinational employers, the court must
first decide whether the company has sufficient ties to the United States to be sued in
U.S. courts. See, e.g., United States ex rel. Mayo v. Satan, 54 F.R.D. 282 (W.D. Pa.
1971) (discussing whether the court could exercise personal jurisdiction over a foreign
defendant). The Due Process Clause of the U.S. Constitution limits the jurisdictional
authority of U.S. courts to adjudicate cases involving non-resident defendants. U.S.
CONST . amends. V, XIV, § 1. Thus, courts may assert personal jurisdiction over a
foreign multinational employer only if it has “minimum contacts” with the forum state
“such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation
omitted). In the context of litigation involving international parties, eight Justices of the
U.S. Supreme Court agreed that courts must balance the burden on a foreign defendant
against the interests of the plaintiff and the forum state in determining whether a foreign
defendant’s contacts with the United States are sufficient to establish personal
jurisdiction. Asahi Metal Indus. Co. v. Super. Ct., 480 U.S. 102, 113 (1987).
41 42 U.S.C.A. §§ 1981a & 2000e-5(g).
42 42 U.S.C.A. § 1981a.

Extraterritorial Application of the ADA 267
is not the prevailing party may be liable for reasonable attorney’s fees and
costs incurred by the successful plaintiff. 43
Multinational corporations should be aware that the regulations
and enforcement guidelines promulgated by the EEOC would likely be
controlling on U.S. courts. Courts generally defer “to an executive
department’s construction of a statutory scheme it is entrusted to
administer. . . . [and] to [its] administrative interpretations.” 44 “The EEOC
has been implicitly conferred interpretive authority under the ADA . . .
through Congress’ express delegation of the power to issue legislative
rules. . . . [which] carries with it the presumption of an implied delegation
of interpretive authority.” 45 Thus, the EEOC’s interpretation of the
statutory requirements of the ADA, as expressed in the enforcement
guidelines cited above, is binding on U.S. courts. 46 Multinational
employers, therefore, should be cognizant of the EEOC regulations
implementing the ADA, as these have the force of law in American courts.
B. Title III: Public Accommodations
Title III of the ADA 47 governs access to places of public
accommodation by individuals with disabilities, providing in pertinent part
that:
No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a
place of public accommodation. 48
43 42 U.S.C.A. § 2000e-5(k).
44 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844
(1984). “Agency interpretations of silent or ambiguous statutes [such as the ADA, which
does not define, for example, “reasonable accommodation” or “undue hardship”] are
controlling on the courts if Congress has delegated law-interpreting power to the
agency.” Rebecca Hanner White, The EEOC, the Courts, and Employment
Discrimination Policy: Recognizing the Agency’s Leading Role in Statutory
Interpretation, 1995 UTAH L. REV. 51, 54. After Chevron, “such delegations need not be
express, but could be implied from the statutory scheme.” Id.
45 Id. at 89.
46 See id. at 57.
47 42 U.S.C.A. §§ 12181-12189 (West 2000).
48 42 U.S.C.A. § 12182(a).

268 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
A “place of public accommodation” is broadly defined to include a
wide range of facilities that are generally open and accessible to the
public. 49 These include: places of lodging (hotels), establishments serving
food and drink (restaurants, bars), places of exhibition or entertainment
(movie theaters), places of public gathering (auditorium), sales or rental
establishments (retail stores), service establishments (beauty shops,
doctor’s offices), places of public display or collection (libraries), places
of recreation (parks), schools, social service center establishments (day
care centers), places of exercise (gyms, golf courses), public transportation
stations and terminals, and railroads. 50
Title III aims to make all places of public accommodation
accessible to individuals with disabilities. Owners, lessors, lessees, and
operators of stores, restaurants, theaters, and other existing facilities that
are open to the public must remove physical barriers where readily
achievable or, alternatively, must take steps to enable individuals with
disabilities to enter the facility and access its goods or services. 51 In
addition, new construction and alterations of “[c]ommercial facilities,
including office buildings, factories, and warehouses, whose operations
affect [interstate] commerce” must comply with Title III accessibility
requirements. 52 Religious organizations, including places of worship and
bona fide private (non-profit) membership clubs, however, are exempted
from most Title III requirements. 53
Title III’s accessibility mandate extends beyond architectural
barrier removal to include goods, services, and programs provided at a
place of public accommodation. 54
Public accommodations must provide goods and services in
an integrated setting, unless separate or different measures
are necessary to ensure equal opportunity . . . [and must]
make reasonable modifications in policies, practices, and
procedures that deny equal access to individuals with
disabilities unless a fundamental alteration in the nature of
49
42 U.S.C.A. § 12181(7). See also EQUAL EMP. OPPORT UNITY COMM’N &
U.S. DEP’T OF JUSTICE, supra note 9, at 17.
50 42 U.S.C.A. § 12181(7). See also James P. Colgate, Note, If You Build It,
Can They Sue? Architects’ Liability Under Title III of the ADA, 68 FORDHAM L. REV.
137, 144-45 (1999).
51 U.S. DEP’T OF JUSTICE, TITLE III HIGHLIGHTS §§ VII-X, http://www.usdoj.
gov/crt/ada/t3hilght.htm (last visited Feb. 5, 2001).
52 Id. at §§ II, IX.
53 Id. at § I.
54 Id. at §§ II-VI.

Extraterritorial Application of the ADA 269
the goods and services provided or an undue burden would
result. 55
The U.S. Department of Justice (“DOJ”) is the federal
administrative agency designated by Congress to enforce the accessibility
provisions of Title III. 56 The DOJ, under the direction of Congress,
promulgated regulations, including architectural accessibility standards,
and offers technical assistance about the requirements of this section of the
ADA. 57 Under the regulations, private parties may file suit in U.S. courts
to enforce the accessibility requirements of Title III, but no monetary
damages are available in such cases. 58 Alternatively, individuals may file
complaints with the DOJ, which is authorized to file lawsuits in “cases of
general public importance or where a ‘pattern or practice’ of
discrimination is alleged.” 59 Because of the breadth of its coverage, Title
III could significantly impact business operations of multinational
corporations.
III. DOCTRINE OF EXTRATERRITORIALITY
Traditional rules of statutory construction prohibited the
extraterritorial application of federal laws beyond the territorial boundaries
of the United States. 60 Very early on in U.S. history, the Supreme Court
established a presumption against extraterritorial application of U.S. law,
absent a clear statement of Congressional intent to the contrary. 61 The bias
against extraterritoriality was based largely on the “conflict avoidance
55 Id. at § II.
56 Id. at § 13; 42 U.S.C.A. § 12186.
57 42 U.S.C.A. §§ 12186, 12206(c)(1). The regulations are codified at 28 C.F.R.
§ 35, App. A, and § 36, App. B (2000) (interpretive guidelines).
58 U.S. DEP’T OF JUSTICE, supra note 51, at § 13.
59 Id. In these cases, limited monetary damages, excluding punitive damages,
may be awarded. Id.
60 See Jonathan Turley, Transnational Discrimination and the Economics of
Extraterritorial Regulation, 70 B.U. L. REV. 339, 344 (1990).
61 American Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1902). In
American Banana, a case involving the extraterritorial application of the Sherman Anti-
Trust Act to a monopoly in Costa Rica, the Court adopted a strict rule of construction
that, in the absence of a clear expression of extraterritorial intent by Congress, restricted
the reach of U.S. laws to “the territorial limits over which the lawmaker has general and
legitimate power.” Id. In Foley Bros., Inc. v. Filardo, the first case to address the
extraterritorial application of U.S. labor laws, the Court reaffirmed that “legislation of
Congress, unless a contrary intent appears, is meant to apply only within the territorial
jurisdiction of the United States.” 336 U.S. 281, 285 (1949).

270 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
principle,” which held that “Congress generally eschews unnecessary
confrontation” with foreign sovereigns or international law. 62 Thus, even
where Congressional intent is clear, principles of international law and
comity may preclude extraterritorial application of U.S. law. 63 A
fundamental issue in ADA cases, therefore, is whether or not Congress has
clearly expressed its intention that the statute should apply
extraterritorially.
The Restatement (Third) of the Foreign Relations Law of the
United States articulates the relevant principles of U.S. law relating to
international issues that determine when Congress may properly exercise
its prescriptive jurisdiction over activities and persons connected with
another country. 64 Under the nationality principle, Congress can regulate
the conduct of its nationals, wherever they may be. Thus, it can expressly
make federal law applicable to all U.S. citizens everywhere. 65 The
territoriality principle allows Congress to regulate conduct that occurs
within the territorial boundaries of the United States. 66 Last, the effects
doctrine, an extension of the principle of territoriality, allows Congress to
reasonably regulate conduct that occurs outside of its borders that has or is
intended to have a substantial effect within the United States. 67
In Foley Bros., Inc. v. Filardo, 68 the first case that addressed the
applicability of U.S. labor laws to U.S. employers of Americans working
overseas, the U.S. Supreme Court reaffirmed that “legislation of Congress,
unless a contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States.” 69 The Court characterized
62 Jonathan Turley, “When in Rome”: Multinational Misconduct and the
Presumption Against Extraterritoriality, 84 NW. U. L. REV. 598, 605 (1990).
63 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)
(“an act of Congress ought never to be construed to violate the law of nations if any other
possible construction remains”). See also Turley, supra note 62, at 606 n.56.
64 See generally RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW pt. IV
(1987). “Jurisdiction to prescribe” is defined as “the authority of [Congress] to make its
substantive laws applicable to particular persons and circumstances.” Id. § 401(a) and
introductory note.
65 Id. § 402(2). See also Steele v. Bulova Watch Co., 344 U.S. 280, 282 (1952)
(“Congress in prescribing standards of conduct for American citizens may project the
impact of its laws beyond the territorial boundaries of the United States”).
66 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402(1)(a).
67 Id. § 402(1)(C) cmt. d.
68 Foley Bros., 336 U.S. at 281.
69 Id. at 285 (citing Blackmer v. United States, 284 U.S. 4121, 437 (1932)).

Extraterritorial Application of the ADA 271
Congress’ normal interests as strictly domestic. Therefore, in the absence
of a clear statement of Congressional intent, ambiguous statutes should not
be applied outside the territorial boundaries of the United States. 70 The
Court, in Foley Bros., thus established the rule of statutory construction
that restricted the extraterritorial application of federal law “in the absence
of a clearly expressed [Congressional] purpose.” 71
A second cannon of statutory construction requires that “[a]n act of
Congress ought never to be construed to violate the law of nations if any
other possible construction remains.” 72 Courts have, therefore, added a
second tier to the extraterritoriality analysis that considers principles of
international law and comity, balancing the interests of the foreign
nation(s) involved against the interests of the United States, to determine
whether extraterritorial jurisdiction should be exercised in a particular
case. 73 In Timberlane Lumber Co. v. Bank of America, N.T. & S.A., 74 a
case involving the application of the Sherman Antitrust Act to an alleged
conspiracy involving U.S. citizens and foreign nationals in Honduras, the
Ninth Circuit adopted a “jurisdictional rule of reason” which considers
“whether the interests of, and links to, the United States . . . are
sufficiently strong, vis-à-vis those of other nations, to justify an assertion
of extraterritorial authority.” 75
Elements to be weighed include the degree of conflict with
foreign law or policy, the nationality or allegiance of the
parties and the locations or principal places of business or
corporations, the extent to which enforcement by either
state can be expected to achieve compliance, the relative
70 Turley, supra note 62, at 607.
71 Foley Bros., 339 U.S. at 286. See also Lairold M. Street, Application of U.S.
Fair Employment Laws to Transnational Employers in the United States and Abroad, 19
N.Y.U. J. INT’L L. & POL. 357, 362-63 (1987); Turley, supra note 62, at 607-08.
72 Charming Betsy, 6 U.S. (2 Cranch) at 118; also Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 814-15 (1993) (Scalia, J., dissenting).
73 See, e.g., Timberlane Lumber Co. v. Bank of Am., N.T. & S.A., 549 F.2d 597,
613 (9th Cir. 1977) (citation omitted). See generally Mark Gibney & R. David Emerick,
The Extraterritorial Application of United States Law and the Protection of Human
Rights: Holding Multinational Corporations to Domestic and International Standards, 10
TEMP. INT’L & COMP. L. J. 123, 141-42 (1996) (discussing the anomaly of extraterritorial
application of U.S. law and concluding that “the law has been applied extraterritorially
when it seeks to prevent negative phenomena from occurring in the United States, but
generally not when an agent of the United States (or the government itself) pursues
activities that might bring about ‘negative effects’ in other countries”).
74 Timberlane, 549 F.2d at 597.
75 Id. at 613 (citation omitted).

272 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
significance of effects on the United States as compared
with those elsewhere, the extent to which there is explicit
purpose to harm or affect American commerce, the
foreseeability of such effect, and the relative importance to
the violations charged of conduct within the United States
as compared with conduct abroad. 76
Thus, even if there is a clear statement of Congressional intent to apply the
statute extraterritorially, principles of international law and comity may
preclude its application in a particular case.
The Third Circuit adopted a similar test in Mannington Mills, Inc.
v. Congoleum Corp., 77 a case involving two American corporations and
alleged antitrust activity abroad. The court held that principles of
international law and comity might preclude the court from exercising
jurisdiction in a particular case. 78 The court explained that “the
individuals interests and policies of each of the foreign nations differ and
must be balanced against our nation’s legitimate interest in regulating [the
conduct].” 79
Most recently, in Hartford Fire Insurance Co. v. California, 80 the
U.S. Supreme Court applied a two-part analysis to determine the
extraterritorial application of the Sherman Antitrust Act in a case
involving numerous U.S. and foreign insurers. First, the Court considered
whether the Sherman Act, the federal law at issue, applied
extraterritorially. The Court ruled that, under the effects doctrine, “the
[Act] applies to foreign conduct that was meant to produce and did in fact
produce some substantial effect in the United States.” 81 It then determined
that the Sherman Act applied extraterritorially, because the acts governed
by the statute produced substantial effects in the United States. Second,
the Court applied principles of international law and comity to determine
whether the extraterritorial application of that law was reasonable in that
case. 82 The Court held that “[t]he fact that conduct is lawful in the
[country] in which it took place will not, of itself, bar application of
[federal law] even where the foreign [country] has a strong policy to
76 Id. at 614.
77 Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979).
78 Id. at 1296.
79 Id. at 1298.
80 Hartford Fire Ins., 509 U.S. at 764.
81 Id. at 796.
82 Id. at 797-99.

Extraterritorial Application of the ADA 273
permit or encourage such conduct. No conflict exists, for these purposes,
where a person subject to regulation by two [countries] can comply with
the laws of both.” 83 Thus, U.S. multinational corporations must, to the
extent possible, comply with both U.S. labor laws and the laws of the host
country.
In Equal Employment Opportunity Commission v. Arabian
American Oil Co. 84 (“Aramco”), a clear majority of the U.S. Supreme
Court held that Title VII of the Civil Rights Act did not apply
extraterritorially to American employers of U.S. citizens working
abroad. 85 In so doing, the Court qualified the nationality principle of
jurisdiction and determined that only a “clearly expressed” 86 statement of
Congressional intent was sufficient to overcome the presumption against
extraterritoriality. 87 The Court noted that the language of the statute was
“ambiguous” 88 and that the EEOC’s asserted position that the statute was
applicable extraterritorially had not been formally promulgated in an
enforcement guideline or similar policy guidance. 89 The Court compared
Title VII with the ADEA, which Congress had amended in 1984 by
adding provisions that specifically addressed conflicts with foreign laws,
thus expressing its extraterritorial intent. 90 The Court concluded that there
was insufficient “affirmative evidence that Congress intended Title VII to
apply abroad,” 91 and, therefore, Title VII protections did not extend to a
U.S. citizen working for a U.S-owned company overseas. 92
83 Id. at 799 (citations and internal quotation marks omitted).
84 Equal Emp. Opportunity Comm’n v. Arabian Am. Oil Co., 499 U.S. 244
(1991) [hereinafter Aramco].
85 Id. at 249.
86 Id. at 248 (citation omitted).
87 Id. Prior to the Aramco decision, the clear statement rule was used only “to
interpret statutes that implicated the structure of our government as delineated by the
Constitution.” Leading Cases, 105 HARV. L. REV. 369, 372 (1991). The Supreme Court
departed from precedent by expanding the application of the rule in that case. Id.
88 Aramco, 499 U.S. at 250-51 (“The intent of Congress as to the extraterritorial
application of this statute must be deduced by inference from boilerplate language which
can be found in any number of congressional Acts, none of which have ever been held to
apply overseas [citing federal laws]”).
89 Id. at 257-58.
90 Id. at 254-56.
91 Id. at 259.
92 Id.

274 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
Congress almost immediately responded to the Supreme Court’s
decision in Aramco, by adding the “Protection of Extraterritorial
Employment Amendments” 93 to pending civil rights legislation. 94 The
Civil Rights Act of 1991, 95 which amended Title VII and the ADA to
provide a clear statement of Congressional intent of extraterritorial
application, was signed into law on November 21, 1991, barely seven
months after the Court handed down its Aramco decision. 96 The language
of the amendments closely modeled the extraterritoriality provisions of the
ADEA. 97 Section 109 of the Civil Rights Act of 1991 amends both the
ADA and Title VII to:
93 Protection of Extraterritorial Employment Amendments, Civil Rights Act of
1991, Pub. L. No. 102-166, § 109, 105 Stat. 1071 (1991) (codified at 42 U.S.C.A. §§
12111(4), 12112(c) (West 2000) (ADA) and 42 U.S.C.A. § 2000e-1(c) (West 2000)
(Title VII)) [hereinafter Civil Rights Act of 1991].
94 Alan Gladstone, Transnational Application of Title VII Employment
Protections: A Two-Sided Coin, 6 INT’L LEGAL PERSP . 1, § 2-A (1994), available at WL
6-SPG Int’l Legal Persp. 1. The extraterritorial amendments were added to the bill very
late in the legislative process, after all the public hearings had been completed. Id. It was
widely believed that Congress enacted the amendments in this unusual way in response to
the Supreme Court’s decision in Aramco. Id.; Paul D. Snitzer, The Foreign Corporation
in the United States: Here to Do Business, to Discriminate, or Both?, 13 LAB. LAW. 445,
450 (1998); Linda Maher, Drawing Circles in the Sand: Extraterritoriality in Civil Rights
Legislation After Aramco and the Civil Rights Act of 1991, 9 CONN. J. INT’L L. 1, 28-30,
available at WL 9 CTJIL 1 (1993).
95 See supra note 93.
96 The Civil Rights Act of 1991 was signed by President George Bush on Nov.
21, 1991. Statement of Pres. George Bush Upon Signing S. 1745, 27 WEEKLY COMP.
PRES. DOC. 1701, reprinted in 1991 U.S.C.C.A.N. 768 (Nov. 21, 1991).
97 See ADEA, 29 U.S.C.A. § 623(h) (West 2000). Congress amended the
ADEA in 1984 to make it applicable extraterritorially; the Civil Rights Act of 1991 added
substantially the same “extraterritorial” language to both the ADA and Title VII.
Gladstone, supra note 94, at § 2-A. Because there is very little legislative history on
these particular amendments, and because the amendments “were acknowledged to adopt
the same [“extraterritorial”] language as had . . . been added to the ADEA, the 1991
amendments “may thus be interpreted in light of the legislative history of the
[extraterritorial] amendments to the ADEA.” Id. The purpose of the ADEA
amendments, as stated in the U.S. Senate committee report on the Act, was:
to insure that citizens of the United States who are emp loyed in a
foreign workplace by U.S. corporations or their subsidiaries enjoy the
protections of [the Act]. When considering this amendment, the
Committee was cognizant of the well-established principle of
sovereignty, that no nation has the right to impose its labor standards
on another country. That is why the amendment is carefully worded to
apply only to citizens of the United States who are working for U.S.
corporations or their subsidiaries. It does not apply to foreign nationals
working for such corporations in a foreign workplace, and it does not

Extraterritorial Application of the ADA 275
(1) Revise the definition of “employee” to include “[any]
individual who is a citizen of the United States employed
by an employer in a workplace in a foreign country.” 98
(2) “Limit[] the application of these acts to foreign
corporations by providing that they would apply to a
corporation ‘whose place of incorporation is a foreign
country’ only if that corporation was ‘controlled’ by a U.S.
company.” 99 Thus, the Act would not apply to “the foreign
operations of an employer that is a foreign person not
controlled by an American employer.” 100
(3) Articulate factors to be considered in determining whether
a foreign corporation was controlled by a U.S. company;
these were: the interrelation of operations, common
management, centralized control of labor relations, and
common ownership or financial control of the two
entities. 101
Thus, after the Civil Rights Act of 1991 amendments, the ADA,
Title VII, and the ADEA were co-extensive in their extraterritoriality
provisions; therefore, courts have interpreted the ADA by reference to
relevant Title VII and ADEA decisions. 102
apply to foreign companies which [sic] are not controlled by U.S.
firms. Moreover, it is the intent of the Committee that this amendment
not be enforced where compliance with its prohibitions would place a
U.S. company or its subsidiary in violation of the laws of the host
country.
S. REP. NO. 98-467, at 27 (1984), reprinted in 1984 U.S.C.C.A.N. 2974, 3000-01. See
also Gladstone, supra note 94, at § 2-A.
98 Snitzer, supra note 94, at 449-50. See also EEOC Enforcement Guidance on
Title VII and ADA, supra note 35, at § I.A.2 (amendment codified at 42 U.S.C.A. §
12111(4) (West 2000) (ADA)); 42 U.S.C.A. § 2000e-(f) (West 2000) (Title VII)).
99 Snitzer, supra note 94, at 450; EEOC Enforcement Guidance on Title VII and
ADA, supra note 35, § I.A.2 (amendment codified at 42 U.S.C.A. § 12112(c)(2) (West
2000) (ADA); 42 U.S.C.A. § 2000e-1(c) (West 2000) (Title VII)).
100 Id.
101 Id.
102 Congress based the ADA and the ADEA in large part on Title VII, and
expressly “intend[ed] that these other laws [i.e., the ADA and ADEA] modeled after Title
VII be interpreted consistently . . . with Title VII, as amended by [the Civil Rights Act of
1991].” H.R. REP. NO. 102-40 (II), 102d Cong., 1st Sess. 1991, at 3. The close
relationship between Title VII, the ADEA, and the ADA, evidenced by similarities in

276 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
IV. EXTRATERRITORIAL APPLICATION OF THE ADA
A. Extraterritorial Application of Title I
The 1991 amendments made it clear that Title I of the ADA
applies extraterritorially to American workers working for U.S. or U.S.controlled
employers overseas. 103 What remains unclear, however, is the
exact scope of that protection.
The ADA’s extraterritorial reach extends only to U.S. citizens
employed overseas; it does not protect resident aliens and foreign
nationals working for American employers at overseas worksites. 104 Thus,
courts have consistently held that only a U.S. citizen may properly bring a
discrimination claim under the ADA based on employment decisions
made at a foreign worksite by an American employer or by a foreign
employer controlled by a U.S. multinational company. 105
1. The ADA Applies to Certain Employers
Because the ADA does not apply to all employers but only to those
“engaged in an industry affecting commerce who [have] 15 or more
employees for each working day in each of 20 or more calendar weeks in
purpose and statutory language, has led courts to look to decisions interpreting Title VII
and the ADEA as instructive in ADA cases. See Howard Eglit, The Age Discrimination
in Employment Act, Title VII, and the Civil Rights Act of 1991: Three Acts and a Dog that
Didn’t Bark, 39 WAYNE L. REV. 1093, 1097 (1993). “This judicially-fashioned nexus
has been premised on the perception by the ADEA courts that decisions construing Title
VII . . . constitute particularly persuasive analogical guides by virtue of the statutes’
shared aims and like terms.” Id. Accordingly, courts have interpreted the ADA by
reference to Title VII and ADEA decisions.
103 42 U.S.C.A. § 12111(4) (“With respect to employment in a foreign country,
such term includes an individual who is a citizen of the United States.”); EEOC
Enforcement Guidance on Application of Title VII and ADA, supra note 35, at § I.A.2,
n.2.
104 Id.
105 E.g., Russell v. Midwest-Werner & Pfleiderer, Inc., 955 F. Supp. 114, 115
(D. Kan. 1997) (“The general rule is that with respect to foreign employment, Title VII
applies only to American citizens employed abroad by American companies or their
foreign subsidiaries”); Iwata v. Stryker Corp., 59 F. Supp. 2d 600, 604-05 (N.D. Tx.
1999) (holding that a Japanese citizen working in Japan for a Japanese subsidiary of a
United States corporation was not an “employee” within the meaning of the ADA and
ADEA); Ghandour v. Am. Univ. of Beirut, No. 97 Civ. 7741 (DC), 1998 WL 856114, at
*2 (S.D.N.Y. Dec. 9, 1998) (holding that non-U.S. citizen was not an “employee” under
Title VII).

Extraterritorial Application of the ADA 277
the current or preceding calendar year,” 106 the threshold analysis is
determining the total number of employees for purposes of the ADA
claim. This calculation becomes more complicated when multinational
corporations are involved. In such cases, courts are split on whether both
the U.S.-based employees and the employees working abroad (outside of
the United States), or only the employees working within the U.S., should
be counted toward the statutory minimum requirement. 107 If the first, a
related issue is whether to count foreign nationals at worksites outside the
United States, who are not subject to the ADA, as well as those U.S.
citizens working abroad. 108
The Equal Employment Opportunity Commission (“EEOC”) 109
takes the position that, in determining whether an ADA claim can be
maintained against the U.S.-based branch of a foreign multinational
corporation, the employees of a foreign company based abroad count for
jurisdictional purposes if the U.S. branch and the foreign multinational
company are an integrated enterprise. 110 Consistent with this position, the
Second Circuit, in Morelli v. Cedel, 111 the first appellate decision
addressing this issue, held that both employees in the United States and
those working outside of the United States should be included in
calculating the total number of employees of a foreign multinational
corporation for jurisdictional purposes. 112 The court reasoned that Title
VII, the statute at issue in that case, did not differentiate between foreign
and domestic employers. Further, the court determined that none of the
106 42 U.S.C.A. § 12111(5)(A); Threshold Issues, supra note 35, § 2-III.B.1.a.i
(method for counting employees). The ADEA requires a minimum of 20 employees for a
minimum of 20 weeks per year. 29 U.S.C.A. § 630(b) (West 2000). Title VII of the
Civil Rights Act of 1964 requires that an “employer” be engaged in an industry affecting
interstate commerce and must employ a minimum of 15 employees for a minimum of 20
weeks per year. 42 U.S.C.A. § 2000e(a).
107 Compare Morelli v. Cedel, 141 F.3d 39 (2d Cir. 1998), with Robins v. Max
Mara, U.S.A., Inc., 914 F. Supp. 1006 (S.D.N.Y. 1996) (holding that court had no subject
matter jurisdiction over Title VII, ADEA, or ADA claims, because foreign employees
exempt from jurisdictional tally).
108 See, e.g., Russell, 995 F. Supp. at 115 (holding that overseas employees of
foreign multinational employer did not count toward Title VII damages limits).
109 See supra II.A.
110 Threshold Issues, supra note 35, §§ 2-III.B.1.a.iii.(a)-B.1.a.iii.(b), B.3.c.i.
111 141 F.3d 39 (2d Cir. 1998), rev’g 1997 WL 61499 (S.D.N.Y. Feb. 13, 1997).
112 Id. at 45.

278 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
expressed reasons for the minimum employee requirement 113 were
applicable to the issue of whether only the U.S.-based employees of a
foreign employer should count toward the statutory minimum
jurisdictional requirement. 114 The court held that both employees within
the United States and those working abroad should be counted for
purposes of an ADA claim, stating that “employees cannot be ignored
merely because they work overseas.” 115
Although the “who counts” issue may seem trivial, it could have a
significant impact on the outcome of litigation under the ADA and Title
VII. In Greenbaum v. Handelsbanken, N.Y., 116 a district court, following
Morelli, reversed its earlier decision, holding that a bank’s foreign
employees did count toward the total number of employees for purposes
of Title VII punitive damages calculation. 117 Because Title VII punitive
damages are based on the size of the company, the damages awarded there
increased from $50,000 to $300,000 after the recalculation. 118
By contrast, the district court in Robins v. Max Mara, U.S.A.,
Inc. 119 held that foreign employees were exempt from the tally. There, a
U.S. citizen employed by Max Mara USA, a wholly-owned, U.S.-based
subsidiary of Max Mara Fashion Group, SpA, an Italian corporation,
claimed that he had been fired because of his age, medical history, and
national origin, in violation of the ADEA, ADA, and Title VII of the Civil
Rights Act of 1964. 120 The court found that a foreign parent of a U.S.incorporated
subsidiary could be held liable under the ADEA if the parent
113 “These include the burdens of compliance and potential litigation costs, the
protection of intimate and personal relations existing in small businesses, potential effects
on competition and the economy, and the constitutionality of Title VII under the
Commerce Clause.” Id. at 45 (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir.
1995)).
114 Id.
115 Id.
116 26 F. Supp. 2d 649 (S.D.N.Y. 1998).
117 Id. at 655. But see Russell, 995 F. Supp. at 115 (holding that foreign
employees did not count towards Title VII punitive damages calculation).
118 Id.
119 923 F. Supp. 460, amending 914 F. Supp. 1006 (S.D.N.Y. 1996). This oftencited
decision was expressly abrogated by the Second Circuit in Morelli v. Cedel, 141
F.3d 39 (2d Cir. 1998), but is analyzed here as indicative of the reasoning used by several
district courts. See, e.g., Rao v. Kenya Airways, Ltd., 94 Civ. 6103 (CSH), 1995 WL
366305 (S.D.N.Y. Jun. 20, 1995); Minutillo v. Agna Signal Corp., No. 96 Civ. 3529,
1997 WL 156495 (N.D. Ill. Mar. 31, 1997).
120 Max Mara, 914 F. Supp. at 1007.

Extraterritorial Application of the ADA 279
and subsidiary were an “integrated enterprise” and the total of the
subsidiary’s employees and the parent company’s employees in the United
States met the statutory minimum requirements. 121 In that case, although
the foreign multinational company operated in several countries and was
not a “small business,” its U.S. branch office employed fewer than 15
employees. The court, therefore, held that, because there were not
sufficient workers in the United States to satisfy the statutory minimum
requirements, neither the parent corporation nor its subsidiary could be
held liable for the subsidiary’s allegedly discriminatory firing. 122
Because small businesses (with less than 15 employees) are
exempt from the ADA’s requirements, a threshold issue, for purposes of
an ADA claim, is determining how many employees a multinational
employer has. If statutory requirements are not met, the employer is
absolutely protected against the employee’s ADA claim, and the court
must dismiss the case. If the requirements are met, however, then the
ADA applies, and the employer may be forced to defend his actions in a
court of law. Therefore, the threshold issue of whether a multinational
employer meets the statutory minimum requirements must be addressed at
the outset. Because courts are split on this issue, however, multinational
employers should determine which method federal courts in their
jurisdiction have adopted and respond accordingly.
2. U.S. or U.S.-Controlled Multinational Employers
The Civil Rights Act of 1991 amendments expressly made the
ADA applicable to all U.S. employers employing U.S. citizens, even if the
worksite is overseas. 123 With the growth of multinational corporations and
partnerships, a growing number of Americans are working for foreign
corporations overseas. 124 The EEOC states that an American multinational
company may be liable for discriminatory actions taken by its foreign
subsidiaries against U.S. citizens working overseas. 125 If an American
multinational corporation controls the foreign company, the American
corporation may be liable for discriminatory actions by its foreign
subsidiaries overseas, according to guidelines issued by the EEOC. 126 This
121 Id. at 1009. See also supra note 106.
122 Max Mara, 914 F. Supp. at 1009-10.
123 See supra note 93.
124 Supra note 3 and accompanying text.
125 Threshold Issues, supra note 35, at § 2-III.3.c.
126 Id.

280 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
section discusses the applicability of the ADA to 1) U.S. companies
employing Americans to work abroad, and 2) foreign subsidiaries
controlled by a U.S. parent multinational corporation.
Generally, the nationality of a corporation is determined by its
place of incorporation. 127 In the case of a foreign corporation or nonincorporated
entity (such as an accounting or law firm), however, the
EEOC guidelines provide that “factors beyond (or in lieu of) the
employer’s place of incorporation” be considered. 128
Potentially relevant factors include, but are not limited to:
(a) the company’s principal place of business, i.e., the place
where primary factories, offices, or other facilities are
located; (b) the nationality of dominant shareholders and/or
those holding voting control; and (c) the nationality and
location of management, i.e., of the officers and directors
of the company. 129
The “totality of . . . contacts with the United States” are considered in
making a nationality determination. 130 A U.S. multinational corporation
may be held liable for the discriminatory acts of a foreign company that it
controls. 131 Thus, a U.S. citizen working for a foreign company in a
foreign country may be protected by the ADA if a U.S. multinational
corporation controls the foreign company. The EEOC guidelines
articulate a control test to determine whether a foreign company is
sufficiently controlled by a U.S. multinational corporation to sustain a
claim of discrimination under the ADA. The four factors to be considered
are: 1) the interrelation of operations; 2) the common management; 3) the
centralized control of labor relations; and 4) the common ownership or
financial control of the employer and the foreign corporation. 132
In Cook v. Arrowsmith Shelburne, Inc., 133 the Second Circuit
applied the four-factor control test to determine whether a parent company
127 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 213 (1987)
(stating that for purposes of international law, a corporation’s nationality is that of the
state under which the corporation is organized); id. rep. note 5 (stating that the general
assumption under United States law is that the place of incorporation determines
corporate nationality).
I.B.1.
128 EEOC Enforcement Guidance on Title VII and ADA, supra note 35, at §
129 Id.
130 Id.
131 Id. at § I.B.2.
132 Id.
133 69 F.3d 1235 (2d Cir. 1995).

Extraterritorial Application of the ADA 281
may be held liable for discrimination against its subsidiary’s employees. 134
There, a woman filed suit against her former employer and its parent
corporation, alleging, among other things, that she had been fired on the
basis of gender, in violation of Title VII of the Civil Rights Act of 1964. 135
The court adopted a four-part test “aimed at determining the degree of
interrelationship between the [parent company and its subsidiary],”
focusing on “the second factor, centralized control of labor relations.” 136
Applying this test, the court found enough evidence of an interrelationship
between the parent company and its subsidiary to allow the plaintiff to
maintain her action, precluding summary judgment for the defendant. 137
The court based its conclusion primarily on evidence that the parent
corporation “maintained control of labor relations at [its subsidiary. . . .]
[f]or example, applications for employment with [the subsidiary] went
through [the parent corporation]; all personnel status reports were
approved by [the parent corporation]; and [the subsidiary] cleared all
major employment decisions with [the parent corporation].” 138 This case,
thus, provides an example of how courts will apply the four-factor control
test to analyze whether a subsidiary corporation is sufficiently controlled
by a U.S. multinational corporation to allow the latter to be held liable for
the discriminatory acts of the subsidiary.
Similarly, in Lavrov v. NCR Corporation, 139 a district court
addressed whether an American parent company could be held liable
under Title VII for the allegedly discriminatory acts of its foreign
subsidiary. There, a female employee working for the international
division of NCR Corporation in San Francisco, California, applied for a
position in Germany with NCR’s wholly-owned German subsidiary, NCR
GmbH, which rejected her application on the basis of gender. 140 There, the
court found that the foreign subsidiary, NCR GmbH, had to comply with
all corporate-wide personnel policies issued by its parent corporation,
unless such policies violated local law, and the parent corporation had to
approve “certain personnel decisions, such as hirings, firings, and
134 Id. at 1240-41.
135 Id. at 1238.
136 Id. at 1240-41.
137 Id. at 1241.
138 Id.
139 600 F. Supp. 923 (S.D. Ohio 1984). Although this case was decided before
the Protection of Extraterritorial Employment Amendments were passed in 1991, the
analysis used by the court is the same analysis contained in the EEOC guidelines.
140 Id. at 924-25.

282 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
raises.” 141 The court, thus, found, based on these and other factors, that
“[u]nder the ‘integrated enterprise’ test, the employee can sue both the
parent and its subsidiary in a U.S. court for the discriminatory refusal to
hire, a decision made in Germany by the German corporation.” 142
By contrast, in Mas Marques v. Digital Equipment Corporation, 143
the court applied the control test to a foreign subsidiary of an American
corporation and came to the opposite conclusion. There, a U.S. citizen
living in West Germany claimed that Digital GmbH, the German-based,
wholly-owned subsidiary of a U.S. company, Digital Equipment
Corporation, had violated Title VII of the Civil Rights Act of 1964 by
refusing to hire her based on age, gender, and national origin. 144 The court
found that Digital GmbH had separate personnel policies, that
employment decisions were made exclusively by Digital GmbH, that the
corporate structures were completely separate, and that sales and
marketing goals were determined independently. 145 Thus, although Digital
GmbH purchased 50% of its inventory from Digital Corp. under a written
sales contract and occasionally purchased administrative and accounting
services, the court found that the evidence “depict[ed] a genuine parentsubsidiary
relationship in which there are separate corporate structures,
facilities, work forces, business records, bank accounts, tax returns,
financial statements, budgets, and corporate reports.” 146 The court,
therefore, found that, because of the evidence of autonomy exercised by
the subsidiary, the American parent corporation could not be held liable
for the West German company’s discriminatory action. 147
As these cases illustrate, the application of the control test is
crucial to determining whether the ADA will be enforceable against a
foreign subsidiary of an American parent corporation. Therefore, a
threshold issue is whether a foreign company is sufficiently controlled by
an American parent company to be subject to the ADA.
141 Id. at 928.
142 Michael Starr, Who’s the Boss? The Globalization of U.S. Employment Law,
51 BUS. LAW. 635, 640 (1996). See also Lavrov, 600 F. Supp. at 928, 932.
143 637 F.2d 24 (1st Cir.), aff’g 490 F. Supp. 56 (D. Mass. 1980).
144 Id. at 26.
145 Id. at 26-27.
146 Id. at 26.
147 Id. at 30.

Extraterritorial Application of the ADA 283
3. Foreign Multinational Employers
This section discusses the applicability of the ADA to 1) foreign
companies doing business in the United States and 2) foreign parent
corporations with U.S.-based subsidiaries.
As more and more foreign multinational corporations expand their
operations to include bases in the United States, the issue of whether, and
to what extent, U.S. anti-discrimination laws apply to the workforce in the
United States arises.
The EEOC states that Title VII and the ADA prohibit
discrimination by foreign companies doing business within the United
States. 148 “By employing individuals within the United States, a foreign
employer invokes the benefits and protections of U.S. law. As a result, the
employer should reasonably anticipate being subject to the . . .
enforcement process should any charge of discrimination arise directly
from the business the employer does in the United States.” 149
At least one court has stated, in dicta, that “the plain language of
the . . . foreign-employer exclusions in Title VII of the Civil Rights Act of
1964 . . . and the ADA . . . indicates that a foreign employer’s domestic
operations are not excluded from the reach of those statutes.” 150 The court
reasoned that, because “[t]he Title VII and ADA exclusions are expressly
limited to the ‘foreign operations of an employer that is a foreign person
not controlled by an American employer,’ 42 U.S.C. §§ 2000e-1(c)(2)
(Title VII), 12112(c)(2)(B) (ADA), . . . these employment discrimination
statutes would apply to a foreign company’s domestic operations.” 151
A foreign parent corporation that controls its U.S.-based subsidiary
company may also be liable under the ADA when it discriminates within
the United States. In determining whether United States laws apply to the
foreign parent of a U.S. subsidiary, the same four factors of the control test
are considered; the determinative factor here is the central control of labor
relations. 152 Thus, courts, applying the four-factor test, have recognized
that foreign companies may be held liable for the discriminatory actions of
their U.S.-based subsidiaries.
In recent years, a growing number of legal challenges have arisen
to the practice of “rotating” foreign national executives through its United
States offices for advanced training in the global business environment, a
148 EEOC Enforcement Guidance for Title VII and ADA, supra note 35, at § II.
149 Id.
150 Morelli, 141 F.3d at 43.
151 Id.
152 Starr, supra note 142, at 639-40.

284 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
practice utilized by a number of foreign employers doing business in the
United States. In Goyette v. DCA Advertising, Inc., 153 former employees
of DCA Advertising, Inc., a wholly-owned U.S.-based subsidiary of
Dentsu, Inc., a Japanese corporation, claimed that they were fired on basis
of national origin, in violation of Title VII of the Civil Rights Act of
1964. 154 As part of a corporate reorganization designed to “increase
profitability,” DCA Advertising fired twenty-two U.S. citizens employed
in the United States. 155 Although Dentsu did not order the firings of these
specific employees, Dentsu senior management did require that “none of
[its ten] expatriate employees could be fired until a job was found for them
back in Japan.” 156 As a result, “none of the expatriate executives
employed at DCA were fired.” 157 The court found that Dentsu “had an
impact on all DCA employees, because it affected who was to be fired in
the downsizing,” and, therefore, could be held liable for the discriminatory
actions of its U.S.-based subsidiary. 158
By contrast, in Da Silva v. Kinsho International Corporation, 159 a
U.S. citizen employed by Kinsho International Corporation, the whollyowned
subsidiary of Kinsho Mataichi Corporation, claimed that she had
been fired because she was not Japanese or of Japanese descent. 160 The
court “agree[d] that a parent company should not lightly be held
responsible for the acts of its subsidiaries absent proof that the parent was
involved in the particular circumstances giving rise to the litigation.” 161
Applying the four-part control test, the court found that Kinsho Mataichi
153 830 F. Supp. 737 (S.D.N.Y. 1993).
154 Id. at 739-40.
155 Id. at 740.
156 Id. at 740-41.
157 Id. The “expatriate employees” here were employees of Japanese national
origin who were citizens of Japan, employed by Dentsu to work at DCA Advertising in
the United States. Id. at 740. “Dentsu regulate[d] many of the terms of their employment
[and] Detnsu approval is . . . needed in connection with the firing of any expatriate
employee.” Id.
158 Id. at 744, 749. The court based its decision partly on the Friendship,
Commerce, and Navigation Treaty between the United States and Japan, see id. at 749;
however, consideration of the FCN treaty defense raised unsuccessfully in that case is
beyond the scope of this article.
159 No. 97 Civ. 5030 (RMB), 2000 WL 8247 (S.D.N.Y. Jan. 4, 2000), earlier
proceeding at 1998 WL 560054 (S.D.N.Y. Aug. 31, 1998)).
160 Id., 1998 WL 560054, at * 1.
161 Id., 1998 WL 560054, at * 3.

Extraterritorial Application of the ADA 285
was not sufficiently “involved in the particular circumstances giving rise
to the litigation,” and, therefore, could not be held liable for the allegedly
discriminatory decision to fire made by its subsidiary. 162
Similarly, in Robinson v. Overseas Military Sales Corporation, 163
the court concluded that the ADEA did not apply to foreign employers
operating in the United States. 164 The defendant in that case was a Swiss
corporation that had offices in the United States and was under contract
with the Army and Air Force Exchange Services. 165 Defendant employed
plaintiff, a U.S. citizen, to sell cars to U.S. military personnel in Korea. 166
Plaintiff claimed that he was fired because of his age, in violation of the
ADEA. 167 Relying upon the legislative history of the ADEA, the court
concluded that “Section 630(f) does not bring foreign corporations, which
are not controlled by American employers, within the scope of the
ADEA.” 168 Therefore, the foreign corporation could not be held liable for
its allegedly discriminatory firing of a U.S. citizen working overseas. 169
Again, in Mochelle v. J. Walter, Inc., 170 the Fifth Circuit affirmed
without comment a district court’s holding that the foreign parent of a U.S.
employer could not be held liable because, as a foreign company, it was
exempt from the ADEA. 171 In that case, J. Walter, Inc., an independent
U.S.-based corporation formed by J. Walter Company, Ltd., a Canadian
corporation, employed a U.S. citizen who claimed that he had been fired
because of his age, in violation of the ADEA. 172 The court found that
162 Id., 1998 WL 560054, at *4. The court further found that the determination
of whether an employer has sufficient employees to satisfy the statutory minimum
required under the various U.S. anti-discrimination laws is a merits-based question, rather
than a jurisdictional question. Id., at 1998 WL 560054, at *4-5.
163 21 F.3d 502 (2d Cir. 1994), aff’g 827 F. Supp. 915 (E.D.N.Y. 1993).
164 Id. at 509, 827 F. Supp. at 921.
165 827 F. Supp. at 918. AAFES is an “instrumentality of the United States
government. . . . [that] operates exchanges where military personnel may purchase goods
and merchandise.” Id.
1993).
166 Id.
167 Id. at 920.
168 Id. at 921.
169 Id.
170 15 F.3d 1079 (5th Cir. 1994) (table op.), aff’g 823 F. Supp. 1302 (M.D. La.
171 Id. at 1079, 823 F. Supp. at 1309.
172 823 F. Supp. at 1304, 1307.

286 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
“[a]lthough both Walter Ltd. and Walter Inc. are owned by the same
holding company, a parent-subsidiary relationship does not exist between
the two corporations.” 173 Therefore, the foreign corporation could not be
held liable for the allegedly discriminatory firing by the U.S.-based
corporation. 174
Finally, courts have held that federal laws do not apply in cases
where Americans were applying for an overseas position with the foreign
parent of their U.S.-based employer. Thus, in Denty v. SmithKline
Beecham Corporation, 175 the court held that “the ADEA does not apply
when a foreign corporation controls an American corporation and the
employment is with the foreign parent abroad.” 176 There, a U.S. citizen
employed by SmithKline Beecham Corporation, the wholly-owned
American subsidiary of British parent corporation, Beecham Group,
claimed that he was denied a promotion to a position with the parent
corporation working outside of the United States because of his age, in
violation of the ADEA. 177 Based on the legislative history and language of
the statute, the appellate court affirmed the conclusion that the “ADEA
applies abroad only when (1) the employee is an American citizen and (2)
the employer is controlled by an American employer.” 178 In holding that
the foreign parent of a United-States based subsidiary cannot be held
liable under the ADEA for the allegedly discriminatory failure to promote
a U.S. citizen, the court emphasized that the job at issue “is in the United
Kingdom with the parent company, not in the United States with the
subsidiary.” 179 Thus, American citizens employed by foreign corporations
abroad may not be protected by U.S. anti-discrimination laws, but, rather,
would have to seek remedy under the laws of nation in which the foreign
corporation was incorporated or does business. 180
173 Id. at 1308.
174 Id. at 1309.
175 109 F.3d 147 (3d Cir. 1997), aff’g 907 F. Supp. 879 (E.D. Pa. 1995).
176 Id. at 151.
177 Id. at 147.
178 Id. at 150.
179 Id. at 151.
180 See id.

Extraterritorial Application of the ADA 287
B. Extraterritorial Application of Title III
Although most attention has been focused on the extraterritorial
application of Title I, a recent case has significant implications for the
potential extraterritorial application of Title III as well.
In Stevens v. Premier Cruises, Inc., 181 the Eleventh Circuit held
that a Canadian company that operates a cruise ship registered in the
Bahamas must comply with Title III of the ADA. 182 There, U.S. citizen
Tammy Stevens, who uses a wheelchair, had booked a cruise on the S.S.
Oceanic, paying a higher-than-advertised fare for her wheelchairaccessible
cabin. 183 After the ship set sail, however, she discovered that
many areas of the ship were inaccessible to someone in a wheelchair. 184
Specifically, Stevens claimed that the ship had failed to provide accessible
routes, appropriate signage, and architectural modifications to doors and
cabins to make them usable by people in wheelchairs. 185 The Stevens court
found that any area of the ship that would be considered a public
accommodation on land would also be governed by the law on water. 186
The court reasoned that applying the ADA to a foreign flag cruise ship
within U.S. territorial waters was not “extraterritorial.” 187
The Stevens decision is consistent with a well-settled principle of
international law that recognizes a state’s authority to apply its law to
foreign vessels or aircraft within its territorial boundaries. 188 Thus, the
Department of Justice and the Department of Transportation have taken
the position that foreign flag cruise ships that call in U.S. ports are subject
to Title III of the ADA by virtue of their significant contacts with the
United States. 189 Cruise ships typically contain facilities such as guest
cabins, restaurants, movie theaters, lounges, and pool areas, which fall
181 215 F.3d 1237 (11th Cir. 2000).
182 Id. at 1243. See also 11th Circuit: Title II of ADA May Apply to Foreign
Cruise Ships in U.S. Waters, DISABILITY COMPL. BULL., July 28, 2000, at 3.
183 Stevens, 215 F.3d at 1238.
184 Id.
185 Id. at 1238-39.
186 Id. at 1240.
187 Id. at 1242.
188 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 402 cmt. h.
189 See U.S. Dep’t of Justice Letter re: Foreign Flag Cruise Ships, 18 NAT’L
DISABILITY L. REP. (Lab. Rel. Press) 31 (July 13, 1999); Letter re: Cruise Ships, 3
NAT’L DISABILITY L. REP. (Lab. Rel. Press) 330 (Dec. 7, 1992).

288 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
within the definition of “public accommodations.” 190 The U.S.
Department of Justice (DOJ) has stated that
absent a statutory exemption, corporations doing business
in the United States must comply with all generally
applicable [U.S.] laws . . . . The fact that a cruise ship sails
under a foreign flag and is registered in a foreign country
does not exempt it from generally applicable laws of the
countries in which it does business. 191
The Stevens decision, although not dealing directly with
extraterritoriality, may nevertheless potentially impact foreign operators
doing business in the United States. At least one commentator believes
that “[i]f courts can treat foreign-flagged cruise ships in U.S. waters as
being in U.S. territory, then how much of a leap is it for the government to
argue that hotels in foreign countries are subject to U.S. laws if they are
owned by U.S. companies and frequented by U.S. guests?” 192
Applying the extraterritoriality analysis to the statute at issue here,
however, leads to the conclusion that there is no basis for the application
of Title III’s accessibility requirements to facilities abroad. Although Title
III on its face applies to public accommodations whose operations affect
“travel, trade, commerce, transportation, or communication … between
any foreign country . . . and any state,” 193 in practice Title III has been
held applicable only to foreign flag cruise ships. 194 Moreover, given that
the Civil Rights Act of 1991 expressly amended the employment
provisions of Title I to apply extraterritorially, 195 no such amendment was
made to Title III. 196 Thus, unlike the employment provisions of Title I,
Title III was not so amended and does not contain an express statement of
Congressional intent as to its extraterritorial application. The DOJ,
therefore, has consistently taken the position that Title III does not apply
190 42 U.S.C.A. § 12182(a).
191 Letter re: Foreign Flag Cruise Ships, supra note 189.
192 Does Case Signal New Expansion of ADA Title III?, DISABILITY COMPL.
BULL., July 28, 2000, at 3.
193 42 U.S.C.A. § 12181 (West 2000).
194 See Equal Employment Opportunity Commission Letter re: Foreign Flag
Cruise Ships, 19 NAT’L DISABILITY L. REP. (Lab. Rel. Press) 31 (July 19, 2000).
195 See supra notes 93-96 and accompanying text .
196 Id.

Extraterritorial Application of the ADA 289
to U.S.-owned facilities outside the territorial boundaries of the United
States. 197
The DOJ has not released any formal guidelines on whether
foreign-owned facilities in foreign countries that have significant contacts
with the United States may be subject to Title III’s accessibility
requirements, as posited by a commentator. However, the Department has
indicated that American tour companies that contract with other entities,
including transportation companies overseas, may be liable for violations
of Title III if the overseas entity does not comply with Title III
accessibility requirements. 198
V. CONCLUSION
In conclusion, the globalization of commerce offers both
unparalleled opportunity and the potential for corporate disaster.
Multinational corporations seeking to successfully compete in this new
marketplace would do well to take notice of the potential impact U.S. antidiscrimination
laws may have on their workforce. U.S. laws such as the
ADA protect U.S. citizens working for American employers, no matter
where their jobsite is located. The ADA, and other anti-discrimination
laws, also have an extraordinarily broad reach, and may encompass not
only U.S. and U.S.-controlled corporations doing business in the United
States and overseas, but also U.S.-based subsidiaries of foreign
multinational corporations. Therefore, it is crucial for a multinational
employer to first determine whether it is an “employer” within the
meaning of the ADA. The critical inquiry is whether employees working
outside of the United States may be added to those working within the
United States, for the purposes of determining whether the statutory
minimum threshold has been met. If the answer is no, the employer is
exempted from compliance with the ADA. If the answer is yes, however,
the employer may have to provide reasonable accommodation to enable a
qualified individual with a disability to work there. 199 Finally, a foreign
multinational employer must consider whether, applying the four-factor
control test, it is sufficiently controlled by a U.S. multinational corporation
or sufficiently controls the operations of its U.S.-based subsidiary to be
held liable for violations of the ADA.
In summary, the ADA protects U.S. citizens who are employed by:
1) a U.S. or U.S.-controlled corporation, anywhere in the world; 2) a
197 U.S. Dep’t of Justice Letter re: Access Abroad, 17 NAT’L DISABILITY L. REP.
(Lab. Rel. Press) 262 (July 29, 1999).
198 Id.
199 See 42 U.S.C.A. § 12112 (West 2000).

290 Asian-Pacific Law & Policy Journal; Vol. 2, Issue 1 (Winter 2001)
foreign corporation controlled by a U.S. multinational corporation at a
location abroad; 3) U.S.-based subsidiary company of a foreign
multinational corporation at a location in the United States. The
determination of whether and to what extent U.S. anti-discrimination laws
apply to a multinational corporation involves the resolution of the
threshold jurisdictional (“who counts”) statutory minimum requirement
and the determination of the multinational employer’s nationality and
control over the subsidiary will have significant impact on a multinational
corporation’s potential liability for each claim under the ADA. Because
these determinations could result in significant impacts on corporate
operations, profitability, and, ultimately, ability to compete in the global
marketplace, the multinational corporation should be cognizant of the state
of employment law in their jurisdiction and should take proactive
measures to ensure compliance with applicable federal anti-discrimination
laws.
at Manoa.
Melody M. Kubo 200
200 Class of 2002, William S. Richardson School of Law, University of Hawai‘i