Non-citizen has no Discrimination Protection Outside of US

August 16, 2006 ( - The 2nd US Circuit Court of Appeals has determined that a non-citizen worker for American International Group (AIG) has no recourse for workplace discrimination while living and working outside the US.

In its opinion the appellate court confirmed the decision by the US District Court for the Southern District of New York that Section 1981 of the Civil Rights Act of 1871 expressly limits those covered under the act to “persons within the jurisdiction of the United States.”

The court noted that no other appeals court had decided on whether Section 1981 applied outside of the US, but various district courts had unanimously ruled that it did not.

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The employee, John Ofori-Tenkorang, argued that under a “center of gravity” test, his employment contract placed him within the jurisdiction of the US. Specifically, he said the contract was formed in the US and the alleged discriminatory acts affecting him while he was overseas were directed by executives at AIG’s offices in the US, according to the opinion. Ofori claimed the district court erred by declining to engage in a “balancing of contacts” analysis regarding aspects of his employment relationship having roots within the US.

The court rejected his argument, but did decide Ofori’s claim that AIG discriminated against him in the “formation” and the “modification” of his employment contract before he left for South Africa was improperly dismissed by the district court.

Ofori is a black man who maintains his permanent residence in Connecticut, though he is not a US citizen. In September 2003, senior AIG executives based in Connecticut and London decided to reassign Ofori to work on a temporary basis in one of the company’s offices in South Africa. According to the court opinion, Ofori alleged that before and after his arrival in South Africa, he was singled out for discriminatory treatment on account of his race.

Ofori asserted that before he left the US, AIG personnel decided to send him to South Africa and made arrangements with respect to his work environment in South Africa. Ofori’s workplace in South Africa was allegedly situated in an office with a white colleague of questionable ethics, apart from the office where a majority of white colleagues worked. Ofori claimed he was subjected to greater scrutiny than his white colleagues when attempting to obtain reimbursement for business-related expenses. He claimed he was also blamed for poor business performance that was unrelated to his work, threatened with termination after one poor performance review, given a smaller bonus than similarly-situated colleagues, wrongfully accused of stealing funds from the South African businessman with whom he shared an office, improperly suspended from work, and required to provide more documentation than his white colleagues to justify his request for medical leave.

The opinion in Ofori-Tenkorang v. American International Group, Inc. is here .