Critical Analysis of Judicial Attempts to Reconcile the United States-Japan Friendship, Commerce and Navigation Treaty with Title VII, A

Mayer, Jeffrey J. | January 1, 1992

This paper offers a practical solution to the conflict between civil rights and economic growth through a new, but sensible, interpretation of the “right to choose” provision. Part I explains the conflicting rulings of the five Courts of Appeals that have addressed this issue. Part II concludes that the courts’ various reconciliations between Title VII and the Japan FCN Treaty are, in each case, impossible to apply consistently or fairly. Courts have wrongly attempted to preserve the protections of Title VII for American employees of foreign corporations by asking factfinders to draw impossibly fine distinctions between permissible and prohibited criteria for employment decisions. Part III argues that the only fair interpretation of the Japan FCN Treaty is that Japanese companies in the United States do have the right to select Japanese nationals for key positions for any reasons, including race and national origin. However, Part III further argues that although Japanese employers should be permitted to assert their “right of choice,” they should not be permitted to use that right to fend off obligations acquired by voluntary entrance into the United States employment market.