Citing Title VII’s Territorial Limitations, Court Dismisses Middle Eastern Woman’s Sexual Harassment Case

In Boustany v. Xylem, Inc. et al., No. 1:15-CV-10023-GHW, 2017 WL 377939 (S.D.N.Y. Jan. 25, 2017), the court dismissed plaintiff’s Title VII sexual harassment lawsuit.

This case concerns the territorial applicability of Title VII of the Civil Rights Act of 1964. The “black letter” law provides:

Title VII’s protections extend to American citizens working abroad. … The statute also protects non-citizens working within the United States. … However, Congress did not extend the protections of Title VII to non-citizens employed outside of the United States. The statute specifically provides that “[t]his subchapter shall not apply to an employer with respect to the employment of aliens outside any State ….” 42 U.S.C. § 2000e-1(a).

Therefore, the plaintiff “cannot sue under Title VII unless she is ’employed’ inside a state of the United States.

Therefore From the opinion/order:

The plaintiff, Ms. Jessy Boustany, alleges that she was sexually harassed by her supervisor, Mr. George El Hani, over the course of her twenty-six months working for Xylem, Inc. (“Xylem”). Mr. El Hani callously abused his authority, threatening Ms. Boustany’s job if she did not succumb to his sexual advances. Nearly all of the acts that Ms. Boustany complains of took place outside of the United States—in her, and Mr. El Hani’s home country, Lebanon, or on business trips to Europe. Ms. Boustany travelled twice on business trips to the United States with Mr. El Hani, during each of which he made unwanted sexual advances. Ms. Boustany complained about Mr. El Hani’s behavior to Xylem’s New York headquarters, which ultimately launched an investigation, and terminated Mr. El Hani. Xylem also, however, later terminated Ms. Boustany. While the conduct that Ms. Boustany alleges is egregious, because Ms. Boustany is not a U.S. citizen, and was not employed in the United States, she cannot maintain an action under Title VII, which has limited extraterritorial application. As a result, Ms. Boustany’s claims against Xylem under Title VII are dismissed. The Court declines to retain supplemental jurisdiction over her remaining state law claims. (Emphasis added.)

In reaching this conclusion, the court cited and applied two tests developed/adopted by courts: (1) the “Primary Workstation” test and (2) the broader “Center of Gravity” test. The plaintiff was unable to establish that she was “employed” in the U.S. under either test.

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