District Court Refuses to Apply Employment Discrimination Remedy of 42 USC § 1981 to Conduct at U.S. Bagram Airfield in Iraq

The World in U.S. Courts: Spring 2014 - Employment Discrimination—Section 1981 Claims

Marshall v. Exelis Systems Corp., U.S. District Court for the District of Colorado, March 24, 2014

Plaintiff Marshall was employed by a private contractor at Bagram Airfield in Iraq. She alleged that her employment had been terminated unlawfully because of her race, and sued her employer and supervisor under the general federal civil rights statute, 42 USC § 1981, and the employment discrimination provisions of Title VII of 42 USC. The defendants moved to dismiss Marshall’s § 1981 claim (Title VII expressly applies outside the U.S. and was not the subject of a motion to dismiss).

The court first rejected an argument by Marshall that the Bagram base should be deemed to be a "territory" of the U.S., in which case the question whether § 1981 applies extraterritorially would not be presented. Marshall argued that her situation was analogous to that presented in cases in which U.S. "territory" is deemed to include a specific place outside the U.S. (such as the U.S. Guantanamo naval base in Cuba) where the U.S. exerts "complete control and jurisdiction." The court rejected the argument, following a line of cases that declined to extend § 1981 claims to U.S. military bases in other countries where the U.S. has not exhibited an intent to exercise "sovereignty," "with permanence."

The court also rejected a number of proposals by Marshall that the statutory language of § 1981 should be read to apply to "all persons within the jurisdiction of the United States"—including her—regardless of where the operative events occur.

The court finally turned to the question whether § 1981 should be applied extraterritorially. Finding no basis on which to rebut the presumption against extraterritoriality established in the U.S. Supreme Court’s Kiobel decision, the court concluded that conduct at Bagram Airfield Base cannot give rise to a claim in U.S. courts that § 1981 was violated.

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