Plaintiff Shayna Brown Duncan, an African-American woman, was hired as a "Senior Secretary/Administration Assistant" by American International Company, Limited (AIC), a Bermudan corporation located in Bermuda. Duncan was a U.S. citizen. She alleged that her supervisor ridiculed her because she was infertile and later gave her an unsatisfactory performance appraisal that was significantly more negative than previous ones. She also alleges that her supervisor conveyed confidential information about her infertility to others, referred to her as the "Angel of Darkness" or "Princess of Darkness," and reduced her job responsibilities. Duncan's employment was ultimately terminated.
1. In light of Duncan, should a U.S. investor be concerned about the extraterritorial application of U.S. employment law if it has no involvement in the human resources function, but owns 100 percent of a subsidiary, but it is locally managed? What if employees or directors of the U.S. investor form a majority of the board? What if an employee of the U.S. investor is scunded to the host country company to be its President?
2. Again assuming a 100 percent owning U.S. investor and no U.S. investor employees in the human resources function, what if the majority U.S. investor board appoints the head of human resources?
3. Finally, what if the U.S. investor provides half of the management employees to a 50-50 joint venture? What if the U.S. investor also has a veto on hiring and firing decisions?