information to potential tourists, the U.S. media and the U.S. travel industry without charge. See Hamblin Aff. It does apparently charge British hotels and tour operators to be listed in its publications, although such charges are characterized as necessary to cover cost, and not as profit generating. BTA does not sell tours, transportation or lodging.
Plaintiff began working in the BTA's New York office in or around 1969 as a marketing executive. On or about March 1, 1996, plaintiff was terminated. His title prior to his termination was "Manager of Industry Relations." Plaintiff brings this action alleging that he was wrongfully terminated because of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, as well as various state law claims.
The present motion requires a two-step analysis. First, this Court must determine if the provisions of the ADEA apply to an agency or instrumentality of a foreign state that employs United States citizens on United States soil. Second, if the ADEA so applies, this court must determine if the BTA is immune under the FSIA.
I. Applicability of the ADEA to a Foreign State
Although neither party concluded it was worthy of comment, the ADEA provides in pertinent part: "The prohibitions of this section shall not apply where the employer is a foreign person
not controlled by an American employer." 29 U.S.C. § 623(h)(2). The provision appears to remove the BTA from ADEA's prohibitions. The few courts that have reviewed § 623(h)(2), however, are split as to its proper interpretation. See EEOC v. Kloster Cruise Ltd., 888 F. Supp. 147, 149 (S.D.Fla. 1995) (citing cases).
The court in Kloster Cruise held that the language in § 623(h)(2) was intended to apply only to overseas operations of a "foreign person" and not to the operations of a "foreign person" within the United States. Kloster Cruise, 888 F. Supp. at 149-52; see also Helm v. South African Airways, 1987 U.S. Dist. LEXIS 5671, No. 84 Civ. 5404 (MJL), 1987 WL 13195 (S.D.N.Y. June 25, 1987) (nothing in ADEA indicates that section was meant to exclude United States citizens working for a "foreign person" within the United States from ADEA coverage); but see Mochelle v. J. Walter Inc., 823 F. Supp. 1302, 1309 (M.D. La. 1993) (dicta stating that provision precludes application of ADEA to foreign employer within United States), aff'd, 15 F.3d 1079 (5th Cir. 1994).
Kloster Cruise and Helm reached the same conclusion, i.e., that "nothing in the ADEA or its legislative history . . . indicate[s] that the 1984 amendments [that added § 623(h)(2)] were intended to exclude American citizens working within the United States [for a foreign employer] from coverage." Helm, 1987 U.S. Dist. LEXIS 5671, at *21, 1987 WL 13195 at *7. Relying on the provision's legislative history, the court continued:
The 1984 amendments to the ADEA were generally intended to extend the Act's coverage to Americans employed abroad by American companies or their subsidiaries. Congress was careful not to impose its labor standards on another country. Accordingly, Congress did not extend ADEA's protections to foreign nationals working abroad for American companies or their subsidiaries. It is inconceivable that Congress intended to respect the sovereignty of other nations and abandon that of the United States by subjecting American citizens, working inside the United States, to foreign law.