Disability and Employment Discrimination Laws in the US Virgin Islands
May 26, 2020
By: Archie Jennings
Archie Jennings is the lead attorney for the Northeast ADA Center’s US Virgin Island affiliate, the Disability Rights Center of the Virgin Islands. He was asked to write a description of the employment protections for people with disabilities in the US Virgin Islands under local law.
When I was asked to set forth the employment discrimination laws of the US Virgin Islands, my first thought was—hey, there is not much to the local laws and where would I be able to expand on the issue. The law simply states that “It shall be unlawful discriminatory practice: For an employer, because of race, creed color, national origin, place of birth, sex, disability and or/political affiliation of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such person in terms, conditions or privileges of employment.” (Title 10 Section 63 Virgin Islands Code)
Seems simple and straightforward. But when it comes to who is to interpret said laws and what impact that has on a community based upon what are seemingly straightforward laws? Then I remembered when a former US Marshal (born in Missouri) had asked me to sue the United States and the Congress for usurping our constitutional rights as US citizens (I was born in Arkansas) by using a statutory law to block our being able to vote in presidential elections, just because we had moved to the US Virgin Islands! Duh! It’s the issue of the status of the Islands is the simple answer.
The US Virgin Islands at present is one of five offshore territories (using territories in generic sense). The others are Puerto Rico, Guam, American Samoa, and People of the Commonwealth of the Northern Mariana Islands (CNMI). The residents of each of these territories, except Samoa, are US citizens at birth. American Samoans are United States Nationals at birth. This information is important to understand how the application of the US Constitution applies or does not apply to a territory and the US Citizens residing thereon under the US flag.
The reflection of the “Jim Crow” and anti-immigrant temperament of the United States towards offshore territories after the Civil War at the turn of the twentieth century from 1901–1904 was expressed by the US Supreme Court in a series of cases called the Insular cases. These cases involved the application of the “Bill of Rights” to the additional overseas territories as the United States expanded its boundaries during this period. The courts developed and used what came to be known as the Territorial Incorporation doctrine. Under this formula, the Supreme Court held that the US Constitution does not follow the flag and said Constitution is not applicable to a “territory” unless that territory has been “incorporated” into and made a part of the United States. None of the current five offshore territories are deemed “incorporated.”
In addition to the distinction as being “incorporated’ or “unincorporated” territories, the Supreme Court and others have also outlined territories as being organized or unorganized territories. An organized territory has an organic act—an act of Congress that establishes its government. An unorganized territory is traditionally governed under the authority of the President of the United States. These cases left it up to remote decision makers to shape the atmosphere for law enforcement upon Islands a thousand miles away. In today’s terms, imagine if the Courts of California decided about laws governing the citizens of Mississippi. If that happened, surely some citizens of Mississippi would leave the state.
Further, the basis of the laws in place in the US Virgin Islands was a civil code structure modeling the western European model of judicial decision making. The code approach allowed for a set of principles broad enough to encompass unforeseen circumstances that allowed for adaption to any set of facts. This is opposed to the common law system of stare decisis approach wherein a judge may be restricted to address relevant factual circumstances by a prior decision within its jurisdiction. In sum, the civil code structure allows for more flexibility.
Despite the fact that it had its own established legal system when the United States purchased the now US Virgin Islands in 1917 (mainly for military protection for the Panama Canal and was subsequently under control of the Navy until 1936), the Islands have gradually grown its own local control over its judiciary. Over the last 100 years, the US Virgin Islands judicial branch has evolved under the rule of the United States. Such evolution began with the Organic Act of 1936 and then updated in 1954. The Organic Act revision of the judicial branch placed the general jurisdiction of the Federal District Court over local causes of action not otherwise vested in local courts. This meant the Federal District Court was the highest court in the territory. The Judge was appointed by the President of the United States with a limited term. In order to appeal a decision of the Federal District Court, a party had to address the Third Circuit Court of Appeals, located in Philadelphia, Pennsylvania.
Eventually, in 1984, Congress passed a law for the US Virgin Islands to create its own appellate court. In 1991, with the creation of the Territorial Court, the judicial branch obtained jurisdiction over all local civil actions. In 1994, the same court—with a name change to the Superior Court—obtained jurisdiction over criminal cases. As the courts continued to evolve, the next change came with the creation of the Supreme Court in the Virgin Islands in 2004, and it was granted ‘with the supreme judicial power of the Territory” in 2007. It was not until 2012 that President Obama signed a direct review law that gave the right to Virgin Islands citizens to appeal a case all the way to the Supreme Court of the United States.
The impact of this evolution within the court system of the Virgin Islands is that the local courts now have the same power and jurisdictional coverage as any other state judiciary under the US flag. This means that the interpretation of the local laws will be totally in the hands of the citizens of the US Virgin Islands, which will reflect the culture of the local citizenry of the US Virgin Islands; no other state will have any influence upon said interpretations of the laws.
This is a big step for the US Virgin Islands in the employment area. This is because the US labor laws have been leaning towards employers for the last 20 years. Whereas within the US Virgin Islands, was one of the first jurisdictions to adopt a wrongful discharge law and other more liberal interpretations of protections for the general labor workforce. Thus, therein lies hope for more inclusion of persons with disabilities in the workforce since the US Virgin Islands can carve its own path on behalf of employment protections for persons with a disability.