Disability and Employment Discrimination Laws in the U.S. Virgin Islands
May 26, 2020
By: Archie Jennings
Disability Rights Center of the Virgin Islands
Archie Jennings is the lead attorney for the Northeast ADA’s U.S. 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 U.S. Virgin Islands under local law.
When I was given the assignment to set forth the employment discrimination laws of the U. S. 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 itself 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 U.S. Marshal (born in Missouri) had asked me to sue the United States and the Congress for usurping our constitutional rights as U.S 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 U.S. Virgin Islands.!! Duh!! It’s the issue of the status of the Islands is the simple answer.
The U.S. Virgin Islands at present is one of five (5) 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 U.S. citizens at birth. American Samoans are United States Nationals at birth. This information is important to understand how the application of the U.S. Constitution applies or does not apply to a territory and the U.S. Citizens residing thereon under the U.S. flag.
The reflection of the “Jim Crow” and anti -immigrant temperament of the U.S. towards off shore territories after the Civil War at the turn of the twentieth century from 1901 – 1904 was expressed by the U.S. 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 U.S. 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 U.S. 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. What these cases did was to leave it up to remote decision makers shaping the atmosphere for law enforcement upon Islands a thousand miles away. In today’s terms just imagine if the Courts of California made decisions as to the laws governing the citizens of a Mississippi, surely some citizens of Mississippi would clearly pull up stakes and leave the state for certain.
Further, the basis of the laws in place in the U.S. 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 that was 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 U.S. purchased the now U.S. 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 U.S. Virgin Islands judicial branch has been able to evolve 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 said decisions of the Federal District court the parties had to address said matters through the Third Circuit Court of Appeals, located in Philadelphia Pennsylvania. Eventually, Congress passed a law in 1984 for the U.S. 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 U.S. flag. This means that the interpretation of the local laws will be totally in the hands of the citizens of the U.S. Virgin Islands, which will reflect the cultural aspects of the local citizenry of the U.S. Virgin Islands; and no other state will have any influence upon said interpretations of the laws.
This is a big step for the U.S. Virgin Islands in the employment area, since as to employment issues the U.S. labor laws have been leaning towards employers for the last 20 years. Whereas within the U.S. Virgin Islands, it 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 into the workforce since the U.S. Virgin Islands can carve its own path on behalf of employment protections for persons with a disability.