# Petition for Writ of Certiorari — EEOC v. Arabian American Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0758%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 244 ## Text 3 OcTOBER TERM, 1989 EQUAL EMPLOYMENT OPPORTUNITY N COMMISSION, PETITIONER *. ARABIAN AMERICAN OIL Co., ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT KENNETH W. STARR Solicitor General JOHN R. DUNNE Assistant Attorney General JOHN G. ROBERTS, JR. Deputy Solicitor General STEPHEN L. NIGHTINGALE Assistant to the Solicitor General Department of Justice Washington, D.C. 20530 (202) 514-2217 CHARLES A. SHANOR General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SAMUEL A. MARCOSSON ‘Attorney Equal Employment Opportunity Commission Washington, D.C. 20507 QUESTION PRESENTED Whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et sc., prohibits employment dis- crimination outside the United States by an Amer- ican corporation against an American citizen. (1) PARTIES TO THE PROCEEDING The petitioner, which was granted leave to inter- vene in this action while it was pending in the court of appeals, is the Equal Employment Opportunity Commission. The other parties are plaintiff Ali Boureslan and defendants Arabian American Oil Company and Aramco Services Company. TABLE OF CONTENTS Page . ———ß—ß——8—7rß5ðv—ęꝗ᷑ 1 EL . 2 Statutory provisions involved 2 e .. 2 Reasons for granting the petiti(oo nn 5 r . 18 e 3 1a V — 28a ä 77a o — 83a rr 85a V 86a TABLE OF AUTHORITIES Cases: Alexander v. Gardner-Denver Co., 415 U.S. 36 EE re 16 Andrus v. Glover Constr. Co., 446 U.S. 608 ES 9 Argentine Republic v. Amerada Hess Shipping Comm, 168 &. Ct. G68 (1968) ........................-........ 7 Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. ESS LL 11 Blackmer v. United States, 284 U.S. 421 (1932) .... 6 Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) 6 Bryant v. International Schools Servs., Inc., 502 F. Supp. 472 (D.N.J. 1980), rev’d, 675 F.2d 562 r ̃ wii 14 Cleary v. United States Lines, Inc., 728 F.2d 607 r ̃ 1X11... 12 Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). 4, 10 Foley Bros. v. Filardo, 336 U.S. 281 (1949) 3, 6, 7, 8,11 Lavrov v. NCR Corp., 600 F. wad 923 (S.D. a 14 Cases—Continued : Page Love v. Pullman Co., 13 Fair Empl. Prac. Cas. (BNA) 423 (D. Colo. 1976), aff'd, 569 F.2d I ee i I ccndnscevisttinecneinentianannnnneins 14 McCulloch v. Sociedad Nacional de Marineros de Murray v. Schooner Charming Besty, 6 U.S. (2 Honduras, 872 U.S. 10 (1963) 6, 7,11 DN I e 7 Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d 554 ß x 12 Psimenos v. E. F. Hutton & Co., 722 F.2d 1041 (2d CG 7 Seville v. Martin Marietta Corp., 638 F. Supp. 590 r daa nae chien 14 Steele v. Bulova Watch Co., 344 U.S. 280 (1952). 6, 7, 9 United States v. Aluminum Co. of America, 148 es fF LL Beene 6-7 Vermilya-Brown Co. v. Connell, 335 U.S. 377 hE aa ee eee AONE br ee Orr 6, 11 Zahourek v. Arthur Young & Co., 750 F.2d 827 , xxx 12 Statutes and regulations: Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq.: | EE 7 ,, TIN eRe AER 12-13 ,s tsiin sc cestnastesbinnimeenbaonniiitiapenniieainion 12-13 ,,,, 7, 12 Civil Rights Act of 1964, Title VII, 42 U.S.C. Z r 2 § 701 (b), 42 U.S.C. 2000e (o) 8, 86a § 701 (g), 42 U.S.C. 2000e (g)) 8, 86a-87a § 701 (h), 42 U.S.C. 2000e (h) 8, 87a RR eee 4,9, 87a § 708, 42 U.S.C. 20000-2 ............................... 10, 87a-88a § 706 (f) (1), 42 U.S.C. 2000e-5 (f) (1) La? 16 Miscellaneous: Age Discrimination and Overseas Americans, 1983: Hearing Before the Subcomm. on Aging of the Senate Comm. on Labor and Human Re- sources, 98th Cong., Ist Sess. (19833) Civil Rights: Hearings on H.R. 7152 Before Subcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong., Ist Sess. (1963) 129 Cong. Rec. 34,499 (1983) . ................................... Decision No. 85-16, Emp. Prac. Dec. (CCH) r lamsinteitledesan Discriminatory Arab Pressure on U.S. Business: Hearings Before the Subcomm. on International Trade and Commerce of the House Comm. on International Relations, 94th Cong., 1st Sess. TTTTTTTTTT—TTTTTTTTVTTVT aabeecar odlitammhaieaies Discriminatory Overseas Assignment Policies of Federal Agencies: Hearings Before a Subcomm. on the House Comm. on Government Operations, 94th Cong., Ist & 2d Sess. (1975-1976) Foreign Investment and Arab Boycott Legislation: Hearings Before the Subcomm. on International Finance of the Senate Comm. on Banking, Hous- ing and Urban Affairs, 94th Cong., 1st Sess. MEER ee ms A H.R. 4453, 81st Cong., Ist Sess. (1949) H.R. 405, 88th Cong., Ist Sess. (1963) H.R. 7152, 88th Cong., 2d Sess. (1963) H.R. Rep. No. 570, 88th Cong., Ist Sess. (1963) Policy Statement No. N-915.033, EEOC Compl. Ie vacisevctcscicoscesececesenccsomees The World Almanac and Book of Facts: 1990 (1989) Page 13 11 13 15 16 16 15-16 10-11 Ju the Supreme Court of the United States OCTOBER TERM, 1989 No. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER Vv. ARABIAN AMERICAN OIL Co., ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT The Solicitor General, on behalf of the Equal Em- ployment Opportunity Commission, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. OPINIONS BELOW The panel and en banc opinions of the court of appeals (App., infra, la-76a) are reported, respec- tively, at 857 F.2d 1014 and 892 F.2d 1271. The opinion of the district court (App., infra, 77a-82a) is reported at 653 F. Supp. 629. (1) 2 JURISDICTION The judgment of the court of appeals upon rehear- ing en bane was entered on February 2, 1990. On April 24, 1990, Justice White extended the time for filing a petition for a writ of certiorari to and in- cluding May 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seg., are set forth at App. infra, 86a-88a. STATEMENT 1. Ali Boureslan, the plaintiff in this Title VII action, is a naturalized American citizen who was born in Lebanon. The defendants are two Dela- ware corporations, Arabian American Oil Company (Aramco) and its subsidiary, Aramco Services Com- pany (ASC). Aramco explores, produces, and re- fines oil and gas in Saudi Arabia. Its principal place of business is Dhahran, Saudi Arabia, and it is li- censed to do business in Texas. ASC’s principal place of business is Houston, Texas. App., infra, 29a-30a. In 1979, Boureslan began working as an engineer for ASC in Houston. A year later, his request for a transfer to Aramco was granted, and he relocated to Saudi Arabia. In that country, Boureslan alleges, his supervisor subjected him to a “campaign of har- assment,” including racial, religous, and ethnic slurs, culminating in his termination on June 16, 1984. App., infra, 29a-30a. 2. After filing a charge of discrimination against Aramco with the Equal Employment Opportunity AnDY == Commission, Boureslan commenced this lawsuit against Aramco and ASC. His complaint seeks relief under Title VII and also asserts pendent state law claims. See App., infra, 30a. Aramco and ASC moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that Title VII does not apply to discrimination outside the United States. The district court agreed and dismissed the Title VII claim. Jd. at 77a-82a. It also dismissed Boureslan’s state law claims for lack of pendent jurisdiction and entered final judgment in favor of both defendants. See id. at 82a. 2. A divided panel of the court of appeals af- firmed. App., infra, 28a-82a. The court granted re- hearing en banc; upon rehearing, the court affirmed by a 9-5 vote. Id. at Ia-27a. a. The en bane majority noted that this Court has recognized a “canon of construction * * * that legis- lation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdic- tion of the United States.” App., infra, 3a (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). Title VII, the majority held, “does not reflect the necessary clear expression of congressional intent to extend its reach beyond our borders.” App., infra, 7a. The majority rejected the contention that the stat- ute’s “alien exemption”—which provides that Title VII “shall not apply to an employer with respect to 1In the court of appeals, the EEOC participated as an amicus curiae before the panel. After entry of the panel’s decision, the Commission was granted leave to intervene for the purpose of seeking further review and participated as a party in the rehearing. App., infra, 85a. See 42 U.S.C. 2000e-5 (f) (1) (authorizing court, in its discretion, to permit the Commission to intervene in a civil action upon the Com- mission’s certification that the case is of general public importance). 4 nt of aliens outside any State,” 42 U.S.C. — # be superfluous unless Title Vil other- wise applies to discrimination outside the United States. The majority observed that “no one disputes that the provision excludes coverage to aliens em- ployed outside the states“; it added, citing 4 * v. Farah Mfg. Co., 414 U.S. 86, 95 (1973), that the alien exemption can also meaningfully be read to “ flect “a congressional intent to provide Title VII coverage to aliens employed within the United States. ., infra, 4a. characterized Title VII as having a “domestic focus“ reflected in the Act’s references to the “United States”, “states” and “state proceed- ings.” App., infra, 5a. Noting that Title VII ac- commodate!s] state employment discrimination pro- ceedings,” the majority suggested that [i]t Con- gress had intended the Act to apply in foreign coun- tries,” it would “have been even more careful to ad- dress conflicts with foreign discrimination laws. Ibid. The majority also found the Act curiously silent” on issues that would be raised by extraterri- torial application of Title VII: specifically. the ap- propriate venue for an action arising out of diserim- ination abroad and, given that the Commission 8 sub- poena power is limited to evidence in the United States and its territories, the means by which the Commission could investigate such claims. Ibid. Fi- nally, the majority suggested that, if the Act were applied extraterritorially, its plain language would reach foreign employers that employed American citizens. The majority expressed doubt “that Con- gress ever intended to impose Title VII on a foreign employer who had the grace to employ an American citizen in its own country.” Id. at 6a. 5 b. The dissenting members of the court would have held that “a fair and reasonable reading” of Title VII “compels the conclusion that Congress did, in fact, intend Title VII’s broad remedial goals to en- compass, and eradicate, an American employer’s dis- criminatory employment practices against a United States citizen, even if the acts constituting such dis- crimination were carried out on foreign soil.” App., infra, 7a. The dissent maintained that the alien ex- emption provides a clear expression of Congress’s in- tent to apply the statute extraterritorially, reasoning that [if Congress had not envisioned an extra- territorial application of Title VII, a specific provi- sion exempting only aliens from such coverage would not have been needed.” Id. at 9a. The dissent found further support for its understanding of the alien exemption in that provision’s legislative history, the EEOC’s administrative interpretation of Title VII, and this Court’s analysis in Foley Bros. Id. at 12a- 16a & nn.3-7. REASONS FOR GRANTING THE PETITION The court of appeals’ interpretation of Title VII would withdraw the Act’s protection from the many Americans who spend a portion of their careers abroad. That interpretation is not justified by Title VII's language or the well-recognized presumption against the extraterritorial application of federal statutes. By its terms, Title VII reaches discrimina- tion outside the United States, and the statute con- tains an exemption—for aliens working outside of any State—that would be entirely superfluous if the Act did not apply abroad in the first place. The EEOC, which is charged with administration of Title VII, has construed the statute to apply to diserimina- 6 tion abroad by American corporations against Ameri- ean citizens. Although there is no conflict among the circuits on this question, every district court that had addressed this issue prior to the decision in this case had reached the same conclusion as the Commission. The court of appeals’ interpretation of Title Vil would leave a serious gap in the statute’s prohibition against invidious employment discrimination. Many Americans work abroad for at least some part of their careers. Indeed, in many multinational firms, experience in overseas operations is instrumental to advancement. Under the court of appeals’ view of the statute, employees accepting overseas assignments would expose themselves to discrimination abroad, and the effects of that discrimination would be felt in employment decisions in this country. 1. Congress undoubtedly has authority to prohibit employment discrimination by American corpora- tions operating abroad. “While the legislation of the Congress, unless the contrary intent appears, is con- strued to apply only within the territorial jurisdic- tion of the United States, the question of its applica- tion, so far as citizens of the United States in for- eign countries is concerned, is one of construction, not of legislative power.” Blackmer v. United States, 284 U.S. 421, 437 (1932). Congress has often exer- cised its authority to extend the reach of its legisla- tion beyond our borders—for instance, in the anti- trust, securities, and trademark laws.“ Indeed, in the 2 Accord, e.g., Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Foley Bros. v. Filardo, 336 U.S. 281, 284- 285 (1949); Steele v. Bulova Watch Co., 344 U.S. 280, 285-286 (1952); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 17 (1963). o See, e. g., Steele v. Bulova Watch Co., 344 U.S. 280 (1952) (Lanham Act); United States v. Aluminum Co. of America, 7 area of employment discrimination, Congress re- cently amended the Age Discrimination in Employ- ment Act of 1967 to prohibit age discrimination against American citizens outside the United States. 29 U.S. C. 623 (a), 630 (f); see pp. 12-13, infra. This Court, of course, has recognized a canon of construction “which teaches that legislation of Con- gress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” E. g., Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949).* That canon “is based on the assumption that Congress is primarily concerned with domestic conditions,” ibid.; it also serves to pro- tect against unintended conflicts between our laws and those of other nations and resulting interna- tional discord, ef. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963). At bottom, however, the issue remains one of legisla- tive intent; the presumption against the extraterri- torial application of American statutes is “a valid 148 F.2d 416 (2d Cir. 1945) (antitrust laws); Psimenos v. — 8 & Co., 722 F.2d 1041 (2d Cir. 1983) (securities aws). *See Argentine Republic v. Amerada Hess Shipping Corp., 109 S.Ct. 683, 691 (1989); Steele v. Bulova Watch Co., 344 U.S. 280, 285 (1952). . Where the application of an American statute would violate international law, a more stringent variant of the presump- tion applies. “[A]n act of Congress ought never to be con- strued to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See McCulloch v. So- ciedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963). It would not violate international law to apply Title VII to American citizens employed by American firms outside the United States. 8 approach whereby unexpressed congressional intent may be ascertained.” Foley Bros., 336 U.S. at 285. The language and legislative history of Title VII are sufficient to rebut the presumption; this is not a case in which Congress’s intent to apply a statute abroad was “unexpressed.” Title VII’s language and legislative history, considered in proper context, af- firmatively manifest Congress’s intention to prohibit discrimination by American firms against American citizens abroad. a. By its terms, Title VII applies to employers (with a specified number of employees) that are “engaged in an industry affecting commerce.” 42 U.S.C. 2000e(b).° Significantly, “commerce” is de- fined to include both interstate and foreign com- merce: for purposes of Title VII, it encompasses “trade, traffic, commerce, transportation, transmis- sion, or communication among the several States; or hetween a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.” 42 U.S.C. 2000e(g) (emphasis added). Nothing in this lan- guage suggests that the Act applies only within the borders of the United States. Indeed, the provisions that determine Title VII’s scope are similar to the “broad jurisdictional grant in the Lanham Act” on which this Court relied in holding that that stat- An “industry affecting commerce” is (42 U.S.C. 2000e(h) ) any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry “affecting commerce” within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.] and further includes any governmental industry, business, or activity. 9 ute applies outside this country. See Steele v. Bulova Watch Co., 344 U.S. at 286. In addition, Title VII includes an exemption that confirms Congress’s intent to extend Title VII’s pro- tection to American citizens working abroad. Section 702 of the Act, 42 U.S.C. 2000e-1, provides that the statute “shall not apply to an employer with respect to the employment of aliens outside any State” (em- phasis added). If (as the court of appeals held in this case) Title VII does not apply to discrimination outside the United States in the first place, this exemption is completely gratuitous. Congress would have had no reason to exempt aliens employed abroad unless—like the religious employers that Section 702 also exempts—those aliens would otherwise have been covered by the statute. Aliens employed “outside any State” would only otherwise be covered, however, if Title VII applies extraterritorially. As the dissent stressed, the import of the alien exemption is inescapable (App., infra, 9a): [B]y specifically providing an exemption for employers regarding the extraterritorial employ- ment of “aliens,” without providing a similar exemption as to the corresponding category of “citizens,” Congress intended that American em- ployees would be covered under Title VII. Cf. Andrus v. Glover Constr. Co., 446 U.S. 608, 616- 617 (1980) (“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”).* * The majority of the court of appeals offered no plausible explanation of the role the alien exemption might play under its construction of the statute. The majority’s observation 10 b. The legislative history of the alien exemption confirms Congress’s intention to extend Title VII’s protection to American citizens employed by Amer- ican firms abroad. A committee report explained that the exemption’s purpose is “to remove conflicts of law which might otherwise exist between the United States and a foreign nation in the employment of aliens outside the United States by an American enterprise.” H.R. Rep. No. 570, 88th Cong., Ist that “‘no one disputes that the provision excludes coverage to aliens employed outside the states” (App., infra, 4a) is beside the point. The issue is not whether the exemption means what it says (we have no doubt that it does), but why such a provision would have been included if the statute were not intended to apply abroad in the first place. Nor is there merit to the majority’s suggestion that the alien ex- emption can be given meaning as a grant of coverage to aliens employed in the United States; Congress could not have intended to employ an exemption to extend Title VII's coverage to that group. See Espinoza v. Farah Mfg. Co., 414 U.S. at 95 (alien employed in this country is protected by virtue of being an “individual” referred to in Section 703 of the Act, 42 U.S.C. 2000e-2). Although (as this Court noted in Espinoza) the alien ex- emption is undoubtedly indicative of Congress’s intent to cover aliens within the United States, the Court clearly did not suggest that this was the exemption’s only significance. In fact, there is a precise parallel between the inference this Court drew in Espinoza and the inference that we urge in this case. In each instance, the fact that the Act specifically exempts aliens employed outside the United States demon- strates that a related group outside the exemption—in Es- pinoza, aliens employed inside the United States and, here, citizens employed abroad—is covered. Far from rejecting the inference on which we rely here, Espinoza establishes that it is appropriate to refer to the exemption as a means of ascer- taining Congress’s intent with respect to Title VII's coverage. 11 Sess. 4 (1963). Plainly, Congress would have had no occasion to remove conflicts of law arising from the employment of aliens outside the United States unless it contemplated that the Act would apply extra- territorially. c. Although Title VII regulates the relationship between employer and employee, and thus operates in a field in which other statutes have been held not to apply extraterritorially,* the statute’s subject mat- This report addressed H.R. 405, 88th Cong., Ist Sess. (1963). That bill was subsequently incorporated in U. R. 7152, 88th Cong., 2d Sess. (1963), which in turn was titi- mately enacted, as amended, as Title VII. The report on H.R. 405 was made part of the record of the hearings on H.R. 7152. See Civil Rights: Hearings on H.R. 7152 Before Subcomm. No. 5 of the House Comm. on the en, 88th Cong., Ist Sess. 2303 (1963). H.R. 405 was one of a series of fair employment bills considered by the House Committee on Education and Labor. The first to contain an alien exemption, H.R. 4453, 81st Cong., lt Sess. (1949), was introduced by Adam Clayton Powell on April 29, 1949. Six weeks earlier, in holding thatthe Eight Hour Law did not apply outside the United States, this Court had placed particular stress on “[t]he absence of any dis- tinction between citizen and alien labor.” Foley Bros. v. Filardo, 336 U.S. at 286. It seems likely that H.R. 4453 was drafted to meet the concern expressed in Foley Bros.—that is, to draw the distinction found lacking in Foley Bros. so as to remove that perceived impediment to extraterri- torial application. See McCulloch v. Sociedad Nacional de Marineros de Honduras, supra (NLRA does not apply to seamen aboard foreign flag vessels owned by foreign subsidiary of American corporation); Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138 (1957) (LMRA does not apply to picketing of foreign ship operated entirely by foreign seamen under for- eign articles); Foley Bros. v. Filardo, supra (Eight Hour Law does not apply to government contracts performed in Iran). But ef. Vermilya-Brown Co. v. Connell, supra (“pos- 12 ter provides no basis for questioning Congress’s in- tention to attack discrimination abroad against Amer- ican citizens by American employers. In essence, Title VII prohibits discrimination against one or more individuals by an employer, as opposed to regu- lating the relations between the employer and its em- ployees generally. There is nothing unusual in the idea that Congress’s concern about this type of in- dividual injury—or its determination to provide a remedy—extends outside the United States. Congress’s willingness to extend the ADEA’s pro- hibition on age discrimination beyond our borders un- derscores its willingness to strike at discrimination against American citizens by American employers abroad. In 1984, after several courts of appeals had held that the ADEA did not apply abroad,’ Congress amended that statute’s definition of employee to in- clude “any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country,” 29 U.S.C. 630 (f), and specified the employers to which the Act would apply, 29 sessions” of the United States that are subject to the FLSA include bases leased from Great Britain). Significantly, none of the statutes which were held not to apply extraterritorially was limited by its terms to American citizens, posing par- ticular problems if the statute were interpreted to apply abroad. Title VII is so limited. ® Zahourek v. Arthur Young & Co., 750 F.2d 827 (10th Cir. 1984); Cleary v. United States Lines, Inc., 728 F.2d 607 (3d Cir. 1984). See Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d 554 (7th Cir. 1985). As these courts noted, the ADEA has no provision comparable to Title VII’s alien exemption. Further, unlike Title VII, the ADEA incorporates provisions of the FLSA, including a provision expressly excluding work performed in a workplace in a foreign country from the FLSA. 13 U.S.C. 623(f) (1) and (h). Supporters of this legis- lation emphasized that these amendments were ap- propriate to conform the ADEA’s prohibition on age discrimination to the equivalent provisions of Title VII. The Senate sponsor of the ADEA amendments noted that “the substantive prohibitions of the [ADEA] are worded nearly exactly as those in title VII, which at least two district courts have held does apply abroad,” and argued that his proposed amend- ment would “clear[] up an anomaly” that “Congress never intended.” 129 Cong. Rec. 34,499 (1983) (re- marks of Sen. Grassley) .’’ The court of appeals’ interpretation of Title VII would create a similar anomaly. Americans em- ployed overseas would be protected from age discrim- ination, bet not from discrimination based upon race, sex, religion, or national origin. The language of Title VII—including its general jurisdictional pro- visions and the alien exemption—forecloses attribut- ing such an odd result to Congress. Similarly, during hearings on the proposed legislation, the EEOC’s Chairman testified that Title VII had been con- strued to apply to discrimination outside of the United States. See Age Discrimination and Overseas Americans, 1983: Hearing Before the Subcomm. on Aging of the Senate Comm. on Labor and Human Resources, 98th Cong., 1st Sess. 2-4 (1983) (testimony of Clarence Thomas). We do not suggest that the legislative history of the 1984 ADEA amendments is indicative of the intent of the 1964 Congress that enacted Title VII. However, that history lays to rest the majority’s suggestion (App., infra, 6a) that differ- ences in the language of the ADEA and Title VII justify attributing an intention not to apply the 1964 Act to American citizens outside the United States; it also undercuts any argu- ment that Congress is generally reluctant to see its anti- discrimination legislation applied abroad. 14 2. Before the decision in this case, many authori- ties had agreed that Title VII applies to discrimina- tion abroad by American employers against American citizens. Every prior district court decision had reached that conclusion. Seville v. Martin Marietta Corp., 638 F. Supp. 590 (D. Md. 1986); Bryant v. International Schools Servs., Inc., 502 F. Supp. 472 (D.N.J. 1980), rev’d on other grounds, 675 F.2d 562 (3d Cir. 1982); Love v. Pullman Co., 13 Fair Empl. Prac, Cas. (BNA) 423, 426 n.4 (D. Colo. 1976), aff'd on other grounds, 569 F.2d 1074 (10th Cir. 1978). See also Lavrov v. NCR Corp., 600 F. Supp. 923, 931-932 & n.5 (S.D. Ohio 1984). In these cases, the courts found that the alien exemption was a strong indication of Congress’s intention to protect American citizens from discrimination abroad. See, e. g., Love v. Pullman Co., 13 Fair Empl. Prac. Cas. (BNA) at 426 n.4 (“Since Congress explicitly ex- cluded aliens employed outside of any state, it must have intended to provide relief to American citizens employed outside of any state * * *.”). In addition, the EEOC, the agency charged with administration of Title VII, has for at least 15 years interpreted the statute to apply to discrimination by American employers against American citizens out- side the United States. In 1975, in a letter to a mem- ber of the Senate Foreign Relations Committee, the EEOC’s General Counsel stated that “[t]he language of Title VII indicates a Congressional intent to make the Title applicable to American citizens employed by American companies operating overseas.“ As has been noted (note 10, supra), the Commission’s Chair- man reiterated that construction in 1984, when Con- gress considered whether the ADEA should be 11 Addendum 1 to EEOC C.A. En Banc Br. 15 amended to prohibit age discrimination to the same extent. The Commission adhered to that interpreta- tion in a decision on a charge of discrimination oc- curring abroad, Decision No. 85-16, Empl. Prac. Dec. (CCH) {| 6856 (1985), and recently issued a general policy statement setting forth the circumstances under which it will apply Title VII to charges of discrimination overseas, Policy Statement No. N- 915.033, EEOC Compl. Man. (CCH) { 2164 (1988). Finally, the Justice Department has also construed Title VII to apply to discrimination abroad. In 1975, then-Assistant Attorney General Scalia testified be- fore committees of both Houses of Congress that the alien exemption implies that Title VII applies outside the United States. He stated: It should be noted that both Executive Order 11478 and § 717 of Title VII specify that they are not applicable to “aliens employed outside the limits of the United States.” The implica- tion of this is that they do apply to United States citizens employed throughout the world. With respect to discrimination in employment by private companies and individuals, Title VII of the 1964 Civil Rights Act, as amended, pro- hibits a broad range of “unlawful employment practices” by any private employer “engaged in an industry affecting commerce who has fifteen or more employees.” * * * Once again the statue [sic] contains an exemption “with respect to the employment of aliens outside any State,” which implies that it is applicable to the employment of United States citizens by covered employers anywhere in the world.!“ 12 Foreign Investment and Arab Boycott Legislation: Hear- ings Before the Subcomm. on International Finance of the Senate Comm. on Banking, Housing and Urban Affairs, 94th 16 In keeping with this testimony, Section 717 of Title VII, 42 U.S.C. 2000e-16, which governs the employ- ment practices of federal agencies, has been applied to alleged discrimination outside the United States. See, e.g., Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) (Title VII action by civilian employed at a military base in Germany). Unless further review is granted, the court of appeals’ decision will foster confusion in this area of the law. 3. Title VII implements a national goal of the “highest priority.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). Necessarily, therefore, the question whether the Nation’s policy against discrim- ination is to apply to Americans working abroad is an issue of great importance. The precise number of Americans working abroad for American employers at any one time is difficult to gauge, but there are indications that the figure is a large one. The State Department has estimated that in 1988 there were almost 2.2 million American citizens residing abroad.“ Although this figure includes dependents, persons who are unemployed or retired, and employees of non-U.S. firms, the number of Americans employed by Amer- ican firms overseas is substantial. Cong., Ist Sess. 165 (1975). Accord Discriminatory Arab Pressure on U.S. Business: Hearings Before the Subcomm. on International Trade and Commerce of the House Comm. on International Relations, 94th Cong., Ist Sess. 87-88 (1975); Discriminatory Overseas Assignment Policies of Federal Agen- cies: Hearings Before a Subcomm. of the House Comm. on Government Operations, 94th Cong., Ist & 2d Sess. 87-89 (1975-1976). 13 See The World Almanac and Book of Facts: 1990, at 555 (1989). This figure excludes servicemen and federal em- ployees and their dependents. — 17 The class of individuals potentially affected by the question presented in this case is greater than the number employed abroad at any point in time. In many multinational corporations based in this coun- try, assignments in foreign offices are important means through which employees can enrich their ex- perience or enhance their opportunities for advance- ment. Under the court of appeals’ interpretation of Title VII, those employees who seek to take ad- vantage of those opportunities at some point in their careers would be required to relinquish protection from invidious employment discrimination. The fact that many careers in American firms encompass employment both inside and outside the United States forecloses any sharp division between discrimination in this country and abroad. In those enterprises in which successful performance in over- seas assignments is essential or desirable for promo- tion, the effects of discrimination abroad will be re- flected in employment decisions and career paths in this country. In this light, it is not surprising that Congress chose, as the alien exemption reflects, to extend Title VII’s protection to Americans whose careers with American firms take them abroad. The issue of Title VII’s extraterritorial application is recurrent as well as important. As of January 23, 1989, the Commission was investigating 50 charges that allege violations of Title VII arising out of em- ployment actions or practices that took place or were implemented overseas. Twenty-eight of these charges are pending in the EEOC’s Houston district office, within the Fifth Circuit. The question presented by this case—whether Title VII’s guarantee of equal employment oppor- tunity is to be withdrawn from Americans whose 18 careers take them abroad to work for American em- ployers—is an issue of widespread importance and should be resolved by this Court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General JOHN R. DUNNE Assistant Attorney General JOHN G. ROBERTS, JR. Deputy Solicitor General STEPHEN L. NIGHTINGALE Assistant to the Solicitor General CHARLES A. SHANOR General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SAMUEL A. MARCOSSON Attorney Equal Employment Opportunity Commission May 1990 la APPENDIX A UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 87-2206 ALI BOURESLAN, PLAINTIFF-APPELLANT, V. ARAMCO, ARABIAN AMERICAN OIL Co. and ARAMCO SERVICE COMPANY, DEFENDANTS-APPELLEES. Appeal from the United States District Court for the Southern District of Texas. Feb. 2, 1990 Before CLARK, Chief Judge, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GAR- WOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: We sit en banc in this case to consider a single question: whether Title VII regulates the employ- ment practices of U.S. employers which employ U.S. citizens outside the United States. We affirm the dis- trict court’s order dismissing this suit. I In his Title VII suit, Boureslan charged that while he was working in Saudi Arabia his employer, Arab- 2a ian American Oil Co. (Aramco), discriminated against him because of his race, religion and national origin. Aramco’s motion to dismiss for lack of juris- diction squarely raised the question whether Title VII’s protection extends to U.S. citizens employed by U.S. employers. ‘a question in the negative as did the district court and the panel majority. See Boureslan v. Aramco, 857 F.2d 1014 (5th Cir.1988). In reach- ing this conclusion we adopt the reasoning of the panel majority. We write briefly to summarize the reasons for our conclusion and to include two points that were more fully developed during en banc brief- ing and argument. 1 A. The respect for the right of nations to regulate con- duct within their own borders is a fundamental con- cept of sovereignty that is not lightly tossed aside. See American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 512, 53 L.Ed. 826 (1909) ; Blackmer v. United States, 284 U.S. 421, 137. 52 S.Ct. 252, 254, 76 L.Ed. 375 (1932). From this con- cept the established presumption against extraterri- torial application of a statute developed. Id. The critieal question that governs this appeal is whether Congress included language in Title VII that reflects a clear congressional intent to overcome the presump- tion against extraterritorial application of the Act. The Supreme Court described this presumption in Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949), a case closely analogous to the case at hand. In that case, Filardo, a US. citizen, argued that the Federal Eight Hour Law entitled him to overtime pay for work he had 3a performed while in the employ of Foley Brothers, a U.S. government contractor operating in Iran and Iraq. The Court, in rejecting Filardo’s claim, ex- plained the nature of the presumption against extra- territorial application of a statute: The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the ter- ritorial jurisdiction of the United States is a valid approach whereby unexpressed congres- sional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions. We find noth- ing in the Act itself . . nor in the legislative history, which would lead to the belief that Con- gress entertained any intention other than the normal one in this case. Id. The Court’s scrutiny of the Eight Hour Law’s statutory language and structure revealed no con- gressional intent to cover workers such as Filardo— a conclusion bolstered by the legislative history’s focus on domestic wage and unemployment problems. Id. at 285-87, 69 S.Ct. at 577-78. In examining this statute, the Supreme Court set out the standard by which we must measure Boureslan’s arguments: “An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose.” Id. at 286, 69 S.Ct. at 578 (emphasis added). Boureslan’s argument that Title VII reflects a clear congressional intent to extend its reach outside this 4a country chiefly rests on Title VII's alien exemption provision, 42 U.S.C. § 2000e-1. This provision which expressly establishes an exemption from coverage under the Act provides: “This title shall not apply to an employer with respect to employment of aliens outside of any state.” Bourselan finds the necessary clear expression of congressional intent to apply Title VII abroad by drawing a negative inference from that provision and concluding that Congress meant to include citizens working abroad when it excluded aliens abroad. We disagree, and for the reasons that follow conclude that this single negative inference falls short of the required clear expression of con- gressional intent necessary to extend the reach of the Act outside this country. 1. Boureslan argues first that if we do not attach his negative inference to the alien exemption provision, we strip the provision of all purpose. This is simply not accurate. As we noted in the panel opinion, “no one disputes that the provision excludes coverage to aliens employed outside the states.” Boureslan, 857 F.2d at 1018. Also the Supreme Court in Espinoza v. Farrah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 340, 38 L.Ed.2d 287 (1973), determined that this provision reflects a congressional intent to provide Title VII coverage to aliens employed within the United States. Thus, we remain persuaded that we need not choose to either attach Boureslan’s negative inference to this provision or strip the provision of all meaning. Even if we decline to give the alien ex- emption provision the interpretation appellant seeks, the provision is still a meaningful and useful part of the Act. 5a 2. The domestic focus of the Act is also inconsistent with an intent to give extraterritorial reach to it. As noted in the panel opinion, Boureslan’s effort to read an international reach into Title VII's general policy statements and alien exemption provision fails in light of repeated references in the Civil Rights Act of 1964 to “United States”, “states” and “state proceedings.” See Boureslan, 857 F.2d at 1019. In Title VII itself, Congress specifically accommo- dated state employment discrimination proceedings in an effort to avoid conflicts with state law and rec- ognized state interests. See 42 U.S.C. §§ 2000e-5(c), (d), (e). If Congress had intended the Act to apply in foreign countries, we would expect Congress to have been even more careful to address conflicts with foreign discrimination laws. Yet the statute says nothing about potential conflicts with foreign discrim- ination laws. 3. The Act is also curiously silent in a number of areas where Congress ordinarily speaks if it wants to extend its legislation beyond our borders. First, the Act fails to address venue problems that arise with foreign violations. Cf. 42 U.S.C. § 2000e- 5(f)(3) (establishing venue “in any judicial district in the State in which the unlawful employment prac- tice is alleged to have been committed. Next, the Equal Employment Opportunity Council’s inves- tigatory powers are limited to evidence obtained in the United States and its territories. 42 U.S.C. § 2000e-9. Finally, if we give extraterritorial reach to Title VII, the plain language of the Act would necessarily 6a extend that title to govern the employment relation- ship between foreign employers, and their American employees anywhere in the world. See § 2000e(b). We say this because nothing in the Act exempts for- eign employers and our courts have held that foreign employers engaged in commerce in the United States are employers under Title VII. See, e. g., Spiess v. C. Itoh & Co. (America), Inc., 643 F.2d 353 (5th Cir.1981). We doubt that Congress ever intended to . impose Title VII on a foreign employer who had the grace to employ an American citizen in its own country. 4. As the Court stated as recently as January 1989, when it desires to do so, Congress knows how to give extraterritorial effect to one of its statutes. Argen- tine Republic v. Amerada Hess Shipping Co., US. 109 S.Ct. 683, 691, 102 L.Ed.2d 818, 832 (1989). A good example is the Age Discrimination and Employment Act which was amended in 1984 to give the Act extraterritorial application. 29 U.S.C. 8 630(f) (“The term ‘employee’ includes any individual who is a citizen of the United States em- ployed by an employer in a workplace in a foreign country.”). See also The Comprehensive Anti- Apartheid Act of 1986, 22 U.S.C. 55 5001-5116 (1979, Supp. 1989) ; The Export Administration Act, 50 U.S.C. app. $§ 2401-2420 (Supp.1989). Congress demonstrated in the above acts its awareness of the need to make a clear statement of extraterritorial application, address the concerns of conflicting for- eign law, and provide the usual nuts-and-bolts pro- visions for enforcing those rights. EE — oe 0 7a C. In essence, Boureslan asks this court to conelude that Congress balanced Title VII's important goals against the foreign sovereignty concerns that under- lie the presumption against extraterritoriality, con- sidered the implications of application abroad and then addressed these concerns by inviting courts to read between the lines. For the reasons stated above, we cannot accept this conclusion and hold that Title VII does not reflect the necessary clear expression of congressional intent to extend its reach beyond our borders. AFFIRMED. KING, Cireuit Judge, with whom REAVLE V, POLITZ, JOHNSON and WILLIAMS, Circuit Judges, join dissenting: I agree with the majority that the sole question presented in this en banc rehearing is whether Con- gress acted to extend the protections of Title VII to United States citizens employed in other countries by United States employers. I believe that a fair and reasonable reading of this civil rights statute compels the conclusion that Congress did, in fact, intend Title VII’s broad remedial goals to encompass, and eradicate, an American employer’s discrimina- tory employment practices against a United States citizen, even if the acts constituting such discrimi- nation were carried out on foreign soil. Therefore, I must respectfully dissent from the majority’s hold- ing, which has affirmed the district court’s dismissal of appellant Boureslan’s action. The Alien Exemption Clause It is undisputed that Congress has the power to extend the protection of its laws extraterritorially 8a when it is regulating the conduct of United States nationals. See, e.g., Steele v. Bulova Watch Co., 344 U.S. 280, 282-83, 73 S.Ct. 252, 253, 97 L.Ed. 319 (1952); United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir.1977). In determining whether Congress in- tended to exercise this power when it enacted Title VII, we are guided by a presumption that acts of Congress are intended to apply only within the ter- ritory of the United States unless there is a clear expression of congressional intent to the contrary. — Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949); Mitchell, 553 F.2d at 1002. A clear expression of Congress’s intent regarding the extraterritorial reach of Title VII is found in 1 There is a second, and distinct, presumption that Congress does not intend to violate international law. A statute may not be construed to violate international law unless Congress has, by an “affirmative expression” of its intent, required such a construction. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677, 9 L.Ed.2d 547 (1963) ; Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1516, 71 L.Ed.2d 715 (1982). As I explained in consid- erable detail in my panel dissent, extraterritorial application of Title VII under the circumstances before us would not violate international law; therefore, this presumption does not apply in the instant case. See Boureslan, 857 F.2d at 1021-31 (King, J., dissenting). The less stringent standard of the presumption against extraterritorial application of a federal statute does not re- quire an explicit, affirmative statement of Congress. Instead, the Supreme Court has said that the presumption “is a valid means whereby unexpressed congressional intent may be ascertained.” Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577 (emphasis added). The question involved in our determina- tion is what showing of congressional intent is sufficiently clear to overcome the presumption against extraterritorial application. section 702 of the statute, the alien exemption clause. 42 U.S.C. § 2000e-1. This section provides that Title VII “shall not apply to an employer with respect to the employment of aliens outside any State.” Jd. If Congress had not envisioned an extraterritorial appli- cation of Title VII, a specific provision exempting only aliens from such coverage would not have been needed. Likewise, if Congress had intended in sec- tion 702 to explicitly reject extraterritorial applica- tion, it would have used one of the statute’s general terms: “individuals” or “employees.” See, e.g., 42 U.S.C. § 2000e-2 (prehibiting discrimination against “any individual” with respect to his or her employ- ment). Compare Fair Labor Standards Act, 29 U.S.C. § 213(f) (excluding from FLSA coverage “any em- ployee” whose services are performed in a foreign country). Canons of statutory construction require that we interpret a statute “to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); see also Argentine Republic v. Amerada Hess Shipping Corp., — U.S. ——, 109 S.Ct. 683, 691, 102 L.Ed.2d 818 (1989) (refusing to construe statute to render its terms nugatory): Beisler v. Commissioner, 814 F.2d 1304, 1307 (9th Cir.1987) (We should avoid an interpretation of the statute that renders any part of it superfluous and does not give effect to all of the words used by Con- gress.”’). The logical and necessary interpretation of section 702 is that, by specifically providing an ex- emption for employers regarding the extraterritorial employment of “aliens,” without providing a similar exemption as to the corresponding category of “citi- zens,“ Congress intended that American employees would be covered under Title VII. —— * 10a In response to this common-sense interpretation of section 702, the majority relies on two alternative interpretations. First, the majority suggests that the alien exemption provision means simply that aliens employed outside the United States are not covered by Title VII. I do not contend, of course, that section 702 does not mean what it says. However, such a narrow reading of Congress’s language, although superficially appealing, is unreasonable because it renders the provision purposeless: if no individual was intended to be covered extraterritorially by Title VII, a specific provision excluding only aliens would be superfluous. Next, the majority points to a parallel inference that one may draw from section 702: that aliens em- ployed within the United States are covered by the Act. While this inference also follows logically from the language of the statute, it is in itself redundant because use of the term “individual” in defining “em- ployee” is sufficient to bring aliens residing in the United States within the statute’s coverage. 42 U.S.C. § 2000e(f). See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973). Indeed, Congress could not have provided otherwise without violating the equal protection principles im- plicit in the fifth amendment. See Yick Wo v. Hop- kins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ; Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed 884 (1954). Moreover, if Congress’s sole purpose in the alien exemption clause was to provide coverage to aliens residing in the United States, the more logical location in the statute to express this intent would have been the definition section, where Congress de- fined “employee,” see 42 U.S.C. § 2000e(f), not the provision entitled “Exemption,” where Congress pro- — — ¶:ů—— — —— - B ee... lla vided for the limited exceptions to the broad remedial goals of Title VII.’ The majority opinion cites Espinoza apparently for the proposition that a negative inference that aliens within the United States are covered under Title VII is the “correct” interpretation of Congress’s intent in enacting section 702. The plaintiff in Espinoza was a Mexican citizen residing in the United States. Ex- plaining that Title VII protects resident aliens against illegal discrimination, the Supreme Court noted that congressional intent on this matter could be derived through a negative inference from section 702. Es- pinoza, 414 U.S. at 95, 94 S.Ct. at 340. Not faced with the question of extraterritorial application, the Court had no need to discuss the mirror inference that is reflected in section 702, although the Court’s rationale regarding statutory interpretation supports the derivation of such a legitimate inference. More- over, the Court pointed out that Congress’s intent in Title VII to include aliens could also be derived from its use of the term “any individual” in section 703, id., supporting my point that section 702 would be redundant if the Espinoza inference were the only reason for its existence. Thus, the inference that the Supreme Court drew from section 702 in Espinoza does not preclude, but rather supports, the equally permissible—and, in fact, more reasonable—infer- 2 As a matter of statutory construction, every part of the statute is to be considered, including subheadings that Con- gress has placed on the various sections, to arrive at the stat- ute’s clear and total meaning. House v. Commissioner, 453 F.2d 982, 987 (5th Cir.1972) ; see also Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1039 (D.C.Cir.1986) (a descrip- tive subtitle that was part of an act as written by Congress constitutes an indication of congressional intent) (unanimous opinion of Judges MacKinnon, Bork, and Scalia). 12a ence that Congress intended Title VII to protect United States citizens employed outside the United States. Although the legislative history of section 702 is not remarkably iiluminating, I have found nothing in the published records that contradicts my interpreta- tion of the provision’s extraterritorial language. Rather, it seems clear that section 702 is a “limited exemption” for employers and that “the intent of the [alien] exemption is to remove conflicts of law which might otherwise exist between the United States and a foreign nation in the employment of aliens outside the United States by an American enterprise.” Civil Rights: Hearings on H.R. 7152 Before the House Committee on the Judiciary, 88th Cong., Ist Sess. 2303 (1963) (testimony of Representative Roosevelt explaining provisions of H.R. 405, which was incor- porated into Title VII of H.R. 7152) (emphasis added).’ If Title VII was not intended to apply ex- 3 The context of this legislative history is explained in my panel dissent, 857 F.2d at 1032 n.26. Arguing that we may not “substitute legislative history for the language of the Act,” the panel majority dismissed this “snippet” of legislative history as insignificant. Jd. at 1018, 1020. Contrary to the majority’s characterization of my position, I am not attempt- ing to rely on legislative history to compensate for a lack of statutory language. As explained in this dissenting opinion, I believe the only reasonable interpretation of the plain language of section 702 is that Congress intended an extra- territorial scope for Title VII as between United States citi- zens and United States employers who are otherwise covered under the Act. In other words, an “exemption” must neces- sarily be an exemption from coverage that all individuals covered under section 703 would otherwise enjoy. The legis- lative history in this case simply serves to establish that Con- gress did not mistakenly or clumsily include language in the statute that is superfluous or nonsensical. 13a traterritorially, Congress would not have been con- cerned with conflicts of law “which might otherwise exist.” * Section 702 obviously reflects Congress’s concern that the extraterritorial coverage of aliens under Title VII would infringe the sovereignty of other nations, The administrative interpretation of Title VII also sup- ports its extraterritorial application. Intervenor-appellant, the Equal Employment Opportunity Commission (“EEOC”), the administrative agency charged by Congress with the re- sponsibility for interpreting and enforcing Title VII, has adopted the position that Title VII applies to American citi- zens employed by United States firms outside the United States. See, e.g., EEOC Dec. No. 85-16, 2 Empl.Prac.Guide (CCH) 6857, at 7070-75 (Sept. 16, 1985); Letter from William A. Carey, EEOC General Counsel, to Sen. Frank Church (Mar. 14, 1975), reprinted in Note, Civil Rights, Employment and the Multinational Corporations, 10 Cornell Int'l L.J. 87, 102-03 (1976) (“If Section 702 is to have any meaning at all, .. it is necessary to construe it as expressing a Congressional intent to extend the coverage of Title VII to include employment conditions of citizens in overseas op- erations of domestic corporations at the same time it excludes aliens of the domestic corporation from the operation of the statute.”’). Likewise, the Department of Justice has taken the position that the statute applies extraterritorially. In 1975 during legislative debates over a proposed prohibition on participa- tion in foreign boycotts requiring religion-based employment discrimination, then-Assistant Attorney General Antonin Scalia testified that Title VII already applied to the employ- ment of United States citizens by covered employers any- where in the world. See Discretionary Arab Pressure on U.S. Business: Hearings Before the Subcomm. on International Trade and Commerce of the House Comm. on International Relations, 94th Cong., Ist Sess. 88 (1975) (statement of Antonin Scalia, Assistant Attorney General), quoted in Note, Equal Employment Opportunity for Americans Abroad, 62 N.Y.U.L.Rev. 1288, 1291 (1987). l4a in that the United States would be imposing its laws on foreign nationals working outside the United States. The effect on foreign jurisdictional sovereignty is far less pronounced, and in some cases could be negligible, when extraterritorial application of Title VII is limited to cases involving United States citi- zens employed by “American enterprises.” This rela- tionship reflects an area where concerns for interna- tional sovereignty, comity, and conflicts of law con- cerns that explain the alien exemption provision—are outweighed by Congress’s commitment in Title VII _to protect the personal right of all individuals to equal employment opportunities. See Bourselan, 857 F.2d at 1028-30 (King., J., dissenting). An interpretation of section 702 that extends cover- age of Title VII to citizens employed by United States employers in other countries, while denying such cov- erage to aliens, is supported by the Supreme Court’s statutory analysis in Foley Bros., where the Court in- terpreted another federal statute, the Eight Hour Law, to provide only domestic coverage. 336 U.S. at 285, 69 S.Ct. at 577. The majority cites Foley Bros. as a “closely analogous” case to illustrate the pre- sumption against extraterritorial application of a federal statute. A more careful analysis of Foley Congress explained that Title VII was necessary: to remove obstructions to the free flow of interstate and foreign commerce and to insure the complete and full enjoyment by all persons of the rights, privileges, and immunities secured and protected by the Constitution. House Report on Civil Rights Act of 1964, H.R. Rep. No. 914, 88th Cong., Ist Sess., reprinted in 1964 U.S.Code Cong. & Ad. News 2391, 2402. *I disagree that a statute such as the Eight Hour Law is “closely analogous” to Title VII. Labor laws regulating eco- 15a Bros. indicates, however, that the Couit found in that case that the Eight Hour Law, as opposed to Title VII, contained no language that gave any indication of a congressional purpose to extend the law’s cover- age extraterritorially. The Court relied heavily on the fact that the statute drew no distinction between citizens and aliens. An extraterritorial application, therefore, would necessarily involve foreign national laborers, thereby creating a risk that the United States would intrude upon an area of “local concern” to foreign nations.’ The Court explained: No distinction is drawn between laborers who are aliens and those who are citizens of the United nomic conditions of employment or labor-management rela- tions involve different legislative policies—more distinctly domestic policies—and create greater risks of insulting the sovereignty of a foreign nation than does a civil rights statute such as Title VII, which reflects the more universal concerns for individual rights and liberties. See generally Note, Title VII of the Civil Rights Act of 1964 and the Multinational Enterprise, 73 Geo. LJ. 1465, 1480-83 (1985); see also Dehner, Multinational Enterprise and Racial Non-Discrimina- tion: US. Enforcement of an International Human Right, 15 Harv.Int’l LJ. 71, 91-94, 100 (1974). The majority quotes the following language from Foley Bros.: “An intention so to regulate labor conditions which are the primary concern of a foreign country should not be attributed to Congress in the absence of a clearly expressed purpose.” 336 U.S. at 286, 69 S.Ct. at 578. In this quoted passage, the labor conditions of “primary concern” to foreign nations refers to the employment of aliens by United States enterprises abroad—the very concern eliminated by the alien exemption provision in Title VII. The Supreme Court does not imply in Foley Bros.—and it is disingenuous of the ma- jority to suggest—that the labor conditions of United States citizens employed abroad by United States corporations are “the primary concern of a foreign country.” 16a States. Unless we were to read such a distinetion into the statute we should be forced to conclude, under respondent’s reasoning, that Congress in- tended to regulate the working hours of a citizen of Iran who chanced to be employed on a public work of the United States in that foreign land. . . . The absence of any distinction between citizen and alien labor indicates to us that the statute was intended to apply only to those places. where the labor conditions of both citizen and alien employees are a probable concern of Con- gress. Such places do not include foreign coun- tries such as Iraq and Iran. Id. at 286, 69 S.Ct. at 578. By explicitly exempting aliens employed abroad from the scope of Title VII, Congress addressed the factor that the Supreme Court had identified as most likely to violate principles of foreign sovereignty in the extraterritorial application of United States labor laws. I find it compelling that Title VII’s alien ex- emption provision is derived from a fair employment bill that first appeared in April of 1949, H.R. 4453, 8lst Cong., Ist Sess., only a few weeks after the Supreme Court’s decision in Foley Bros., and that the purpose ascribed to the exemption by the House Com- mittee on Education and Labor some 14 years later tracks the rationale of the Foley Bros. decision. Civil Rights: Hearings on H.R. 7152 Before the House Committee on the Judiciary, 88th Cong., Ist Sess. 2303 (1963). Appeilee Aramco's broad assertion that no other United States labor law has been construed to apply abroad ignores the fact that no other laber law has contained a specific provision that addressed the con- cern raised in Foley Bros. Only Title VII provides 17a an exemption from extraterritorial application based on nationality. Moreover, in light of the 1984 amend- ment to the Age Discrimination in Employment Act,“ 29 U.S.C. § 621 et seg., (“ADEA”), it cannot be maintained that Congress has consistently declined to protect the rights of American workers employed abroad, or that such protection does not comport with federal policies. Title VII “Nuts and Bolts“ Although failing to point to any statutory provi- sions that would preclude extraterritorial application of Title VII, the majority argues that the “focus” and the “nuts and bolts” provisions of the Act are “inconsistent” with a congressional intent to provide ex.raterritorial coverage to United States citizens. " woking first to the domestic focus of Title VII, I agree with the majority that the Act and its legisla- tive history make several references to problems of employment discrimination within the United States and to state laws governing employment practices. Such references are not inconsistent with the exer- cise of extraterritorial jurisdiction based on nation- ality. The impetus for Congress to enact Title VII, as is true for most federal legislation, was to remedy a perceived domestic problem. Congress’s intent to apply the statute extraterritorially is a separate issue, and is clearly evidenced in the alien exemption provi- sion. In addition, as I noted in my panel dissent, the effects of employment discrimination suffered by United States citizens while employed in other coun- * See 29 U.S.C. 8630 (f) (“The term ‘employee’ includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.“). 2 18a tries by United States employers are sufficiently per- vasive to be felt in this country. Bowreslan, 857 F.2d at 1027. I also noted that Congress was not con- cerned solely with the domestic effects of discrimina- tion, but also with the image of the United States in the international community. Id. at 1027-28. The geographie references in Title VII that relate to the Commerce Clause apply to limit the scope of the term employer“ to those engaged in an industry affecting commerce as that term is defined in the statute. See 42 U.S.C. § 2000 e. However, this tra- ditional Commerce Clause language does not by it- self evidence an intent to restrict the geographic scope of the statute, but rather serves as a “nexus” requirement, providing a basis for Congress’s exer- cise of power under the Commerce Clause. When Congress amended the ADEA in 1984 to provide ex- plicitly for extraterritorial application, it did not al- ter the virtually identical Commerce Clause language found in that statute. See 29 U.S.C. § 630. Rather, it exempted foreign employers not controlled by United States employers. Thus, Congress clearly does not view the Commerce Clause language as a geo- graphic restriction on the scope of an employment discrimination statute. The majority also argues that Congress could not have intended Title VII to apply extraterritorially because Congress failed to exempt foreign employers that hire United States citizens. It is true that the amendments to the ADEA addressed this concern ® See Age Discrimination in Employment Act, 29 U.S.C. § 623 (80 (2) (“The prohibitions of this section shall not apply where the employer is a foreign person not controlled by an American employer.”). This provision was aparently added on the suggestion of the EEOC. See Age Discrimina- 19a and that an attempt to apply the statute to foreign corporations employing United States citizens abroad could offend the sovereignty of other nations. The legislative history explaining the alien exemption pro- vision of Title VII refers explicitly, however, to “an American enterprise.” It follows that Congress in- tended Title VII to apply extraterritorially only to American employers. However, even if the Com- merce Clause language to which the majority re- fers, 29 U.S.C. § 2000e(b), is the only limitation on employers” subject to the statute’s extraterritorial application, Congress has elsewhere provided an equal or broader jurisdictional grant in a statute and left to the courts the task of applying Commerce Clause analysis and principles of international law to de- termine whether there is an adequate basis for the exercise of jurisdiction over the acts of a particular defendant occurring outside the territory of the United States. See, e.g., American Rice, Inc. v. Ar- kansas Rice Growers Cooperatives Ass’n, 701 F.2d 408 (5th Cir.1983) (Lanham Act); Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 ( — (Sherman Act).“ majority next points to Title VII enforceme provisions relating to state law conflicts, see 42 USC. tion and Overseas Americans, 1983: Heari . : earing Before th Subcomm. on Aging of the Senate Comm. on * Hw. man Resources, 98th Cong., Ist Sess. 5 (1983). In most cases, a court would probably 8 —— —— poautes os onan decline to exercise jurisdiction, based on the same principles of international law discussed in my panel dissent. See Boureslan, 857 F.2d at 1025-31. The only question before — 0 Gand Gane a co N ˖ 1 N citizen employed abroad by an * _ ~~; > ° rr 9 ‘> wr. 4 $§ 2000e-5(c), (d), (e), arguing that “[i]f Congress had intended the Act to apply in foreign n re we would expect Congress to have even more careful to address conflic:s with foreign discrimina- tion laws.” Looking again to the amended ADEA, which contains a similar federal-state relationship clause, 29 U.S.C. § 633, I note that Congress saw no need to add a provision addressing conflicts with over- extraterritorial scope. Congress did, however, amend the ADEA’s “BFOQ” provision, specifying that ac- tions otherwise prohibited under the Act shall not be unlawful if compliance with the ADEA’s provisions “would cause such employer, or a corporation con- trolled by such employer, to violate the laws of the country in which such workplace is located.” 29 U.S.C. § 623(f)(1). This circuit has already inter- preted the BFOQ provision of Title VII in this fash- ion. Kern v. Dynalectron Corp., 577 F.Supp. 1196 (N.D. Tex. 1983) (assuming without addressing the extraterritorial coverage of Title VII), aff'd on basis of district court opinion, 746 F.2d 810 (5th Cir. 1984)." 2 majority finds it curious that Congress made no special provisions in Title VII either for the venue of cases arising from extraterritorial violations or for the investigatory powers of the Equal Employment 1! In Kern. a United States helicopter company required all its pilots who flew from Jeddah to Mecca, Saudi Arabia, to be Moslem. The defendant company argued that religion was a bona fide occupational qualification because Saudi law prohibited non-Moslems from entering the holy area of Mecca under penalty of death. We affirmed the district court’s find- ing that the employer had not violated Title VIL — — 21a Oppportunity Commission (“EEOC”) in such cases. First, Title VII provides for venue not only in the district in which the violation was committed, but also in either the district where relevant employment records are administered, or the district where the aggrieved employee would have worked but for the unlawful employment practice. 42 U.S.C. § 2000e- 5(f)(3). Venue in one of the latter two districts would usually be available in the situation—cer- tainly not uncommon—involving the temporary for- eign assignment of an employee advancing on the corporate track of an American multinational corpo- ration. In addition, Title VII provides that if an employer is not “found” within any of the first three specified districts, venue is proper “in the judicial district in which the respondent has his principal office.” Id. An American enterprise will generally have a principal office in the United States.” Second, the geographical limitations on the EEOC’s investigative powers—in both the original Act and in the 1972 amendments—apply only to the EEOC’s power to compel compliance with administrative pro- cedures. See 42 U.S.C. S 2000e-9 (incorporating 29 U.S.C. § 161, which allgyws the EEOC to compel the appearance of witnesses and the production of docu- ments from anywhere within the United States or its territories). There is nothing in Title VII that precludes the EEOC from attempting to obtain the employer’s voluntary cooperation in investigation and 12 It is not necessary for purposes of this appeal to de- lineate the circumstances under which an American parent corporation will exercise sufficient control over its foreign subsidiary so that the enterprise will constitute an American employer. 22a conciliation efforts.“ It would be unreasonable [sic *] for Congress to conclude that United States citizens are entitled to the protections of Title VII abroad, but to decline to authorize the EEOC to expend the time or resources necessary to compel compliance with an investigation of a case in which documents and wit- nesses are located in other countries. Furthermore, American enterprises likely maintain records in their home offices as well as abroad, or exercise sufficient control over their foreign operations to request the production of witnesses and documents through in- ternal channels. Thus, the EEOC clearly has the power to subpoena the home office for evidence nec- essary to an investigation. The majority finally cites the ADEA as a good example for the proposition that Congress knows how to give extraterritorial effect to a statute when it de- sires to do so. What the majority fails to mention is that at the time Congress amended the ADEA, courts had consistently held that the ADEA did not apply extraterritorially. See e.g., Cleary v. United States Lines, Inc., 728 F.2d 607 (3d Cir. 1984); Zahourek v. Arthur Young & Co., 567 F.Supp. 1453 (D.Colo.1983), aff'd, 750 F.2d 827 (10th Cir.1984). These cases had distinguished the ADEA from Title VII because the ADEA incorporates the geographic % The ADEA, unlike Title VII, incorporates the enforce- ment provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Under the relevant provision in the ADEA, the EEOC’s enforcement powers extend only to cooperation with state agencies and voluntary conciliation attempts. See 29 U.S.C. § 626. Congress left the EEOC enforcement provi- sions of the ADEA unchanged when it explicitly provided for extraterritorial application of the ADEA in 1984. *In the slip opinion, the word used was “reasonable.” Based upon the context, we believe “reasonable” was intended. 23a restrictions of the Fair Labor Standards Act,“ which Title VII does not, and contains no alien exemption clause such as is found in section 702 of Title VII. See Cleary, 728 F.2d at 609; Zahourek, 567 F.Supp. at 1456; see also Pfeiffer v. Wm. Wrigley Jr., Co., 755 F.2d 554, 559 (7th Cir.1985). Every court pre- viously faced with the issue of Title VII’s scope either had concluded that the alien exemption provision evi- denced an intent to apply the Act extraterritorially, or had simply assumed jurisdiction without discus- sion. See Bryant v. International Schools Serv., Inc., 502 F.Supp. 472 (D.N.J.1980), rev’d on other grounds, 675 F.2d 652, 577 n. 23 (3d Cir.1982) ; Seville v. Martin Marietta Corp., 638 F.Supp. 590 (D.Md.1986) (adopting Bryant’s reasoning); Love v. Pullman Co., 13 Fair Empl.Prac.Cas. (BNA) 423, 426 n. 4 (D.Colo.1976), aff'd on other grounds, 569 F.2d 1074 (10th Cir.1978). In amending the ADEA, Congress also had before it the testimony of the EEOC that Title VII applied abroad. See Age Discrimination and Overseas Amer- icans, 1983: Hearing Before the Subcomm. on Aging of the Senate Comm. on Labor and Human Resources, 98th Cong., Ist Sess. 3 (1983). Senator Charles Grassley, Chairman of the Subcommittee on Aging of the Committee on Labor and Human Resources, and sponsor of the bill extending the ADEA to citi- zens employed abroad, stated when he introduced the ADEA amendment that legislation was necessary to correct the unintended “anomaly” of applying the ADEA only domestically, while Title VII was ap- Section 626(b) of the ADEA incorporates 29 U.S.C. § 213(f) of the Fair Labor Standards Act, which excludes “any employee whose services during the workweek are per- formed in a workplace within a foreign country.” 24a plied both home and abroad. 129 Cong.Rec. $17,018 (daily ed. Nev. 18, 1983). Thus, there is every in- dication that when Congress amended the ADEA in 1984, it intended simply to make the scope of the Act coextensive with that of Title VII.“ It would other- wise seem anomalous that Congress would desire the elimination of extraterritorial workplace discrimina- tion based only on an employee’s age, and not on an employee’s race, color, religion, sex, or national origin —categories that have traditionally enjoyed height- ened constitutional scrutiny and great legislative con- cern as impediments to equal opportunities. International Law In his panel majority opinion, Judge Davis rejects the evidence of congressional intent to apply Title VII extraterritorially as inadequate, referring to pol- icy considerations—including religious and cultural differences with other nations—that purportedly mili- tate against such an application of the statute. See Boureslan, 857 F.2d at 1020. Unless, however, the conflicts of law to which the majority refers rise to the level of a violation of international law, they are not a sufficient basis on which to reject categorically the clear evidence of congressional intent existing in this case. As I explained in my panel dissent, extraterritorial application of Title VII would not violate interna- tional law. See id. at 1024-31. I will not here repeat 15 See also the report of the Committee on Labor and Human Resources, which describes the amendment of the ADEA to provide for extraterritorial coverage of United States citi- zens as a “minor change[]” in the Act. S.Rep. No. 98-467, 98th Cong., 2d Sess. 2 (1984), reprinted in 1984 U.S.Code Cong. & Ad.News 2974, 2975. — — — 25a that lengthy discussion. Briefly, applying the test set forth in section 403 of the Restatement (Third) of Foreign Relations Law, it clearly is not unreasonable for the United States to require that American com- panies comply with Title VII in their employment of United States citizens in other countries: The United States has a strong and legitimate interest in protect- ing citizens employed abroad by American corpora- tions from discrimination in employment; Title VII is consistent with the norms of the international com- munity, which has adopted numerous accords con- demning discrimination, including discrimination in employment; American citizens have a legitimate ex- pectation that they will not lose the protection of Title VII when they accept a position with the for- eign office of an American enterprise; and the poten- tial for conflicts with foreign law are minimized by the fact that the statute applies only to United States nationals and by the BFOQ defense that has been in- terpreted in an opinion endorsed by this court to exempt an employer from liability where a violation of Title VII is compelled by foreign law. See Kern, 577 F.Supp. at 1201. This is not to say that the exercise of extraterri- torial jurisdiction under Title VII would be appropri- ate in every case. However, the fact that we can hypothesize situations in which a conflict would arise does not mean that the statute must be construed so that it never applies abroad. “Because Congress can neither anticipate nor resolve all conflicts with foreign jurisdiction,” it necessarily relies upon the judiciary to minimize conflicts of jurisdiction by ex- ercising a jurisdictional rule of reason in individual eases. Laker Airways, 731 F.2d at 952 n. 169. The Restatement does not purport to eliminate concur- 26a rent jurisdiction. Rather, it recognizes that two or more states may exercise jurisdiction over the same activities or individuals when the exercise of juris- diction by each state is reasonable. The Restatement provides mechanisms for courts to moderate the exer- cise of jurisdiction when conflicts do arise. This is a process that most courts of appeals, including this one, have employed in other cases involving extrater- ritorial application of United States law. See, e. g., American Rice, 701 F.2d at 414. The concern voiced by the majority—that extrater- ritorial application of Title VII will create conflicts of law—is, thus, adequately addressed by the provi- sions of the statute itself and by the same principles of international law that have traditionally allowed United States courts to moderate their exercise of extraterritorial jurisdiction in the case of actual con- flicts of law. Conclusion In enacting Title VII of the Civil Rights Act of 1964, Congress expressed its determination that all Americans are entitled to be free of the intolerable barrier of discrimination in employment based on race, color, religion, sex or national origin. Under the majority’s holding, however, Congress’s commitment represents merely an empty promise to the thousands of American women and minorities employed in other countries by American multinational firms. Such in- dividuals face the dilemma of accepting an assign- ment abroad, often considered to be a lucrative op- portunity and, in many such multinational enter- prises, a prerequisite for career advancement at home, only at the cost of relinquishing the protec- tions and remedies of Title VII upon crossing the territorial horders of the United States. Employment 27a discrimination by American employers against Amer- ican citizens—wherever practiced—has devastating effects both on the economy of this country and on the dignity and livelihoods of Americans who have come to rely over the past quarter of a century on achieve- ments made possible, in part, by civil rights legisla- tion. The salutary goals of Title VII cannot be fully realized if the fortuitous location of an American employee at the overseas office of an American firm could mean the difference between equal opportunity and discrimination at will. Congress certainly recognized the potential for abuse represented by American multinational con- cerns when it enacted Title VII, which must explain its inclusion of section 702 of the Act, the alien ex- emption clause. Balancing the broad remedial goals of this civil rights statute against the potential con- flicts that would arise in attempting to regulate the employment of aliens outside the United States, Con- gress followed the reasoning of the Supreme Court in Foley Bros. and drew an extraterritorial line based on nationality. There is no justification for disregarding the clear evidence of congressional intent to apply Title VII to United States citizens employed in other countries by American enterprises. Congress made the judg- ment in 1964 in Title VII, just as it did again in 1984 in the ADEA amendments, that American na- tionals employed by United States employers are en- titled to the same protection from employment dis- crimination abroad as they enjoy at home. If we are not to substitute our policy judgments for those of Congress, we must give effect to Congress’s intent to apply Title VII extraterritorially. I respectfully dis- sent from the majority’s refusal to do so. 28a APPENDIX B UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 87-2206 ALI BOURESLAN, PLAINTIFF-APPELLANT, V. ARAM CO, ARABIAN AMERICAN OIL COMPANY and ARAMCO SERVICE COMPANY, DEFENDANTS-APPELLEES. Oct. 17, 1988 Before KING* and DAVIS, Circuit Judges, and PARKER.“ District Judge. W. EUGENE DAVIS, Circuit Judge: Plaintiff, a naturalized citizen of the United States, brought an employment discrimination suit—predi- cated upon Title VII and state law causes of action —against his employer, a United States corporation whose principal place of business is in Saudi Arabia. In his suit, plaintiff charged that while he was work- ing in Saudi Arabia, his employer discriminated against him on the basis of his race, religion, and national origin. The employer contested plaintiff's claims of discrimination and, in addition, moved the * Formerly Judge Randall. ** District Judge of the Eastern District of Texas, sitting by designation. district court to dismiss the entire action. The em- ployer argued that the reach of Title VII does not extend to United States citizens employed abroad by United States employers and, therefore, that the dis- trict court lacked subject matter jurisdiction over plaintiff's claim. The district court agreed, granted the employer’s motion, and dismissed plaintiff’s suit. On appeal, plaintiff—joined by the Equal Employ- ment Opportunity Commission as amicus curiae— urges us to conclude, that Congress intended Title VII to apply extraterritorially to protect United States citizens employed by United States employers. We find, however, that the rules of statutory con- struction which control our review of Title VII do not permit the conclusion plaintiff urges—we cannot say that Congress, through either the language of Title VII or its legislative history, clearly expressed its inteat that Title VII be applied extraterritorially. Therefore, we conclude that Title VII does not offer plaintiff an available remedy for his claimed discrim- ination and affirm the district court. I. This appeal presents a single issue: Does Title VII regulate the employment practices of businesses which, although incorporated in the United States, employ citizens of the United States in foreign coun- tries? The question reaches us as a result of the employment relationship between Ali Boureslan, Arabian American Oil Company (Aramco), and Aramco Services Company (ASC). In 1979, Boures- lan—a naturalized United States citizen who was born in Lebanon—went to work as an engineer for ASC in Houston, Texas. ASC is a Delaware corpora- tion with its principal place of business in Houston; ASC is a subsidiary of Aramco, licensed to do busi- ness in Texas, with its principal place of business in Dhahran, Saudi Arabia. In November 1980, Boures- lan requested a transfer to Aramco. Because Aramco explores, produces, and refines oil and gas exclusively within the Kingdom of Saudi Arabia, Boureslan’s transfer from ASC to Aramco also meant a transfer from the United States to Saudi Arabia. Shortly after beginning work in Saudi Arabia, Boureslan began having altercations with his super- visor. According to Bourleslan, the altercations were the result of a “campaign of harassment” which the supervisor initiated—a campaign which took the form of racial, religious, and ethnic slurs and which cul- minated in Boureslan’s termination on June 16, 1984. After he was fired, Boureslan first filed charges against Aramco with the Equal Employment Oppor- tunity Commission (EEOC) in the United States and, later, instituted this suit against both Aramco and ASC in the United States District Court for the Southern District of Texas. In each case, the focus of Boureslan’s attack was the discriminatwry treat- ment which he allegedly received while in Saudi Arabia from his Aramco supervisor. In his lawsuit, Bourleslan sought relief under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and state law. In response to the lawsuit, both Aramco and ASC filed answers denying liability and separately filed motions to dismiss for lack of subject matter jurisdiction. ASC stressed two reasons why Boureslan’s claims against ASC should be dismissed. First, ASC argued that, at most, only Aramco could be liable to Boureslan since, according to ASC, Boureslan’s transfer from ASC to Aran terminated the employment relationship between ASC and 31a Boureslan. Second, ASC argued that Boureslan failed properly to exhaust his administrative remedies un- der Title VII with respect to ASC because Boureslan named only Aramco in the one grievance he filed with the EEOC. While ASC’s grounds for dismissal challenged only the propriety of its own inclusion in Boureslan’s law- suit, Aramco’s motion to dismiss raised a more sweep- ing challenge—a challenge which, if true, required a dismissal of the lawsuit against both Aramco and ASC. Aramco argued that the protections of Title VII do not extend extraterritorially and, consequently, that Title VII offers no protection to Boureslan for acts of discrimination which occurred in Saudia Ara- bia. Boureslan contested this interpretation, and ar- gued that the clear and express terms of Title VII demonstrate Congress’ intent to protect United States citizens from employment discrimination by American employers regardless of where the discrimination oc- curs. In an opinion dated January 27, 1987, the district court considered carefully the question of Title VII’s geographic reach. After examining Title VII's language and legislative history, Supreme Court cases on extraterritorial application of federal stat- utes, and other existing case law on the scope of Title VII, the district court concluded that Title VII does not afford extraterritorial protection. Bowreslan v. Aramco, 653 F.Supp. 629, 631 (S.D. Tex.1987). Consequently, the court dismissed Boureslan’s Title VII action against Aramco and ASC for lack of sub- ject matter jurisdiction; it also dismissed Boureslan’s state law claims for lack of pendent jurisdiction, and entered final judgment in favor of both defendants. On appeal, Boureslan asks us to find that Congress intended Title VII to be applied extraterritorially. II. A special set of rules of statutory interpretation are in place to assist us in determining whether Con- gress intended to give a statute application outside this country. We first examine those rules. In Foley Bros., Inc. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949), the Supreme Court considered whether a federal statute prohibiting workdays of longer than eight hours without over- time pay applied to a contract between the United States and a private contractor for work performed in a foreign country. Id. at 282, 69 S.Ct. at 576. As the Court saw it: The canon on construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the terri- torial jurisdiction of the United States, is a valid approach whereby unexpressed congressional in- tent may be ascertained. It is based on the as- sumption that Congress is primarily concerned with domestic conditions. We find nothing in the Act itself, as amended, nor in the legislative his- tory, which would lead to the belief that Con- gress entertained any intention other than the norma! one in this case. Id. at 285, 69 S.Ct. at 577 (citation omitted). See also McCulloch v. Sociedad Nacional de Mari- neros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677-78, 9 L.Ed.2d 547 (1963). This court has consistently applied the presumption against extraterritoriality. In United States v. Mitchell, 553 F.2d 996 (5th Cir.1977), we refused to read extraterritorial application into the Marine Mammal Protection Act. In ruling against extrater- congressional expression of intent to the contrary For example, in Pfeiffer v. Wm. Wrigley, Jr. Co., 755 F.2d 554 (7th Cir.1985), the Seventh Circuit considered the extraterritorial application of the ADEA. After finding that the statute did not speak directly to the issue of extraterritorial application, the court applied the presumption against extraterri- torial application, noting that It Ihe fear of outright collisions between domestic and foreign law—collisions both hard on the people caught in the cross-fire and a potential source of friction between the United States and foreign countries—lies behind the pre- sumption against extraterritorial application of fed- eral statutes.” Id. at 557. Likewise in Cleary v. United States Lines, Inc., 728 F.2d 607 (3d Cir. 1984), the Third Circuit rejected the application of the ADEA extraterritorially without “affirmative evi- dence of congressional intent.” See also Air Line Stewards and Stewardesses Ass'n Int'l v. Trans World Airlines, Inc., 273 F.2d 69, 70 (2d Cir.1959), cert. denied, 362 U.S. 988, 80 S.Ct. 1075, 4 L.Ed.2d 1021 (1960) (denying extraterritorial application of the Railway Labor Act (RLA)); Air Line Stewards and Stewardesses Ass'n Int'l v. Northwest Airlines, 34a . F.2d 170, 178 (8th Cir.), cert. denied, 361 64 — 80 S. Ct. 208, 4 L. Ed 2d 156 (1959) (deny- ing extraterritorial application of RLA); Air Line Dispatchers Ass'n v. National Mediation Bd., 189 F.2d 685, 690-91 (D.C.Cir.), cert. denied, 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641 (1951) (denying extraterritorial application of RLA); see generally Restatement (Second) of the Foreign Relations Law of the United States § 38 (1965). Against this backdrop, we examine the language and legisla tive history of Title VII to determine whether Congress intended the act to have extrater- ritorial application. III. A. Boureslan’s discrimination case is based upon § 703(a)(1) of Title VII which provides: It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge sex, or national origin. 42 U.S.C. §$2000e-2(a)(1). Extraterritorial application is not directly dressed in Title VII. Section 2000e(b) defines ployer” under the Act as including any “person i among the several States; or between a State and — place outside thereof.“ 42 U.S.C. § 2000e(g). Boureslan, however, relies on § 2000e-1 commonly referred to as the alien exemption provisior which provides that “[t]his title shall not apply to an em- ployer with respect to employment of aliens outside of any state.“ Boureslan argues that a negative in- ference” should be drawn from this language that Congress intended Title VII to cover United States citizens working abroad for United States employers. Boureslan argues that the alien exemption provision has no purpose if Title VII is not applied to protect citizens extraterritorially because in the absence of this provision neither citizens nor aliens would be pro- tected while working outside the country. Boureslan notes that one district court has accepted this argu- ment. Bryant v. International School Servs., 502 F. Supp. 472 (D.N.J.1980), rev’d on other grounds, 675 F. 2d 562 (3d Cir.1982). But the alien exemption provision does have a pur- pose even if we accept the district court’s conclusion 1 Eight years after the enactment of Title VII, Congress added the following language to extend protection of the Act to federal employees, and included the alien exemption lan- guage: All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military de partments ..., in executive agencies... in the United States Postal Service and the Postal Rate Commission, in those units of the government of the District of Co- lumbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shal] be made free from any discrimination based on race, color, religion, sex, or national origin. (emphasis added) 42 U.S.C. § 2000e-16(a). 36a that Title VII does not protect citizens abroad. First, no one disputes that the provision excludes coverage to aliens employed outside the states. Second, in Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 340, 38 L.Ed.2d 287 (1973), the Supreme Court attached another meaning to the provision's domestic scope. The Court concluded that the alien exemption provision reflects a congressional intent to provide Title VII coverage to aliens employed within . the United States. ‘Thus, we do not face a choice between attaching appellant’s negative inference to the alien exemption provision or stripping the provision of all purpose. If we decline to give the alien exemption provision the interpretation appellant seeks, the provision still is a meaningful and useful part of the Act. Appellant has not persuaded us that the provision’s language merits an interpretation against extraterritorial application of the Act. 3 Boureslan argues next that the legislative history of Title VII, when coupled with the statutory lan- guage, evidences a clear congressional intent to apply the Act extraterritorially. It is to the legislative his- tory, therefore, that we must now turn. B. Before considering the particular portions of the legislative history pointed to by Boureslan, it is im- portant that we define the role allocated to legislative history in statutory interpretation. Legislative his- tory is relegated to a secondary source behind the lan- guage of the statute in determining congressional in- tent: even in its secondary role legislative history must be used “cautiously.” United States v. Smith, 795 F.2d 841 (9th Cir.1986). Courts are not free to 37a substitute legislative history for the language of the Act and legislative history is not an adequate sub- stitute for congressional action. Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 97 S.Ct. 926, 5 L.Ed.2d 124 (1977) ; United States v. Devall, 704 F.2d 1513 (11th Cir. 1983); Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981), cert. denied, 459 U.S. 1200, 113 S.Ct. 1183, 75 L.Ed.2d 431 (1983). The Supreme Court has repeatedly stated that “‘[a]bsent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive.’” Escondido Mut. Water Co. v. La Jolla Indians, 466 U.S. 765, 772, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1984) (quoting North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). The EEOC in its amicus curiae brief points to three statements in the legislative history that, it ar- gues, supports its interpretation of the Act. First, the EEOC notes that in the House report that accom- panied the Act to the Senate floor, the passage of Title VII was declared necessary: [t]o remove obstructions to the free flow of inter- state commerce and to insure the complete and full enjoyment by all persons of the rights, privi- leges, and immunities secured and protected by the Constitution. House Report on Civil Rights Act of 1964, H.R.Rep. No. 914, 88th Cong., Ist Sess. (1963), reported in 1964 U.S.Cong. Code & Admin.News 2391, 2402. Second, EEOC stresses a comment by Representative William McCulloch, ranking minority member of the House Judiciary Committee, in which McCulloch stated that “[a] key purpose of the bill, then, is to secure to all Americans the equal protection of the laws of the United States and of the several states.” Id., reprinted in 1964 U.S. Cong. Code & Admin.News at 2488. EEOC also points out that the minority re- port states that [the rights of citizenship mean little if an individual is unable to gain the economic wherewithall to enjoy or properly use them.” Id. at 2516. The EEOC argues that these general policy | statements reflect a strong intent by Congress to com- bat employment discrimination on all fronts without any geographic limits. Thus, the EEOC asserts that the omission of any mention of extraterritorial appli- caton supports, rather than detracts, from their posi- tion.” These references to Title VII’s legislative history fall far short of the clear expression of congressional intent required to overcome the presumption against extraterritorial application. The statements, care- fully taken from a voluminous legislative history, are no more specific than the statutory language itself. To rely on such general policy statements would effec- tively adopt a presumption in favor of extraterritorial application. This is particularly true when the legis- 2In Espinoza, 414 U.S. at 94, 94 S.Ct. at 339, the Court noted that the EEOC’s interpretation of Title VII is generally entitled to deference. However, such interpretations are not controlling on the courts. Because this is a jurisdictional issue with little or no statutory language or legislative history, and one in which the EEOC has developed no particular ex- pertise, we give the EEOC’s interpretation less deference than usual. This is particularly appropriate given the traditional presumption against extraterritoriality. See General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 410-11, 50 L.Ed.2d 343 (1976) ; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 I. Ed. 124 (1944). 39a lative history contains numerous statements that ar- guably favor geographic limits for Title VII. For example, the Act’s language and legislative history make repeated references to the “United States,” “states,” and procedures relating to state proceedings without parallel references to foreign countries. 42 U.S.C. 2000e(i) defines “state” to in- clude the states and other areas under United States jurisdiction, with no reference to foreign countries. References in the legislative history highlight con- cerns about employment discrimination problems in the states, Senator Hubert Humphrey, 110 Cong. Rec. 6550 (1964); the effect of Title VII on southern states versus other states, Senator Richard Russell, 110 Cong.Rec. 14301 (1964); and deferral to state employment laws, Congressman Emanuel Celler, 110 Cong. Rec. 1521 (1964). Moreover, Congress deleted reference to “foreign commerce” and “foreign nations” from earlier House versions of Title VII.* While these references and de- letions are not conclusive legislative support, they are certainly as persuasive as policy statements in the legislative history offered by the EEOC. EEOC also points to a reference in the alien exemp- tion provision contained in a house report rendered in connection with H.R. 405, a concurrent attempt to fashion equal employment legislation during the 88th Congress’ first session in 1963. This report was placed in the record in the hearings for H.R. 7152, These deletions are reflected in an annotated copy of the House bill that Senator Dirksen inserted into the Congres- sional Record on June 5, 1964, an anticipation of debate on the Senate’s substitute bill. Senator Everett Dirksen, 110 Cong.Rec. 12811-817 (1964). 40a which ultimately became the Civil Rights Act of 1963. The report stated, conflicts of law which might otherwise exist be- tween the United States and a foreign nation in the employment of aliens outside the United States by an American enterprise. the Judiciary, 88th Cong., Ist Sess. 2303 (1963). EEOC urges us to interpret this language to reflect an intent that, but for the alien exemption provision, Title VII protects all persons employed overseas by EEOC still must argue a negative inference. That is, EEOC argues that Congress spoke by not speaking. This silence will not reverse the presumption that this legislation applies only to employees employed in the United States.* The colloborative [sic] nature of the way in which H.R. 405 found its way into H.R. 7152 further dilutes the report’s impact. The General Subcommittee on Labor voted on June 20, 1968, to report H.R. 405 to the full Committee on Education 4la Finally, Boureslan and the EEOC advance a num- ber of policy arguments in favor of the extraterri- torial application of Title VII. These arguments go to the inequity of denying Americans employed abroad protections to which they are entitled in the United States. Although these arguments have obvious ap- peal, we cannot ignore strong countervailing policy arguments against the application of Title VII abroad. The religious and social customs practiced in many countries are wholly at odds with those of this coun- try. Requiring American employers to comply with Title VII in such a country could well leave Ameri- can corporations the difficult choice of either refusing to employ United States citizens in the country or dis- continuing business. Given the serious, potentially devisive [sic] policy considerations for and against application of the Act outside the country, the pau- city of reference to such an application either in the Act itself or the debates in Congress is a compelling argument that Congress did not turn its attention to this possibility. It is not for this court to decide this policy issue for the legislative branch. While the judicial function in construing legisla- tion is not a mechanical process from which judg- ment is excluded, it is nevertheless very different from the legislative function. Construction is not and sending it to the full House. 42a and must avoid “that retrospective ex- pansion of meaning which deserves the stigma of judicial ” To blur the dis- tinctive functions of the legislative and the ju- dicial processes is not conductive to responsible legislation. Addison v. Holly Hill Fruit Prods. Co., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488 (1944) (cita- tion omitted). IV. The presumption against extraterritorial applica- tion establishes a high hurdle for appellant’s argu- ments to overcome. Neither the statute’s bare lan- guage nor the sparce [sic] indirect language on the subject in the legislative history persuade us that he has cleared this hurdle. AFFIRMED. KING, Circuit Judge, dissenting: Today, in the first circuit court opinion to consider expressly the extraterritorial application of Title VII.“ the majority holds that Title VII affords no protection Every district court that has considered the question has held that Title VII does apply extraterritorially. Bryant v. International Schools Services, Inc., 502 F Supp. 472 (D. NJ. 1980), rev'd on other grounds, 675 F.2d 562, 577 n. 23 (3d Cir.1982) (declining to reach question of Title VII's extra- territorial application) ; Seville v. Martin Marietta Corp., 638 F.Supp. 590 (D.Md.1986) (adopting Bryant's reasoning) ; Love v. Pullman, 13 Fair Empl.Prac.Cas. (BNA) 423, 426 n. 4 (D.Colo.1976), aff'd on other grounds, 569 F.2d 1074 (10th Cir.1978) ; see also Kern r. Dynaelectron, 577 F Supp. 1196 (N.D.Tex.1983) (applying Title VII extraterritorially without expressly considering threshold jurisdictional issue), aff'd mem, 746 F.2d 810 (5th Cir.1984). of Title VII reveals that Congress did not intend the protections of Title VII to be so restricted, and be- cause the extraterritorial application of Title VII to U.S. nationals would not violate principles of inter- national law, I must respectfully dissent from the majority’s holding. J. The Presumption Against Extraterritoriality It is undisputed that Congress had the power to extend Title VII's protections extraterritorially. See Steele v. Bulova Watch Co., 344 U.S. 280, 282-83, 73 S.Ct. 252, 253-54, 97 L.Ed. 319 (1952); Foley Bros. v. Filardo, 336 U.S. 281, 284, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949); United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir.1977). Nationality is an accepted basis for the exercise of jurisdiction. Thus, a state may prescribe law relating to the conduct of its nationals, even when that conduct occurs outside of the state’s territory. See Steele, 344 U.S. at 285- 86, 73 S.Ct. at 255-56; Blackmer v. United States, 284 U.S. 421, 436-37, 52 S.Ct. 252 254-55, 76 L.Ed. 375 (1932); Mitchell, 553 F.2d at 1001; Laker Air- ways v. Sabena, Belgian World Airlines, 731 F.2d 909, 922 (D.C. Cir. 1984); Restatement (Third) of the Foreign Relations Law of the United States § 402 (1987) [hereinafter Restatement]. The only ques- tion in this case is whether Congress exercised that power. The majority correctly notes tha. because jurisdic- tion to prescribe is ordinarily exercised on the basis 44a of territory rather than nationality,’ there is a pre- sumption that Congress intends legislation to apply only within the territorial jurisdiction of the United States, unless a contrary intent appears. Steele, 344 U.S. at 285, 73 S.Ct. at 255; Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577-78; Blackmer, 284 U.S. at 437, 52 S.Ct. at 254-55; Mitchell, 553 F.2d at 1002. The majority goes astray, however, in its determina- tion of what constitutes an expression of “contrary intent” sufficient to overcome the presumption. As will be demonstrated more fully below, this is not a case in which the claim of extraterritorial juris- diction is based solely on the broad jurisdictional lan- guage of the statute. Rather, the conclusion that Title VII was intended to apply to U.S. citizens employed abroad by U.S. corporations is compelled by canons of statutory construction and is further supported by legislative history. In rejecting these traditional methods of statutory interpretation as inadequate, the majority implies that nothing short of an explicit statement by Congress will overcome the presumption. The classic formulation of the presumption, how- ever, does not impose such a stringent standard: “The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States . is a valid approach whereby unexpressed intent may be ascertained.” Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577 (em- phasis added) (citation omitted); Natural Resources Territory and nationality are the two universally recog- nized bases for a state’s exercise of jurisdiction to prescribe law. Restatement § 402 comment a (also noting that these links may not be sufficient in all cases). Territoriality, how- ever, “is considered the normal, and nationality an exceptional, basis for the exercise of jurisdiction.” Id. comment b. 45a Defense Council v. Nuclear Regulatory Comm'n, 647 F.2d 1345, 1357 n. 54 (D.C.Cir.1981). The most established method of ascertaining unexpressed con- gressional intent is to apply principles of statutory construction, and to refer to the legislative history of the act. See N. Singer, 2A Sutherland Statutory Con- struction §§ 45.12, 48.06 (1984). Nothing in this formulation indicates that a “contrary intent” suffi- cient to overcome the presumption against extraterri- toriality may not be determined according to these ordinary methods. Even if we add the adjective “clear” to our formu- lation of the presumption, Mitchell, 553 F.2d at 1002.“ “clear” does not mean “express,” and there is no reason why a “clear” intent to apply a statute extra- territoriaily may not be determined with reference to the rules of statutory construction, informed by legis- lative history. At most, requiring a “clear” expres- sion of congressional intent may mean that the broad jurisdictional language of a statute is not sufficient in itself to support the exercise of extraterritorial juris- diction. See Mitchell, 553 F.2d at 1003-04. It should be noted, however, that the Supreme Court hes found such language sufficient to overcome the presumption.‘ Though Mitchell cites Steele and Foley Bros. as support for its formulation of the presumption, neither case requires that Congress’ expression of “contrary intent” be “clear.” 553 F.2d at 1002 (citing Steele, 344 U.S. at 285, 73 S.Ct. at 255, Foley Bros., 386 U.S. at 286, 69 S.Ct. 577-78). For the purposes of this case, however, I recognize that we are bound by Mitchell's interpretation of these cases. ‘In Foley Bros., the Supreme Court held that such language was not sufficient to support extraterritorial jurisdiction. 336 U.S. at 287, 69 S.Ct. at 578-79. However, in Steele, decided three years later, the Court found that the broad jurisdictional 46a The extremely strong showing of congressional in- tent which the majority requires is cleaily not com- pelled by the presumption itself. Rather, it appears that the majority has distorted the presumption in an effort to transform it into something it is not: a mechanism for evaluating potential conflicts of juris- diction." The majority concludes in effect that the policy implications of applying Title VII extraterri- torially are so serious that we must require a more explicit statement by Congress that it intended Title VII to apply so broadly. The majority’s conclusion might be appropriate if Congress was, as the majority claims, silent on this subject. But Congress was not silent on the subject. 47a Rather, we have evidence that Congress did consider the implications of applying Title VII extraterritori- ally: Congress included in the statute a provision ex- plicitly exempting aliens employed abroad by U.S. corporations in order to avoid conflicts of law. It follows logically that Congress believed that applica- tion of Title VII to U.S. citizens employed abroad by U.S. corporations would not present similar barriers to the exercise of extraterritorial jurisdiction." In concluding that the statute should not apply to U.S. citizens employed abroad, the majority has therefore done precisely what it cautions against: It has sub- stituted its own policy judgment for that of Congress. The majority's intuition is correct that the implica- tions of applying a statute extraterritorially may be such that the type of evidence presented in this case would not be sufficient to support the exercise of extra- territorial jurisdiction. For example, a greater show- ing of congressional intent would be required to sup- port an exercise of extraterritorial jurisdiction that would violate international law. A statute may not be construed to violate international law unless Con- gress has, by an affirmative expression of its intent, required that construction. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21- 22, $3 S.Ct. 671, 677-78, 9 L.Ed.2d 547 (1963) ; Wein- berger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1515- 16, 71 L.Ed.2d 715 (1982); see also Restatement § 114." This argument is advanced in more detail below. Although the majority cites McCulloch in its discussion of the presumption against extraterritortality, McCulloch did not turn on the issue of extraterritorial jurisdiction. Indeed, the presumption against extraterritoriality is not even men- tioned in the opinion. Rather, the Supreme Court in MeCwl- This principle is a facet of the separate presump- tion that Congress does not intend to violate interna- tional law. See Restatement § 115 comment a (“It is lech found that application of the National Labor Relations Act to protect foreign seamen, employed on vessels registered under a foreign flag, would violate | tion upon the presumption against extraterritoriality, but an application of the long-standing principle that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Id., quoting The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804)); eccord Restatement section 114; see alse Rossi, 456 U.S. at 32, 102 S.Ct. at 1515-16 (citing MeCwlloch for this proposition, and construing statute to avoid repudiation McCulloch, therefore, stands for the proposition for which it is ci : a statute may not be construed to vio late international law unless Congress has. by an affirmative expression of its intent, required that construction. 372 U.S. at 21-22, 8&3 S.Ct. at 677-78; Rossi, 456 U.S. at . 102 S.Ct. 3 F ——— eG ee 49a tend to violate international law is much greater than that required to overcome the presumption against extraterritoriality. While the two presumptions are in some respects parallel, they should not be conflated because not every exercise of extraterritorial jurisdic- tion violates international law. A separate, more stringent standard is properly reserved for cases in which the exercise of jurisdiction, extraterritorial or otherwise, would violate international law. By requiring a more explicit showing of congres- sional intent to apply Title VII extraterritorially— without discussing whether extraterritorial application of Title VII would violate international law—the ma- jority has implicitly conflated the two standards and has therefore defeated congressional intent without sufficient justification. While I agree with the majority that we must con- sider the foreign policy implications of construing a statute to apply extraterritorially, I do not believe that its approach to these issues is satisfactory. We should not defeat congressional intent to exercise ex- traterritorial jurisdiction without engaging in a more principled analysis of the implications of applying the statute extraterritorially. *In suggesting that we evaluate these concerns, I do not propose that we overstep our judicial role by intruding on the realm of international affairs which is properly the province of the legislative and executive branches. I propose simply that if the evidence of congressional intent to apply Title VII extraterritorially is sufficient to overcome the (properly ap- plied) presumption against extraterritoriality, we should give effect to that intent unless we are precluded by principles of international law from doing so. This undertaking is entirely consistent with our judicial role. See Restatement § 111(1)- (2) (International law is the law of the United States and within the judicial power of the United States.) 50a In order to evaluate the complex issues raised in this case, we need a finer set of analytic tools than those employed in the majority opinion. I therefore propose an alternative framework that will, I believe, provide a more satisfactory treatment of the issues in this case. The starting point for our analysis in this case should be section 403 of the Restatement which pro- vides that as a matter of international law “a state . may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such juris- diction is unreasonable.” 5 403 (1)). The factors enumerated in the Restatement provide a framework within which we can evaluate in a principled fashion the implications of applying Title VII extraterritori- ally.“ See American Rice, Inc. v. Arkansas Rice Grow- ers Cooperative Ass’n, 701 F.2d 408 (5th Cir.1983) (applying eiements similar to reasonableness test to determine whether exercise of extraterritorial juris- diction under Lanham Act was appropriate). Moreover, because section 403 is a principle of in- ternational law, a statute may not be construed to violate the principle absent an explicit, affirmative ex- The Supreme Court’s language in Steele suggests such a two-pronged inquiry: “the United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign coun- tries when the rights of other nations or their nationals are not infringed.” 344 U.S. at 286, 73 S.Ct. at 255-56. Thus, if the rights of other nations or their nationals are not in- fringed, an act of Congress may be given the full geographic scope that Congress intended. The reasonableness inquiry is a means by which we can determine whether foreign rights or interests would be infringed such that extraterritorial ap- plication of a statute would be inappropriate. 5la pression of congressional intent compelling that con- struction. See McCulloch, 372 U.S. at 21-22, 83 S.Ct. at 677-78; Rossi, 456 U.S. at 32, 102 S.Ct. at 1515- 16; Restatement § 403 comment g. Thus, a statute will not be applied extraterritorially where it would be unreasonable to do so, unless Congress has affirma- tively required that it be so applied. If extraterritorial application of Title VII would be unreasonable, the majority’s conclusion would be correct—because Con- gress has not affirmatively required that the statute be applied extraterritorially. If, however, extraterritorial application of the stat- ute would not be unreasonable, and therefore would not violate international law, the threshold level of congressional intent required to overcome the pre- sumption against extraterritoriality will be suffi- cient to support the exercise of extraterritorial juris- diction. As explained above, no express statement of Congress is required to overcome the presumption. See Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577-78. Rather, we may employ traditional methods of statu- tory interpretation to determine whether the language and legislative history of Title VII evidence a clear intent that the statute be applied extraterritorially. This analysis will insure that we accord proper respect both to the sovereignty of other nations and to Congress’ intent. II. The “Jurisdictional Rule of Reason.” The showing of congressional intent necessary to support an exercise of extraterritorial jurisdiction depends in the first instance on whether that exercise of jur [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0758%3A02. Public record. Not legal advice.