Opposition Brief — EEOC v. Arabian American Oil Co.

Nos. 89-1838 and 89-1845

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

ALI BOURESLAN and EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

2 Petitioners,

ARABIAN AMERICAN OIL COMPANY and

ARAMCO SERVICES COMPANY,

Respondents.

On Petitions for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

ARABIAN AMERICAN OIL COMPANY

AND ARAMCO SERVICES COMPANY

Of Counsel: PAUL L. FRIEDMAN

JOHN D. ROADY (Counsel of Record)

HUTCHESON & GRUNDY THOMAS J. O’SULLIVAN

3300 Citicorp Center ANNE D. SMITH

1200 Smith Street WHITE & CASE

Houston, Texas 77002 1747 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 872-0013

June 22, 1990 Attorneys for Respondents

WILSON - Eras Printing Co., Inc. - 789-0096 - WasHiIncTon, D.C. 20001

QUESTION PRESENTED

Did Congress intend to extend the provisions of Title

VII of the Civil Rights Act of 1964 to a U.S.-incorpo-

rated employer that employs citizens of the United States

exclusively in a foreign country?

(i)

QUESTION PRESENTED

F i i i ls all i Q _— =. —_ = 225

TABLE OF CONTENTS

TABLE OF AUTHORI TIE

PE —

STATUTORY PROVISIONS INVOLVED D

STATEMENT OF THE CASE oo... ecceececcceeeeeeees

REASONS FOR DENYING THE PETITION ............

I.

II.

III.

THERE IS NO CONFLICT AMONG THE CIR-

CUITS ON THE QUESTION WHETHER

CONGRESS INTENDED TITLE VII TO AP-

PLY EXTRATERRITORIALLY ....

THE FIFTH CIRCUIT’S DECISION PROP-

ERLY APPLIED, AND IS CONSISTENT

WITH, THIS COURT’S PRECEDENTS ............

A. The Requisite Clear Expression Of Affirma-

tive Intent Cannot Be Found In Title VII's

Definition Of Commerce ....

B. The Requisite Clear Expression of Affirma-

tive Intent Cannot Be Found In The Nega-

tive Inference From The Alien Exemption

Provision a

THE EXTRATERRITORIAL APPLICATION

OF TITLE VII IS A POLICY MATTER FOR

CONGRESS TO DECIDE

11

14

17

iv

TABLE OF AUTHORITIES

CASES Page

Akgun v. Boeing Co., No. C89-1819D (W. D. Wash.

June 7, 1990) 9

American Banana Co. v. United Fruit Co., 218

U.S. 347 (1909) ..... 12

Andrus v. Glover Constr. Co., 446 U.S. 608

(1980) 19

Argentine Republic v. Amerada Hess Shipping

Corp., 109 S. Ct. 683 (1989999999 6, 8, 18

Benz v. Compania Naviera Hidalgo, S. A., 358 U.S.

188 (1957) passim

Blackmer v. United States, 284 U.S. 421 (1932). 12

Bryant v. International Schools Servs., Inc., 502

F. Supp. 472 (D.N.J. 1980), rev’d, 675 F.2d 562

IL 8, 9, 21

Cleary v. United States Lines, Inc., 728 F. 2d 607

(8d Cir. 1984) 9

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) 17

Foley Bros. v. Filardo, 336 U.S. 281 (1949)........ 8, 4, 12

Lavrov v. NCR Corp., 600 F. Supp. 923 (S.D.

ü» 0 ee 9

Love v. Pullman Co., 13 Fair Emp. Prac. Cas.

(BNA) 423 (D. Colo. 1976), aff’d, 569 F.2d 1074

et 8, 9, 21

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963) passim

Sandberg v. McDonald, 248 U.S. 185 (1918)......8, 12, 18

Seville v. Martin Marietta Corp., 638 F. Supp. 590

(D. Md. 1986) ........................ 9

Steele v. Bulova Watch Co., 344 U.S. 280 (1952) .. 16

United States v. Bowman, 260 U.S. 94 (1922)... 12

Vermilya-Brown Co. v. Connell, 335 US. 377

n 18

STATUTES

Age Discrimination in Employment Act of 1967,

29 U.S.C. $§ 621-8688444 ccceeeeeeeee 19, 21, 23

e cccccccecccccccceccnececcassecsncceesenses 19, 21

A i 21

29 U.S.C. § 628 (h) (2) 19

v

TABLE OF AUTHORITIES—Continued

Page

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

2000e-17 passim

42 U.S.C. § 2000e(b) 14,17

42 U.S.C. § 20000 (gp ))) 18, 15, 17

42 U.S.C. 5 2000] (h⁵ ecneeenenneeeeneneee 14

42 U.S.C. f 2000e(i) ..................... 18

42 U.S.C. § 2000-1 Il 5, 13

42 U.S.C. § 2000e-2 17

Comprehensive Anti-Apartheid Act of 1986, 22

U.S.C. 66 5001-5117————— 19

22 U.S.C. § 5001 .......................... 19

Consumer Product Safety Act, 15 U.S. 0. 88 2051

D ..... — 16

15 U.S.C. § 2062 (a) (12) Err 16

Export Administration Act, 50 U.S.C. app.

T 19

50 U.S.C. app. § 2415 ()))) 19

Federal Food, Drug and Cosmetic Act, 21 U.S.C.

r 16

, .. 16

Labor Management Relations Act of 1947, 29

U.S.C. 88 141-144, 169-1877 7, 14

Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. §§ 401-531 14

29 U.S.C. § 402 (ed 14

Logan Act, 18 U.S.C. § 958 19

National Labor Relations Act, 29 U.S.C. §§ 151-

BR 7, 14

Noise Control Act of 1972, 42 U.S.C. §§ 4901-

KT 16

42 U.S.C. § 4902 (7) . * 16

Radiation Control for Health and Safety Act of

1968, 42 U.S.C. §§ 268-26) 16

42 U.S.C. § 263 (4) — a 16

Transportation Safety Act of 1974, 49 U.S.C.

D.. ö 16

49 U.S.C. § 1802 (17. 16

vi

TABLE OF AUTHORITIES—Continued

REGULATIONS Page

29 C. F. R. § 1606.1(c) (19700) U 10

45 Fed. Reg. 85,633 (1980) 10

TREATISES

Restatement (Third) of Foreign Relations Law

of the United States (1986)))))))))): 4, 5, 16

LEGISLATIVE MATERIALS

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. 165

„ 10

H. R. 406, 88th Cong, Ist Sess. (1963) 15

H. R. 7152, 88th Cong., Ist Sess. (1963) 15

Interpretive Memorandum on Title VII, 110 Cong.

Rec. 7212 (1964) 14

110 Cong. Rec. 12,811 (1964) 15

129 Cong. Rec. 34,499 (1983)))))))) cecccceeccccceeeeeeeee 21

MISCELLANEOUS

Appellee Aramco Court of Appeals Record Ex-

cerpts (No. 87-2200)0 v5ʒĩ0 22

Decision No. 85-16, Emp. Prac. Guide (CCH)

§ 6857 (1985) ....... 11

En Bane Brief of Amicus Rule of Law Committee,

Boureslan v. Aramco, 857 F.2d 1014 (5th Cir.

1990) (en bane) (No. 87-22060)))))): 22

Kirschner, Extraterritorial Application of Title

VII of the Civil Rights Act, 34 Labor L.J. 394

A 17

Policy Statement No. 88-15, EEOC Compl. Man.

(CCH) 9 2187 (1989) 11, 19, 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

Nos. 89-1838 and 89-1845

ALI BOURESLAN and EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

7 Petitioners,

ARABIAN AMERICAN OIL COMPANY and

ARAMCO SERVICES COMPANY,

Respondents.

On Petitions for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION FOR RESPONDENTS

ARABIAN AMERICAN OIL COMPANY

AND ARAMCO SERVICES COMPANY

ts Arabian American Oil Company (“Aram-

co”) and Aramco Services Company (“ASC”) respect-

fully request that this Court deny the petitions for a

writ of certiorari filed by the Equal Employment Oppor-

tunity Commission (“EEOC”) and Ali Salim Boureslan

(“Boureslan”) that seek review of the en banc decision

of the United States Court of Appeals for the Fifth

Circuit.“

1 The information required by Rule 29.1 of the Rules of this Court

is included in Appendix A.

F.2d 1271 (1990) (Pet. App. Ia-27a)

The panel decision is reported at 857 F.2d 1014 (1988)

(Pet. App. 28a-76a). The district court decision that

was affirmed by both the panel and the en banc court is

reported at 653 F. Supp. 629 (1987) (Pet. App. 77a-

82a).

STATUTORY PROVISIONS INVOLVED

The most relevant provisions of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and

of the Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621-634, are set out in Appendix B, 2a-6a.

STATEMENT OF THE CASE

Aramco was at all relevant times a Delaware corpora-

tion whose principal place of business and records were

5

5

8

naturalized American eiti-

national origin is Lebanese, whose race is

religion is Moslem. Boureslan was

employed as a cost engineer by ASC in Houston from

2“Pet. App.” refers to the Appendix to the Petition for Certiorari

filed by the Solicitor General on behalf of the EEOC.

* Aramco employed a multinational workforce, including Saudi

Arab and U.S. citizens as well as citizens of any other countries.

the creation in 1988 of the national oil company of

Saudi Arabia, the Saudi Arabian Oil Company (Saudi Aramco),

of

3

i

;

was transferred to Saudi Arabia to work for Aramco.

It is doubtful that Congress reserved the question of

Title VII’s application for the courts to decide. It is

much more likely that Congress never considered the

issue.

Pet. App. 81a. The district court also dismissed Boures-

lan’s state law claims.

4 Respondent ASC also moved to dismiss the complaint on two

additional grounds: (i) that Boureslan did not work for ASC at

the time of the alleged discrimination, and (ii) that, by failing to

assert claims against ASC in his EEOC charges, Boureslan failed

to exhaust his administrative remedies against ASC. Pet. App. 30a-

314. ASC maintains, contrary to Petitioner Boureslan’s assertion

(Boureslan Pet. 4), that the ASC motion was granted on these

grounds as well.

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peals for the ireuit affirmed the district court’s

decision. Following this Court’s reasoning in Foley, the

majority held that a statute should not be applied extra-

territorially absent a clear expression of intent by Con-

gress. The panel found that “[(e)xtraterritorial applica-

tion is not directly addressed in Title VII“ itself (Pet.

App. 34a), and that the EEOC had pointed to only three

general statements in the extensive legislative history

that the EEOC believed supported its argument that the

37a-38a.

statute applies outside the United States. Id. at

fall far short of the clear expression of congressional

intent required to ove: come the presumption against

extraterritorial application. To rely on such

general policy statements would effectively adopt a

presumption in favor of extraterritorial application.

Id. at 38a. Congress simply “did not turn its attention”

to the possibility of the extraterritorial application of

Title VII, and “[{i)t is not for this court to decide this

policy issue for the legislative branch.” Pet. App. 41a.

The dissenting opinion conceded that (t] erritoriality

is considered the normal, and natiorality an exceptional,

basis for the exercise of jurisdiction.” Pet. App. 44a

n.2, quoting Restatement (Third) of Foreign Relations

Law of the United States § 402 comment b (1986). The

dissent also acknowledged the presumption that Congress

intends legislation to apply only within the territorial

jurisdiction of the United States absent a contrary in-

tent. Id. at 43a-44a. Expressly eschewing reliance only

on “the broad jurisdictional language” of Title VII ( Pet.

App. 45a) now relied on by the EEOC (EEOC Pet. 8-9),

the dissent nevertheless purported to find the requisite

clear congressional] intent necessary to overcome the pre-

sumption by negative inference from the statute’s exemp-

tion of employers “with respect to the employment of

aliens outside any State” (42 U.S.C. § 2000e-1, the

“alien exemption provision”). Pet. App. 46a-47a, 74a.

Adopting an analytical framework concededly never ap-

plied by any court (Pet. App. 51a-52a & n.10), the dis-

sent analyzed the “reasonableness” of applying Title VII

extraterritorially [ blefore examining the language and

legislative history” of the Act. Id. at 5la-52a (emphasis

added). The dissent concluded that because extraterri-

torial application would “in general be reasonable” (Pet.

App. 67a), “we do not need to search for an affirmative

expression of congressional intent to apply Title VII

extraterritorially.” Jd. at 68a-69a (emphasis in origi-

nal).

On rehearing en banc, the court by a vote of 9-5 again

affirmed the district court’s dismissal of Boureslan’s com-

plaint. Pet. App. la-2a, 7a. The en banc majority stated

that respect for “the right of nations to regulate conduct

within their own borders” underlies the established pre-

sumption that statutes do not have extraterritorial ap-

The en banc court rejected the argument that a nega-

tive inference from the alien exemption provision was a

States, “ ”

parallel ens to foreign countries or procedures.

provision for actions involving foreign violations. Pet.

App. 5a. Furthermore, if Title VII applied extraterri-

torially, the plain language of the Act necessarily would

extend to foreign employers and impose Title VII “on a

foreign employer who had the grace to employ an Amer-

ican citizen in its own country”—a result the court was

reluctant to attribute to Congress. Id. at 6a.

Finally, the court noted that Congress knows how to

give extraterritorial effect to one of its statutes when

it desires to do so, citing Argentine Republic v. Amerada

Hess Shipping Corp., 109 S. Ct. 683, 691 (1989). Pet.

App. 6a. As illustrated by the language of a number of

statutes that do apply extraterritorially, Congress is

aware of “the need to make a clear statement of extra-

— — 2 —.

sions for enforeing those rights.“ Id. The court declined

to conclude that Congress had “balanced Title VII's im-

tween the lines.” Pet. App. 7a.

7

1. The petition should be denied because there is no

conflict among the circuits on the question whether Con-

gress intended Title VII to apply extraterritorially. Fur-

thermore, the absence of any conflict among the circuits

is not overcome either by the existence of a handful of

2. This Court has consistently held that legislation of

Congress is presumed to apply only within the territory

only by a clear and affirmative expression of contrary

intent. he Fifth Circuit properly concluded that such a

clear expression of congressional intent is not present in

the language and legislative history of Title VII.

The requisite clear expression of affirmative congres-

sional intent cannot be found in Title VII's definition of

“ecommerce.” The statutes on which Title VII's defini-

tional provisions were based—the Labor Management Re-

lations Act of 1947 and the National Labor Relations

Act—have been held by this Court not to have extra-

territorial application. Benz v. Compania Naviera Hi-

dalgo, S. A., 353 U.S. 138, 142, 147 (1957); McCulloch

v. Sociedad Nacional de Marineros de Honduras, 372 US.

10, 19 (1963).

Nor can the requisite clear expression of intent be

found in the negative inference from the alien exemp-

tion provision of Title VII. Such a negative inference is

not a reliable or proper source of congressional intent to

tion of a statute. See Sandberg v. McDonald, 248 US.

185, 195 (1918). Congress knows how to provide ex-

pressly for extraterritorial application when it wants a

statute to apply beyond the borders of the United States.

See Argentine Republic v. Amerada Hess Shipping Corp.,

109 S. Ct. 683, 691 (1989).

make such important policy decisions where “the possi-

bilities of international discord are so evident and retali-

ative action so certain.” Benz v. Compania Naviera

Hidalgo, S. A., 353 U.S. at 147. Congress has not ex-

pressed its intent that Title VII apply extraterritorially,

and the Fifth Circuit properly declined to make the

choices that are assigned to Congress.

I. THERE IS NO CONFLICT AMONG THE CIRCUITS

ON THE QUESTION WHETHER CONGRESS

INTENDED TITLE VII TO APPLY EXTRATERRI-

TORIALLY

The Fifth Circuit is the first and only court of ap-

peals to have decided the question of the extraterritorial

application of Title VII. Although the EEOC cites a

number of district court decisions for the proposition

that Title VII applies to employers abroad, the district

courts that have considered the question all rely on

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), whieh based its reasoning on dicta in a

footnote in Love v. Pullman Co., 18 Fair Emp. Prac.

Cas. (BNA) 423, 426 n.4 (D. Colo. 1976), aff'd on other

grounds, 569 F.2d 1074 (10th Cir. 1978). Not only was

cance of the district court decisions it cites by reference to

its own interpretation of Title VII in favor of extraterri-

torial application, going back “at least 15 years.” EEOC

* The third case cited by the EEOC is Seville v. Martin Marietta

Corp., 638 F. Supp. 590 (D. Md. 1986). While Seville and the recent

district court decision in Akgun v. Boeing Co., No. C89-1319D (W. D.

Wash. June 7, 1990), adopt Bryant’s negative inference rationale,

the district court v. NCR Corp., 600 F. Supp. 923 (S.D.

|

10

Pet. 14.“ During the 26 years since the passage of Title

VII, however, the EEOC’s own views on extraterritorial

application have been far from consistent. From 1964

until 1970, it was silent on the issue. In 1970, it issued

29 C. F. R. § 1606.1(c) (1970) (emphasis added). This

regulation was amended to delete the “domiciled or re-

siding” language in 1980, sixteen years after Congress

enacted Title VII, “to conform with coverage of Title

VII.“ 45 Fed. Reg. 85,633 (1980). Nothing was substi-

tuted for the deleted language, and today the regulation

remains silent on the geographic reach of the statute.

In 1985, the EEOC stated in a published decision that

Title VII “contains no [statutory] provision specifically

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addressing its territorial reach” and that the legislative

of Act is similarly silent on this issue.” De-

No. 85-16, Emp. Prac. Gui (CCH) § 6857

agency nevertheless concluded by negative

inf the alien exemption provision that Title

VII “ apply to covered employers with respect to their

employment of U.S. citizens outside the United States.”

not until September 1988, however, immedi-

ately before the panel decision in this case was rendered,

that the policy statement that

Title VII applied to employers of U.S. citizens in foreign

Policy Statement No. 88-15, EEOC Compl.

Man. ‘CCH) § 2187 (1989).

the General Counsel of the EEOC

to the Senate Foreign Relations Committee in sup-

port of the extraterritorial application of Title VII

Pet. 14), his statement was contrary to the

EEOC’s own regulation that was then in force. In fact,

24 years the EEOC never articulated any guidance

to how its assumed extraterritorial jurisdiction was

be exercised, and for at least ten of the last 20 years

agency’s own regulation was directly contrary to the

tion the EEOC now claims it has held consistently.

In contrast, the Fifth Circuit’s decision in this case is

first thoughtful judicial examination of the issue of

extraterritorial application of Title VII by any court

the decision by a court of appeals. The law on

has not been developed in any other circuit,

enough for this Court to deny review.

THE FIFTH CIRCUITS DECISION PROPERLY

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:

554 Brees

if

5

reflect the necessary clear expression of congressional in-

tent to apply Title VII extraterritorially is soundly based

12

on, and consistent with, this Court’s decisions concerning

the extraterritorial application of legislation. It there-

fore should not be subject to further review.

The panel and en banc majorities correctly started

with the established presumption that “the legislation of

the Congress, unless a contrary intent appears, is meant

to apply only within the territorial jurisdiction of the

United States. Foley Bros. v. Filardo, 336 U.S. 281,

285 (1949). Pet. App. 3a, 32a.“ Noting the fundamental

concept of sovereignty—“[t]he respect for the right of

nations to regulate conduct within their own borders“

that underlies this presumption, the court determined

that the suggestion of contrary congressional intent ad-

vanced by petitioners was insufficient to overcome the

presumption against extraterritorial application of Title

VII. Id. at 2a.

The EEOC concedes that when faced with the question

whether Congress intended extraterritorial application of

other statutes that regulate “the relationship between

employer and employee” (EEOC Pet. 11), this Court al-

ways has found that Congress must express its purpose

clearly and affirmatively. McCulloch v. Sociedad Nacional

de Marineros de Honduras, 372 U.S. 10, 21-22 (1963);

Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138,

147 (1957); F Bros. v. Filardo, 336 U.S. 281, 285

(1949). As this rt stated in Benz:

[S]uch a ‘sweeping provision’ as to foreign applica-

bility was not specified in the Act.... For us to

run interference in such a delicate field of interna-

tional relations there must be present the affirma-

tive intention of the Congress clearly expressed.

In applying this presumption, the Fifth Circuit followed a long

line of authority, including Blackmer v. United States, 284 U.S.

421, 437 (1932); United States v. Bowman, 260 U.S. 94, 98 (1922) ;

Sandberg v. McDonald, 248 U.S. 185, 195 (1918); and American

Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909).

13

353 U.S. at 146-147 (emphasis added). The identical

language was used again by this Court in McCulloch.

372 U.S. at 21-22. The EEOC attempts to avoid the clear

import of these decisions by arguing that while Title VII

admittedly regulates “the relationship between employer

and employee and thus operates in a field in which other

statutes have been held not to apply extraterritorially,”

it is a statute prohibiting discrimination and not just

one regulating employment. EEOC Pet. 11-12. This ar-

gument is unconvincing.’

Put in its most basic terms, the EEOC argues that the

presumption against extraterritorial application of U.S.

laws long recognized by this Court is overcome in this

case by two provisions in the language of Title VII: (1)

the statute’s definition of “commerce”, which includes the

phrase “or between a State and any vlace outside thereof,”

42 U.S.C. § 2000e(g), and (2) a negative inference from

the exemption of employers “with respect to the employ-

ment of aliens outside any State,” 42 U.S.C. § 2000e-1,

from which petitioners infer the coverage of U.S. citizens

employed outside of any state. EEOC Pet. 8-9. These

provisions, plus one sentence from one committee report

in the extensive legislative history of Title VII, are as-

serted to be a sufficient expression of congressional intent

The EEOC concedes that where the application of a statute

extraterritorially would violate international law, an even “more

stringent variant of the presumption” applies. EEOC Pet. 7 n.4.

It suggests, however, that the presumption should not be as strin-

gent here because the application of Title VII extraterritorially

“would not violate international law.” Jd. Leaving aside the doubt-

ful accuracy of this unsupported assertion, the prospects for strains

in international relations, infringements of sovereignty, conflicts

with foreign laws, cultures, values and religions, and the practical

problems involved are simply too great to extend Title VII to for-

eign workplaces in the absence of a specific and clear expression

of affirmative intent.

14

to overcome the presumption against extraterritorial ap-

plication of U.S. laws. Id. at 10-11.”

A. The Requisite Clear Expression Of Affirmative In-

tent Cannot Be Found In Title VII’s Definition Of

“Commerce”

Title VII defines “employer” as “a person engaged in

an industry affecting commerce,” 42 U.S.C. § 2000e(b),

and defines “an industry affecting commerce” by refer-

ence to the meaning of “affecting commerce” in the

Labor-Management Reporting and Disclosure Act of

1959, 29 U.S.C. § 402 (e). 42 U.S.C. §2000e(h). That

Act in turn defines “industry affecting commerce” as an

industry included under the Labor Management Relations

Act. This Court expressly has held that the Labor Man-

agement Relations Act does not have extraterritorial ap-

plication. Benz v. Compania Naviera Hidalgo, S.A., 353

U.S. at 142, 147.

The legislative history of Title VII also refers to the

National Labor Relations Act (“NLRA”), 29 U.S.C.

58 151-168. See Interpretive Memorandum on Title VII,

110 Cong. Rec. 7212 (1964) (“The term ‘affecting com-

merce’ is also familiar, since this is the standard of

coverage employed in the National Labor Relations Act

. . .). Yet even though the NLRA contained broad lan-

guage that clearly referred by its terms to foreign com-

merce, this Court refused to find a congressional intent

to apply the NLRA extraterritorially because there was

not “any specific language” in the Act reflecting congres-

sional intent to do so. McCulloch v. Sociedad Nacional de

Marineros de Honduras, 372 U.S. at 19.

10 The impact of this sentence, which referred to a House bill

that contained references to “foreign commerce” and “foreign

nations” that were later deleted (see infra p. 15), is diluted by the

indirect nature of the subcommittee’s role in developing the legisla-

tion that became Title VII. See Pet. App. 40a-4la n.4.

15

Significantly, Title VII as passed by the House of

Representatives originally contained specific language

that referred to “foreign commerce” and “foreign na-

tions.” The Senate deleted this language from the earlier

House version, and Congress passed the Senate version.“

These actions are wholly inconsistent with the notion of

a clearly expressed congressional intent to apply Title VII

extraterritorially. Indeed, they evidence a decision by

Congress not to have the statute extend to employers op-

erating overseas.

Perhaps because of this legislative history and the

Benz and McCulloch decisions of this Court, the dissent

did not rely on the definitional sections of Title VII relat-

ing to “employer,” “commerce” and “industry affecting

commerce”—including the phrase “between a State and

any place outside thereof” in Title VII’s definition of the

term “commerce.” 42 U.S.C. § 2000e (g). Rather, it

characterized them as “traditional Commerce Clause lan-

guage” that serves merely as “a ‘nexus’ requirement, pro-

viding a basis for Congress’s exercise of power under the

Commerce Clause.” Pet. App. 18a. The EEOC, in con-

trast to the dissent and unlike its arguments below, now

characterizes that language as an affirmative, clear state-

ment of congressional intent to extend Title VII’s cover-

u Section 2 of H.R. 405 (later part of Section 701 of Title VII of

H.R. 7152) as passed by the House of Representatives included a

finding by Congress that the practice of employment discrimination

“adversely affects the domestic and foreign commerce of the United

States” (section 2(a)), and a declaration that the provisions of the

Act were necessary, inter alia, “[t]o remove obstructions to the

free flow of commerce among the States and with foreign nations

(section 2(c)(1)) (emphasis added). H.R. 405, 88th Cong., Ist

Sess. (1963); H.R. 7152; 88th Cong., Ist Sess. (1963).

These provisions were deleted by the Senate. Senator Dirksen

inserted an annotated copy of the House bill that reflects the dele-

tion of the foreign commerce language in the Congressional Record

on June 5, 1964 in anticipation of debate on the Senate’s substitute

bill, the Dirksen-Mansfield Amendment. 110 Cong. Rec. 12,811-817

(1964) (remarks of Sen. Dirksen).

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1747 Pennsylvania Ave, N.W.

Washington, D.C. 20006

(202) 872-0013

Attorneys for Respondents

Mie

June 22, 1990

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APPENDICES

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APPENDIX A

As required by Rule 29.1, the parent and subsidiaries

of Aramco and ASC are as follows:

Aramco is a Delaware corporation. Aramco has one

subsidiary, Trans-Arabian Pipe Line Company. Aramco

is owned by Transocean Chevron Company, Exxon Over-

seas Corporation, Mobil International Petroleum Corpora-

tion and TexacoInternational Trader, Inc. All of Aramco’s

assets, business and employees recently were transferred

to Saudi Aramco.

ASC is a wholly owned subsidiary of the Saudi Arabian

Oil Company (Saudi Aramco), which is a Saudi Arabian

company that is wholly owned by the Government of

Saudi Arabia. All of ASC’s subsidiaries are wholly

owned.

APPENDIX B

Relevant provisions of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e-2000e-17:

§ 2000e. Definitions

For the purposes of this subchapter— * * *

(b) The term “employer” means a person

employed by an employer, except that the term “em-

ployee” shall not include any person elected to public

office in any State or political subdivision of any

State by the qualified voters thereof, or any person

chosen by such officer to be on such officer’s per-

sonal staff, or an appointee on the policy making

level or an immediate adviser with respect to the

exercise of the constitutional or legal powers of the

office. The exemption set forth in the preceding sen-

tence shall not include employees subject to the civil

a a

3a

service laws of a State government, governmental

agency or political subdivision.

(g) The term “commerce” means trade, traffic,

commerce, transportation, transmission, or commu-

nication among the several States; or between 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.

(h) The term “industry affecting commerce”

means any activity, business, or industry in com-

merce or in which a labor dispute would hinder or

obstruct commerce or the free flow of commerce and

includes any activity or industry “affecting com-

merce” within the meaning of the Labor-Management

Reporting and Disclosure Act of 1959, and further

includes any governmental industry, business, or

activity.

(i) The term “State” includes a State of the

United States, the District of Columbia, Puerto Rico,

the Virgin Islands, American Samoa, Guam, Wake

Island, the Canal Zone, and Outer Continental Shelf

lands defined in the Outer Continental Shelf Lands

Act.

§ 2000e-1. Subchapter not applicable to employment

of aliens outside State and individuals

for performance of activities of religious

corporations, associations, educational in-

stitutions, or societies

This subchapter shall not apply to an employer

with respect to the employment of aliens outside any

State, or to a religious corporation, association, edu-

4a

cational institution, or society with respect to the

employment of individuals of a particular religion

to perform work connected with the carrying on by

tion, or society of its activities.

§ 2000e-2. Unlawful employment practices

Employer practices

(a) It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment, because of such individual’s race,

color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his em-

ployees or applicants for employment in any

way which would deprive or tend to deprive any

individual of employment opportunities or other-

wise adversely affect his status as an employee,

because of such individual’s race, color, religion,

sex, or national origin.

Relevant provisions of the Age Discrimination Act of

1967, 29 U.S.C. §§ 621-634:

§ 623. Prohibition of age discrimination

(f) Lawful practices; age an occupational qualifica-

tion; other reasonable factors; laws of foreign

workplace; seniority system; employee benefit

plans; discharge or discipline for good cause

It shall not be unlawful for an employer, employ-

ment agency, or labor organization—

(h) Practices of foreign corporations controlled by

American employers; foreign persons not con-

trolled by American employers; factors deter-

mining control

whose

.

sa

voters thereof,

on such

the

— ,

legal powers of

preceding

to

The term

a citizen

a workplace in a foreign

12271,

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