Amicus Curiae Brief — EEOC v. Arabian American Oil Co.

Nos. 8951838 & 89-1845

o>

€2- IN THE

<> Supreme Court of the United States

4 by , OCTOBER TERM, 1990

“ 4

>

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioner,

—\ —

ARABIAN AMERICAN OIL COMPANY, ef a/.,

Respondents.

ALI BOURESLAN, a

Petitioner,

—vV—

ARABIAN AMERICAN OIL COMPANY and

ARAMCO SERVICES COMPANY,

- Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF

AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES UNION,

THE WOMEN’S LAW FUND, INC., THE INTERNATIONAL LABOR

RIGHTS EDUCATION AND RESEARCH FUND, CAROLE D. AKGUN,

AND GLORIA CONTRERAS IN SUPPORT OF PETITIONERS

Jane M. Picker

(Counsel of Record)

Kenneth J. Kowalski

Cleveland-Marshall College of Law

1801 Euclid Avenue

Cleveland, Ohio 44115

Isabelle Katz Pinzler (216) 687-3947

John A. Powell Sidney Picker, Jr.

American Civil Liberties Case Western Reserve University

Union Foundation Law School

132 West 43 Street 11075 East Boulevard

New York, New York 10036 Cleveland, Ohio 44106

(212) 944-9800 (216) 268-3294

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE OF THE AMERICAN CIVIL LIBERTIES

UNION, THE WOMEN’S LAW FUND, INC., THE

INTERNATIONAL LABOR RIGHTS EDUCATION

AND RESEARCH FUND, CAROLE D. AKGUN,

AND GLORIA CONTRERAS IN SUPPORT OF

PETITIONERS

The American Civil Liberties Union, the Women’s

Law Fund, Inc., the International Labor Rights Educa-

tion and Research Fund, Carole D. Akgun, and Gloria

Contreras hereby move for leave to file the annexed

brief amici curiae pursuant to Rule 37.4 of the Rules of

this Court. Counsel for both petitioners have consented

to the filing of this brief. Counsel for respondents has

refused to consent to the inclusion of Carole D. Akgun

and Gloria Contreras as amici.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with over

275,000 members dedicated to the preserving and

enhancing the fundamental civil rights and civil liberties

embodied in the Constitution and civil rights laws of this

country. In particular, the ACLU has long been involved

in the effort to eliminate racial discrimination in our

l

society. The Women’s Rights Project of the ACLU

Foundation was established to work toward the elimina-

tion of gender-based discrimination in our society. In

pursuit of that goal, the ACLU has participated in

numerous discrimination cases before this Court.

The Women’s Law Fund, Inc., is a nonprofit cor-

poration with the sole purpose of “bring[ing] women into

full participation in all activities of American life by

securing them their full legal rights under the Constitu-

tion and laws of the United States." The Fund is particu-

larly concerned with the problem of achieving equal

employment opportunity for women and, through its

funding of litigation, Women’s Law Fund, Inc. seeks to

assist all persons who are discriminated against because

of their sex through illegal employment practices.

The International Labor Rights Education and

Research Fund (ILRERF) is a nonprofit corporation

organized to promote the interests of workers on an

international scale to offset the effects of the global

economy on worker rights. The global economy has

created greater freedom for companies to relocate manu-

2

facturing facilities in countries without protections for

working men and women resulting in a downward spiral

of worker rights. The ILRERF is made up of leaders

from the human rights, labor, religious and academic

communities, who either on behalf of their organizations

or as individuals, have an interest in working to achieve

the goal of decent and humane treatment for all workers.

The application of Title VII of the Civil Rights Act of

1964 to American employees of American firms oper-

ating outside of the United States is of vital concern to

the ILRERF’s interest in preventing situations in which

American firms can avoid their legal and moral obliga-

tions to their workers by relocating to a country that

does not have equivalent protection for workers.

Carole D. Akgun and Gloria Contreras are U.S.

citizens and plaintiffs in Akgun v. Boeing Company, 53

E.P.D. (CCH) §40,011 (W.D. Wash. 1990). They allege

that they were discriminated against on the basis of their

sex when Boeing Services International, a company

incorporated under the laws of the State of Delaware,

terminated their employment in Turkey. Their ability to

3

pursue their legal remedies under Title VII will be

directly affected by the outcome of this case. Ms. Akgun

and Ms. Contreras are not here arguing the merits of

their individual claims but rather join the organizational

amici herein in presenting to the Court the important

questions of international law which may not be

addressed by the parties or other amici.

_ This case involves the vitally important question of

whether Title VII of the Civil Rights Act of 1964 will be

construed to apply extraterritorially to the acts of

American employers which discriminate against their

U.S. citizen employees abroad. As more fully set forth

in the Introduction to the annexed brief amici curiae,

such practices effect thousands of American citizens

working for American companies operating overseas. It

is the primary concern of these amici to address the

implication of international law principles with respect to

Statutory interpretation of Title VII's extraterritorial

reach.

Because we believe that the decision below was

erroneous, we respectfully move to leave to file the

4

attached brief amici curiae in order to present the Court

with our views in this important case.

espectfully submitted,

| (re me Bee \

Jane M. Picker ’

(Counsel of Record)

Kenneth J. Kowalski

Cleveland-Marshall College

of Law

1801 Euclid Avenue

Cleveland, Ohio 44115

(216) 687-3947

Sidney Picker, Jr.

Case Western Reserve

University Law School

11075 East Boulevard

Cleveland, Ohio 44106

(216) 268-3294

Isabelle Katz Pinzler

John A. Powell

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: November 14, 1990

TABLE OF CONTENTS

Page

ee oe eee seen 1

SUMMARY OF ARGUMENT ................ 1

SE ER I IE EE Oe I oe EE as. = 6

i a ae 6

I. Congressional Intent Must Be Interpreted in

Light of Settled Principles of International Law = 12

A. International Law Is Not Violated When

Title VII Is Applied To U.S. Employers

HEED cecdacbccccevescccssonceses 15

1. Territorial Jurisdiction ............. 16

2. Nationality Jurisdiction ............. 19

B. It Is Not Likely That Congress Intended

Title VII To Apply To Alien Empioyers

of Americans Abroad Since To Do So

Would Have Violated Then Perceived

Notions of International Law ........... 23

1. Jurisdiction over Aliens for Acts

ee weeoee 24

Page

2. Principles of International Law

and Administrative and Court

Interpretation Favor Restrictive

Application of Title VII to

Employers Overseas ...........--- 28

C. Concurrent Jurisdiction, Conflicting

Regulation, and Balancing ............ 31

II. The Fifth Circuit Required Too Explicit

a Statement of Congressional Intent ......... 37

B. Foley's Determination That Labor and

Industrial Relations Are Primarily of

Domestic Concern Should Not

Characterize the Antidiscrimination

ESES DOE cccccccescescvecsecesees 40

C. Foley's “Clearly Expressed Purpose”

Standard Should Be Reserved For

Legislation in Violation of International

BED ccccocccuseccccccedsusecovccccs 43

D. Interpreting Title VII to Apply to U.S.

Employers Employing Americans

Abroad Involves No Violation of

International Law, and Congressional

Intent Need Not Be Explicitly Stated ..... 46

Ill. No Special Venue or EEOC Investigatory

Problems Arise in Applying Title VII Extra-

territorially to American Employers ......... 49

oe eb! 6s PPPPPTTTTTTIT LTT 53

TABLE OF AUTHORITIES

Cases Page

ing, 53 Emp. Prac. Dec.

(CCH) $40,011 (W.D. Wash. 1990) ............. 10

UT], 7) BE ie 13

US (0) ee toe 36

Te TT ‘0

675 F.2d 962 Gd Cit 1982)... eevcceeee, 24

744 F Supp. 1109 (MD- Fla 1990) ......---e.0.. ,

24 Empl. Prac. Dec. (CCH) 31,198

Pe OE Ceccceccseccccccsccecccccess 52

EEOC v. KI Cruise Limited

743 F. Supp. 856 (S.D. Fla. 1990) ............... il

ETC vc ‘e de Saint-

oe PP eee 13

Page

BCU BOD) occ eecescesceceseeeeeees ;

e711 es i

159 US 113 (1995)... ..ecccecceeeeeecesees %6

Laker Airli Sal

LEA 9 (DCGe 1984) Se siteeeuseoeeeaul 33

BSUS S71 (953)... cececececeveeeseeeees 35

600 F Supp. 923 (SD. Ohio 1984)... 9,23

600 F Supp. 923, 932 (SD. Ohio .......ee.eee0-. %0

McCulloch v. Sociedad Nacional

AUS UM ec cccccsesceeeeeees x

PUNE corte ncccncc...5.0s. “

PSUS CT (IO) «oo. ccceeeceeseeseeeeees 13

Tad F.2d TOA (2d Cit, 1983) eee cece eee. “

iv

R int. Terminal C ,

SE 35

S.S. Lotus (France v. Turkey),

1927 P.C.LJ. (ser. A) No. 10................ 26, 31

Sandberg v. McDonald,

a. oss od bcsencnebeul 36

Skir Florid

SII ne ear eR 44

~~") 7. ited S Dist. C:.

SPT cB cccevedécdcotvcccosecess 36

Spiess v. C. Itoh & Co. (America). ]

See PNG, PEED ccccccdcceccceccoss 25

Steele v. Bulova Watch Co.,

a 44

Stegeman v, United States,

425 F.2d 984 (9th Cir.) (en banc),

cert denied, 400 U.S. 837 (1970)), cert. denied. 109 S.Ct.

PT heiddeudccecceescedsoussécece 20

Tamari v. Bache & Co.,

730 F.2d 1103 (7th Cir. 1984) ............00005. 44

The Paquete Habana,

SP EE obétoccccccececetéaceeees 13

Page

United S sami C

148 F.2d 416 (2d Cir. 1945) 2... cee 18

609 F.2d 134 (Sth Cit 1980)... eee cee 1

BPS 299 (1918) neo eocceeveeeeeeeee 7

260 US 94 (1922) nnn c cece eceeeeeeee ‘

888 F-2d 1388 (Oth Cir 1988),

cert. denied, 109 S.Ct. 1342 (1989) ......... 20, 21, 43

681 F.Supp. 896 (DDC. 1988) 6... ‘

ne hens DT epesedsteecceses 21

sume TTTTTITTTTT Lit passim

Vest ASD. 43 US. 688 (1979) 2c cco 4

456 US. 2S (1982) 1. ceo eecceeeeeeeees i,

vi

Page

Statutes, Rules and Legislative Material

cin on deceeeceeeseogebstscuee 22

PP ekvuctdiuesebesensocecsouseeds 22

29 U.S.C. § 623(h) (Supp. 1989) ................ 23

BP Ce GE UONED occ ccccccccccceccese 23

SE ccececcecceccesoteudenl 50

Pe EE 4 0660 dscns best ddeseueten 42

PD Cie A, GUSTS ccccccccccccccccess 22

Act of July 3, 1926, 28 U.S.C. §§711-718 ......... 50

Age Discrimination in Employment Act,

BP Ge DEEP GEEEED Codseecccctesccccecs passim

Civil Rights Heari HR. 7152

Before the House Comm. on the

Judiciary, 88th Cong. Ist Sess. (1963) ............ 33

Commodities Exchange Act 7 U.S.C. §6c ......... 44

Comprehensive Anti-Apartheid Act

of 1986, 22 U.S.C. §§5032, 5034

GE Saw GE, TGP cc ccc cccccccccccccss 22, 42

Destruction of Aircraft or

Aircraft Facilities Act,

TT coud cneeeecbeeeess benertes 45

vii

Page

Right Hour Law, 40 U.S.C. §324

(repealed 1962) ...... cece cceeeces 37, 38, 41, 47

Fair Labor Standards Act of 1938,

es ce poneeeeute 9, 46

Rule 4(i) of the Federal Rules

i a. eee eeseeees SO

Statute of the International Court

of Justice, art. 38, 1983 U.N. Y.B. 1334 ........... 33

Title VI of the Civil Rights Act

of 1964, 42 U.S.C. §2000e ef seg... «6 oo eee. passim

Publications

"EEOC: Policy Statement on Application

of Tithe VII to American Companies

Overseas and to Foreign Companies,”

Lab. Rel. Rep. (BNA) No. 610, |

AT 401:6063 (Sept. 2, 1988) 2... 6 6 ene ”

1 World Trade Academy Press,

a 3-4

vill

Department of Defense,

Worldwide M Dissributi

by Geographic Area,

June 30, 1989, Table P309C,

EEOC Policy Statement on Application

of Title VII to American Companies

Overseas and to Foreign Companies,

Lab. Rel. Rep. (BNA)

PT TDs cececcococececceccecces w

Gallozzi, “International Decisions,”

83 AmJ. Int'l 375 (1989) 2.6 ee ee 2

Gann, “Foreward: Issues in

Extraterritoriality,”

$0 Law & Contemp. Probs. 1 (1987)... 2.0.0.2... 24

Gerth, "2 U.S. Workers for Aramco

Say Interviews Caused Their Dismissal,”

N.Y Times, Nov. 21, 1983 .......... 05050 uue 6, 8

International Convention on the

Elimination of all Forms of

Racial Discriminati

660 U.N.T.S. 195 (Mar. 7, 1966) ..... ©. 6 oe, 11

Lowe, “Blocking Extraterritorial

Jurisdictions: The British Protection

of Trading Interests Act, 1980,"

75 Am. J. int'l L. 257 (1981)... .... 2... 6 eee. 23, %

Lowenfeld, "U.S. Law Enforcement

Abroad: The Constitution and

International Law,”

GD Aan. 3. Bald GED CHGEED . cc cccccccosceuceeuen 28

Maier, “Extraterritorial

Jurisdiction at a Crossroads:

An Intersection Between Public

and Private International Law,”

ry YS LS ORS 16, 36

Maier, Book Review,

83 Am. J. Int'l L. 676 (1989)

(reviewing The E orig!

Meessen, “Conflicts of Jurisdiction

Under the New Restatement,”

SO Law and Cont.Prob. 47 (1967) ............... 44

Note, “Constructing the State

Extraterritorial: Jurisdictional

Discourse, the National Interest,

and Transnational Norms,”

063 Share. L. Gham. Eee CURSED cccccccscscceseen 19

Restatement (Third) of Foreign

Relations Law of the United States (1986) .... passim

Schauer, “Slippery Slopes,”

OD Geese. L. Rew. SES CURED oc ccccccceséccesees 31

x

Page

S) -E torial Anolicati

PROCEEDINGS OF THE AMERICAN

SOCIETY OF INTERNATIONAL LAW,

EEE CE Geeeebeccccccccccccccc: 8

Small, Managing Extraterritorial

lurisdiction Problems: The United

States Government Approach,

50 Law & Contemp. Probs. 283 (1987) ........ 16, 18

Statute of the International Court

of Justice, 1983 Yearbook

of the United Nations 1334

(entered into force for the U.S.

Nee oc ccc ce cccccece 12

Steiner & Vagts,

De ccc cow cccces 20

Sieinhardt, The Role of International

Law as a Canon of Domestic

Statutory Construction,

43 Van.L.Rev. 1103 (1990) .............0...00.. 17

Street, “International Commercial

and Labor Migration Requirements

as a Bar to Discriminatory

Employment Practices,”

Te eases sce occcecees 53

Page

Street, Application of U.S. Fair

Employment Laws to Transnational

Empl in the United S

and Abroad, 19 N.Y.U. J.

Be te Ge We Se GEE ccc ccc cc escccccccccces 6

Turley, "Transnational Discrimination

and the Economies of Extra-

territorial Regulation,"

70 B.U.L. Rev. 339 (1990). 2.0... ce eee eee eee 7, 19

Turley, "When in Rome: Multi-

national Misconduct and the

Presumption Against

Extraterritoriality,"

84 Nw. U.L. Rev. 598 (1990) ............555. 17, 19

Miscellaneous

Convention on the Elimination

of all Forms of Discrimination

Against Women, opened for

signature March 1, 1980,

G.A. Res. 34/180,

34 U.N. GAOR Supp. (No. 46),

U.N. Doc. A/34/36 (Dec. 18, 1979),

reprinted in 19 I.L.M. 33 (1980) .............655- 11

The Hague Convention on the Service

Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Matters,

20 U.S.T. 361; T.LA.S. 6638;

Ll oe BD rrr r rrr ree 51

xii

INTEREST OF AMICI

The interest of amici are set forth in the motion

attached to this brief.

SUMMARY OF ARGUMENT

The United States Court of Appeals for the Fifth

Circuit, first sitting as a panel, and later, en banc, ruled

that Congress did not intend Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seg. to protect American

citizens employed by American employers overseas.

Boureslan v. Aramco, 892 F.2d 1271 (Sth Cir. 1990) (en

banc). It is the primary concern of these amici curiae to

address the implications of international law principles

with respect to statutory interpretation of Title VII's

extraterritorial reach. Amici herein argue that by failing

to employ appropriate principles of statutory

construction, including the presumption that Congress

does not intend to violate international law, the ruling of

the court of appeals was fundamentally flawed.

An assessment of the panel’s ruling by one

commentator stated:

The decision turns on principles of

Statutory construction. From that

perspective, it stands to reason that

questions regarding the extraterritorial

application of a statute -- which are, at

bottom, questions regarding the relation-

ship between the United States and

other sovereign nations -- cannot be

resolved without reference to jurisdic-

tional principles of international law.

The court’s en banc decision no more considered

jurisdictional principles of international law in

interpreting congressional intent than did the panel.

Applying jurisdictional principles of international law to

statutory analysis can help determine whether applying

Title VII of the Civil Rights Act extraterritorially would

violate international law. As amici argue, the

interpretation of Title VII to protect Americans

employed by American employers overseas is consistent

' Gallozzi, “International Decisions,” 83 AmJ. Int'l L. 375, 380 (1989)

(reviewing Boureslan v. Aramco, 857 F.2d, 1014; 863 F. 2d 8 (Sth Cir.

1988).

with international law’s well-accepted principle of

nationality jurisdiction.

However, the Fifth Circuit’s en banc ruling appears

to have been influenced by consideration of a far more

troublesome question than the issue before it, namely,

whether Title VII would then also necessarily apply to

alien employers employing American citizens abroad.

To apply Title VII to alien employers abroad could have

been perceived to be a violation of international law at

the time of Title VII's enactment.

Believing that interpreting Title VII to apply to

American employers abroad would also require

foreigners employing Americans overseas to be subject to

Title VII, the Fifth Circuit required an express statement

of congressional intent. Use of the “clearly expressed

purpose” standard, enunciated earlier in Foley Bros. v.

Filardo, 336 U.S. 281 (1949), is more appropriately

reserved for those portions of legislation which Congress

believes are not in compliance with international law.

However, the scope, object, and purpose of Title VII as

well as its definitions, and §702 of the Act, which

exempts aliens working abroad from Title VII's

protection, constitute a clear expression from which to

infer Congress’ intent to apply Title VII to protect

Americans employed by American employers overseas.

Such application is wholly consistent with the nationality

principle of prescriptive jurisdiction in international law.

Whether or not Congress at a maximum also may have

intended that Title VII apply to aliens is most unlikely.

But the facts of this case do not raise that question.

As other briefs in support of petitioner presented to

this Court will agree, court decisions, legislative history,

and administrative interpretations all support the

extraterritorial application of Title VII to protect

Americans employed by American employers abroad.

All judicial decisions prior to the court of appeals’ ruling

in Boureslan had interpreted the alien exemption

language of §702 to apply Title VII to American

employees of American employers overseas.

The Age Discrimination in Employment Act, 29

U.S.C. §621 (hereinafter ADEA), which contained no

language similar to §702 from which extraterritorial

application coulé be infeed, was amended ia 1986 to

provide coverage to Americans employed by American

companies overseas. Other briefs will present the

legislative history of the ADEA which indicates that it

was amended to bring it into conformity with Title VII's

congressionally perceived extraterritorial reach.

Finally, as these amici argue, interpreting Title VII

to apply extraterritorially would create no special venue

or investigatory problems. Various methods of taking

discovery abroad are routinely used and create no

discovery is taken of U.S. citizens. Indeed, when

Congress amended the ADEA it did not consider it

necessary to provide special venue or investigatory

Provisions to assist the Equal Employment Opportunity

Commission (hereinafter EEOC) in its enforcement of

that legislation.

ARGUMENT

Introduction

While the exact number of Americans working for

American employers overseas is not known, some

information is available. Over 2,000 U.S. firms operate

more than 21,000 foreign subsidiaries in at least 121

foreign nations.’ Sixty-five thousand Americans were

reported to be working in Saudi Arabia in 1983.’ And

approximately 28,000 civilian Americans are employed at

? Street, i

Employers in the United States and Abroad, 19 N.Y.U. J. Int'l L. &

Pol. 357, 358 (1987) (citing Introduction to 1 World Trade Academy

P. Di {A ! Fi 0 ti * F * C *

(10th ed. 1984)).

> Gerth, "2 US. Workers for Aramco Say Interviews Caused Their

Dismissal,” N.Y Times, Nov. 21, 1983, at 5, col. 3.

6

defense bases around the world‘ One author has

concluded: “Today, U.S. citizens abroad likely number in

the millions.”

These numbers indicate that a significant number of

Americans will be without protection if Title VII is

interpreted not to apply to American employers overseas.

Yet every indication suggests that discrimination is even

more of a problem for Americans abroad than it is at

home.

Practices described in litigation and in news reports

suggest that, while discrimination in the United States

may have become increasingly subtle, American

employees encounter outright intentional discrimination

when they work for American employers abroad. While

a New York Times account of the dismissal of two

* Department of Defense, Worldwide Manpower Distribution by

Geographic Arca, June 30, 1989, at 78-82, Table PIO9C, US. Citizen

Civilian Employees - Dependent Strength.

* Turley, “Transnational Discrimination and the Ecoromics of

Extraterritorial Regulation,” 70 B.U.L. Rev. 339, 389-90 n. 289 (1990).

7

American Aramco employees focused on two male

employees, a lawyer and a petroleum engineer, the

article mentioned that the wife of one of them had also

been dismissed “in the aftermath of her husband's

dismissal.” The article continued: "As a matter of

Aramco policy, which grows out of Saudi custom, women

whose husbands are no longer employed are normally

forced to leave their own jobs.”

In class action litigation filed in Texas, it was alleged

that Aramco discharged 2,200 of its overseas U.S.

employees between 1984 and 1987, in violation of Title

Vil and the ADEA.’ As of January 23, 1989, fifty

charges of unlawful discrimination filed by Americans

against their American employers abroad were pending

in the EEOC’s administrative process. Of these, twenty-

eight were filed in the EEOC’s Houston, Texas office,

most of which were charges against Aramco."

Yet Aramco need not be singled out. In another

case, benefits were denied American female teachers in

Iran because they were considered not to “need” them;

they were expected to be covered by their husbands’

benefits. One of the plaintiffs, however, was divorced

and therefore did not receive benefits from any source.

Bryant_v. International School Servs., Inc. 502 F.Supp.

472, 476 (D. NJ. 1980), rev'd on other grounds, 675 F.2d

562 (3d Cir. 1982). In Lavrov vy. NCR Corp. 600 F.

Supp. 923 (S.D. Ohio 1984), the plaintiff's allegation was

based upon a letter from NCR's wholly owned German

subsidiary stating, “[wjith all due respect for the equal

rights principle, | do not think that any of our present

vacancies would be suitable for a girl." Complaint,

* id

Attachment 2, (No. C-3-82-272).

Cases decided subsequent to the ¢n bane ruling in

Boureslan continue to show disparate treatment of

American employees. In Akgun vy, Boeing Company.

two American female plaintiffs were terminated from

their jobs by Boeing Services International (BSI) because

they were considered (based upon their husbands’ status)

to be ‘ordinarily resident’ in Turkey, and therefore not

entitled to the benefits of the NATO Status of Forces

Agreement. The court stated that: "BSI concedes that

similarly situated men, married to Turkish women, would

not be considered “ordinarily resident" in Turkey and

would have therefore remained members of the civilian

component.” 53 Emp. Prac. Dec. (CCH) 440,011 at

62,912 (W.D. Wash. 1990). Decisions relating to the

_ practices of cruise liners sailing from American ports

provide evidence that women are denied jobs as seamen

by some employers, EEOC vy, Bermuda Star Line, 744

F.Supp. 1109, (M.D. Fla. 1990), while allegations suggest

that others discharge female employees when they

become pregnant. EEOC vy, Kloster Cruise Limited, 743

F. Supp. 856 (S.D. Fla. 1990).

With the continuing globalization of U.S. trade,

was once left unquestioningly to local regulation, a

number of post-World War Il treaties now have as their

purpose the elimination of racial, religious, national

origin, and gender discrimination in the workplace.”

Such conventions attest that discriminatory practices

today are a matter of worldwide rather than local

concern, appropriately regulated by the international

* With respect to employment discrumination, sc¢ Convention on the

for signature March 1. 1900, GA. Res 34/100, 34 UN. GAOR surp.

Bee nn SANS Ge, SUD, cepted bo © 0.08

of_Racial Discrimination 660 UNTS. 195 (Mar. 7, 1966);

and Occupation, No. 111, adopted June 25, 1958, 462 U.N.TS. 32.

community." The practices of American employers

overseas document violations that should not escape

sanction merely because an employee's assignment is to

Brussels rather than to Boston.

|. Congressional Intent Must Be

Interpreted in Light of Settled

Principles of International Law

The en bang opimeon of the Court of Appeals for the

Fifth Circuit stated that it was considering a single

question: “whether Title VII regulates the employment

practices of U.S. employers which employ U.S. citizens

outside the United States.” 892 F. 2d at 1272. Framed

procedurally, the question raised was whether the court

had subject matter jurisdiction of the case.

of

U._N.Y.B. 13M (entered into force for the U.S. on Oct 24, 1945).

sources of unternational law, to which the Court may refer, arc found

im Article 38 of the statute. Id

12

examination of congressional intent. Prescriptive

jurisdiction, a doctrine of international law, determines

the extent of the reach of national legislation. Congress

has the power to violate international law by having its

legislation reach beyond the limits specified by

international law. Indeed, U.S. courts must enforce

congressional statutes if they are constitutional, even

though they cause the United States to be in violation of

international law.'' The fact that international law is

part of U.S. law does not restrict Congress since

international law (except for treaties), as part of the

common law of the United States, may be modified by

contrary legislation.” Nevertheless, a longstanding

principle of construction recently reiterated by this Court

" ELC, vy, Compagnic de Saint-Gobin-Pont-A-Mousson, 6% F.2d

1300, 1323 (D.C. Cir. 1980).

* The Paquete Habana, 175 U.S. 677 (1900). The Supreme Court in

— 376 US. 398, 425 (1964),

with approval the views of Judge Philip Jessup of the

wn Bee Court of Justice, suggested that international law,

together with the act of state doctrine, was a part of federal common

law.

13

states: that "“{ijt has been a maxim of statutory

construction since the decision in Murray v, The

Charming Betsy, 2 Cranch 64, 118 (1804), that ‘an act of

Congress ought never to be construed to violate the law

of nations, if any other possible construction remains

..." Weinberger v. Rossi, 456 U.S. 25, 32 (1982). This

construction is justified on the ground that Congress,

aware of the international law obligations of the United

States, would not, without careful thought, cause the

United States to violate such obligations. Hence, courts

will engage in a careful consideration of congressional

intent before concluding that Congress wished to violate

international law.”

In determining whether construing Title VII of the

Civil Rights Act to apply extraterritorially would violate

international law, it is necessary to consider the

permissible bases of prescriptive jurisdiction under

® See infra Section Il.

14

international law. While there are as many as five

separate bases to test the validity of a nation’s legislative

reach in international law, all five are basically designed

to find a nexus or connection sufficient to justify

application between the legislating nation and the

persons or events subject to such legislation. If that

nexus or connection is insufficient, the legislation is said

to violate international law. Possible bases of jurisdiction

will differ, depending upon whether legislation is to be

applied in the United States or abroad, and whether

American citizens or aliens will be governed by it.

A. International Law Is _ Not

Violated When Title VII Is

Applied To U.S. Employers

Abroad

The United States historically has been “the most

prolific source of extraterritorial law, regulation, and

enforcement actions.""* The post-World War II era has

“ Small, M ing E itorial Jurisdiction Problems: The United

(continued...)

15

been characterized by increasing assertions of jurisdiction

by the United States outside its borders and over aliens.

While extraterritorial application of U.S. law may have

become the norm in areas such as antitrust and securities

law, but the exception where traditional areas of labor

regulation are at stake, since the end of World War Il

discrimination has become recognized to be a matter of

important concern throughout much of the world.

1. Territorial Jurisdiction

It is undisputed that a state has the right to legislate

with respect both to persons present in its territory and

to activities carried on within it. Foley Brothers v,

Filardo, 336 U.S. 281 (1949), is often said to have

* (...continued)

States Government Approach, 50 Law & Contemp. Probs. 283, 284

(1987). See also Maier, Book Review, 83 Am. J. Int'l L. 676 (1989)

'S Restatement (Third) of the Foreign Relations Law of the United

States §402 (1986).

16

established a “rebuttable presumption that all legislation

is territorial." | Noting that “the world’s expanding

workplace" has forced Congress to shift from domestic to

transnational concerns, particularly in the labor area,

Professor Turley has recently called for a re-examination

of the presumption against extraterritoriality "in light of

modern transnational conditions.""’ | However, the

presumption has not proved to be a barrier to

_ extraterritorial application of U.S. laws, even to aliens, in

some areas of the law. As one study noted, “[s}tates,

increasingly, attach legal consequences ta conduct or

events outside their territory involving persons not of

their own nationality. They do so, for example, under

such legal constructs as ‘objective territoriality’ or the

* Steinhardt, The Role of International Law as a Canon of Domestic

Statutory Construction, 43 Van. L. Rev. 1103, 1144 (1990). Foley is

discussed infra at Section IIA.

" Turley, "When in Rome: Multinational Misconduct and the

Presumption Against Extraterritoriality,, 84 Nw.U. L. Rev. 598, 656

(1990).

17

‘effects doctrine,’ or under such theories as ‘enterprise

unity.”"* In the antitrust area, in order to subject aliens

outside the United States to U.S. law, there was a

reinterpretation of the territorial basis of jurisdiction to

include actions abroad having “effects” within the United

States. United States v. Aluminum Co, of America, 148

F.2d. 416 (2d Cir. 1945) (hereinafter Alcoa) As the

Court stated in Alcoa, “[wje are concerned only with

whether Congress chose to attach liability to the conduct

outside the United States of persons not in allegiance to

it.” Id. at 443. The Alcoa court’s assertion of jurisdiction

was soon followed with court decisions in other areas of

the law finding jurisdiction where “effects” of the activity

of aliens outside the United States were felt within it.”

While court decisions in the United States have extended

“effects” jurisdiction beyond the antitrust area, it is not a

doctrine that has been developed in those areas of the

" Reflections on the Current State of Extraterritoriality (Nov. 2,

1984), quoted in Small, supra note 14 at 2/1, 0.40.

18

law pertaining to personal rights.” Cases have

interpreted Title VII's geographical reach from within

the perspective of nationality rather than territorial

jurisdiction.

2. Nationality Jurisdiction

The only issue before this Court is whether Title VI

prohibits discrimination by an American employer

against an American employee working outside the

United States. To subject one’s nationals to regulation

wherever they may go is a traditional basis of jurisdiction

recognized by international law and referred to as the

abroad does not raise an issue of international law since

the only party "affected" by the regulation is the United

States.”

A longstanding body of decisions establishes that

laws "enacted to serve important interests of government"

may be applied to U.S. citizens who violate such laws

while outside the United States. United States v. Layton,

855 F.2d 1388, 1395 (9th Cir. 1988), cert. denied, 109

S.Ct. 1342 (1989) (quoting Stegeman v. United States,

425 F.2d 984, 986 (9th Cir.) (en banc), cert. denied, 400

U.S. 837 (1970)). For example, the United States

1 In international law, application of any regulation which causes

harm to an individual is considered harm to the state claiming such

individual as its national, thus giving such state an international cause

of action against the state causing harm. That is, the state suffers

injury when its national is harmed in violation of international law.

Mavrommatis Palestine Concessions (Greece v. Great Britain), 1924

P.C.1IJ., (ser A.) No. 2 reprinted in part in Steiner & Vagts,

Transnational Legal Problems 245 (3d ed. 1986). It therefore follows

that if the regulating state which purportedly harms the individual also

claims that individual as its national, then that state could only have

“harmed” itself. No international cause of action is possible. Indeed,

one of the principal tenets of international law is that a state (with

few exceptions not here relevant), as an integral part of state

sovereignty, is free to do as it wishes with respect to its own nationals

on the ground that such action is incapable of raising international

issues.

20

subjects its citizens to federal income tax legislation

without regard to their presence within U.S. borders.

United States v, Bennett, 232 U.S. 299 (1914). United

States criminal statutes, even though they may be silent

as to the geographical extent of their intended

application, often are interpreted to apply to US.

citizens wherever they may be. United States v. Layton,

855 F.2d at 1395 (9th Cir. 1988)); United States v. Baker,

609 F.2d 134 (Sth Cir. 1980); United States v. Zehe, 601

F. Supp. 196 (D. Mass 1985).

The United States does not exercise extraterritorial

jurisdiction based upon the nationality principle to the

extent that some European countries do because within

the United States, state, rather than federal law, is often

the basis of regulation.” In the post-World War II era,

the antidiscrimination principle has become a corner-

stone of U.S. federal policy and Congress has enacted a

” Restatement (Third), supra note 15 at §402, reporters’ note 1.

21

number of antidiscrimination measures applicable to the

activities of American companies abroad. For example,

both the anti-boycott provisions of the Export Adminis-

tration Amendments of 1977, 50 U.S.C. App. §§2401-

2407 and the Comprehensive Anti-Apartheid Act of

1986, 22 U.S.C. §§5032, 5034 and 5035 (Supp. 1989)

reach U.S. companies overseas, but not their foreign

counterparts.” Similarly, after various federal courts

interpreted the ADEA as inapplicable to American

employees abroad because the ADEA, otherwise similar

to Title VII, had no alien exemption clause, Congress

amended the Act to make clear what case law under

Title VII already held: that extraterritorial coverage was

*® The anti-boycott provisions state that the prohibitions of the

Export Administration Amendments of 1977 apply to “any United

States person,” SO U.S.C. §2407(a)(1) (Supp. 1990). The anti-

apartheid statute’s provisions concerning employment practices apply

to “any national of the United States that employs more than 25

persons in South Africa,” 22 U.S.C. §5034 (1990), and to labor

practices of the U.S. Government, 22 U.S.C. §5032 (1990).

22

limited to American employers,“ 29 U.S.C. §623(f)(1)

(1984). Assertions of U.S. extraterritorial jurisdiction to

prescribe the antidiscrimination laws are thus uniformly

based on the nationality principle.

B. It Is Not Likely That Congress

Intended Title VII To Apply To

Alien Employers of Americans

Abroad Since To Do So Would

Have Violated Then Perceived

Notions of International Law

While legislating with respec. to the conduct of U.S.

citizens abroad is an appropriate exercise of nationality

jurisdiction,” enacting legislation regulating aliens

outside the United States is far more controversial. As

one commentator stated, "[i]f all of the defendants are

American corporations, imposition of American law is

* As in Lavrov v, NCR, 600 F.Supp. 923, the ADEA does not apply

to foreign employers operating outside the United States although the

American parent may be held liable if certain control tests are met.

29 U.S.C. § 623(h) (Supp. 1989).

* A.V. Lowe, a British jurist, agrees: “No international problems are

likely to arise as long as American laws are applied only to American

nationals. . ."_ Lowe, “Blocking Extraterritorial Jurisdictions: The

British Protection of Trading Interests Act, 1980," 75 Am. J. Int’l L.

257, 267 (1981).

7 23

less likely to offend foreign nations. It is when foreign

corporations doing business with other foreign

corporations find themselves subjected to United States

law that the worst problems arise."”

1. Jurisdiction over Aliens for Acts Committed Abroad

The Fifth Circuit’s decision in the instant case did

not restrict itself to a determination of Congress’ intent

with respect to the application of Title VII to American

employers, but appeared to be strongly influenced by its

views on an issue not before it, nor now before this

Court: the applicability of Title VII to foreign employers

employing American citizens abroad.

The Boureslan majority (en banc) stated:

Finally, if we give extraterritorial

reach to Title VII, the plain language of

-the Act would necessarily extend that

title to govern the employment

relationship between foreign employers,

and their American employees anywhere

in the world. See [42 U.S.C.] §2000¢e

* Gann, "Foreward: Issues in Extraterritoriality,” 50 Law & Contemp.

Probs. 1, 18 n.38 (1987).

24

(b). We say this because nothing in the

Act exempts foreign employers and our

courts have held that foreign employers

engaged in commerce in the United

States are employers under Title VII.

See, ¢g., Spiess v. C, Itoh & Co.

(America), Inc,, 643 F2d 353 (Sth 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.

892 F.2d at 1274. A consideration of the principle of

prescriptive jurisdiction applicable to aliens can assist in

determining the correctness of the Fifth Circuit’s

assumption.

Conformity with international law is not always

assured when legislation regulates a foreigner committing

acts abroad. Behavior such as genocide, which is

everywhere condemned, may be regulated even as to

aliens abroad under the universality principle of

jurisdiction. Threats to internationally recognized

essential national interests such as counterfeiting are

subject to jurisdiction under the protective principle.

25

These are both well accepted principles of international

law, and problems only arise with respect to their

application.

Exercise of jurisdiction based on the nationality of

the victim or person harmed by the conduct to be

regulated is less well-accepted. This “passive personality”

principle, although asserted prior to 1927 by some states,

has never been explicitly accepted (or rejected) in

international law.”’

Unfortunately, the passive personality principle

appears to have insinuated itself into the Fifth Circuit's

en banc decision. While it might arguably justify

application of Title VII to a foreign employer operating

abroad, according to the Restatement:

The passive personality principle asserts

that a state may apply law -- particularly

7” While the extraterritorial reach of a Turkish manslaughter statute

in the $.S, Lotus (France v. Turkey), 1927 P.C.1J. (ser. A) No. 10 was

explicitly based on the nationality of the victim (i¢., the passive

personality principle), the Permanent Court of International Justice

ruled in favor of Turkey on other grounds.

26

criminal law -- to an act committed

outside its territory by a person not its

national where the victim of the act was

its national. The principle has not been

generally accepted for ordinary torts or

crime, but it is increasingly accepted as

applied to terrorist and other organized

attacks on a State’s nationals by reason

of their nationality or to assassination of

a State’s diplomatic representatives or

other officials.

Restatement (Third) of Foreign Relations Law of the

United States, §402, comment g (1986) (emphasis

added).

Assertions of jurisdiction based upon the passive

personality principle are far more common today than

they were twenty-six years ago when Title VII first took

effect. Professor Andreas F. Lowenfeld, Associate-

Reporter for the Restatement (Third), has stated:

[A]s recently as the early 1960s the

Restatement (Second) of the Foreign

Relations Law of the United States

(1965) found it proper to state as black-

letter law that: "[a] state does not have

jurisdiction to prescribe a rule of law

attaching legal consequences to conduct

of an alien outside its territory merely

27

on the ground that the conduct affects

one of its nationals." [§30(b)] I believe

that statement accurately reflected the

American view of international law in

1961 and Congress respected that

view.”

The Restatement (Second), from which Professor

Lowenfeld was quoting, was circulated in draft form in

the early 1960s, before its publication in 1965. Thus,

when Title VII of the Civil Rights Act was under

consideration by Congress, and also when it was enacted,

passive personality jurisdiction was considered to be a

highly questionable basis upon which to rest prescriptive

jurisdiction.

2. Principles of International Law _ and

Administrative and Court Interpretation Favor

Restrictive Application of Title VII to Employers

Overseas

As discussed in Point I(A)(1) supra, development of

the "effects" extension of the territorial principle of

prescriptive jurisdiction has not been extended beyond

8 Lowenfeld, "U.S. Law Enforcement Abroad: The Constitution and

International Law,” 83 Am. J. Int’l L. 880, 884 (1989).

28

cases in the commercial area to those involving personal

rights. And many American law experts in 1964 would

have considered applying Title VII to alien employers of

Americans abroad under the passive personality principle

to be an unwarranted exercise of jurisdiction. See Point

I(B)(1) supra, Interpreting Title VII to apply to alien

employers overseas therefore could contravene the

presumption that Congress does not intend to violate

international law. Such an interpretation of Title VII is

nowhere suggested except in the Fifth Circuit’s en banc

opinion. This interpretation should therefore be

disfavored.

Administrative agencies carefully construe statutes to

be consistent with requirements of international law. No

administrative or executive agency of government has

construed Title VII to apply to foreign employers of

American citizens overseas. In keeping with the

differences in nationality jurisdiction and passive

29

personality jurisdiction, see Point i (B) (1) supra, the

EEOC seeks to apply Title VII only to American

employers employing U.S. citizens abroad as defined in

its policy statement.”

The only court to have considered the issue has

drawn the same distinction. In Lavrov v. NCR, 600 F.

Supp. 923, a U.S. parent and a wholly owned German

subsidiary were sued under Title VII. The trial court

dismissed the subsidiary, holding that Congress could not

have intended to include a foreign company operating

overseas to be within Title VII’s definition of "employer."

The court of appeals’ assumption, therefore, cannot

be correct. Principles of extraterritorial jurisdiction must

be considered in determining whether Congress intended

Title VII to apply exclusively to American employers

a icati itle VII_ to American

i ies, Lab. Rel. Rep.

(BNA) No. 610, at 401:6063 (Sept. 2, 1988).

30

overseas. The court’s "slippery slope"™ reasoning ignores

longstanding and _ uncontroversial principles of

international law differentiating the type of jurisdiction

required to encompass acts of a foreign employer abroad

and one involving, as here, an American employer.

C. Concurrent Jurisdiction, Conflicting

Regulation, and Balancing

The different bases of international jurisdiction

described above may result at times in several states

having prescriptive jurisdiction. While an individual may

be subject to conflicting regulation if several states, each

having a valid basis for prescriptive jurisdiction,

simultaneously attempt to regulate the same behavior,

there is no violation of international law. Rather, two or

more states will have concurrent jurisdiction.*! Thus, if

cone sonal Schauer, "Slippery Slopes," 99 Harv. L. Rev. 361

"See e.g., $.S. Lotus (France v. Turkey), 1927 P.C.1J. (ser. A) No.

10, where the Permanent Court of International Justice held that an

assertion of prescriptive jurisdiction by Turkey in a ship collision case

(continued...)

31

an American employer is being regulated, nothing in

international law prohibits applying Title VII to its alien

as well as American employees (the parties protected by

the regulation) under the nationality principle.” The

same potential for conflicting concurrent jurisdictional

regulation may therefore exist with respect to both alien

and American employees. However, Congress explicitly

determined that the United States had an insufficient

social interest to warrant such concurrent jurisdictional

* (...continued)

was not otherwise precluded simply because France also had

prescriptive jurisdiction. Should the regulation of activities of a

national of one state, physically located in the territory of another

state, be perceived by the latter to be an unwelcome interference, it

can enact contrary legislation (valid under the territorial principle) to

offset the perceived interference.

2 If the United States purports to regulate the acts of foreign

employers outside the U.S., then neither the territorial nor the

rationality principles can be employed. If that regulation also

purports to protect foreign employees, then no other principle saves it

from violating international law. However, if protection is limited to

American employees, such regulation may fall within the limits of

international law under either the passive personality principle or the

“effects” extension of the territorial principle. (This is the “slippery

slope” assumption referred to by the Court of Appeals when

discussing Title VII’s alien exemption language. However, the facts of

the instant case do not raise "slippery slope” or other issues because

both employer and employee are American.)

32

conflict and therefore chose not to apply Title VII to

alien employees abroad.*

No evidence of any conflict between the laws of

Saudi Arabia and the United States has been presented

in this case. Even if a conflict does exist, international

law does not require a nation having jurisdiction to

refrain from exercising it.“ As the court stated in Laker

Airlines _v. Sabena, Belgian World Airlines, 731 F.2d

909, 952 (D.C. Cir. 1984), “there is no rule of

international law holding that a ‘more reasonable’

assertion of jurisdiction mandatorily displaces a ‘less

* See Title VII §702, 42 U.S.C. §2000e-1. "[T]he 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 ote the United States by an American enterprise.” —

ition, 88th —s Ist — 2303 (1963) (cestimony a

Representative Roosevelt explaining provisions of H.R. 405, which

was incorporated into Title VII of H.R. 7152).

* For the sources of international law where such a principle would

have to be found (primarily custom, convention, or general principles)

before it could restrict a state’s jurisdiction, see Statute of the

International Court of Justice, art. 38, 1983 U.N.Y.B. 1334 (entered

into force for the U.S. on Oct. 24, 1945).

33

reasonable’ assertion of jurisdiction as long as both are

in fact consistent with the limitations on jurisdiction

imposed by international law." 731 F.2d at 952. Put

simply, "there is no evidence that interest balancing

represents a rule of international law." Id. at 950.

During the drafting of the Restatement (Third), a

proposal was made to require those states having fewer

interests to defer to those having greater interests when

conflicts of laws develop. Nevertheless, the final draft of

the Restatement used hortatory rather than mandatory

language in suggesting the need to balance interests. As

Professor Karl M. Meessen has stated: "A state ‘should

defer’ but it does not have to do so."*

Thus, international law does not require, as

suggested by Judge King in her dissent in Boureslan,™

application of the reasonableness test of Section 403 of

% Meessen, “Conflicts of Jurisdiction Under the New Restatement,”

50 Law & Contemp. Probs. 47, 62 (1967).

* 892 F.2d at 1281.

the Restatement (Third) to determine the legitimacy of

Title VII's assertion of jurisdiction over American

companies employing U.S. citizens overseas. At most,

domestic, rather than international law may impose a

balancing test for individual statutes. Nothing in Title

VII suggests that such a test was meant to be imposed.

Adoption of a balancing test could lead to the result that

Title VII would be applied extraterritorially with respect

to an American employer and employee in one country,

while the same employer and employee might not be

covered in another country.*’ Unpredictability of result

then becomes the rule rather than the exception.™

*” Compare Lauritzen v, Larsen, 345 U.S. 571 (1953), (holding that the

law of a ship’s flag (Denmark) rather than the Jones Act, 46 U.S.C.

$688, would apply to a maritime tort claim) with Hellenic Lines Lid,

vy. Rhoditis, 398 U.S. 306 (1970) (holding that the Jones Act, rather

than the law of the flag (Greece) applied), and Romero v. Lat’!

Terminal Operating Co., 358 U.S. 354 (1958) (applying the Jones Act

to a domestic, but not to a foreign, shipowner).

* Explicit objection to the balancing approach in U.S. antitrust

regulation has been made by Britain on the ground that the lack of

predictability in a case-by-case approach would require individuals "to

conduct their activities in accordance with American regulations

(continued...)

35

States may, of course, as a matter of political choice

or comity,” choose not to exercise jurisdiction even

though a legal basis of jurisdiction exists. Such exercises

of comity explain many of the precedents upon which

Aramco may cite in support of its position.”

* (..continucd)

wherever there was a mere possibility that they might be found to be

subject to American jurisdiction.” Lowe, “Blocking Extraterritorial

Jurisdiction: The British Protection of Trading Interests Act, 1980,"

75 Am. J. Int'l L. 257, 269 (1981), and parliamentary materials cited,

id. at n.58.

” For a discussion of comity, seg Maier, “Extraterritorial Jurisdiction

at a Crossroads: An Intersection Between Public and Private

International Law,” 76 Am. J. Int’l L. 280, 281-85 (1982). The Court's

classic definition of the term is:

‘Comity’,, in the legal sense, is neither a matter of absolute

obligation, on the one hand, nor of mere courtesy and good will,

upon the other. But it is the recognition which one nation allows

within its territory to the legislative, executive or judicial acts of

another nation, having due regard both to international duty and

convenience, and to the rights of its own citizens or of other

persons who are under the protection of its laws.

Societe Nationale Industrielle A ial United § Dist. Ct.

482 U.S. 522, 543 n.27 (1987) (quoting Hilton v. Guyot, 159 U.S. 113,

163-64 (1895)).

“See eg, McCulloc! Sociedad Nacional _de Mari

uate, 9 U.S. 10 (1963);

Benz _ v, Compania Navicra Hidalgo

SA,, 353 U.S. 138 (1954); Sandberg v. McDonald, 248 U.S. 185

(1918).

36

Il. The Fifth Circuit Required Too Explicit

a Statement of Congressional Intent

The Fifth Circuit en bane majority opinion described

the issue in Boureslan as “closely analogous" to the

overtime compensation issue which the Supreme Court

had considered in Foley Bros, Inc, v, Filardo, 336 U.S.

281, and relied upon Foley directly in ruling that Title

VII was not intended to be applied abroad. However,

the Foley decision is not conclusive here.

A. The Eight Hour Law At Issue In Foley Brothers

vy. Filardo Was Not Intended To Be Applied

Abroad

The Foley Court stated that Congress’ failure to

distinguish citizen and alien labor abroad under the

Eight Hour Law, 40 U.S.C. §324 (repealed in 1962),

evidenced a lack of intent to regulate any overseas

employment. 336 U.S. at 286. The Eight Hour Law, a

Statute first enacted in 1868, which required that working

hours of employees of the U.S. government and its

37

contractors be restricted by contract, was never intended

by Congress to apply to contracts to be performed

abroad, as this Court observed in Foley. The language

of the legislation, however, was general, applying to

“every contract made to which the United States . . . is a

party.” Id at 282. In order to restrict its geographical

scope, the Court applied a canon of construction: “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 congressional intent may be ascertained. It

is based on the assumption that Congress is primarily

concerned with domestic conditions." Id. at 285 (citation

omitted). The Court then examined both the statute

itself, legislative history, and statements from officials of

various U.S. government agencies, before concluding that

Congress’ intention with respect to the Eight Hour Law

must have been “the normal one.” Id.

38

The government statements weighed particularly

strongly in the Court’s consideration. Justice

Frankfurter, in a concurring opinion in which Justice

Jackson joined, specifically stated that the considerations

set forth in the opinion of the Comptroller General,

Opposing extraterritorial application, “ought properly to

take precedence over the literal language of the Eight

Hour Law as guides to its interpretation.” Id. at 292

(Frankfurter, J., concurring). Justice Frankfurter did not

consider himself bound by Vermilya-Brown v, Connell,

335 U.S. 377 (1948), decided earlier that day, only

because it dealt with a question of statutory

interpretation decided the same Term. In Vermilya-

Brown, the Court held that the Fair Labor Standards Act

of 1938, 29 U.S.C. §201 (FLSA) applied to Bermuda, an

area over which the United States held a lease-hold, but

did not have sovereignty. In applying the FLSA

extraterritorially the Court relied on the Act’s general

39

commerce clause language and language stating that it

applied to “possessions” of the United States. Unlike the

Court in Foley, the Fifth Circuit Court of Appeals, en

banc, has failed to follow the position advanced by the

U.S. government, favoring instead a_ restrictive

interpretation of Title VII.

B. Foley’s Determination That Labor and

Industrial Relations Are Primarily of

Domestic Concern Should Not Characterize

the Antidiscrimination Laws Today

Statutes must be interpreted in accordance with their

objects and purposes. The Fifth Circuit took the

standard which it used to assess Boureslan’s arguments

directly from Foley: “[a]n intention to regulate labor to

conditions which are the primary concern of a foreign

country should not be attributed to Congress in the

absence of a clearly expressed purpose.” 892 F.2d at

1273 (citations omitted) (emphasis added by the Fifth

Circuit). It is apparently due to this language in Foley

that labor and industrial relations became characterized

40

as a matter primarily of domestic concern. No language

in the Eight Hour Law or in its legislative history

suggested that Congress was considering application of

that legislation to transnational or foreign activity. Foley,

however, cannot freeze for all time this factual

determination of Congress’ intent in 1892 when it

amended the Eight Hour Law, extending coverage of the

Statute to employees of government contractors. That

the Eight Hour Law was deemed to have only a domestic

focus at the end of the nineteenth century should not

dictate conclusively the characterization of an anti-

discrimination law now. By analogizing Title VII to the

regulation of overtime compensation overseas, the Fifth

Circuit majority trivialized the antidiscrimination laws

which are a cornerstone of United States public policy

today.

Unlike the situation in Foley, there had been no

finding in Boureslan that the protection of American

41

employees from discrimination was of concern only so

long as their American employers kept them within the

territorial confines of the United States. While the

Restatement (Third) describes industrial and labor

relations as activities that are "predominantly local,” it

also notes assertions of U.S. jurisdiction to combat

discrimination abroad. In addition to stating that "some

United States civil rights legislation protects United

States nationals outside the United States,’ the

Restatement mentions assertions of U.S. jurisdiction

abroad pursuant to the anti-boycott provisions of the

Export Administration Amendments of 1977, 50 U.S.C.

App. §2407, and the Comprehensive Anti-Apartheid

Act of 1986, 22 U.S.C. §§5001, 5032, 5034 and 5035

“Compare Restatement (Third), §414, comment, at 271 with

Restatement (Third), §721, reporters’ note 13, at 243 (1986). The

Restatement cites Title VII and Bryant v. International Schools Servs.,

Inc,, 502 F.Supp. 472 (D. NJ. 1980), for the proposition that civil

rights legislation of the U.S. sometimes has an extraterritorial reach.

“Restatement (Third), §414, reporters’ note 4, at 278 (1986).

42

(Supp. 1989).*° The Restatement nowhere suggests that

protection of Americans from discrimination by their

American employers overseas would be only a matter of

"local" concern.

C. Foley’s "Clearly Expressed Purpose"

Standard Should Be _ Reserved’ For

Legislation in Violation of International Law

The Boureslan en bane majority relied mechanically

on Foley by requiring an express statement by Congress.

857 F.2d at 1278 (King, J., dissenting). It should be

noted that Foley’s requirement of "clearly expressed"

congressional intent has not prevented courts from

finding the requisite a in language that is silent or

less than clear where important matters of public policy

are at stake.“ Such a showing has generally been

“ Restatement (Third), $414, reporters’ note 10 at 282 (1986).

“ For instance, criminal statutes "will be applied to U.S., citizens who

violated its provisions while outside United States territory’ when the

crime is not “logically dependent on its locality but which, instead,

injures the government wherever the crime occurs.” United States v.

Bowman, 260 U.S. 94, 97 (1922) as cited in Layton, 855 F.2d 1388.

This is true even though there is no “express declaration to that

(continued...)

43

required, and then only sometimes, when enforcement of

congressional legislation would violate international

4s

law.

Professor Lowenfeld has discussed Congress’ recent

“ (...continued)

This is true even though there is no “express declaration to that

effect." Skiriotes_v. Florida, 313 U.S. 69, 74 (1940). The

Commodities Exchange Act, 7 U.S.C. §62, is completely silent as to

jurisdiction over transactions involving “foreign commerce”, yet the

CEA has been applied exterritorially. Psimenos v. E.F. Hutton, 722

F2d 1041 (2d Cir. 1983). In Tamari v. Bache & Co., 730 F.2d 1103,

1108 (7th Cir. 1984), the court noted that there was no evidence of

Congress’ intent with regard to the extraterritorial reach of the

Commodities Exchange Act. The court concluded that "[flinding

nothing in the Act or its legislative history to indicate that Congress

did not intend the CEA to apply to foreign agents, but recognizing

that there also is no direct evidence that Congress intended such

application, we believe it is appropriate to rely on the ‘conduct’ and

‘effects’ tests in discerning whether subject matter jurisdiction exists

over this dispute.” Id. at 1107. See also Steele v. Bulova Watch Co.,

344 U.S. 280, 286-87 (1952) (construing the Lanham Act).

“Indeed, authority is unclear as to exactly what showing of

Congressional intent must be made before legislation will be

interpreted to violate international law. In Rossi, 456 U.S. at 32

(1982), "some affirmative expression of congressional intent” was

needed “to abrogate the United States international obligation.” On

the other hand, in Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690 (1979), the Court

stated that “[a]bsent explicit statutory language, we have been

extremely reluctant to find congressional abrogation of treaty rights.”

According to Professor Steinhardt, “[njo other court, however,

similarly has a required statutory provision to identify and expressly

override a particular treaty or customary norm.” Steinhardt, supra

note 16, at 1166-67 1.275.

44

exercise of jurisdiction in enacting certain statutes

criminalizing terrorist behavior occurring outside the

United States, statutes in which extraterritorial

jurisdiction (justifiable only by the passive personality

principle) was expressly noted. The express Statement of

such expanded claims of jurisdiction was necessary,

Professor Lowenfeld stated, since courts might otherwise

have considered the assertion of such jurisdiction to be

contrary to international law and would therefore have

construed the statutes not to have been intended to apply

outside United States territory.” Indeed, even after

Congress amended the Destruction of Aircraft or

Aircraft Facilities Act, 18 U.S.C. §32(a), in 1984 to apply

within a "special [extraterritorial] aircraft jurisdiction of

the United States," judicial concerns were voiced

regarding such jurisdiction. Thus, in United States v.

Yunis, 681 F.Supp. 896 (D.D.C. 1988), the court referred

“ Lowenfeld, supra note 28.

45

to the passive personality theory of jurisdiction as an

“anathema to United States lawmakers." Id. at 902.

D. Interpreting Title VII to Apply to U.S.

Employers Employing Americans Abroad

Involves No Violation of International Law,

and Congressional Intent Need Not Be

Explicitly Stated

The American view of jurisdictional principles of

international law at the time of Title VII’s enactment in

1964 suggests that it could have viewed the application of

Title VII to foreign employers abroad to be a violation

of international law. The presumption that Congress

does not intend to violate international law, however,

should preclude such an interpretation without an

explicit statement by Congress. Interpreting Title VII as

applicable merely to U.S. employers should require no

clearer showing of Congressional intent than can be

devised through the usual methods of statutory

interpretation.

Like the Fair Labor Standards Act, interpreted in

46

os

Vermilya-Brown, supra, as extraterritorially applicable

and unlike Foley where the Court rejected

extraterritorial application of the Eight Hour Law, Title

VII expressly refers to commerce "among the several

States; or between a State and any place outside

thereof," 42 U.S. §2000(e)(g) (emphasis added). Other

briefs submitted to this Court argue that Title VII's

language and the legislative history of §702’s alien

exemption provision indicate that Title VII’s language, at

a minimum indicates Congress’ clear awareness of

foreign consequences. The Eight Hour Law interpreted

in Foley, by contrast, fails even to hint that Congress was

contemplating any international or transnational activity.

As other briefs argue, cases decided prior to the

Boureslan court’s en bance decision uniformly found

jurisdiction over Title VII claims brought by employees

of U.S. companies doing business overseas. A clear

indication of Congressional intent is also evident from

47

the legislative history of the ADEA and its 1984

amendment. And the use of alien exemption language in

Title VII pertaining to federal employees supports the

same conclusion.

The U.S. government, as evidenced by the EEOC

Policy statement,*’ supports the extraterritorial

application of Title VII. Interpreting Title VII to apply

only to U.S. employers abroad cannot violate

international law. Unlike the court in Foley, which gave

great weight to the government’s position,” the Fifth

Circuit Court of Appeals failed to follow the position

advanced by the government, favoring instead a

restrictive interpretation. The en bane decision is

particularly surprising because the reason for following

the government’s position in matters relating to foreign

relations is compelling. It is sometimes said that in the

“See note 29 supra.

“ See Section II (A) supra.

States, through all its branches, judicial as well as

executive, "speak with one voice.”

III. No Special Venue or EEOC

Investigatory Problems Arise in

Applying Title VII Extraterritorially

to American Employers

That Title VII makes no special provisions for venue

and EEOC investigative power with respect to exercising

jurisdiction abroad was one reason cited by the majority

in Boureslan for its holding. 892 F.2d at 1274. However,

Title VII provides a choice of venue. As Judge King

reminded in her dissent:

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 . . . or in the

” Steinhardt, supra note 16. Professor Steinhardt further stated:

"Under the one voice maxim, the courts will not presume to revisit

political decisions taken by the executive branch or articulate

principles of international law that might place the United States in

breach of its international obligations or embarrass the conduct of this

diplomacy.” Id. at 1132.

49

have worked but for the unlawful

employment practice . .. or in the

judicial district in which the respondent

has his principal office.

892 F.2d at 1280 (citing 42 U.S.C. §2000e-(f)(3)).

Contrary to the majority’s reasoning, no special venue

problems are created through applying Title VII

extraterritorially. Moreover, Aramco has not challenged

this Court’s venue.

There are many routes which parties to litigation

before United States courts can take to secure needed

evidence located abroad. Rule 4(i) of the Federal Rules

of Civil Procedure provides for service of process

overseas. In keeping with international law’s acceptance

of jurisdiction based on nationality, distinctions are

drawn between discovery from U.S. nationals and

discovery from aliens. That Congress has the power to

legislate with respect to its citizens who are in foreign

countries has been clear at least since Blackmer v.

United States, 284 U.S. 421, 437 (1932). In Blackmer,

50

the Court upheld the Act of July 3, 1926, 28 U.S.C.

§§ 711-718, which permits a court of the United States to

issue a subpoena requiring "a national or resident of the

United States who is in a foreign country" to appear

before the court, or to produce documents or other

things, if to do so is "in the interest of justice" and the

document or other thing, or the testimony in admissible

form, cannot be obtained in any other manner.

Treaties to which the United States is a party also

contemplate foreign discovery. Article 8 of the Hague

Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters,

20 U.S.T. 361; T.LA.S. 6638; 658 U.N.T.S. 163 (1969),

permits any Contracting State to refuse direct service of

judicial documents through diplomatic or consular

agents, “unless the document is to be served upon a

national of the State in wich the documents originate.”

When the ADEA was amended in 1984 to provide

51

extraterritorial coverage, no special provision regarding

venue was enacted, nor was Overseas investigatory power

provided to the EEOC. If, as the Boureslan majority

contends, specific provisions are necessary for the

overseas application of Title VII, the failure to do so

would doom congressional intent. However, no court has

questioned the ADEA’s extraterritorial application since

its amendment in 1984. Surprisingly, in view of this

history, Aramco points to the ADEA as an example or

clear expression of congressional intent. Obviously, the

presence or absence of a special venue provision has no

bearing on the jurisdictional question.

The Boureslan court also considered the limitation

on the EEOC’s investigatory powers to indicate that

Congress intended a similar limit on the statute’s

jurisdiction. However, the EEOC has been held to have

investigatory powers abroad even where it does not have

52

jurisdiction to prosecute a charge. In attempting to

buttress its conclusion, the Boureslan court magnified the

importance of this restriction. While in some cases,

without special venue, investigation by the EEOC might

be more difficult, Title VII also provides that a private

plaintiff may bring suit and enforce rights guaranteed by

Title VII without completion of an EEOC

investigation.”

The Boureslan majority decision ignores the many

existing procedures which permit service of process and

the taking of discovery overseas. This is particularly

simplified when, as here, all parties to the-litigation are

U.S. citizens, rendering unnecessary special venue or

EEOC investigative provisions.

* EEOC y, Institute of Gas Technology, 24 Empl. Prac. Dec. (CCH)

31,198 (N.D. Ill. 1980). See also Street, “International Commercial

and Labor Migration Requirements as a Bar to Discriminatory

Employment Practices,” 31 How. LJ. 497, 518-19, n.82 (1988), and

cases cited therein.

* § 706(f)(1).

53

CONCLUSION

Based upon his nationality, the petitioner in this case

is subject to many U.S. laws when he is employed outside

the United States. To conclude that Congress intended

him to bear the burdens of U.S. laws without the benefits

of Title VII's protection, leaving him vulnerable to illegal

discrimination by his American employer merely because

of his assignment overseas, is to impute to Congress an

intent which no evidence supports.

The language, purpose and legislative history of Title

VII, and the vital importance of civil rights to Americans

everywhere, all indicate that Congress intended that the

protections and remedies of Title VII be available to

American employees of U.S. employers abroad. The

exercise of extraterritorial jurisdiction under Title VII is

compatible with principles of international law and

requires no clearer expression of Congressional intent

than §702 of the statute already provides. For these

54

reasons, the decision below should be reversed.

Respectfully submitted,

Jane M. Picker

(Counsel of Record)

Kenneth J. Kowalski

Cleveland-Marshall College

of Law

1801 Euclid Avenue

Cleveland, Ohio 44115

(216) 687-3947

Sidney Picker, Jr.

Case Western Reserve

University Law School

11075 East Boulevard

Cleveland, Ohio 44106

(216) 268-3294

Isabelle Katz Pinzler

John A. Powell

American Civil Liberties

Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: November 15, 1990

55