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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 244

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0758%3A12. Public record. Not legal advice.