Petition for Writ of Certiorari — Boureslan v. Arabian American American American Oil Co. (Nos. 89-1845, 89-1838)
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989
ALI BOURESLAN,
Petitioner,
versus
ARABIAN AMERICAN OIL COMPANY
and ARAMCO SERVICES COMPANY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MICHAEL A. MANESS
Counsel of Record
for Petitioner
1900 North Loop West
Suite 500
Houston, Texas 77018
(713) 680-9922
GERALD M. BIRNBERG
6671 Southwest Freeway
Suite 303
Houston, Texas 77074
May 1990 (713) 981-9595
QUESTION PRESENTED
Does Title VII of the Civil Rights Act of 1964
protect a citizen of the United States working outside
the country from discrimination by an American
employer because of the employee’s race, religion, and
national origin?
TABLE OF CONTENTS
QUESTION PRESENTED ..........
TABLE OF AUTHORITIES .........
OPINIONS BELOW ..........--.
il TET
STATUTES INVOLVED ..........
STATEMENT OF THECASE .......
REASONS FOR GRANTING THE WRIT
CORULEMMES ccc cee eesceses
APPENDIX A: District Court
Memorandum and Order (January
ao, > —ist tw wk Pecaes
APPENDIX B: Court of Appeals
Panel Opinion (October 17, 1988) ......
APPENDIX C: Court of Appeals
En Banc Opinion (February 2, 1990) ....
APPENDIX D: Relevant Provisions of the
Civil Rights Act of 1964
(42 U.S.C. § 2000e et seq.) ........
TABLE OF AUTHORITIES
Boureslan v. ARAMCO, 653 F. Supp.
629, aff'd, 857 F.2d 1014, on
rehearing en banc, 892 F.2d 1271
PUT eae a esse ec cce sees passim
Pfeiffer v. Wm. Wrigley Jr. Co.,
ee 4
Foley Bros., Inc. v. Filardo,
EEE 4
Morton v. Ruiz, 415 U.S. 199
EE SSE OP Ee 9
Rice v. Sioux City Memorial Park
Cemetery, Inc. 349 U.S. 70
ES PPC ETE EET 10
Statutes:
wesc Se ccccccccces 2 |
EES eee ee 4
ee UM, ww tt ee ee passim
Rules of Court:
Supreme Court Rule 10.l(c) ............... 10
EE 3
No.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989
ALI BOURESLAN,
Petitioner,
versus
ARAMCO, ARABIAN AMERICAN OIL
COMPANY and ARAMCO SERVICES
COMPANY,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OPINIONS BELOW
The district court’s memorandum and order
dismissing the complaint, 653 F. Supp. 629 (S.D. Tex.
1987), is reproduced in the appendix at page A-1. The
panel and en banc opinions of the court of appeals, 857
F.2d 1014 (5 Cir. 1988), on rehearing en banc, 892 F.2d
1271 (5 Cir. 1990), are reproduced in the appendix at
pages B-1 and C-1.
JURISDICTION
The Equal Employment Opportunity
Commission’s notice of right to sue under Title VII was
issued on April 12, 1985. Boureslan filed a timely Title
VII complaint in the United States district court on
June 20, 1985.
The district court’s judgment dismissing the case
was entered on January 27, 1987. Boureslan’s timely
notice of appeal was filed on February 25, 1987.
The en banc court of appeals’ opinion and
judgment were entered on February 2, 1990. Justice
White granted Boureslan’s timely application to extend
the time for petitioning for certiorari, to and including
May 23, 1990. This petition was filed within the
extension requested.
The Court has jurisdiction under 28 U.S.C. §
1254(1).
STATUTES INVOLVED
The relevant provisions of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq., are reproduced in the appendix at page D-1.
STATEMENT OF THE CASE
Ali Salim Boureslan is a Moslem and a
naturalized United States citizen born in Lebanon. In
July 1979 he was hired as an engineer by Aramco
-%
Services Company (ASC), a Delaware corporation with
its principal place of business in Houston. After
working in the United States for approximately 16°
months, he applied for employment with ASC’s parent
company, Arabian American Oil Company
(ARAMCO), a Delaware corporation with its principal
place of business in Dhahran, Saudi Arabia. Boureslan
went to work for ARAMCO in Saudi Arabia in
November 1980. He was fired in June 1984.
Boureslan filed a complaint with the Equal
Employment Opportunity Commission, alleging that his
firing was pretextual and that his employment had been
terminated only after sustained insults, slurs, and
harassment by superiors and coworkers, beginning in
1981, arising from his race, religion, and national
origin. Unable to complete its administrative
processing of Boureslan’s charges within 180 days, the
EEOC issued its notice of right to sue on April 12,
1985.
Boureslan-then filed a timely complaint against
ARAMCO and ASC in the United States District
Court for the Southern District of Texas in Houston,
again alleging that his rights under Title VII had been
violated. He also invoked pendent jurisdiction in
asserting various claims under state law. Both
defendants answered the complaint, denied its
allegations on the merits, and sought its dismissal under
Rule 12(b)(1), F.R.Civ.P., for lack of subject matter
jurisdiction, arguing that Title VII has no
extraterritorial application to employment practices by
American employers outside the United States. ASC
also moved to dismiss on the additional grounds that
3.
the allegedly discriminatory employment practices had
occurred after Boureslan had left its employment, and
that Boureslan had not exhausted administrative
remedies with respect to his claims against ASC. The
district court never reached these issues.
Instead, it dismissed the case for lack of subject
matter jurisdiction, adopting the view that "[t]here is no
indication that Congress was concerned about
discrimination abroad" in enacting Title VII, and that
"the absence of a clearly expressed intent creates a
presumption that Congress did not _ intend
extraterritorial application." 653 F. Supp. at 630.
Analogizing Title VII to the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., which had
been held not to apply to employment practices of
American companies outside the United States prior to
its amendment in 1984, Pfeiffer v. Wm. Wrigley Jr. Co.,
755 F.2d 554 (7 Cir. 1985), the court also concluded
that potential conflicts between Title VII and foreign
employment laws would "[infringe] on the sovereignty
of other nations." 653 F. Supp. at 631.
A divided panel of the court of appeals for the
fifth circuit affirmed, invoking the rule of statutory
construction that “legislation of Congress, unless a
contrary intent appears, is meant to apply only within
the territorial jurisdiction of the United States." Foley
Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). Even
though Congress expressly excluded from Title VII’s
reach “the employment of aliens outside any State,” 42
U.S.C. § 2000e-1, the panel majority found no clear
indication that the statute is applicable to citizens
employed abroad. Like the district court, the court of
appeals panel found the legislative history of Title VII
to be “no more specific than the statutory language
itself,” 857 F.2d at 1019, and concluded that
extraterritorial application was not warranted, “[g]iven
the serious, potentially divisive policy considerations for
and against application of the Act outside the country
[and] the paucity of reference to such an application
either in the Act itself or the debates in Congress . . .”
857 F.2d at 1020.
Judge Carolyn Dineen King dissented, rejecting
as unpersuasive the panel majority’s it:plication “that
nothing short of an explicit statement by Congress will
overcome the presumption” against extraterritorial
application of federal legislation. 857 F.2d at 1022.
[T]he alien exemption provision would be meaningless
if Title VII did not apply extraterritorially; there is no
need to exempt aliens employed abroad from coverage
if no one is covered abroad.” 857 F.2d at 1032.
Believing that “Congress could reasonably have
concluded that exempting aliens employed abroad
would eliminate any obstacle to protecting U.S. citizens
employed abroad by U.S. corporations,” 857 F.2d at
1034, Judge King was totally unpersuaded by the
defendants’ argument that Title VII's application to
citizens working outside the country might violate
principles of international law. “U.S. employers
should not be allowed to escape liability for
discrimination by cloaking themselves in a conveniently
acquired concern for the integrity of the sovereignty of
foreign states." 857 F.2d at 1035.
Following publication of the panel opinion, the
EEOC moved for and was granted leave to intervene
-5-
as a party in support of Boureslan’s position. The
court of appeals granted rehearing en banc and,
dividing nine to five, again affirmed the district court’s
dismissal, reaffirming the view that "Title VII does not
reflect the necessary clear expression of congressional
intent to extend its reach beyond our borders.” 892
F.2d at 1274. Four judges joined Judge King’s
dissenting views that the alien exemption clause and
the other language of the statute confer its protection
on citizens employed abroad by American employers,
that such an application would not offend or
compromise principles of international law, and that
“the salutary goals of Title VII cannot be fully realized
if the fortuitous location of an American employee at
the overseas office of an American firm could mean the
difference between equal opportunity and
discrimination at will.” 892 F.2d at 1282.
REASONS FOR GRANTING THE WRIT
For the first time in Title VII's 26-year history,
federal trial and appeals courts have held that racial,
religious, and ethnic discrimination inflicted on
American citizens by American employers does not
violate federal law if it transpires outside the United
States. The Court should grant certiorari to review,
and ultimately to repudiate, a decision radically at odds
with principles of fair treatment and equal opportunity
that have been the cornerstone of our national
employment policy for more than a quarter of a
century.
The Court of Appeals’ unprecedented holding
has enormous implications. It is not limited to
Ye
situations in which the application of Title VII would
pose an actual or potential conflict with foreign law,
nor is it confined to instances in which race, religion,
national origin, gender, or similar suspect criteria
conceivably might constitute bona fide occupational
qualifications for assignment to foreign employment,
nor does it exempt even an otherwise indefensible Title
VII violation with respect to which the extraterritorial
character of the illegal act is purely fortuitous - for
example, a policy of tolerating or condoning sexual
harassment of a subordinate when citizens residing in
the United States are on overseas flights or temporarily
visiting foreign countries. Rather, solely because of its
inability to divine “clear congressional intent,” the court
of appeals majority effectively has exempted all
employment practices of all American employers of ail
American citizens working overseas from all regulation
under the Civil Rights Act of 1964. From such a
perspective one circumstance alone - the geographical
boundary of the United States - has transformed acts
otherwise constituting serious violations of fundamental
principles of American law into conduct toward which
the government’ reluctantly must adopt a
noninterventionist policy of benevolent neutrality.
No other court of appeals has ever come close
to adopting such an astonishing position. Although
there is no conflict among or between the circuits, that
circumstance should not weigh heavily in the Court’s
decision whether to grant certiorari.
First, while the issue has not divided the courts
of appeals,! it has split sharply a 14-member en banc
court whose decisions historically have had
considerable impact in shaping the course of federal
civil rights law. Judge Davis’ majority opinions, and
Judge King’s dissents, reflect the careful, thorough,
deliberative consideration the question has received
from two contending factions of United States circuit
judges having diametrically opposing points of view.
That sort of adversity reflects precisely the divergence
of opinion and lack of consensus that historically has
characterized inter-circuit conflicts.
Second, in advance of en banc rehearing in the
court of appeals, the issue presented was extensively
briefed and researched by experienced and capable
counsel for the parties, the intervening EEOC, and
attorneys for a substantial number of amici curiae.”
Both the legislative history of the Civil Rights Act of
1964 and that of related federal statutes, such as the
Age Discrimination in Employment Act, have been
1. As Judge King’s dissenting opinion points out, 857
F.2d at 1021 n.1, every other federal court considering the
issue has reached a contrary conclusion, expressly or by
implication.
2. - Boureslan’s position was supported in the court of
appeals by the EEOC, the NAACP Legal Defense and
Educational Fund, the Anti-Defamation League of B’Nai
B’Rith, the NOW Legal Defense and Education Fund,
the American Jewish Congress, and the Women’s Legal
Defense Fund, as well as plaintiffs in other pending Title
VII litigation against ARAMCO.
exhaustively researched, reviewed, and reexamined.
The arguments for and against the extraterritorial
application of Title VII have been reshaped and
refined by both adversarial and inquisitorial processes.3
It is therefore exceedingly unlikely the question will
ever be treated more thoroughly or more competently
than it has been in this case.
Third, because the question presented is neither
fact-specific nor dependent upon development of
evidence for its resolution, there is no reasonable
likelihood that deferring consideration of the issue to a
later day might cast it in a new, different, or less
perplexing light than that in which it appears now. The
protection afforded by Title VII to United States
citizens working for American employers either extends
beyond the boundaries of the United States, or it does
not. Neither the passage of time, nor consideration of
the same question by other courts of appeals, nor the
bare possiblity of remedial congressional action, will
affect or enhance the reliability of the decision-making
process.
Fourth, the determination by the EEOC and the
Solicitor General to seek review of this case are of
importance, particularly inasmuch as the decision
below is “inconsistent with long-established policy” of
the EEOC. Morton v. Ruiz, 415 U.S. 199, 201-02
(1974).
3. The case was orally argued in New Orleans before
both the panel and the en banc court of appeals.
-9.
Finally, the question presented is of profound
national significance, far transcending “the academic or
the episodic." Rice v. Sioux City Memorial Park
Cemetery, Inc., 349 U.S. 70, 74 (1955). If the courts
of the United States of America are to be cast
unwillingly in the role of distressed but passive and
impotent bystanders when American employers inflict
racial, religious, ethnic, and sex-based discrimination
on citizens employed abroad, that deplorable state of
affairs deserves explanation by the Supreme Court, not
by a deeply divided court of appeals. This is “an
important question of federal law which has not been,
but should be, settled by this Court." Supreme Court
Rule 10.1(c).
CONCLUSION
For the foregoing reasons, Petitioner Ali
Boureslan asks that his petition for certiorari be
granted.
MICHAEL A. MANESS
Counsel of Record
for Petitioner
1900 North Loop West
Suite 500
Houston, Texas 77018
(713) 680-9922
GERALD M. BIRNBERG
6671 Southwest Freeway
Suite 303
Houston, Texas 77074
(713) 680-9922
-10-
Ali BOURESLAN
v.
ARAMCO, Arabian American Oil Company and
Aramco Services Company.
Civ. A. No. H-85-3506.
United States District Court,
S.D. Texas,
Houston Division.
Jan. 27, 1987.
Employment discrimination action was brought arising from
employment of American citizen in Saudi Arabia by
Delaware corporation. On motion of defendants to dismiss
for lack of subject matter jurisdiction, the District Court,
DeAnda, J., that held Title VII of the Civil Rights Act of
1964 does not have extraterritorial application.
Motions granted.
Civil Rights ~ 2
Courts ~ 29
Title VII of the Civil Rights Act of 1964 did not have
extraterritorial application as to provide subject matter
jurisdiction for employment discrimination suit by United
States citizen against Delaware corporations with respect to
employr-ent in Saudi Arabia; disagreeing with Bryant v.
International Schools Services, 502 F.Supp. 472 (D.N.J.).
Civil Rights Act of 1964, §§ 701 et seq., 701(b, g, h), 702,
42 U.S.C.A. §§ 2000e et seq., 2000e(b, g, h), 2000e-1; Age
Discrimination in Employment Act of 1967, § 2 et seq., 29
U.S.C.A. § 621 et seq.
Appendix A me
Perry Archer, Hjalmarson & Paster, Houston, Tex., for
plaintiff.
Gloria M. Portela, Linda Headley, Hutcheson & Grundy,
Houston, Tex., for defendant.
MEMORANDUM AND ORDER
DeANDA, District Judge.
Pending before the court are Defendants’ motions to dismiss
under Rule 12(b)(1) for lack of subject matter jurisdiction.
For the reasons stated below, the court finds the motions
should be granted.
Plaintiff, Ali Boureslan, is an American citizen who was
born in Lebanon and resides in El Paso, Texas. Plaintiff
instituted this action against Arabian American Oil Company
(Aramco) and Aramco Services Company (ASC). Aramco is
a Delaware corporation with its principal place of business in
Dhahran, Saudi Arabia. Aramco is licensed to do business in
Texas. ASC is a Delaware corporation with its principal
place of business in Houston, Texas.
Plaintiff was first employed as an engineer for ASC in
Texas beginning July of 1979. In November of 1980 Plaintiff
was transferred to work for Aramco in Saudi Arabia.
Plaintiff's troubles began in September of 1982, when
Plaintiffs supervisor allegedly began harassing Plaintiff about
his national origin, race and religion. Plaintiff's status
detericrated, eventually resulting in termination on June 16,
1984. Plaintiff relied on 42 U.S.C. § 2000e for jurisdiction
but alleges state law causes of action in addition to his Title
VII claim.
Defendants urge the court to dismiss Plaintiff's claims for
lack of subject matter jurisdiction. Defendants argue that
Title VII does not apply to Plaintiff's employment in Saudi
Appendix A P. 2
Arabia and Plaintiffs state law claims should be likewise
dismissed for lack of pendent jurisdiction.
The case law discussing whether Title VII has
extraterritorial application is scant. Bryant v. International
Schools Services, 502 F.Supp. 472 (D.N.J.1980), rev’d on
other grounds, 675 F.2d 562 (3d Cir.1982), is on point. In
Bryant the court ruled that Title VII did have extraterritorial
application. The court relied on Title VII’s exemption of
‘‘aliens outside of any State,’’ negatively inferring that Title
VII must apply to citizens employed outside the United
States. See 42 U.S.C. § 2000e-1; 502 F.Supp. at 482. The
court cited Love v. Pullman Co., 13 F.E.P. 423
(D.Col. 1976), a case in which the court, in a footnote, drew
the same negative inference, Sze 13 F.E.P. at 426 n. 4.
Since Bryant no court has confronted and ruled on the
extraterritorial issue. Several courts have cited Bryant in
deciding whether the Age Discrimination in Employment Act
(ADEA) applies extraterritorily. See, e.g., Cleary v. United
States Lines, Inc., 728 F.2d 607, 609 (3d Cir.1984). The
E.E.0.C. has accepted Bryant as the law. See, e.g.,
E.E.0.C. Dec. No. 84-2, 33 F.E.P. 1893 (Dec. 2,1983).
While no circuit court has decided the extraterritorial ques-
tion, the Court of Appeals for the Third Circuit remarked, in
dicta, that the reasoning behind the negative inference is
controversial. Cleary, 728 F.2d at 609.
Indeed, the negative inference underlying the Bryant
decision is suspect. In Espinoza v. Farah Manufacturing Co.,
414 U.S. 86, 94 S.Ct. 334, 30 L.Ed.2d 287 (1973), the
Supreme Court drew a different inference from the identical
Title VII language. The Court held that by exempting ‘‘aliens
outside of any State’’ Congress intended to include aliens
inside the United States within Title VII’s coverage. 414
U.S. at 95, 94 S.Ct. at 340.
Abandoning the Bryant precedent does little more than send
the court back to square one. An examination of Title VII’s
Appendix A P. 3
legislative history offers little guidance; the extraterritorial
issue is not mentioned. The most that one can glean from the
legislative history is that Congress enacted Title VII to
remedy domestic discrimination. See, e.g., H.R.Rep. No.
914, 88th Cong., 2nd session, reprinted in 1964 U.S. Code
Cong. & Ad.News 2355, 2393 (focusing on domestic
discrimination). There is no ind:cation that Congress was
concerned about discrimination abroad. Legislative efforts in
1964 were directed towards eliminating discrimination in the
United States. It is doubtful that Congress considered en-
acting legislation to counter discrimination against citizens
abroad.
Title VII’s language does not support extraterritorial
application. As previously noted, reliance on the language
exempting ‘‘aliens outside of any State’’ is erroneous.
Additionally, Title VII applies only to ‘‘employers.’’ The
statute defines ‘‘employer’’ as one ‘‘engaged in any industry
affecting commerce who has fifteen or more employees....”’
42 U.S.C. § 2000e(b). Title VII, at Section 2000e(g), defines
commerce as
[T]rade, traffic, commerce, transportation, transmission, or
communication among the several States; or between a State
and any place outside thereof; or within the District of
Columbia, or a possession of the United States; or between
points in the same State but through a point outside thereof.
Section 2000e(h) further defines ‘‘industry affecting
commerce’’ as including activity or industry affecting
commerce within the meaning of the Labor Management
Reporting and Disclosure Act of 1959, 29 U.S.C. § 402(c).
The Labor Management Reporting and Disclosure Act
defines industry affecting commerce as industry included
under the Labor Management Relations Act. Finally, the
Supreme Court has held that the Labor Management
Relations Act has no extraterritorial application. McCulloch
v. Sociedad Nacional de Marineros de Honduras, 372 U.S.
Appendix A P. 4
10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963); Benz v. Compania
Navieia Hidalgo, 353 U.S. 138, 77 S.Ct. 699,1 L.Ed.2d 709
(1957).
A study of the statutory language and legislative history
reveals, if anything, that Congress did not intend Title VII to
apply extraterritorily. See Pfeiffer v. Wm. Wrigley, Jr. Co.,
755 F.2d 554 (7th Cir. 1985). At a minimum, the absence of
a clearly expressed intent creates a presumption that
Congress did not intend extraterritorial application. See Foley
Bros. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed.2d
680 (1949). It is doubtful that Congress reserved the question
of Title VII’s application for the courts to decide. It is much
more likely that Congress never considered the issue.
Examining the development of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634 is
instructive. When enacted, ADEA was silent on the question
of extraterritorial application. Courts struggled with the issue
but concluded that Congress did not intend ADEA to apply
extraterritorially. See, e.g., Cleary v. United States Lines,
Inc. , 728 F.2d 607 (3d Cir. 1984); Thomas v. Brown & Root,
Inc., 745 F.2d 279 (4th Cir.1981). In 1984, Congress
amended the ADEA. Congress included in the definition of
employee ‘‘any individual who is a citizen of the United
States employed by an employer in a workplace in a foreign
country.’’ 29 U.S.C. § 630(f). Thus, Congress added a clear
Statement, obviating the need for judicial guesswork.
In Pfeiffer v. Wm. Wrigley, Jr. Co., 755 F.d 554 (7th
Cir.1985), the court held that ADEA did not apply
extraterritorially. Judge Posner, writing for the court, found
the lack of statutory language and legislative history
persuasive. See id. at 556-57. The decision is important
because the court issued its ruling knowing that Congress
amended the ADEA to apply extraterritorily. Judge Posner
pointed out that the amendment did not apply retroactively.
See id. at 559. The court rejected Plaintiff's argument that
Appendix A @
the amendment clarified the original act. See id. Judge
Posner asserted that Congress may have intended to change
the law, not elucidate it. See id.
Following the reasoning in Pfeiffer, even if Congress did
amend Title VII to apply extraterritorily, the court should
rule against extraterritorial application. Of course, Congress
has not amended Title VII. The court must base its decision
on the applicable statute and its legislative history, which do
not support extraterritorial application.
Finally, there are significant policy reasons for not applying
Title VII abroad. Imposing Title VII abroad infringes on the
sovereignty of other nations. Indeed, in the case at hand
Saudi Arabia has enacted its own statute, the Labor and
Workman Law of 1959. Many of its provisions conflict with
Title VII. Given the potential conflict, it should be Congress
that mandates extraterritorial application. See Pfeiffer, 755
F.2d at 554.
The court thus concludes Title VII should not be applied
extraterritorily. Accordingly, Defendants’ motions to dismiss
under Rule 12(b)(1) should be granted. Plaintiff's state law
claims should also be dismissed for lack of pendent
jurisdiction. United Mine Workers of America v. Gibbs, 383
U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The court
hereby
ORDERS Defendant Aramco’s motion to dismiss under
Rule 12(b)(1) is GRANTED. The court further
ORDERS Defendant ASC’s motion to dismiss under Rule
12(b)(1) is GRANTED. The court further
ORDERS Piaintiff’s state law claims are DISMISSED for
lack of pendent jurisdiction.
Appendix A P. 6
Ali BOURESLAN, Plaintiff-Appellant,
v.
ARAMCO, Arabian American Oil Company and
Aramco Service Company, Defendants-Appellees.
No. 87-2206.
United States Court of Appeals,
Fifth Circuit.
Oct. 17, 1988.
United States citizen brought employment discrimination
action predicated upon Title VII against employer, United
States corporation, whose principal place of business was in
Saudi Arabia. The United States District Court for the
Southern District of Texas, James DeAnda, Chief Judge, 653
F.Supp. 629, determined that Title VII did not afford
extraterritorial protection and dismissed action for lack of
subject matter jurisdiction, and employee appealed. The
Court of Appeals, W. Eugene Davis, Circuit Judge, held that
neither statute’s language nor legislative history overcame
presumption against extraterritorial application of Title VII.-
Affirmed.
King, Circuit Judge, filed dissenting opinion.
1. Civil Rights ~2
Alien exemption provision in Title VII could not be applied
to extend protection of Title VII to citizens extraterritorially;
rather, exemption provision reflected congressional intent to
provide coverage to aliens employed within United States.
Civil Rights Act of 1964, § 70l(g), as amended, 42
U.S.C.A. § 2000e(g).
2. Statutes ~ 217.4
Legislative history is relegated to secondary source behind
language of statute in determining congressional intent.
Appendix B p. |
3. Statutes ~ 217.4
Courts are not free to substitute legislative history for
language of act in interpreting meaning of statute.
4. Statutes ~219(6)
Though EEOC’s interpretations of Title VII are generally
entitled to deference, such interpretations are not controlling
on courts. Civil Rights Act of 1964, § 701 et seq., as
amended, 42 U.S.C.A. § 2000e et seq.
5. Statutes ~219(6)
Where issue in Title VII action is jurisdictional with little
or no statutory language or legislative history and one in
which EEOC has developed no particular expertise, Court of
Appeals gives EEOC’s interpretation less deference than
usual. Civil Rights Act of 1964, § 701 et seq., as amended,
42 U.S.C.A. § 2000e et seq.
6. Civil Rights ~2
Legislative history of Title VII did not provide clear
expression of congressional intent required to overcome
presumption against extraterritorial application; legislative
history contained numerous statements arguably favoring
geographic limits for Title VII. Civil Rights Act of 1964, §
701 et seq., as amended, 42 U.S.C.A. § 2000e et seq.
7. Civil Rights ~2
Policy arguments in favor of extraterritorial application of
Title VII did not overcome strong counterveiling policy argu-
ments against application of Title VII abroad; given fact that
religious and social customs practiced in many countries are
at odds with those of United States, requirement that
American employers comply with Title VII in such countries
could leave American corporations with choice of either
refusing to employ American citizens abroad or discontinuing
business. Civil Rights Act of 1964, § 701 et seq., as
amended, 42 U.S.C.A. § 2000e et seq.
Appendix B p. 2
James Field Tyson, Perry Archer, Houston, Tex., for
plaintiff-appellant.
Charles A. Shanor, Karen MacRae Smith, E.E.O.C.,
Washington, D.C., for amicus-E. E.0.C.
Edward E. Potter, McGuiness & Williams, Washington,
D.C., for amicus E.E.A.C.
John D. Roady, Linda Ottinger Headley, Hutcheson &
Grundy, Houston, Tex., for Aramco.
Lawrence Z. Lorber, John E. Parauda, Breed, Abbott &
Morgan, Washington, D.C., for amicus-ASPA.
Cecil J. Olmstead, Steptoe & Johnson, Washington, D.C.,
for amicus-Rule of Law Committee.
Appeal from the United States District Court For the
Southern District of Texas.
Before KING and DAVIS, Circuit Judges, and
PARKER, ™ District Judge.
W. EUGENE DAVIS, Circuit Judge:
Plaintiff, a naturalized citizen of the United States, brought
an employment discrimination suit--predicated upon Title VII
and state law causes of action--against his employer, a United
States corporation whose principal place of business is in
Saudi Arabia. In his suit, plaintiff charged that while he was
working in Saudi Arabia, his employer discriminated against
him on the basis of his race, religion, and national origin.
The employer contested plaintiff's claims of discrimination
and, in addition, moved the district court to dismiss the en-
tire action. The employer argued that the reach of Title VII
does not extend to United States citizens employed abroad by
* Formerly Judge Randall.
™ District Judge of the Eastern District of Texas, sitting by
Appendix B p. 3
United States employers and, therefore, that the district court
lacked subject matter jurisdiction over plaintiff's claim. The
district court agreed, granted the employer’s motion, and
dismissed plaintiff's suit. On appeal, plaintiff--joined by the
Equal Employment Opportunit, Commission as amicus
curiae--urges us to conclude, that Congress intended Title
VII to apply extraterritorially to protect United States citizens _
employed by United States employers. We find, however,
that the rules of statutory construction which control our
review of Title VII do not permit the conclusion plaintiff
urges--we cannot say that Congress, through either the
language of Title VII or its legislative history, clearly ex-
pressed its intent that Title VII be applied extraterritorially.
Therefore, we conclude that Title VII does not offer plaintiff
an available remedy for his claimed discrimination and affirm
the district court.
I.
This appeal presents a single issue: Does Title VII regulate
the employment practices of businesses which, although
incorporated in the United States, employ citizens of the
United States in foreign countries? The question reaches us
as a result of the employment relationship between Ali Bour-
eslan, Arabian American Oil Company (Aramco), and
Aramco Services Company (ASC). In 1979, Boureslan--a
naturalized United States citizen who was born in Leb-
anon--went to work as an engineer for ASC in Houston,
Texas. ASC is a Delaware corporation with its principal
place of business in Houston; ASC is a subsidiary of
Aramco, licensed to do business in Texas, with its principal
place of business in Dhahran, Saudi Arabia. In November
1980, Boureslan requested a transfer to Aramco. Because
Aramco explores, produces, and refines oil and gas
exclusively within the Kingdom of Saudi Arabia, Boureslan’s
transfer from ASC to Aramco also meant a transfer from the
United States to Saudi Arabia.
Appendix B p. 4
Shortly after beginning work in Saudi Arabia, Boureslan
began having altercations with his supervisor. According to
Boureslan, the altercations were the result of a ‘‘campaign of
harassment’’ which the supervisor initiated--a campaign
which took the form of racial, religious, and ethnic slurs and
which culminated in Boureslan’s termination on June 16,
1984.
After he was fired, Boureslan first filed charges against
Aramco with the Equal Employment Opportunity
Commission (EEOC) in the United States and, later,
instituted this suit against both Aramco and ASC in the
United States District Court for the Southern District of
Texas. In each case, the focus of Boureslan’s attack was the
discriminatory treatment which he allegedly received while
in Saudi Arabia from his Aramco supervisor. In his lawsuit,
Boureslan sought relief under both Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and state
law. In response to the lawsuit, both Aramco and ASC filed
answers denying liability and yeparately filed motions to
dismiss for lack of subject matter jurisdiction. ASC stressed
two reasons why Boureslan’s claims against ASC should be
dismissed. First, ASC argued that, at most, only Aramco
could be ‘isle to Boureslan since, according to ASC,
Boureslan’s transfer from ASC to Aramco terminated the em-
ployment relationship between ASC and Boureslan. Second,
ASC argued that Boureslan failed properly to exhaust his
administrative remedies under Title VII with respect to ASC
because Boureslan named only Aramco in the one grievance
he filed with the EEOC.
While ASC’s grounds for dismissal challenged only the
propriety of its own inclusion in Boureslan’s lawsuit,
Aramco’s motion to dismiss raised a more sweeping
challenge--a challenge which, if true, required a dismissal of
the lawsuit against both Aramco and ASC. Aramco argued
that the protections of Title VII do not extend
extraterritorially and, consequently, that Title VII offers no
Appendix B p. 5
protection to Boureslan for acts of discrimination which oc-
curred in Saudi Arabia. Boureslan contested this
interpretation, and argued that the clear and express terms of
Title VII demonstrate Congress’ intent to protect United
States citizens from employment discrimination by American
employers regardless of where the discrimination occurs. In
an opinion dated January 27, 1987, the district court
considered carefully the question of Title VII's geographic
reach. After examining Title VII's language and legislative
history, Supreme Court cases on extraterritorial application
of federal statutes, and other existing case law on the scope
of Title VII, the district court concluded that Title VII does
not afford extraterritorial protection. Boureslan v. Aramco,
653 F.Supp. 629, 631-(S.D. Tex.1987). Consequently, the
court dismissed Boureslan’s Title VII action against Aramco
and ASC for lack of subject matter jurisdiction; it also
dismissed Boureslan’s state law claims for lack of pendent
jurisdiction, and entered final judgment in favor of both
defendants. On appeal, Boureslan asks us to find that
Congress intended Title VII to be applied extraterritorially.
A special set of rules of statutory interpretation are in place
to assist us in determining whether Congress intended to give
a statute application outside this country. We first examine
those rules.
In Foley Bros., Inc. v. Filardo, 336 U.S. 281, 69 S.Ct.
575, 93 L.Ed. 680 (1949), the Supreme Court considered
whether a federal statute prohibiting workdays of longer than
eight hours without overtime pay applied to a contract
between the United Siates and a private contractor for work
performed in a foreign country. Jd. at 282, 69 S.Ct. at 576.
As the Court saw it: The canon on construction which
teaches that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial
jurisdiction of the United States, is a valid approach whereby
Appendix B p. 6
unexpressed congressional intent may be ascertained. It is
based on the assumption that Congress is primarily concerned
with domestic conditions. We find nothing in the Acct itself,
as amended, nor in the legislative history, which would lead
to the belief that Congress entertained any intention other
than the normal one in this case. /d. at 285, 69 S.Ct. at 577
(citation omitted).
See also McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677-78, 9
L.Ed.2d 547 (1963).
This court has consistently applied the presumption against
extraterritoriality. In United States v. Mitchell, 553 F.2d 996
(Sth Cir. 1977), we refused to read extraterritorial application
into the Marine Mammal Protection Act. In ruling against
extraterritorial application, we noted that ‘‘the government
[failed] to [show] any clear expression of congressional intent
[to overcome the presumption against extraterritorial
application].’’ In De Yoreo v. Bell Helicopter Textron, Inc.,
785 F.2d 1282, 1283 (Sth Cir. 1986), we rejected the argu-
ment that the Age Discrimination In Employment Act
(ADEA) be given extraterritorial application.
Other circuits have followed the Supreme Court in denying
extraterritorial application without a clear congressional
expression of intent to the contrary. For example, in Pfeiffer
v. Wm. Wrigley, Jr. Co., 755 F.2d 554 (7th Cir. 1985), the
Seventh Circuit considered the extraterritorial application of
the ADEA. After finding that the statute did not speak
directly to the issue of extraterritorial application, the court
applied the presumption against extraterritorial application,
noting that ‘‘[t}he fear of outright collisions between
domestic and foreign law--collisions both hard on the people
caught in the cross-fire and a potential source of friction
between the United States and foreign countries--lies behind
the presumption against the extraterritorial application of
federal statutes.’’ Jd. at 557. Likewise in Cleary v. United
Appendix B p. 7
States Lines, Inc., 728 F.2d 607 (3d Cir.1984), the Third
Circuit rejected the application of the ADEA extraterritorially
without ‘‘affirmative evidence of congressional intent.’’ See
also Air Line Stewards and Stewardesses Ass'n Int'l v. Trans
World Airlines, Inc., 273 F.2d 69, 70 (2d Cir.1959), cert.
denied, 362 U.S. 988, 80 S.Ct. 1075, 4 L.Ed.2d 1021
(1960) (denying extraterritorial application of the Railway
Labor Act (RLA)); Air Line Stewards and Stewardesses
Ass'n Int'l v. Northwest Airlines, Inc., 267 F.2d 170,178 (8th
Cir.), cert. denied, 361 U.S. 901, 80 S.Ct. 208, 4 L.Ed.2d
156 (1959) (denying extraterritorial application of RLA); Air
Line Dispatchers Ass'n v. National Mediation Bd., 189 F.2d
685, 690-91 (D.C.Cir.), cert. denied, 342 U.S. 849, 72
S.Ct. 77, 96 L.Ed. 641 (1951) (denying extraterritorial
application of RLA); see generally Restatement (Second) of
the Foreign Relations Law of the United States § 38 (1965).
Against this backdrop, we examine the language and
legislative history of Title VII to determine whether Congress
intended the act to have extraterritorial application.
Ill.
A.
Boureslan’s discrimination case is based upon § 703(a)(1)
of Title VII which provides:
It shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any
individual. or octherwi hiscrimi : any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1).
Extraterritorial application is not directly addressed in Title
VII. Section 2000e(b) defines ‘‘employer’’ under the Act as
including any ‘person employed in an industry affecting
commerce.’’ The term ‘‘commerce’’ is in turn defined as
Appendix B p. 8
“trade, traffic, commerce, transportation, transmission, or
communication among the several States; or between a State
and any place outside thereof.’’ 42 U.S.C. § 2000e(g).
[1] Boureslan, however, relies on § 2000e-1 commonly
referred to as the alien exemption provision, which provides
that *‘[t)his title shall not apply to an employer with respect
to employment of aliens outside of any state.’’' Boureslan
argues that a ‘‘negative inference’’ should be drawn from this
language that Congress intended Title VII to cover United
States citizens working abroad for United States employers.
Boureslan argues that the alien exemption provision has no
purpose if Title VII is not applied to protect citizens
extraterritorially because in the absence of this provision
neither citizens nor aliens would be protected while working
outside the country. Boureslan notes that one district court
has accepted this argument. Bryant v. International School
Servs., 502 F.Supp. 472 (D.N.J.1980), rev’d on other
grounds, 675 F.2d 562 (3d Cir. 1982).
But the alien exemption provision does have a purpose even
if we accept the district court’s conclusion that Title VII does
not protect citizens abroad. First, no one disputes that the
' Eight years after the enactment of Title VII, Congress added the
following language to extend protection of the Act to federal
employees, and included the alien exemption language:
All personnel actions affecting employees or applicants for
employment (except with regard to aliens employed outside the
limits of the United States ) in military departments ..., in executive
agencies . ., iin the United States Postal Service and the Postal Rate
Commiasiea, in those units of the government of the District of
Columbia having positions in the competitive service, and in those
units of the legislative and judicial branches of the Federal
Government having positions in the competitive service, and in the
Library of Congress shall be made free from any discrimination
based on race, color, religion, sex, or national origin. (emphasis
added).
42 U.S.C. § 2000e-16(a).
Appendix B x p. 9
provision excludes coverage to aliens employed outside the
states. Second, in Espinoza v. Farah Mfg. Co., 414 U.S. 86,
95, 94 S.Ct. 334, 340, 38 L.Ed.2d 287 (1973), the Supreme
Court attached another meaning to the provision’s domestic
scope. The Court concluded that the alien exemption
provision reflects a congressional intent to provide Title VII
coverage to aliens employed within the United States.
Thus, we do not face a choice between attaching appellant’ s
negative inference to the alien exemption provision or
stripping the provision of all purpose. If we decline to give
the alien exemption provision the interpretation appellant
seeks, the provision still is a meaningful and useful part of
the Act. Appellant has not persuaded us that the provision’s
language merits an interpretation that overcomes the
presumption against extraterritorial application of the Act.
Boureslan argues next that the legislative history of Title
VII, when coupled with the statutory language, evidences a
clear congressional intent to apply the Act extraterritorially.
It is to the legislative history, therefore, that we must now
turn.
[2, 3] Before considering the particular portions of the
legislative history pointed to by Boureslan, it is important
that we define the role allocated to legislative history in
Statutory interpretation. Legislative history is relegated to a
secondary source behind the language of the statute in deter-
mining congressional intent; even in its secondary role
legislative history must be used ‘‘cautiously.’’ United States
v. Smith, 795 F.2d 841 (9th Cir. 1986). Courts are not free
to substitute legislative history for the language of the Act
and legislative history is not an adequate substitute for
congressional action. Piper v. ChrisCraft Indus., Inc., 430
U.S. 1, 97 S.Ct. 926, 5 L.Ed.2d 124 (1977); United States
v. Devall, 704 F.2d 1513 (lth Cir. 1983); Aronsen v. Crown
Zellerbach, 662 F.2d 584 (9th Cir.1981), cert. denied, 459
Appendix B p. 10
U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431(1983). The
Supreme Court has repeatedly stated that ‘*’[a]bsent a clearly
expressed legislat.ve intention to the contrary, [statutory] lan-
guage must ordinarily be regarded as conclusive.’ °’
Escondido Mut. Water Co. v. La Jolla Indians, 466 U.S.
765, 772, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1984)
(quoting North Dakota v. United States, 460 U.S. 300, 312,
103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983); Consumer
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,
100 S.Ct. 2051, 64 L.Ed.2d 766 (1980).
[4, 5] The EEOC in its amicus curiae brief points to three
Statements in the legislative history that, it argues, supports
its interpretation of the Act. First, the EEOC notes that in the
House report that accompanied the Act to the Senate floor,
the passage of Title VII was declared necessary:
[t]o remove obstructions to the free flow of interstate and
foreign commerce and to insure the complete and full
enjoyment by all persons of the rights, privileges, and
immunities secured and protected by the Constitution.
House Report on Civil Rights Act of 1964, H.R.Rep. No.
914, 88th Cong., Ist Sess. (1963), reported in 1964
U.S.Code Cong. & Admin.News 2391, 2402. Second,
EEOC stresses a comment by Representative William
McCulloch, ranking minority member of the House Judiciary
Committee, in which McCulloch stated that ‘‘[a] key purpose
of the bill, then, is to secure to all Americans the equal
protection of the laws of the United States and of the several
States.’ Jd., reprinted in 1964 U.S.Cong. Code &
Admin. News at 2488. EEOC also points out that the minority
report states that ‘‘[t}he rights of citizenship mean little if an
individual is unable to gain the economic wherewithal to
enjoy or properly use them.’’ Jd. at 2516. The EEOC argues
that these general policy statements reflect a strong intent by
Congress to combat employment discrimination on all fronts
without any geographic limits. Thus, the EEOC asserts that
Appendix B p. 11
the omission of any mention of extraterritorial application
supports, rather than detracts, from their position.”
[6] These references to Title VII's legislative history fall far
short of the clear expression of congressional intent required
to overcome the presumption against extraterritorial
application. The statements, carefully taken from a
voluminous legislative history, are no more specific than the
statutory language itself. To rely on such general policy
statements would effectively adopt a presumption in favor of
extraterritorial application. This is particularly true when the
legislative history contains numerous statements that arguably
favor geographic limits for Title VII.
For example, the Act’s language and legislative history
make repeated references to the ‘‘United States,’’ ‘‘states,”’
and procedures relating to state proceedings without parallel
references to foreign countries. 42 U.S.C. 2000e(i) defines
**state’’ to include the states and other areas under United
States jurisdiction, with no reference to foreign countries.
References in the legislative history highlight concerns about
employment discrimination problems in the states, Senator
Hubert Humphrey, 110 Cong.Rec. 6550 (1964); the effect of
Title VII on southern states versus other states, Senator
Richard Russell, 110 Cong.Rec. 14301(1964); and deferral
2 In Espinoza, 414 U.S. at 94, 94 S.Ct. at 339, the Court noted
that the EEOC’s interpretation of Title VII is generally entitled to
deference. However, such interpretations are not controlling on the
courts. Because this is a jurisdictional issue with little or no
statutory language or legislative history, and one in which the
EEOC has developed no particular expertise, we give the EEOC’s
interpretation less deference than usual. This is particularly
appropriate given the traditional presumption against extrater-
ritoriality. See General Electric Co. v. Gilbert, 429 U.S. 125,
141-42, 97 S.Ct. 401, 410-11, 50 L.Ed.2d 343 (1976); Skidmore
v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed.
124 (1944).
Appendix B p. 12
to state employment laws, Congressman Emanuel Celler, 110
Cong.Rec. 1521 (1964).
Moreover, Congress deleted reference to ‘‘foreign
commerce’’ and ‘‘foreign nations’’ from earlier House
versions of Title VII.’ While these references and deletions
are not conclusive legislative support, they are certainly as
persuasive as policy statements in the legislative history
offered by the EEOC.
EEOC also points to a reference to the alien exemption
provision contained in a house report rendered in connection
with H.R. 405, a concurrent attempt to fashion equal
employment legislation during the 88th Congress’ first
session in 1963. This report was placed in the record in the
hearings for H.R. 7152, which ultimately became the Civil
Rights Act of 1963. The report stated,
In section 4 of the Act, limited exception is provided for
employers with respect to employment of aliens outside of
any state, and also, to any religious corporations,
associations, or societies. The intent of the first exemption
is to remove conflicts of law which might otherwise exist
between the United States and a foreign nation in the
employment of aliens outside the United States by an
American enterprise. Civil Rights: Hearings on H.R. 7152,
as amended by Subcommittee No. 5 before the House
Committee on the Judiciary, 88th Cong., Ist Sess. 2303
(1963). EEOC urges us to interpret this language to reflect
an intent that, but for the alien exemption provision, Title
VII protects all persons employed overseas by American
employers.
* These deletions are reflected in an annotated copy of the House
bill that Senator Dirksen inserted into the Congressional Record on
June 5,1964, in anticipation of debate on the Senate's substitute
bill. Senator Everett Dirksen, 110 Cong.Rec. 12811-817 (1964).
Appendix B p. 13
However, this brief reference sheds little additional light on
the issue. Whether it points to the provision’s bare language
or to this snippet of legislative history, EEOC still must
argue a negative inference. That is, EEOC argues that
Congress spoke by not speaking. This silence will not reverse
the presumption that this legislation applies only to
employees employed in the United States.‘
[7] Finally, Boureslan and the EEOC advance a number of
policy arguments in favor of the extraterritorial application
of Title VII. These arguments go to the inequity of denying
Americans employed abroad protections to which they are
entitled in the United States. Although these arguments have
obvious appeal, we cannot ignore strong countervailing
policy arguments against the application of Title VII abroad.
The religious and social customs practiced in many countries
are wholly at odds with those of this country. Requiring
American employers to comply with Title VII in such a
country could well leave American corporations the difficult
* The collaborative nature of the way in which H.R. 405 found its
way into H.R. 7152 further dilutes the report’s impact. The
General Subcommittee on Labor voted on June 20, 1963, to report
H.R. 405 to the full Committee on Education and Labor. On July
31, 1963, Subcommittee No. 5 of the House Committee on the
Judiciary placed this report in the record of hearings on H.R.
7152, the administration's civil rights bill. Subcommittee No. 5
substituted H.R. 405 for the equal employment title originally
proposed in H.R. 7152, and reported H.R. 7152 favorably to the
full judiciary committee. The full committee retained the alien
exemption provision when it reported the title on Nov. 20, 1963.
Ultimately, Congress enacted H.R. 7152 as the Civil Rights Act
of 1963. In short, EEOC looks for a clear expression of intention
in a negative inference arising from one paragraph of a report
rendered by members of a House subcommittee that did not
participate in voting the bill out of the Judiciary Committee and
sending it to the full House.
Appendix B p. 14
choice of either refusing to employ United States citizens in
the country or discontinuing business. Given the serious,
potentially divisive policy considerations for and against
application of the Act outside the country, the paucity of
reference to such an application either in the Act itself or the
debates in Congress is a compelling argument that Congress
did not turn its attention to this possibility. It is not for this
court to decide this policy issue for the legislative branch.
While the judicial function in construing legislation is not
a mechanical process from which judgment is excluded, it
is nevertheless very different from the legislative function.
Construction is not legislation and must avoid ‘‘that retro-
spective expansion of meaning which properly deserves the
stigma of judicial legislation.’’ To blur the distinctive func-
tions of the legislative and the judicial processes is not
conductive to responsible legislation.
Addison v. Holly Hill Fruit Prods. Co. 322 U.S. 607, 618,
64 §.Ct. 1215, 1221, 88 L.Ed. 1488 (1944) (citation
omitted).
IV.
The presumption against extraterritorial application
establishes a high hurdle for appellant’s arguments to
overcome. Neither the statute’s bare language nor the sparse
indirect language on the subject in the legislative history
persuade us that he has cleared this hurdle.
AFFIRMED.
KING, Circuit Judge, dissenting:
Today, in the first circuit court opinion to consider
expressly the extraterritorial application of Title VII,’ the
Every district court that has considered the question has held that
Title VII does apply extraterritorially. Bryant v. International Schools
Services, Inc., 502 F.Supp. 472 (D.N.J.1980), rev'd on other
Appendix B p. 15
majority holds that Title VII affords no protection from
employment discrimination to U.S. citizens who are
employed abroad by U.S. corporations. Because an
examination of the language and legislative history of Title
VII reveals that Congress did not intend the protections of
Title VII to be so restricted, and because the extraterritorial
application of Title VII to U.S. nationals would not violate
principles of international law, I must respectfully dissent
from the majority’s holding.
I. The Presumption Against Extraterritoriality
It is undisputed that Congress had the power to extend Title
VII’s protections extraterritorially. See Steele v. Bulova
Watch Co., 344 U.S. 280, 282-83, 73 S.Ct. 252, 253-54, 97
L.Ed. 319 (1952); Foley Bros. v. Filardo, 336 U.S. 28i,
284, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949); United States
v. Mitchell, 553 F.2d 996, 1001 (Sth Cir.1977). Nationality
is an accepted basis for the exercise of jurisdiction. Thus, a
state may prescribe law relating to the conduct of its
nationals, even when that conduct occurs outside of the
state’s territory. See Steele, 344 U.S. at 285-86, 73 S.Ct. at
255-56; Blackmer v. United States, 284 U.S. 421, 436-37, 52
S.Ct. 252, 254-55, 76 L.Ed. 375 (1932); Mitchell, 553 F.2d
at 1001; Laker Airways v. Sabena, Belgian World Airlines,
731 F.2d 909, 922 (D.C.Cir. 1984); Restatement (Third) of
the Foreign Relations Law of the United States § 402 (1987)
[hereinafter Restatement]. The only question in this case is
grounds, 675 F.2d 562, 577 n. 23 Gd Cir. 1982) (declining to reach
question of Title VII's extraterritorial application); Seville v. Martin
Manetta Corp., 638 F.Supp. 590 (D.Md. 1986) (adopting Bryants
reasoning); Love v. Pullman, 13 Fair Empi.Prac.Cas-(BNA) 423,
426 n. 4 (D.Colo. 1976), aff'd on other grounds, 569 F.2d 1074 (Oth
Cir.1978)- see also Kern v. Dynaelectron, ST7 F.Supp. 1196
(N.D.Tex.1983) (ap-plying Title VII extraterritorially without ex-
pressly considering threshold jurisdictional issue), aff'd mem., 746
F.2d 810 (Sth Cir. 1984).
Appendix B p. 16
whether Congress exercised that power.
The majority correctly notes that because jurisdiction to
prescribe is ordinarily exercised on the basis of territory
rather than nationality,” there is a presumption that Congress
intends legislation to apply only within the territorial
jurisdiction of the United States, unless a contrary intent ap-
pears. Steele, 344 U.S. at 285, 73 S.Ct. at 255; Foley Bros.,
336 U.S. at 285, 69 S.Ct. at 577-78; Blackmer, 284 U.S. at
437, 52 S.Ct. at 254-55; Mitchell, 553 F.2d at 1002. The
majority goes astray, however, in its determination of what
constitutes an expression of ‘‘contrary intent’’ sufficient to
overcome the presumption.
As will be demonstrated more fully below, this is not a case
in which the claim of extraterritorial jurisdiction is based
solely on the broad jurisdictional language of the statute.
Rather, the conclusion that Title VII was intended to apply
to U.S. citizens employed abroad by U.S. corporations is
compelled by canons of statutory construction and is further
supported by legislative history. In rejecting these traditional
methods of statutory interpretation as inadequate, the
majority implies that nothing short of an explicit statement by
Congress will overcome the presumption.
The classic formulation of the presumption, however, does
not impose such a stringent standard: ‘‘The canon of
construction which teaches that legislation of Congress,
unless a contrary intent appears, is meant to apply only
> Territory and nationality are the two universally
recognized bases for a state’s exercise of jurisdiction to
prescribe law. Restatement § 402 comment a (also
noting that these links may not be sufficient in all
cases). Territoriality, however, “is considered the
normal, and nationality an exceptional, basis for the
exercise of jurisdiction.” Jd comment b.
Appendix B p. 17
within the territorial jurisdiction of the United States ... is a
valid approach whereby unexpressed congressional intent may
be ascertained.”’ Foley Bros., 336 U.S. at 285, 69 S.Ct. at
577 (emphasis added) (citation omitted); Natural Resources
Defense Council v. Nuclear Regulatory Comm'n, 647 F.2d
1345, 1357 n. 54 (D.C.Cir.1981). The most established
method of ascertaining unexpressed congressional intent is to
apply principles of statutory construction, and to refer to the
legislative history of the act. See N. Singer, 2A Sutherland
Statutory Construction §§ 45.12, 48.06 (1984). Nothing in
this formulation indicates that a ‘‘contrary intent’’ sufficient
to overcome the presumption against extraterritoriality may
not be determined according to these ordinary methods.
Even if we add the adjective ‘‘clear’’ to our formulation of
the presumption, Mitchell, 553 F.2d at 1002,’ ‘‘clear’’ does
not mean ‘“‘express,”’ and there is no reason why a “‘clear’’
intent to apply a statute extraterritorially may not be
determined with reference to the rules of statutory
construction, informed by legislative history. At most,
requiring a ‘‘clear’’ expression of congressional intent may
mean that the broad jurisdictional language of a statute is not
sufficient in itself to support the exercise of extraterritorial
jurisdiction. See Mitchell, 5S3 F.2d at 1003-04. It should be
noted, however, that the Supreme Court Aas found such
language sufficient to overcome the presumption.‘
> Though Mitchell cites Steele and Foley Bros as support for its
formulation of the presumption, neither case requires that
Congress’ expression of “contrary intent” be “clear.” 553 F.2d at
1002 (citing Steele, 344 U.S. at 285, 73 S.Ct. at 255, Foley Bros,
336 U.S. at 285, 69 S.Ct. 577-78). For the purposes of this case,
however, I recognize that we are bound by Mitchell's inter
pretation of these cases.
* In Foley Bros, the Supreme Court held that such language was
not sufficient to support extraterritonal jurisdiction. 336 U.S. at
Appendix B p. 18
The extremely strong showing of congressional intent which
the majority requires is clearly not compelled by the pre-
sumption itself. Rather, it appears that the majority has
distorted the presumption in an effort to transform it into
something it is not: a mechanism for evaluating potential
conflicts of jurisdiction.’ The majority concludes in effect
that the policy implications of applying Title VII extrater-
ritorially are so serious that we must require a more explicit
statement by Congress that it intended Title VII to apply so
broadly.
The majority’s conclusion might be appropriate if Congress
was, as the majority claims, silent on this subject. But
287, 69 S.Ct. at 578-79. However, in Steele, decided three years
later, the Court found that the broad jurisdictional language of the
Lanham Act was sufficient to support the exercise of extraterrito-
nal jurisdiction over U.S. nationals abroad. 344 U.S. at 286-87,
73 S.Ct. at 255-56.
In Mischell, this court reyected the government's argument that
use of the term “moratorium” in the Marine Mammal Protection
Act, without reference to the geographic scope of the provision,
indicated an intent by Congress to extend the moratonum against
the taking of marine mammals world wide. 553 F.2d at 1003.
Citing Foley Bros, the court reasoned that such “all inclusive
language” was not sufficient, by itself, to support extraterritorial
jurisdiction. Id at 1003-04.
> Quoting from Pfeiffer v. Wm. Wrigley, Jr. Co., 755 F.2d 554
from “[t}he fear of outnght collisions between domestic and
foreign law--collisions both hard on those caught in the cross-fire,
and a potential source of friction between the United States and
foreign countnes.*
It 1s true that by requiring a threshold showing of congressional
intent, the presumption will in practice prevent unnecessary
conflicts of law. Once that threshold showing has been established,
however, we must turn to other mechanisms for resolving the
conflicts of law that inevitably arise from the exercise of extra-
terntonal jurisdiction.
Appendix B p. 19
abroad, the majority has therefore done precisely what it
cautions against: It has substituted its own policy judgment
for that of Congress.
The majority’s intuition is correct that the implications of
applying a statute-extraterritorially may be such that the type
of evidence presented in this case would not be sufficient to
support the exercise of extraterritorial jurisdiction. For
example,a greater showing of congressional intent would be
required to support an exercise of extraterritorial jurisdiction
that would violate international law. A statute may not be
construed to violate international law unless Congress has, by
an affirmative expression of its intent, required that con-
struction. McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677-78, 9
L.Ed.2d 547 (1963); Weinberger v. Rossi, 456 U.S. 25, 32,
102 S.Ct. 1510, 1515-16, 71 L.Ed.2d 715 (1982); see also
Restatement § 114.’
® This argument is advanced in more detail below.
’ Although the majority cites McCulloch in its discussion of the
presumption against extraternitonality, McCulloch did not turn on
the issue of extraterntonal jurisdiction. Indeed, the presumption
against extraterritonality is not even mentioned in the opinion.
Rather, the Supreme Court in McCulloch found that application of
the National Labor Relations Act to protect foreign seamen,
Appendix B p. 20
This principle is a facet of the separate presumption that
Congress does not intend to violate international law. See
Restatement § 115 comment a (‘‘It is generally assumed that
Congress does not intend to repudiate an international
obligation of the United States by nullifying a rule of inter-
national law or an international agreement as domestic
law.”’).
The showing of congressional intent required to overcome
the presumption that Congress does not intend to violate
international law is much greater than that required to
overcome the presumption against extraterritoriality. While
the two presumptions are in some respects parallel, they
employed on vessels registered under a foreign flag, would violate
State Department policy, a Treaty with the Honduran government,
and the established principle of international law that the internal
affairs of a vessel are to be regulated according to “the law of the
flag state.” Jd, 372 U.S. at 20-21 & n. 12, 83 S.Ct. 677 n. 12.
The Court held that absent “[t}he affirmative intention of Congress
clearly expressed," the NLRA could not be construed to apply to
foreig”. seamen employed aboard vessels registered under a foreign
flag hecause such a construction would violate the law of nations.
Ids i-22, 83 S.Ct. at 677-78.
The standard set forth in McCulloch is thus not an elaboration
upon the presumption against extraterritonality, but an application
of the long-standing principle that “an act of Congress ought never
to be construed to violate the law of nations if any other possible
construction remains.” Jd, quoting The Charming Betsy, 2 Cranch
64, 118, 2 L.Ed. 208 (1804)); accord Restatement section 114;
see also Rossi, 456 U.S. at 32, 102 S.Ct. at 1515-16 (citing
McCulloch for this proposition, and construing statute to avoid
repudiation of several international agreements, absent affirmative
expression of Congress requiring that construction).
McCulloch, therefore, stands for the proposition for which it is
cited im the text: a statute may not be construed to violate
international law unless Congress has, by an affirmative ex-
pression of its intent, required that construction. 372 U.S. at 21-
22, 83 S.Ct. at 677-78; Rossi, 456 U.S. at 32, 102 S.Ct. at 1515-
16.
Appendix B p. 21
should not be conflated because not every exercise of
extraterritorial jurisdiction violates international law. A
separate, more stringent standard is properly reserved for
cases in which the exercise of jurisdiction g7rarwedel
By requiring a more explicit showing of congresiona
intent to apply Title VII extraterritorially--without discussing
whether extraterritorial application of Title VII would violate
international law--the majority has implicitly conflated the
two standards and has therefore defeated congressional intent
without sufficient justification.
While I agree with the majority that we must consider the
foreign policy implications of construing a statute to apply
extraterritorially, I do not believe that its approach to these
issues is satisfactory. We should not defeat congressional
intent to exercise extraterritorial jurisdiction without engaging
in a more principled analysis of the implications of applying
the statute extraterritorially.*
In order to evaluate the complex issues raised in this case,
we need a finer set of analytic tools than those employed in
the majority opinion. I therefore propose an alternative
framework that will, I believe, provide a more satisfactory
treatment of the issues in this case.
* In suggesting that we evaluate these concerns, | do not propose
that we overstep our judicial role by intruding on the realm of
international affairs which is properly the province of the
legislative and executive branches. | propose simply that if the
evidence of congressional intent to apply Title VII extraterntonally
is sufficient to overcome the (properly applied) presumption
against extraterritoriality, we should give effect to that intent
unless we are precluded by principles of international law from
doing so. This undertaking is entirely consistent with our judicial
role. See Restatement § 111(1)-(2) (International law is the law of
States. ).
Appendix B p. 22
American Rice, Inc. yt
McCulloch, 372 U.S. at 21-22, 83 S.Ct. at 677-78; Rossi,
456 U.S. at 32, 102 S.Ct. at 1515-16; Restatement § 403
’ The Supreme Court's language in Steele suggests such a two-
pronged inquiry: “the United States is not debarred by any rule of
international law from governing the conduct of its own citizens
upon the high seas or even in foreign countnes when the nghts of
other nations or their nationals are not infringed.” 344 U.S. at
286, 73 S.Ct. at 255-56. Thus, if the rights of other nations or
their nationals are not infringed, an act of Congress may be given
the full geographic scope that Congress intended. The
reasonableness inquiry is a means by which we can determine
whether foreign mghts or interests would be infmnged such that
extraterntonal application of a statute would be inappropnate.
Appendix B p. 23
correct--because Congress has not affirmatively required that
the statute be applied extraterritorially.
If, however, extraterritorial application of the statute would
not be unreasonable, and therefore would not violate
international law, the threshold level of congressional intent
required to overcome the presumption against
extraterritoriality will be sufficient to support the exercise of
extraterritorial jurisdiction. As explained above, no express
statement of Congress is required to one
presumption. See Foley Bros., 336 U.S. at 285, at
577-78. Rather, we may employ traditional methods of
statutory interpretation to determine whether the language
and legislative history of Title VII evidence a clear intent that
the statute be applied extraterritorially. This analysis will
insure that we accord proper respect both to the sovereignty
of other nations and to Congress’ intent.
ll. The “‘Jurisdictional Rule of Reason."’
The showing of congressional intent necessary to support an
nat itorial jurisdiction depends in the first in-
stance on whether that exercise of jurisdiction will violate
legislative history of Title VII, I will therefore consider
whether extraterritorial application of Title VII would violate
the principle of international law set forth in section 403 of
the Restatement: ‘‘{A] state may not exercise jurisdiction to
prescribe law with respect to a person or activity having
connections with another state when the exercise of such
jurisdiction is unreasonable.’ Restatement § 403(1).
Cir.1983) (Lanham Act); Laker Airways ¥. Sabena, Belgian
Appendix B p. 24
Although the majority does not address this issue in its
opinion, ARAMCO and Amicus Curiae assert that
extraterritorial application of Title VII would violate the
**reasonableness’’ principle. ARAMCO’s arguments are
addressed in the discussion below.
It should be noted at the outset of this discussion that
section 403 is couched in general terms; it does not purport
to eliminate all conflicts in the exercise of jurisdiction. See
Restatement § 403 comment d (‘‘Exercise of jurisdiction by
more than one state may be reasonable--for example, when
one state exercises jurisdiction on the basis of territory and
the other on the basis of nationality.’’). Therefore, the
possibility that a conflict with foreign law may arise in some
case does not render .Congress’ initial exercise of
extraterritorial jurisdiction unreasonable. ‘‘Because Congress
. . « Cam neither anticipate nor resolve all conflicts with
foreign prescriptive jurisdiction,’’ it necessarily relies on the
Judiciary to minimize conflicts of jurisdiction by exercising
a jurisdictional rule of reason in individual cases. Laker
Airways, 731 F.2d at 952 n. 169 (citing Extraterritoriality
and Conflicts of Jurisdiction, U.S. Department of State
Current Policy Bulletin No. 481 at 4 (15 April 1983)). Our
World Airlines, 731 F.2d 909 (D.C.Cir.1984) (Sherman Act).
This was the approach endorsed by section 40 of the Second
Restatement, the precursor of section 403.
The Third Restatement, however, asserts that section 403 is
intended to be more than a principle of comity: “reasonableness
is understood here . . . as an essential element in determining
whether, as a matter of law, the state may exercise jurisdiction
to prescribe.” Restatement sec. 403 reporters’ note 10.
No court has applied the reasonableness test as part of the
threshold inquiry to determine whether a statute may, as a
general matter, be applied extraterritorially. The Restatement,
however, notes that the reasonableness test may serve the same
purpose as the traditional tests for deciding whether a statute
may be applied extraterritorially. Jd reporters’ note 2.
Appendix B p. 25
inquiry here is therefore whether it would in general be
reasonable to apply Title VII extraterritorially, not whether
it would in all cases be reasonable.
Section 403(2) provides:
Whether exercise of jurisdiction over .a person or activity is
unreasonable is determined by evaluating all relevant
factors, including, where appropriate:
(a) the link of the activity to the territory of the
regulating state, i.c., the extent to which the activity takes
place within the territory, or has substantial, direct, and
foreseeable effect upon or in the territory;
(b) the connections, such as nationality, residence, or
economic activity, between the regulating state and the
person principally responsible for the activity to be
regulated, or between that state and those whom the
regulation is designed to protect;
(c) the character of the activity to be regulated, “ie
importance of regulation to the regulating state, the extent
to which other states regulate such activities, and the
degree to which the desirability of such regulation is
generally accepted;
(d) the existence of justified expectations that might be
protected or hurt by the regulation;
(e) the importance of the regulation to the international
political, legal, or economic system;
(f) the extent to which the regulation is consistent with
the traditions of the international system;
(g) the extent to which another state may have an interest
in regulating the activity; and
(h) the likelihood of conflict with regulation by another
State.
Appendix B p. 26
The arguments that extraterritorial application of Title VII
would be unreasonable fall into two categories encompassing
the factors listed above: First, since discrimination against
U.S. citizens that occurs abroad has no domestic effects,
U.S. interests are not sufficient to justify the exercise of
extraterritorial jurisdiction. Second, because labor relations
are a peculiarly domestic matter, it would be an affront to the
sovereignty of other nations to apply Title VII
extraterritorially.
The first contention mischaracterizes the purpose of Title
VII and trivializes the special nature of civil rights laws. The
‘‘effects’’ factor included in the Restatement is well-suited
for economic regulation, but not for individual rights of the
sort guaranteed by Title VII. It is true that the purposes of
Title VII were framed in part in economic terms,'' but the
1964 Civil Rights Act, of which Title VII is a part, was also
an effort to fulfill the long-postponed promise of equal rights
embodied in the fourteenth amendment:'? It was intended
‘| The language regarding the economic effects of discrimination
provides a basis for Congress’ exercise of power under the
Commerce Clause. See Heart of Atlanta Motel v. United States,
379 U.S. 241, 85 S.Ct. 348,13 L.Ed.2d 258 (1964); Katzenbach
v. McClung, 379 U.S. 294, 85 S.Ct. 377,13 L.Ed.2d 290 (1964)
(upholding Title II of the Civil Rights Act of 1964 as exercise of
Congress’ power under the Commerce Clause).
'2 This purpose is evident from the introductory language to the
section which states that Title VII is necessary “[tlo remove
obstructions to the free flow of commerce among the States and
with foreign nations” and “[tjo insure the complete and full
enjoyment by all persons of the rights, privileges, and immunities
secured and protected by the Constitution." H.R.Rep. No. 914,
88th Cong., Ist Sess. 2009 (1963) (emphasis added).
The fact that it was upheld as an exercise of Congress’ power
under the Commerce Clause, does not eclipse the fact that one
purpose of the Civil Rights Act was to insure the protection of
rights under the fourteenth amendment. See Heart of Atlanta
Appendix B p. 27
not only to remedy domestic economic ills, but to protect
individuals from ‘‘the injustices and humiliations’ of
discrimination. H.R.Rep. No. 914, 88th Cong., Ist Sess.
2018 (1963).
In calling for passage of the civil rights legislation that
became the Civil Rights Act of 1964, President Kennedy
stated: ‘‘In this year of the emancipation centennial, justice
requires us to insure the blessings of liberty for all
Americans and their posterity--not merely for reasons of
economic efficiency, world diplomacy, and domestic
tranquility--but, above all, because it is right.’’ Special
Message to Congress by the President June 19, 1963 in 109
Cong. Rec. 1055, 1063 (emphasis added).
Because they create individual rights, civil rights laws,
unlike economic regulations, fall within the category of
‘protection of persons.’’ See 2 Restatement introductory note
to part VII at 150-51." The personal injuries caused by
employment discrimination cannot readily be characterized in
terms of their ‘‘effects’’ on the forum state. Civil rights are
‘in this respect similar to constitutional guarantees of
individual rights which control the exercise of governmental
authority over U.S. citizens outside the territory of the
Motel, 379 U.S. at 250, 85 S.Ct. at 354 (declining to decide
whether Congress’ power under the Enforcement Clause of the
fourteenth amendment would be sufficient by itself to support
enactment of Title II of the Act (public accommodations)); of. id
at 284, 85 S.Ct. at 371-72, (Douglas, J., concurring) (While
“economic aspects of the problems of discrimination are heavily
accented[,] . .. the objectives of the Fourteenth Amendment were
by no means ignored.").
13 Indeed, in the same section, the Restatement notes without
criticism that “[s}ome United States civil rights legislation
protects United States nationals outside the United States." Re-
statement § 721 reporters’ note 13 (citing Bryant, 502 F.Supp.
472 (D.N.J.1980) (applying Title VII extraterritorially)).
Appendix B p. 28
United States--without reference to the domestic ‘‘effects’’ of
violating the Constitution. Jd. § 721 reporters’ note 2. While
regulation of the conduct of private employers under Title
VII is obviously different from the regulation of state actors
under the Constitution,"* my point here is simply that the
rights protected by Title VII are, like constitutional rights,
personal. See id. comment b. It may therefore be inappropri-
ate’’ to evaluate the violation of civil rights in terms of
‘“effects’’ on the regulating state, even though the
extraterritorial application of civil rights laws may be limited
by other considerations not applicable to constitutional rights.
If we were to apply the ‘‘effects’’ standard, however,
Congress and the courts have lopg recognized that apart from
the personal injuries of discrimination, the cumulative effects
of discrimination are pervasive.'*
'* Actions by the State, even outside the territory of the United
States, must be constrained by the Constitution because the
‘*United States is entirely a creature of the Constitution.’’ Reid
v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1224-25 1 L.Ed.2d
1148 (1956) (plurality opinion of Black, J.). —
” The Restatement provides that each of the enumerated factors
should be evaluated ‘‘where appropniate.'’ Restatement § 403(2).
- The same “effects” on commerce which allow Congress to
regulate the conduct of private employers under Title VII, supra
note 11, may be sufficient to establish “effects” in <he regulating
state within the meaning of section 403. Cf. Timberlane Lumber
Co. v. Bank of America, 549 F.2d 597, 612 (9th Cir. 1976)
(noting that Congress’ power to regulate foreign commerce is
not subject to same restrictions as power toregulate interstate
commerce, and effects test for extraterritorial jurisdiction must
therefore be informed by notions of comity and fairness”).
Because section 403 requires us to consider other factors in
exercising extraterritorial jurisdiction, there is no reason to
discard the analysis, already accepted by the courts, that the
cumulative economic effects of discrimination are sufficient to
Appendix B p. 29
Depriving U.S. citizens of a remedy for discrimination
experienced while employed abroad by U.S. companies will
almost certainly have some effect in the United States. Title
VII provides employees with an avenue to vindicate
themselves in the event of an unjust firing, a poor reference,
or sudden resignation that is in reality the result of
discrimination. Today’s decision means that one U.S. citizen
assigned to the Saudi office of a U.S. corporation, and an-
other U.S. citizen working for the same company in Texas
could experience identical acts of discrimination, but only the
latter will have a remedy. This situation creates a dilemma
for minorities and women: foreign assignments will be less
attractive, while refusal of such an assignment could limit an
individual’s opportunity for advancement. As the EEOC
notes, assignment to a foreign office is frequently a required
step on the corporate ladder. Extraterritorial application of
Title VII may therefore be necessary to ensure that members
of protected groups have equal opportunities with respect to
foreign assignments that would affect their employment
opportunities in the United States. Extraterritorial application
of Title VII would also protect the ‘‘justified expectations’’
of U.S. citizens that they will not lose all protection from
discrimination by their employers simply because they have
been assigned to a foreign office. Restatement § 403(2)(d).
The territorial connections to the regulating state are in any
event buttressed by the fact that both ‘‘the person principally
responsible for the activity to be regulated’’ and ‘‘those
whom the regulation is designed to protect’’ are in this case
justify regulation. See L. Tribe, American Constitutional Law
310 (1988) (discussing “cumulative effect" principle as consti-
tutional justification for civil mghts legislation).
Appendix B p. 30
U.S. nationals--U.S. corporations'’ and their employees
who are U.S. citizens. Restatement § 403(2)(b).
It is also incorrect to characterize Title VII's purposes as
purely domestic. The legislative history of Title VII reveals
H.R.Rep. No. 1370, 87th Cong., 2d Sess. 2156 (1962) (re-
port on Equal Employment Opportunity Act--a forerunner of
H.R. 405 which was incorporated into Title VII of H.R.
7152; H.R. 7152 became the Civil Rights Act of 1964)
i
Congress by the President supra at 1055
where their actions will be more immediately visible to other
Finally, the international community has adopted a number
of conventions calling for an end to discrimination--against
many of the groups protected by Title VII." The
17 “R lating the teiten of tusi , | witic ec
state is one of the oldest and most established examples of
prescriptive jurisdiction.” Laker Airways, 731 1 .2d at 926.
See, e.g., International Convention on the Elimination of All
Forms of Racial Discrimination, 660 U.N.T.S. 195, U.N. Doc.
A/6014 (1965); Convention on the Elimination of All Forms of
Discrimination Against Women, G.A. Res. 34/180, U.N. Doc.
Appendix B p. 31
portunity for Americans Abroad, 62 N.Y. U. L.Rev. 1288,
1298 & nn. 66-69 (1987) (international treaties and
Restatement § 403(2)(c), (e) & (f).
extraterritorially should therefore be defeated only if such
application would be an affront to the sovereignty of other
nations.
ARAMCO and Amicus Curiae argue that labor laws are of
particularly local concern, and that most states apply their
own labor laws on a territorial basis. They therefore
conclude that extraterritorial application of Title VII would
offend other nations and produce inevitable conflicts of
law--a contention echoed in the majority opinion.
A/34/46 (1979).
Many of these agreements have been signed by the United
States, but have not been ratifiedby the Senate. Most of the
protections that the United States would owe to its citizens under
these agreements are already provided by the Constitution and
federal and state law. See 2 Restatement introductory note to
Part VII at 150.
Appendix B p. 32
As noted above, section 403 does not purport to eliminate
concurrent jurisdiction. There is no principle of international
law which ‘‘separates jurisdiction to prescribe into neatly
adjoining compartments of national jurisdiction.’’ Laker
Airways, 731 F.2d at 952.
ARAMCO essentially urges that the untidiness of
concurrent jurisdiction may be avoided by applying the
reasonableness inquiry to preclude the extraterritorial appli-
cation of a statute wherever it is possible that another state
reading, however, also fails to produce a perfectly coherent
jurisdictional scheme. Because the reasonableness constraint
applies to both the territorial and nationality bases of
jurisdiction, the extreme deference to other nations urged by
ARAMCO could cizate a jurisdictional vacuum. We do not
know, for example, to what extent a foreign state would
enforce its own laws to regulate the employment relationship
between a U.S. corporation and employees who are U.S.
me or chaties ead Gabe tn sduteieten ont
_judicial procedures available to a U.S. employee seeking to
bring a grievance against a U.S. employer. A foreign state,
applying the principles of section 403, could well conclude
that exercise of its territorial jurisdiction would be un-
reasonable in such a case. Indeed, the cases relied upon by
the majority include those in which the courts of the United
States have declined to apply the protections of U.S. law in
precisely that situation. See, e.g., Benz v. Compania Naviera
Hidalgo, 353 U.S. 138, 77 S.Ct. 699,1 L.Ed.2d 709 (1957)
(declining to apply the Labor Management Relations Act to
although within the territorial jurisdiction of the United
States).
International discord does not arise from the existence of
concurrent jurisdiction alone as much as it arises from an
Appendix B p. 33
attempt to regulate the conduct of foreign nationals."
Cases involving extraterritorial application of the Lanham
have concurrent jurisdiction to regulate the use of trademarks
in their territory, the United States may, in the absence of an
actual conflict of law, apply the Act to the conduct of U.S.
nationals abroad. Stecle, 344 U.S. 280, 73 S.Ct. 252;
American Rice, Inc. v. Arkansas Rice Growers Cooperative
Ass'n, 701 F.2d 408 (Sth Cir. 1983); Ramirez & Feraud Chili
Co. v. Las Palmas Food Co., 146 F.Supp. 594
(S.D.Cal. 1956), aff'd, 245 F.2d 874 (9th Cir. 1957), cert. de-
nied, 355 U.S. 927, 78 S.Ct. 384, 2 L.Ed.2d 357 (1958).
The Act does not, however, apply extraterritorially to foreign
nationals. Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633
(2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1
L.Ed.2d 76 (1956).
The cases involving extraterritorial application of labor laws
similarly demonstrate that an attempt to regulate the conduct
of foreign nationals presents the most serious affront to the
sovereignty of other nations. In Foley Bros., the Supreme
Court refused to construe the Eight Hour Law to apply
extraterritorially to a U.S. national employed by an American
contractor in Iran. 336 U.S. 281, 69 S.Ct. 575 (1949). How-
ever, the Court emphasized that the Act did not distinguish
of the United States.’’ Jd. at 286, 69 S.Ct. at 578. The Court
reasoned that if the law was applied extraterritorially to U.S.
citizens, it ‘‘would be logically inescapable’’ that the law
'% In Timberlane, the Ninth Circuit suggested that extraterntonal
application of the Sherman Act could be moderated to reduce
international! tensions by affording greater consideration to the
nationality of the parties. The court noted that “applying
Amencan laws to Amencan citizens raises fewer problems than
application to foreigners.” 549 F.2d at 612.
Appendix B p. 34
a
would apply to aliens employed abroad as well. jd. The
Court was thus most troubled by the possibility that the law
would by logical extension require an intrusion into the realm
of ‘‘labor conditions which are the primary concern of a
foreign country’’--the labor conditions of its own citizens. Id.
The Court discounted an opinion of the Attorney General
ing the Act to apply extraterritorially on the same
grounds:
The opinion ... proves too much. Although Attorney
General Moody denied that incongruous results would flow
from his interpretation, it would be anomalous, as we have
said, for an act of Congress to regulate the hours of a citi-
zen of Iran at work on a government project there. ... Since
the statute contains no distinction between laborers based on
citizenship, Attorney General Stone's reasoning that aliens
are not covered points to the conclusion that the statute does
not apply to contracts which are to be performed in foreign
countries.
Id., 336 U.S. at 289, 69 S.Ct. at 579. The Court thus
concludes that absent a distinction between aliens and U.S.
citizens employed abroad, the Act must apply to both aliens
and citizens employed abroad, or to neither. Therefore,
because it would infringe upon the sovereignty of other na-
tions to apply the Law to foreign nationals employed abroad,
the Act could not be construed to apply to citizens employed
abroad.
Similarly, the Supreme Court in both Benz v. Compania
Naviera Hidalgo, 353 U.S. 138, 147, 77 S.Ct. 699, 704, |
L.Ed.2d 709 (1956) (LMRA) and McCulloch, 372 U.S. at
21, 83 S.Ct. at 677-78 (NLRA), refused to ‘run interference
in ... a delicate field of internatioral relations’’ by construing
U.S. labor laws to apply to foreign seamen employed on
vessels registered under a foreign flag. While these cases
involved principles unique to the law of the sea, the
nationality of the parties was clearly a source of concern for
Appendix B p. 35
the Court.”
The alien exemption provision of Title VII, which provides
the strongest evidence of congressional intent to apply Title
VII extraterritorially, eliminates the very factor which has
barred the extraterritorial application of U.S. Labor laws.”
on the area of labor relations which is the ‘“‘primary
concern’’ of foreign nations, extraterritorial application of
Title VII is unlikely to offend the sovereignty of other states.
See id Furthermore, there is no attempt in this case to impose
the requirements of Title VII on foreign corporations
employing U.S. citizens abroad--another area likely to be of
‘“primary concern’’ to foreign states. | would conclude that
“the rights of other nations or their nationals are not
2 Neither McCulloch nor Benz is cited in the Restatement's
2 ‘The majority cites several other examples of cases in which
The possibility of such conflict is not, however, sufficiently
great to render extraterritorial application of Title VII
In fact, Title VII contains provisions that allow conflicts
with foreign law to be minimized. For example, this court
has allowed an employer to use the bona fide occupational
qualification (BFOQ) exception, 42 U.S.C. § 2000e-2(e), to
assert the requirements of foreign law as a defense to a Title
Vil claim. Kern v. Dynaelectron, S77 F.Supp. 1196
(N.D.Tex. 1983), affd mem., 746 F 2d 810 (Sth Cir. 1984)
(affirmed on basis of reasons stated by the district court). In
Kern, the district court held that in i
circumstances, a prohibited classification could itself be a
BFOQ. id. at 1201. The plaintiff had alleged discrimination
because Dynaelectron, a U.S.
a
| 4
Z
Although the availability of the BFOQ defense in cases of
less extreme conflicts with foreign law has not been tested,
Kern indicates that the defense could provide a basis for
|
p. 37
— Ricts.”
The argument that extraterritorial application of Title VII is
unreasonable because it would offend the sovereignty of other
nations is not persuasive. The fact that another nation may
of territory does not render the exercise of U.S. jurisdiction
on the basis of nationality unreasonable. The likelihood that
is minimized by the fact that the United States seeks to
regulate only the conduct of its own nationals and by the fact
that Title VII may be reconciled with foreign law in the event
of a conflict.
The fact that one could hypothesize particular situations in
which the extraterritorial application of Title VII to U.S.
citizens employed by U.S. corporations would conflict with
foreign law does not compel a holding that Title VII may
never extend its protections beyond U.S. borders. This con-
struction of section 403 would place an untenable restriction
on U.S. sovereignty. We would be required to defeat
Q as grounds t defeat
extraterntonal application of Tithe VII and as vehicle for
avording conflicts of law).
Appendix B p. 8
conflict of jurisdiction, or unless Congress met the
McCulloch standard by expressing an affirmative intent to
apply a statute extraterritorially whether reasonable or not.
This would make extraterritorial jurisdiction an all or nothing
proposition, eliminating a middle ground on which Congress
could exercise extraterritorial jurisdiction in a more limwed
fashion. This result is neither compelled by the Restatement
nor desirable.
For the purposes of this case, the Restatement requires only
that we conclude that extraterritorial application of Title VII
would in general be reasonable. Because Congress cannot
anticipate every conflict of law, it must necessarily rely on
the courts to make a more individualized determination of the
propriety of exercising extraterritorial jurisdiction in a
particular case. The constraints of section 403 apply to
cn ad iptive jurisdiction not caly by C '
but by all government entities.” The courts will therefore
be guided in individual cases by the same principles of
reasonableness that apply to our evaluation of Congress’
initial exercise of extraterritorial jurisdiction.
Thus, while I would hold that extraterritorial application of
Title VII would in general be reasonable, I would also
recognize that it may be appropriate in some circumstances
for a U.S. court to decline to apply Title VII
extraterritorially. In the instant case, the factors that might
influence a more individualized decision whether to apply
3 Prescriptive jurisdiction is defined as jurisdiction of a state “to
make its law applicable to the activities, relations, or status of
persons, or the interests of persons in things, whether by
legislation, by executive act or order, by administrative rule or
regulation, or by determination of a court.” Restatement §
401(a). The traditional equation of jurisdiction to prescribe with
legislative jurisdiction was discarded in recognition of the
increasingly complex relationship between the roles of different
branches of government. Jd introductory note to Part IV at 230.
Appendix B p. 39
Title VII extraterritorially have not been fully briefed and are
therefore not considered here.
Ill. The Language and Legislative History of Title Vil
Since extraterritorial application of Title VII would not be
unreasonable and therefore does not violate principles of
international a ee come ae we
expression of congressional intent to y e
extraterritorially. Rather, we may employ the traditional
and — -
i inst extraterritoriality is overcome by
Pcontrary intent” of Congress. See Foley Bros., 336 U.S. at
285, 69 S.Ct. at 577-78; Natural Resources Defense Council
v. Nuclear Regulatory Comm ’n, 647 F.2d 1345, 1357 n. 54
(D.C.Cir. 1981).
n asserting that ress intended Title VII to apply
Pare ww Ae - Seon and Amicus EEOC rely
primarily on the ‘‘alien exemption provision,” 42 U.S.C. §
2000e-1, which provides in relevant part: ‘“This subchapter
shall not apply to an employer with respect to the
employment of aliens outside any State.’’ The stated purpose
of this provision was ‘‘to remove conflicts of law which
might otherwise exist between the United States and a foreign
nation in the employment of aliens outside the United States
by an American enterprise.” * Civil Rights: Hearings on
4 It is not disputed that Title VII's definition of "employer" is
sufficiently expansive to support application of Title VII beyond
the territory of the United States. “Employer” is defined as any
“person engaged in an industry affecting commerce” who has a
specified number of employees who work a specified number of
days. 42 U.S.C. § 2000e(b).
25 The majority dismisses this piece of legislative history, arguing
that we must not “substitute legislative history for the language
of the Act.” The language of the statute is not, however,
inconsistent with the legislative history. Both the plain language
Appendix B p. 40
H.R. 7152 Before the House Committee on the Judiciary,
88th Cong., Ist Sess. 2303 (1963) (testimony of James
Roosevelt, Member of Congress from the State of California)
(explaining provisions of H.R. 405 which was incorporated
into Title VII of H.R. 7152).
Since Title VII expressly exempts from coverage aliens
employed abroad by U.S. corporations, the logical negative
inference is that Title VII was intended to cover U.S. citizens
employed abroad. Indeed, the alien exemption provision
would be meaningless if Title VII did not apply extraterri-
of the statute, interpreted according to the established canons of
statutory construction, and the legislative history compel a single
conclusion: that Congress intexded Title VII to apply
extraterritorially.
It is instead the majority's conclusion that Title VII does not
apply extraterritorially that requires us to ignore the canons of
statutory construction and the clear evidence of legislative
history.
Contrary to the majority's assertion, the collaborative nature
of Title VII's legislative history requires that these hearings be
given special weight. H.R. 405 originated in the Committee on
Education and Labor, but was incorporated by the Judiciary
Committee into H.R. 7152. Title VII is thus a hybrid of bills
onginating in two committees. Although the Judiciary Committee
subsequently amended H.R. 7152, the coverage provisions of
Title VII, including the alien exemption provision, were not
changed. Representative Roosevelt's explanation of the
provisions of H.R. 405, based on the conclusions of the
Committee on Education and Labor, is thus equivalent to a
committee report for purposes of determining the objectives of
the provisions that were incorporated wholesale from H.R. 405.
Such discussions of statutory meaning are accepted as the most
“persuasive indicia of congressional intent." Mitts v. United
States, 713 F.2d 1249, 1252 (7th Cir.1983), cert. denied, 464
U.S. 1069, 104 S.Ct. 974, 79 L.Ed.2d 212 (1984); see also
Johnson v. Department of Treasury, 700 F.2d 971, 974 (Sth
Cir. 1983).
Appendix B p. 41
torially: there is no need to exempt aliens employed abroad
from coverage if no one is covered abroad. Construction of
a statute to render a provision meaningless violates the
established rule of statutory construction which obliges a
court ‘‘to give effect, if possible, to every word Congress
used.’’ Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99
S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); accord United
States v. Reeves, 752 F.2d 995, 998 (Sth Cir.1985) (°°A
statute should be read to avoid rendering its language
redundant if reasonably possible.’’); Goff v. Taylor, 706 F.2d
574, 587 n. 34 (Sth Cir. 1983) (‘‘It is well established that a
statute should be construed so that each of its provisions is
given full effect; interpretations which render parts of a
statute inoperative or superfluous are to be avoided.’”);
Quarles v. St. Clair, 711 F.2d 691, 701 n. 32 (Sth Cir. 1983)
(same); Duke v. University of Texas at El Paso, 663 F.2d
§22, 526 (Sth Cir.1981) (same); Beisler v. Commissioner,
814 F.2d 1304, 1307 (9th Cir.1987) (‘We should avoid an
interpretation of the statute that renders any part of it
superfluous and does not give effect to all of the words used
by Congress.’’).
The majority maintains that it has not deprived the alien
exemption provision of all meaning because another negative
inference may be drawn from the provision:” that aliens
are covered by the statute when employed within the United
States. The majority relies for this proposition on Espinoza
77 The majority's assertion that the provision still has meaning
because it means what it says--that aliens employed abroad are
not covered--is purely semantic. As stated above, the alien
exemption provision is completely superfluous if the statute does
not cover any individual employed abroad. There is no
difference between interpreting # statute to render # provision
superfluous and interpreting # statute to deprive # provision of
meaning: Semantic distinctions aside, both violate the canons of
statutory construction. See cases cited supra.
Appendix B an
- —>
v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 339-40
38 L.Ed.2d 287 (1973), in which the Supreme Court held
that Title VII applied to aliens employed in the United States
aliens from discrimination on the basis of race, religion
color, sex, or national origin, but did not make alienage itsel}
a prohibited classification. ond
The majority’s reliance on Espinoza is misplaced. The
Supreme Court does not rely solely on the negative inference
would therefore be erroneous to conclude that the Supreme
Court's passing reference in Espinoza to the alien exemption
provision was intended to attach only one negative inference
to the proviso.
A negative inference drawn from the alien exemption
Provision was not necessary to bring aliens within the scope
of Title VII's domestic protections. As the Supreme Court
notes in Espinoza, the use of the term ‘‘individual’’ in
defining “‘employee’’ is sufficient to bring aliens within the
statute's coverage. Id. Any construction of the term
individual’’--as distinct from ‘‘citizen’’--to exclude aliens
would be inconsistent with principles of equal protection.”
While the precise level of scrutiny applied to classifications
based on alienage has varied,” it is well established that
aliens are “‘persons’’ within the meaning of the fifth and
28 —_—
Principles of equal protection are, of course incorporated |
, ’ into
the due process clause of the fifth amendment and therefore are
applicable to acts of the federal government. Bolling v. Sharpe
347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) .
29 . ; —
See L. Tribe, American Constitutional Law 1544-53 (1988).
Appendix B p. 43
Title VII when employed in the United States, the majority's
contention that this is the sole meaning to be attached to the
that citizens are employees, it would be absolutely
unnecessary to state that Title VII does not apply to aliens
employed abroad unless the statute did apply to U.S. citizens
employed abroad. Again, the majority's analysis renders the
Congress’ intent to apply Title VII extraterritorially is even
more apparent if the alien exemption clause is read in light
of the contemporary case law regarding the extraterritorial
application of U.S. labor laws and the application of U.S.
labor laws to foreign nationals. The Supreme Court appeared
at the time to regard the application of U.S. law to foreign
nationals as a primary source of conflict with other naons.
See cases discussed supra in section II.
wo Eaual : —— ; 1 in their hicati
= . . . . * .
to all persons within the terntonal junsdiction of the United
States. Yick Wo, 118 U.S. at 369, 6 S.Ct. at 1070-71; see also
note 28 supra.
Appendix B p. 44
Congress’ statement that the alien exemption provision was
intended to avoid conflicts of law is perfectly logical in the
context of this case law: Congress could reasonably have
concluded that exempting aliens employed abroad would
eliminate any obstacles to protecting U.S. citizens employed
abroad by U.S. corporations.
Taken together, the language and legislative history of Title
VII evidence a clear intent of Congress to apply Title VII to
U.S. citizens employed abroad by U.S. corporations. This
showing is sufficient to overcome the presumption against
extraterritoriality. See Mitchell, 553 F.2d at 1002.
IV. Conclusion
Although the issue presented in this case --whether Title VII
applies to U.S. citizens employed abroad by U.S.
corporations--appears simple on its face, its resolution turns
on a complex interaction between international law and
principles of statutory construction.
The majority errs in attempting to resolve the complex
issues raised in this case through a single instrument of
process, the majority distorts the presumption and, in the
name of judicial deference to the legislative branch, defeats
congressional intent to apply Title VII ex-
In order to more carefully evaluate whether the evidence of
congressional intent presented in this case is sufficient to
Support an exercise of extraterritorial jurisdiction, I have
employed a two-step inquiry.
The first inquiry is whether extraterritorial application of
Title VII would violate section 403 of the Restatement which
provides that as a matter of international law, a state may not
exercise its jurisdiction to prescribe laws affecting persons or
Appendix B p. 45
Applying the factors listed in the Restatement, it is clear
that extraterritorial application of Title VII would not in
protections would extend to U.S. citizens employed abroad
by U.S. corporations.
While the exercise of extraterritorial jurisdiction necessarily
raises sensitive issues of international law, U.S. employers
should not be allowed to escape liability for discrimination by
Appendix B p. 46
§ 701 et seq., as amended, 42 U.S.C.A. § 2000e et seq.
James Field Tyson, Neal H. Paster, Houston, Tex., for
Appendix C p. 1
Lawrence Z. Lorber, John E. Parauda, Breed, Abbott &
Morgan, Washington, D.C., for amicus curiae ASPA.
Cecil J. Olmstead, Steptoe & Johnson, Washington, D.C.,
for amicus curiae Rule of Law Committee.
Pamela S. Karlan, Univ. of Va., School of Law,
Charlottesville, Va., for amicus curiae NAACP.
Michael M. Mulder, Thomas R. Meites Bartley F.
Goldberg, Chicago, Ill., for amicus curiae Wm. Ozolin, et
W. BUGENE DAVIS, Circuit Judge:
We sit en banc in this case to consider a single question:
whether Title VII regulates the employment practices of U.S.
employers which employ U.S. citizens outside the United
States. We affirm the district court's order dismissing this
primary concem of a foreign country should not be attributed
to Congress in the absence of a clearly expressed purpose.”
id. at 286, 69 S.Ct. at 578 (emphasis added).
1.
Boureslan argues first that if we do not attach his negative
i the alien exemption provision, we strip the
Court in Espinoza v. Farrah Mfg. Co., 414 U.S. 86, 95, 94
S.Ct. 334, 340, 38 L.Ed.2d 287 (1973), determined that this
provision reflects a congressional intent to provide Title VII
coverage to aliens employed within the United States. Thus,
we remain persuaded that we need not choose to either attach
Boureslan’s negative inference to this provision or strip the
provision of all meaning. Even if we decline to give the alien
exemption provision the interpretation appellant seeks, the
provision is still a meaningful and useful part of the Act.
2.
the Civil Rights Act of 1964 to ‘‘United States’’, ‘‘states’’
and ‘state proceedings.’’ See Boureslan, 857 F.2d at 1019.
See 42 U.S.C. §§ 2000eS(c), (d), (e). If Congress had
intended the Act to apply in foreign countries, we would
Appendix C p. 5
expect Congress to have been even more careful to address
conflicts with foreign discrimination laws. Yet the statute
says nothing about potential conflicts with foreign
discrimination laws.
3.
The Act is also curiously silent in a number of areas where
Congress ordinarily speaks if it wants to extend its legislation
beyond our borders. First, the Act fails to address venue
pivblems that arise with foreign violations. Cf. 42 U.S.C. §
2000e-5(f)(3) (establishing venue ‘‘in any judicial district in
the State in which the unlawful employment practice is
alleged to have been committed. . ..’’). Next, the Equal
Employment Opportunity Council’s investigatory powers are
limited to evidence obtained in the United States and its
territories. 42 U.S.C. § 2000e-9.
Finally, if we give extraterritorial reach to Title VII, the
plain language of the Act would necessarily extend that title
to govern the employment relationship betigpen foreign
employers, and their American employees anywhere in the
world. See § 2000e(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 S.ates
are employers under Title VII. See, e.g., Spiess v. C. ltoh &
Co. (America), Inc., 643 F.2d 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.
4.
As the Court stated as recently as January 1989, when it
desires to do so, Congress knows how to give extraterritorial
effect to one of its statutes. Argentine Republic v. Amerada
Hess Shipping Co., _ U.S. __, 109 S.Ct. 683, 691, 102
L.Ed.2d 818, 832 (989). A good example is the Age
Discrimination and Employment Act which was amended in
Appendix C p. 6
1984 to give the Act extraterritorial application. 29 U.S.C.
§ 630(f) (‘“The term ‘employee’ includes any individual who
is a citizen of the United States employed by an employer in
a workplace in a foreign country.’’). See also The
Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. §§
5001-5116 (1979, Supp. 1989); The Export Administration
Act, 50 U.S.C. app. §§ 2401-2420 (Supp. 1989). Congress
demonstrated in the above acts its awareness of the need to
make a clear statement of extraterritorial application, address
the concerns of conflicting foreign law, and provide the usual
nuts-and-bolts provisions for enforcing those rights.
S.
In essence, Boureslan asks this court to conclude that
Congress balanced Title VII's important goals against the
foreign sovereignty concerns that underlie the presumption
against extraterritoriality, considered the implications of
application abroad and then addressed these concerns by
inviting courts to read between the lines. For the reasons
stated above, we cannot accept this conclusion and hold that
Title VII does not reflect the necessary clear expression of
congressional intent to extend its reach beyond our borders.
AFFIRMED.
KING, Circuit Judge, with whom REAVLEY, POLITZ,
JOHNSON and WILLIAMS, Circuit Judges, join dissenting:
I agree with the majority that the sole question presented in
this en banc rehearing is whether Congress acted to extend
the protections of Title VII to United States citizens
employed in other countries by United States employers. |
believe that a fair and reasonable reading of this civil rights
statute compels the conclusion that Congress did, in fact,
intend Title VII's broad remedial goals to encompass, and
eradicate, an American employer's discriminatory
employment practices against a United States citizen, even if
the acts constituting such discrimination were carried out on
Appendix C p. 7
foreign soil. Therefore, I must respectfully dissent from the
majority’s holding, which has affirmed the district court's
dismissal of appellant Boureslan’s action.
The Alien Exemption Clause
It is undisputed that Congress has the power to extend the
protection of its laws extraterritorially when it is regulating
the conduct of United States nationals. See, e.g., Steele v.
Bulova Watch Co., 344 U.S. 280, 282-83, 73 S.Ct. 252,
253, 97 L.Ed. 319 (1952); United States v. Mitchell, 553
F.2d 996, 1001 (Sth Cir.1977). In determining whether
Congress intended to exercise this power when it enacted
Title VII, we are guided by a presumption that acts of Con-
gress are intended to apply only within the territory of the
United States unless there is a clear expression of
congressional intent to the contrary. Foley Bros., Inc. v.
Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed.
680 (1949); Mitchell, 553 F.2d at 1002.'2
. There is a second, and distinct, presumption that Congress does
not intend to violate international law. A statute may not be
construed to violate international law unless Congress has by an
“affirmative expression” of its intent, required such a construction.
McCulloch v. Sociedad Nacional de Marineros de Honduras, 372
U.S. 10, 21-22, 83 S.Ct. 671, 677, 9 L.Bd.2d 547 (1963);
Weinberger v. Rossi, 456 U.S. 25, 32, 102 $.Ct. 1510, 1516, 71
L.Bd.2d 715 (1982). As I explained in considerable detail in my
panel dissent, extraterritorial application of Title VII under the
circumstances before us would not violate international law;
therefore, this presumption does nor apply in the instant case. See
Boureslan, 857 F.2d at 1021-31 (King, J., dissenting).
The less stringent standard of the presumption against extraterritonal
application of a federal statute does not require an explicit, affirmative
statement of Congress. instead, the Supreme Court has said that the
presumption “is a valid means whereby unexpressed congressional in-
tent may be ascertained.” Foley Bros., 336 U.S. at 285, 69 $.Ct. at
577 (emphasis added). The question involved in our determination 1s
what showing of congressional intent is sufficiently clear to overcome
Appendix C p. 8
A clear expression of Congress’s intent regarding the
extraterritorial reach of Title VII is found in section 702 of
the statute the alien exemption clause. 42 U.S.C. § 2000e-1.
This section provides that Title VII ‘‘shall not apply to an
employer with respect to the employment of aliens outside
any State.’’ Jd. If Congress had not envisioned an
extraterritorial application of Title VII, a specific provision
exempting only aliens from such coverage would not have
been needed. Likewise, if Congress had intended in section
702 to explicitly reject extraterritorial application, it would
have used one of the statute’s general terms: ‘‘individuals’’
or ** ." See, e.g., 42 U.S.C. § 2000e-2 (prohibiting
discrimination against ‘‘any individual’’ with respect to his
or her employment). Compare Fair Labor Standards Act, 29
U.S.C. § 213(f) (excluding from FLSA coverage ‘‘any em-
ployee’’ whose services are performed in a foreign country).
Canons of statutory construction require that we interpret a
statute ‘‘to give effect, if possible, to every word Congress
used."’ Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99
S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); see also Ar-
gentine Republic v. Amerada Hess Shipping Corp., __ U.S.
__ , 109 S.Ct. 683, 691, 102 L.Bd.2d 818 (1989) (refusing
to construe statute to render its terms nugatory); Beisler v.
Commissioner, 814 F.2d 1304, 1307 (9th Cir. 1987) (“We
should avoid an interpretation of the statute that renders any
part of it superfluous and does not give effect to all of the
words used by Congress.’’). The logical and necessary in-
terpretation of section 702 is that, by specifically providing
an exemption for employers regarding the extraterritorial em-
ployment of ‘‘aliens,’’ without providing a similar exemption
as to the corresponding category of ‘‘citizens,’’ Congress
intended that American employees would be covered under
Title VII.
the presumption against extraterntonal application.
Appendix C p. 9
In response to this common-sense interpretation of section
702, the majority relies on two alternative interpretations.
First, the majority suggests that the alien exemption provision
means simply that aliens employed outside the United States
are not covered by Title VII. I do not contend, of course,
that section 702 does not mean what it says. However, such
a narrow reading of Congress's language, although
superficially appealing, is unreasonable because it renders the
provision purposeless: if no individual was intended to be
covered extraterritorially by Title VII, a specific provision
excluding only aliens would be superfluous.
Next, the majority points to a parallel inference that one
may draw from section 702: that aliens employed within the
United States are covered by the Act. While this inference
also follows logically from the language of the statute, it is
in itself redundant because use of the term ‘“‘individual’’ in
defining ‘‘employee’’ is sufficient to bring aliens residing in
the United States within the statute’s coverage. 42 U.S.C. §
2000e(f). See Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95,
94 S.Ct. 334, 340, 38 L.Bd.2d 287 (1973). Indeed,
Congress could not have provided otherwise without violating
the equal protection principles implicit in the fifth
amendment. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct.
1064, 30 L.Ed. 220 (1886); Bolling v. Sharpe, 347 U.S.
497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Moreover, if
Congress's sole purpose in the alien exemption clause was to
provide coverage to aliens residing in the United States, the
more logical location in the statute to express this intent
would have been the definition section, where Congress de-
fined ‘‘employee,"’ see 42 U.S.C. § 2000e(f), not the
provision entitled ‘‘Exemption,’’ where Congress provided
for the limited exceptions to the broad remedial goals of Title
Appendix C p. 10
United States are covered under Title VII is the “‘correct’’
interpretation of Congress's intent in enacting section 702.
U.S. at 95, 94 $.Ct. at 340. Not faced with the question of
extraterritorial application, the Court had no need to discuss
the mirror inference that is reflected in section 702, although
the Court's rationale regarding statutory interpretation
supports the derivation of such a legitimate inference.
Moreover, the Court pointed ovt that Congress's intent in
Title VII to include aliens could also be derived from its use
of the term “‘any individual’’ in section 703, id., supporting
my point that section 702 would be redundant if the Espinoza
inference were the only reason for its existence. Thus, the
inference that the Supreme Court drew from section 702 in
Espinoza does not preclude, but rather supports, the equally
permissible--and, in fact, more reasonable--inference that
Congress intended Title VII to protect United States citizens
employed outside the United States.
Although the legislative history of section 702 is not
2 As a matter of statutory construction, every part of the statute 1s
to be considered, including subbeadings that Congress has placed
on the various sections, to arrive at the statute's clear and total
meaning. House v. Commissioner, 453 F.2d 982, 987 (Sth
Cir. 1972); see also Hardin v. City Title & Escrow Co., 797 F.2d
1037, 1039 (D.C.Cir. 1986) (a descriptive subtitle that was part
of an act as written by Congress constitutes an indication of
congressional intent) (unanimous opimon of Judges MacKinnon,
Bork, and Scalia).
Appendix C p. ll
remarkably illuminating, I have found nothing in the
published records that contradicts my interpretation of the
provision’s extraterritorial language. Rather, it seems clear
that section 702 is a ‘‘limited exemption’’ for employers and
that ‘‘the intent of the [alien] exemption is to remove
conflicts of law which might otherwise exist between the
United States and a foreign nation in the employment of
aliens outside the United States by an American enterprise.”’
Civil Rights: Hearings on H.R. 7152 Before the House
Committee on the Judiciary, 88th Cong., Ist Sess. 2303
(1963) (testimony of Representative Roosevelt explaining
provisions of H.R. 405, which was incorporated into Title
VII of H.R. 7152) (emphasis added).* If Title VII was not
intended to apply extraterritorially, Congress would not have
been concerned with conflicts of law ‘‘which might otherwise
exist.’
> The context of this legislative history is explained in my panel
dissent, 857 F.2d at 1032 n. 26. Arguing that we may not
“substitute legislative history for the language of the Act,” the
panel majority dismissed this “snippet” of legislative history as
insignificant. Jd. at 1018, 1020. Contrary to the majority's
characterization of my position, | am not attempting to rely on
legislative history to compensate for a lack of statutory language.
As explained in this dissenting opinion, | believe the only
reasonable interpretation of the plain language of section 702 is
that Congress intended an extraterritorial scope for Title VII as
between United States citizens and United States employers who
are otherwise covered under the Act. In other words, an
“exemption” must necessarily be an exemption from coverage that
all individuals covered under section 703 would otherwise enjoy.
The legislative history in this case simply serves to establish that
Congress did not mistakenly or clumsily include language in the
statute that is superfluous or nonsensical.
The administrative interpretation of Title VII also supports its
extraterritorial application. Intervenor-appellant, the Equal
Employment Opportunity Commission ("EEOC"), the adminis-
Appendix C p. 12
er ee eee Tee te
Section 702 obviously reflects Congress’s concern that the
extraterritorial coverage of aliens under Title VII would
infringe the sovereignty of other nations, in that the United
States would be imposing its laws on foreign nationals
working outside the United States. The effect on foreign
jurisdictional sovereignty is far less pronounced, and in some
cases could be negligible, when extraterritorial application of
Title VII is limited to cases involving United States citizens
employed by ‘‘American enterprises.’ This relationship
reflects an area where concerns for international sovereignty,
comity, and conflicts of law--concerns that explain the alien
trative agency charged by Congress with the responsibility for
interpreting and enforcing Title VII, has adopted the position that
Title VII applies to American citizens employed by United States
firms outside the United States. See, e.g., EEOC Dec. No. 85-16,
2 Empl.Prac.Guide (CCH) ¢ 6857, at 7070-75 (Sept. 16, 1985);
Letter from William A. Carey, EEOC General Counsel, to Sen.
Frank Church (Mar. 14, 1975), reprinted in Note, Civil Rights,
Employment and the Multinational Corporations, 10 Cornell Int’!
L.J. 87, 102-03 (1976) (“If Section 702 is to have any meaning at
all, ... it is necessary to construe it as expressing a Congressional
intent to extend the coverage of Title VII to include employment
conditions of citizens in overseas operations of domestic
corporations at the same time it excludes aliens of the domestic
corporation from the operation of the statute.").
Likewise, the Department of Justice has taken the position that the
statute applies extraterritorially. In 1975 during legislative debates
over a proposed prohibition on participation in foreign boycotts
requiring religion-based employment discrimination, then-Assistant
Attorney General Antonin Scalia testified that Title VII already
applied to the employment of United States citizens by covered
employers anywhere in the world. See Discriminatory Arab Pressure
on U.S. Business: Hearings Before the Subcomm. on International
Trade and Commerce of the House Comm. on International Relations,
94th Cong., Ist Sess. 88 (1975) (statement of Antonin Scalia,
Assistant Attorney General), quoted in Note, Equal Employment
Opportunity for Americans Abroad, 62 N.Y.U.L.Rev. 1288, 1291
(1987).
Appendix C p. 13
exemption provision--are outweighed by Congress's com-
mitment: in Title VII to protect the personal right of all
individuals to equal employment opportunities.’ See
Boureslan, 857 F.2d at 1028-30 (King, J., dissenting).
An interpretation of section 702 that extends coverage of
Title VII to citizens employed by United States employers in
other countries, while denying such coverage to aliens, is
supported by the Supreme Court’s statutory analysis in Foley
Bros., where the Court interpreted another federal statute,
the Eight Hour Law, to provide only domestic coverage. 336
U.S. at 285, 69 S.Ct. at 577. The majority cites Foley Bros.
as a ‘‘closely analogous’’ case to illustrate the presumption
against extraterritorial application of a federal statute. A
more careful analysis of Foley Bros. indicates, however, that
the Court found in that case that the Eight Hour Law, as
opposed to Title VII, contained no language that gave any
> Congress explained that Title VII was necessary:
to remove obstructions to the free flow of interstate and
foreign commerce and to insure the complete and full
enjoyment by all persons of the rights, privileges, and immuni-
ties secured and protected by the Constitution. House Report
on Civil Rights Act of 1964, H.R. Rep. No. 914, 88th Cong.,
Ist Sess., reprinted in 1964 U.S.Code Cong. & Ad.News
2391, 2402.
® | disagree that a statute such as the Eight Hour Law is “closely
analogous” to Title VII. Labor laws regulating economic
conditions of employment or labor-management relations involve
different legislative policies--more distinctly domestic policies--and
create greater risks o* insulting the sovereignty of a foreign nation
than does a civil rights statute such as Title VII, which reflects the
more universal concerns for individual rights and liberties. See
generally Note, Title VII of the Civil Rights Act of 1964 and the
Multinational Enterprise, 73 Geo. L.J. 1465, 1480-83 (1985); see
also Dehner, Multinational Enterprise and Racial Non-Dis-
crimination: U.S. Enforcement of an International Human Right,
15 Harv.int’! L.J. 71, 91-94, 100 (1974).
Appendix C p. 14
indication of a congressional purpose to extend the law’s
coverage extraterritorially. The Court relied heavily on the
fact that the statute drew no distinction between citizens and
aliens. An extraterritorial application, therefore, would
necessarily involve foreign national laborers, thereby creating
a risk that the United States would intrude upon an area of
‘‘local concern’’ to foreign nations.’ The Court explained:
No distinction is drawn between laborers who are aliens
and those who are citizens of the United States. Unless we
were to read such a distinction into the statute we should be
forced to conclude, under respondent’s reasoning, that
Congress intended to regulate the working hours of a
citizen of Iran who chanced to be employed on a public
work of the United States in that foreign land.... The ab-
sence of any distinction between citizen and alien labor
indicates to us that the statute was intended to apply only to
those places where the labor conditions of both citizen and
alien employees are a probable concern of Congress. Such
places do not include foreign countries such as Iraq and
Iran.
Id. at 286, 69 S.Ct. at 578.
By explicitly exempting aliens employed abroad from the
scope of Title VII, Congress addressed the factor that the Su-
The majority quotes the following language from Foley Bros. :
“An intention so to regulate labor conditions which are the
primary concern of a foreign country should not be attributed to
Congress in the absence of a clearly expressed purpose.” 336 U.S.
at 286, 69 S.Ct. at 578. In this quoted passage, the labor
conditions of “primary concern" to foreign nations refers to the
employment of aliens by United States enterprises abroad--the very
concern eliminated by the alien exemption provision in Title VII.
The Supreme Court does not imply in Foley Bros. --and it is
disingenuous of the majority to suggest--that the labor conditions
of United States citizens employed abroad by United States cor-
porations are “the primary concern of a foreign country."
Appendix C p. 15
preme Court had identified as most likely to violate
principles of foreign soverc.gnty in the extraterritorial
application of United States labor laws. I find it compelling
that Title VII's alien exemption provision is derived from a
fair employment bill that first appeared in April of 1949,
H.R. 4453, 81st Cong., ist Sess., only a few weeks after the
Supreme Court’s decision in Foley Bros., and that the
purpose ascribed to the exemption by the House Committee
on Education and Labor some 14 years later tracks the
rationale of the Foley Bros. decision. Civil Rights: Hearings
on H.R. 7152 Before the House Committee on the Judiciary,
88th Cong., Ist Sess. 2303 (1963).
Appellee Aramco’s broad assertion that no other United
States labor law has been construed to apply abroad ignores
the fact that no other labor law has contained a specific
provision that addressed the concern raised in Foley Bros.
Only Title VII provides an exemption from extraterritorial
application based on nationality. Moreover, in light of the
1984 amendment to the Age Discrimination in Employment
Act,® 29 U.S.C. § 621 et seg., (‘“‘ADEA’’), it cannot be
maintained that Congress has consistently declined to protect
the rights of American workers employed abroad, or that
such protection does not comport with federal policies.
Title VII ‘‘Nuts and Bolts’’
Although failing to point to any statutory provisions that
would preclude extraterritorial application of Title VII, the
majority argues that the ‘‘focus’’ and the ‘‘nuts and bolts’’
provisions of the Act are ‘‘inconsistent’’ with a congressional
intent to provide extraterritorial coverage to United States
* See 29 U.S.C. § 630(f) ("The term “employee” includes any
individual who is a citizen of the United States employed by an
employer in a workplace in a foreign country.").
Appendix C p. 16
citizens. Looking first to the domestic focus of Title VII, I
agree with the majority that the Act and its legislative history
make several references to problems of employment
discrimination within the United States and to state laws
governing employment practices. Such references are not
inconsistent with the exercise of extraterritorial jurisdiction
based on nationality. The impetus for Congress to enact Title
VII, as is true for most federal legislation, was to remedy a
perceived domestic problem. Congress’s intent to apply the
statute extraterritorially is a separate issue, and is clearly
evidenced in the alien exemption provision. In addition, as I
noted in my panel dissent, the effects of employment
discrimination suffered by United States citizens while
employed in other countries by United States employers are
sufficiently pervasive to be felt in this country. Boureslan,
857 F.2d at 1027. I also noted that Congress was not con-
cerned solely with the domestic effects of discrimination, but
also with the image of the United States in the international
community. Jd. at 1027-28.
The geographic references in Title VII that relate to the
Commerce Clause apply to limit the scope of the term
‘‘employer’’ to those engaged in an industry affecting
commerce as that term is defined in the statute. See 42
U.S.C. § 2000e. However, this traditional Commerce Clause
language does not by itself evidence an intent to restrict the
geographic scope of the statute, but rather serves as a
*“*nexus’” requirement, providing a basis for Congress’s
exercise of power under the Commerce Clause. When
Congress amended the ADEA in 1984 to provide explicitly
for extraterritorial application, it did not alter the virtually
identical Commerce Clause language found in that statute.
See 29 U.S.C. § 630. Rather, it exempted foreign employers
not controlled by United States employers. Thus, Congress
clearly does not view the Commerce Clause language as a
geographic restriction on the scope of an employment
discrimination statute.
Appendix C p. 17
The majority also argues that Congress could not have
intended Title VII to apply extraterritorially because
Congress failed to exempt foreign employers that hire United
States citizens. It is true that the amendments to the ADEA
addressed this concern’? and that an attempt to apply the
statute to foreign corporations employing United States
citizens abroad could offend the sovereignty of other nations.
The legislative history explaining the alien exemption
provision of Title VII refers explicitly, however, to ‘‘an
American enterprise.’’ It follows that Congress intended Title
VII to apply extraterritorially only to American employers.
However, even if the Commerce Clause language to which
the majority refers, 29 U.S.C. § 2000e(b), is the only
limitation on ‘‘employers’’ subject to the statute’s
extraterritorial application, Congress has elsewhere provided
an equal or broader jurisdictional grant in a statute and left
to the courts the task of applying Commerce Clause analysis
and principles of international law to determine whether there
is an adequate basis for the exercise of jurisdiction over the
acts of a particular defendant occurring outside the territory
of the United States. See, e.g., American Rice, Inc. v.
Arkansas Rice Growers Cooperative Ass’n, 701 F.2d 408
(Sth Cir. 1983) (Lanham Act); Laker Airways Lid v. Sabena,
Belgian World Airlines, 731 F.2d 909 (D.C.Cir.1984)
% See Age Discrimination in Employment Act 29 U.S.C. §
623(g)2) ("The prohibitions of this section shall not apply where
the employer is a foreign person not controlled by an American
j r."). This provision was apparently added on the
suggestion of the EEOC. See Age Discrimination and Overseas
Americans, 1983: Hearing Before the Subcomm. on Aging of the
Senate Comm. on Labor and Human Resources 98th Cong., Ist
Sess. 5 (1983).
Appendix C p. 18
(Sherman Act).'°
The majority next points to Title VII enforcement
provisions relating to state law conflicts, see 42 U.S.C. §§
2000e-5(c), (d), (e), arguing that ‘‘[i]f Congress had intended
the Act to apply in foreign countries, we would expect
Congress to have been even more careful to address conflicts
with foreign discrimination laws.’’ Looking again to the
amended ADEA, which contains a similar federal-state
relationship clause, 29 U.S.C. § 633, I note that Congress
saw no need to add a provision addressing conflicts with
overlapping foreign laws that prohibit discrimination in
employment when Congress provided for the ADEA’s
extraterritorial scope. Congress did, however, amend the
ADEA’s ‘‘BFOQ’’ provision, specifying that actions
otherwise prohibited under the Act shall not be unlawful if
compliance with the ADEA’s provisions ‘‘would cause such
employer, or a corporation controlled by such employer, to
violate the laws of the country in which such workplace is
located.’ 29 U.S.C. § 623(f)(1). This circuit has already
interpreted the BFOQ provision of Title VII in this fashion.
Kern v. Dynalectron Corp., S77 F.Supp. 1196
(N.D.Tex.1983) (assuming without addressing the
extraterritorial coverage of Title VII), aff'd on basis of dis-
trict court opinion, 746 F.2d 810 (Sth Cir. 1984)."
10 In most cases, a court would probably find no jurisdiction over
a foreign employer's extraterritorial practices, or would decline 2
to exercise jurisdiction, based on the same principles of
international law discussed in my panel dissent. See Boureslan.
857 F.2d at 1025-31. The only question before this en banc
court, however, is whether Title VII's protections apply to a
United States citizen employed abroad by an American
employer.
'! In Kern, & United States helicopter company required all its
pilots who flew from Jeddah to Mecca, Saudi Arabia, to be
Moslem. The defendant company argued that religion was a
Appendix C p. 19
The majority finds it curious that Congress made no special
provisions in Title VII either for the venue of cases arising
from extraterritorial violations or for the investigatory
powers of the Equal Employment Opportunity Commission
(‘‘EEOC’’) in such cases. First, Title VII provides for venue
not only in the district in which the violation was committed,
but also in either the district where relevant employment
records are administered, or the district where the aggrieved
employee would have worked but for the unlawful
employment practice. 42 U.S.C. § 2000e-5(f)(3). Venue in
one of the latter two districts would usually be available in
the situation--certainly not uncommon--involving the tempo-
rary foreign assignment of an employee advancing on the
corporate track of an American multinational corporation. In
addition, Title VII provides that if an employer is not
‘‘found’’ within any of the first three specified districts,
venue is proper ‘‘in the judicial district in which the
respondent has his principal office.’’ Id. An American
enterprise will generally have a principal office in the United
States."
Second, the geographical limitations on the EEOC’s
investigative powers--in both the original Act and in the 1972
amendments--apply only to the EEOC’s power to compel
compliance with administrative procedures. See 42 U.S.C. §
2000e-9 (incorporating 29 U.S.C. § 161, which allows the
EEOC to compel the appearance of witnesses and the
bona fide occupational qualification because Saudi law prohibited
non-Mosiems from entering the-holy area of Mecca under
penalty of death. We affirmed the district court’s finding that the
employer had not violated Title VII.
12 It is not necessary for purposes of this appeal to delineate the
circumstances under which an American parent corporation will
exercise sufficient control over its foreign subsidiary so that the
enterprise will constitute an American employer.
Appendix C p. 20
~~ — .
production of documents from anywhere within the United
States or its territories). There is nothing in Title VII that
precludes the EEOC from attempting to obtain the
employer’s voluntary cooperation in investigation and
conciliation efforts.'’ It would be reasonable for Congress
to conclude that United States citizens are entitled to the
protections of Title VII abroad, but to decline to authorize
the EEOC to expend the time or resources necessary to
compel compliance with an investigation of a case in which
documents and witnesses are located in other countries.
Furthermore, American enterprises likely maintain records in
their home offices as well as abroad, or exercise sufficient
control over their foreign operations to request the production
of witnesses and documents through internal channels. Thus,
the EEOC clearly has the power to subpoena the home office
for evidence necessary to an investigation.
The majority finally cites the ADEA as a good example for
the proposition that Congress knows how to give
extraterritorial effect to a statute when it desires to do so.
What the majority fails to mention is that at the time
Congress amended the ADEA, courts had consistently held
that the ADEA did not apply extraterritorially. See e.g.,
Cleary v. United States Lines, Inc., 728 F.2d 607 (3rd
Cir. 1984); Zahourek v. Arthur Young & Co., 567 F.Supp.
1453 (D.Colo. 1983), aff'd, 750 F.2d 827 (10th Cir. 1984).
These cases had distinguished the ADEA from Title VII
because the ADEA incorporates the geographic restrictions
a
The ADEA, unlike Title VII, incorporates the enforcement
provisions of the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq. Under the relevant provision in the ADEA, the EEOC’s
enforcement powers extend only to cooperation with state
agencies and voluntary conciliation attempts. See 29 U.S.C. §
626. Congress left the EEOC enforcement provisions of the
ADEA unchanged when it explicitly provided for extraterritorial
application of the ADEA in 1984.
13
Appendix C p. 21
of the Fair Labor Standards Act,’* which Title VII does not,
and contains no alien exemption clause such as is found in
section 702 of Title VII. See Cleary, 728 F.2d at 609;
Zahourek, 567 F.Supp. at 1456; see also Pfeiffer v. Wm,
Wrigley Jr., Co., 755 F.2d 554, 559 (7th Cir. 1985). Every
court previously faced with the issue of Title VII’s scope
either had concluded that the alien exemption provision
evidenced an intent to apply the Act extraterritorially, or had
simply assumed iurisdiction without discussion. See Bryant
v. International Schools Serv., Inc., 502 F.Supp. 472
(D.N.J. 1980), rev’d on other grounds, 675 F.2d 562, 577
n. 23 (3d Cir.1982); Seville v. Martin Marietta Corp., 638
F.Supp. 590 (D.Md.1986) (adopting Bryant’s reasoning);
Love v. Pullman Co., 13 Fair Empl.Prac. Cas. (BNA) 423,
426 n. 4 (D.Colo.1976), aff'd on other grounds, 569 F.2d
1074 (10th Cir. 1978).
In amending the ADEA, Congress also had before it the
testimony of the EEOC that Title VII applied abroad. See
Age Discrimination and Overseas Americans, 1983: Hearing
Before the Subcomm. on Aging of the Senate Comm. on
Labor and Human Resources, 98th Cong., Ist Sess. 3
(1983). Senator Charles Grassley, Chairman of the
Subcommittee on Aging of the Committee on Labor and
Human Resources, and sponsor of the bil! extending the
ADEA to citizens employed abroad, stated when he
introduced the ADEA amendment that legislation was
necessary to correct the unintended ‘‘anomaly’’ of applying
the ADEA only domestically, while Title VII was applied
both home and abroad. 129 Cong.Rec. $17,018 (daily ed.
Nov. 18, 1983). Thus, there is every indication that when
Congress amended the ADEA in 1984, it intended simply to
14 Section 626(b) of the ADEA incorporates 29 U.S.C. § 213(f)
of the Fair Labor Standards Act, which excludes “any employee
whose services during the workweek are performed in a work-
place within a foreign country."
Appendix C p. 22
make the scope of the Act coextensive with that of Title
VII."* It would otherwise seem anomalous that Congress
would desire_the elimination of extraterritorial workplace
discrimination based only on an employee’s age, and not on
an employee’s race, color, religion, sex, or national
origin--categories that have traditionally enjoyed heightened
constitutional scrutiny and great legislative concern as
impediments to equal opportunities.
International Law
In his panel majority opinion, Judge Davis rejects the
evidence of congressional intent to apply Title VII
extraterritorially as inadequate, referring to policy consider-
ations--including religious and cultural differences with other
nations--that purportedly militate against such an application
of the statute. See Boureslan, 857 F.2d at 1020. Unless,
however, the conflicts of law to which the majority refers
rise to the level of a violation of international law they are
not a sufficient basis on which to reject categorically the
clear evidence of congressional intent existing in this case.
As I explained in my panel dissent, extraterritorial
application of Title VII would not violate international law.
See id. at 1024-31. I will not here repeat that lengthy
discussion. Briefly, applying the test set forth in section 403
of the Restatement (Third) of Foreign Relations Law, it
clearly is not unreasonable for the United States to require
that American companies comply with Title VII in their
employment of United States citizens in other countries: The
United States has a strong and legitimate interest in
See also the report of the Committee on Labor and Human
Resources, which describes the amendment of the ADEA to
provide for extraterritorial coverage of United States citizens as
a “minor change{]" in the Act. S.Rep. No. 98-467, 98th Cong.,
2d Sess. 2 ( 1984), reprinted in 1984 U.S.Code Cong. &
Ad.News 2974, 2975.
15
Appendix C p. 23
protecting citizens employed abroad by American
corporations from discrimination in employment; Title VII is
consistent with the norms of the international community,
which has adopted numerous accords condemning dis-
crimination, including discrimination in employment;
American citizens have a legitimate expectation that they will
not lose the protection of Title VII when they accept a
position with the foreign office of an American enterprise;
and the potential for conflicts with foreign law are minimized
by the fact that the statute applies only to United States
nationals and by the BFOQ Ccefense that has been interpreted
in an opinion endorsed by this court to exempt an employer
from liability where a violation of Title VII is compelled by
foreign law. See Kern, 577 F.Supp. at 1201.
This is not to say that the exercise of extraterritorial
jurisdiction under Title VII would be appropriate in every
case. However, the fact that we can hypothesize situations in
which a conflict would arise does not mean that the statute
must be construed so that it never applies abroad. ‘‘Because
Congress ... can neither anticipate nor resolve all conflicts
with foreign jurisdiction,’’ it necessarily relies upon the
judiciary to minimize conflicts of jurisdiction by exercising
a jurisdictional rule of reason in individual cases. Laker Air-
ways, 731 F.2d at 952 n. 169. The Restatement does not
purport to eliminate concurrent jurisdiction. Rather, it
recognizes that two or more states may exercise jurisdiction
over the same activities or individuals when the exercise of
jurisdiction by each state is reasonable. The Restatement
provides mechanisms for courts to moderate the exercise of
jurisdiction when conflicts do arise. This is a process that
most courts of appeals, including this one, have employed in
other cases involving extraterritorial application of United
States law. See, e.g., American Rice, 701 F.2d at 414.
The concern voiced by the majority--that extraterritorial
application of Title VII will create conflicts of law--is, thus,
Appendix C p. 24
at a ie ar ON
adequately addressed by the provisions of the statute itself
and by the same principles of international law that have
traditionally allowed United States courts to moderate their
exercise of extraterritorial jurisdiction in the case of actual
conflicts of law.
Conclusion
In enacting Title VII of the Civil Rights Act of 1964,
Congress expressed its determination that all Americans are
entitled to be free of the intolerable barrier of discrimination
in employment based on race, color, religion, sex or national
origin. Under the majority’s holding, however, Congress’s
commitment represents merely an empty promise to the
thousands of American women and minorities employed in
other countries by American multinational firms. Such
individuals face the dilemma of accepting an assignment
. abroad, often considered to be a lucrative opportunity and, in
many such multinational enterprises, a prerequisite for career
advancement at home, only at the cost of relinquishing the
protections and remedies of Title VII upon crossing the
territorial borders of the United States. Employment
discrimination by American employers against American citi-
zens--wherever practiced--has devastating effects both on the
economy of this country and on the dignity and livelihoods
of Americans who have come to rely over the past quarter of
a century on achievements made possible, in part, by civil
rights legislation. The salutary goals of Title VII cannot be
fully realized if the fortuitous location of an American
employee at the overseas office of an American firm could
mean the difference between equal opportunity and
discrimination at will.
Congress certainly recognized the potential for abuse
represented by American multinational concerns when it
enacted Title VII, which must explain its inclusion of section
702 of the Act, the alien exemption clause. Balancing the
broad remedial goals of this civil rights statute against the
Appendix C p. 25
potential conflicts that would arise in attempting to regulate
the employment of aliens outside the United States, Congress
followed the reasoning of the Supreme Court in Foley Bros.
and drew an extraterritorial line based on nationality.
There is no justification for disregarding the clear evidence
of congressional intent to apply Title VII to United States
citizens employed in other countries by American enterprises.
Congress made the judgment in 1964 in Title VII, just as it
did again in 1984 in the ADEA amendments, that American
nationals employed by United States employers are entitled
to the same protection from employment discrimination
abroad as they enjoy at home. If we are not to substitute our
policy judgments for those of Congress, we must give effect
to Congress’s intent to apply Title VII extraterritorially. I
respectfully dissent from the majority’s refusal to do so.
Appendix C p. 26
Civil Rights Act of 1964, as amended,
Section 701, et seq. (42 USC. § 2000e, et
seq. ):
SUBCHAPTER VI - EQUAL EMPLOYMENT
ter --
OPPORTUNITIES
§ 2000e. Definitions
For the purposes of this subchap-
(a) The term “person” includes one or more
individuals, governments, governmental
agencies, political subdivisions, labor unions,
partnerships, associations, corporations, legal
representatives, mutual companies, joint-stock
companies, trusts, unincorporated organizations,
trustees, trustees in cases under Title 11, or
receivers.
(b) The term “employer” means a person
engaged in an industry affecting commerce who
has fifteen or more employees for each working
day in each of twenty or more calendar weeks
in the current or preceding calendar year, and
any agent of such a person, but such term does
not include (1) the United States, a corporation
wholly owned by the Government of the United
States, an Indian tribe, or any department or
agency of the District of Columbia subject by
Statute to procedures of the competitive service
(as defined in section 2102 of Title 5), or (2) a
bona fide private membership club (other than
a labor organization) which is exempt from
Appendix D p. 1
taxation under section 501(c) of Title 26, except
that during the first year after March 24, 1972,
persons having fewer than _ twenty-five
employees (and their agents) shall not be
considered employers.
(f) The term “employee” means an
individual employed by an employer, except that
the term “employee” shall not include any
person elected to public office in any State or
political subdivision of any State by the qualified
voters thereof, or any person chosen by such
officer to be on such officer’s personal staff, or
an appointee on the policy making level or an
immediate adviser with respect to the exercise of
the constitutional or legal powers of the office.
The exemption set forth in the preceding
sentence shall not include employees subject to
the civil service laws of a State government,
governmental agency or political subdivision.
(g) The term “commerce” means trade,
traffic, commerce, transportation, transmission,
or communication among the several States; or
between a State and any place outside thereof;
or within the District of Columbia, or a
possession of the United States; or between
points in the same State but through a point
outside thereof.
(h) The term “industry affecting
commerce” means any activity, business or
industry in commerce or in which a labor
Appendix D p. 2
dispute would hinder or obstruct commerce or
the free flow of commerce and includes any
activity or industry “affecting commerce” within
the meaning of the Labor- Management
Reporting and Disclosure Act of 1959, and
further includes any governmental industry,
business, or activity.
(i) The term "State" includes a State of
the United States, the District of Columbia,
Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone,
and Outer Continental Shelf lands defined in the
Outer Continental Shelf Lands Act.
§ 2000e-1. Subchapter not applicable to
employment of aliens outside State and individuals for
performance of activities of religious corporations,
associations, educational institutions, or societies
This subchapter shall not apply to an employer
with respect to the employment of aliens outside any
State, or to a religious corporation, association,
educational institution, or society with respect to the
employment of individuals of a particular religion to
perform work connected with the carrying on by such
corporation, association, educational institution, or
society of its activities.
Appendix D p. 3
§ 2000e - 2. Unlawful employment practices
Employer practices
(a) It shall be an unlawful employment practice
for an employer -
(1) to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect
to his compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any
way which would deprive or tend to deprive any
individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual’s race,
color, religion, sex, or national origin.
Appendix D p. 4
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