# Petition for Writ of Certiorari — Boureslan v. Arabian American American American Oil Co. (Nos. 89-1845, 89-1838) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0760%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 ## Text ro 89-1845 | wos wm i JOBGEPH © Spang; ; ClieRe 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 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 traditionall [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0760%3A02. Public record. Not legal advice.