Reply Brief — Boureslan v. Arabian American American American Oil Co. (Nos. 89-1845, 89-1838)

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In the Supreme Court of the Sities

OCTOBER TERM, 1990 ne

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, PETITIONER

ARABIAN AMERICAN OIL CO., ET AL.

ALI BOURESLAN, PETITIONER

ARABIAN AMERICAN OIL CO., ET AL

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

KENNETH W. STARR

Solicitor General

Jownn R. DUNNE

Assistant Attorney Genera

Jonn G. ROBERTS, Ja.

DONALD R. LIVINGSTON

: STEPHEN L. NIGHTINGALE

were | otpmo Assisiani to the Solicitor General

Associate General Counsel Department of Justice

VINCENT J. BLACKWOOD wammmgen, D.C. 38558

Assistant General Counset «282 514-2217

SAMUEL A. MARCOSSON

Attorney

QUESTION PRESENTED

Whether Tithe VII of the Civil Rights Act of 1964, 42 U.S.¢

2000e et seq., prohibits employment discrimination outside the

United States by an American corporation against an American

cHizen

PARTIES TO THE PROCEEDING

The Equal Employment Opportunity Commission, which in-

tervened as an appellant in the court of appeals, is the petitioner

in No. 89-1838. Al Bouresian, the plaintiff-appellant below, is

the petitioner in No. 89-1845. Arabian American Oil-Company

and Aramco Services Company, defendants-appelices below,

are the respondents in both cases.

Opinions below

Statement

TABLE OF CONTENTS

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Summary of argument ..................... heed

Argument:

Title VII manifests a clear congressional inten-

tion to prohibit discrimination outside the

United States by American employers against

EE A

By its terms, Title VII prohibits in-

vidious employment discrimination

against American citizens outside the

a ko ok x og

Title VII's exemption for aliens with

respect to employment outside the

United States clearly manifests an in-

tention to protect American citizens

with respect to employment outside the

EEE

Other provisions of Title VII are con-

sistent with its application to

discrimination by American employers

against American citizens abroad .... .

The EEOC, the agency charged with

administrative enforceraent of Title

VII, has interpreted the statute to apply

to discrimination against Americans

Concern for potential conflicts with the laws

of other nations does not warrant limiting

Title VII to discrimination within the United

States

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Cases:

ii it ais .

Page

A. The alien exemption represents Con-

gress’s solution to potential conflicts of

i ect ceuisdbidinehasGennkan se ¢ 25

B. Properly applied, Title VII does not

create a serious potential for conflicts

with international norms or the laws of

RE grec pactedversséceccees 25

C. Tithe VII's treatment of conflicts with

state law provides no basis for ques-

tioning the extraterritorial application

GE Ba 60 60 ck eeehé-eess cc. 29

D. The 1984 amendments to the ADEA do

not justify a distinction between age

discrimination and discrimination

based upon race, sex, national origin,

GP GED cacectecdeseshbveceseess 31

CRED oo cbc kbcdehsbscbeebhecabeneteccocstees 32

TABLE OF AUTHORITIES

Akgun v. Boeing Co., No. C89-1319D (W.D.

ee ED « pdb on cbb ad abeeeetsieces 14

American Banana Co. v. United Fruit Co., 213

i idle hae pews sus woo 9

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

te tt Kha Sie ghenbes boty oe 13

Argentine Republic v. Amerada Hess Shipping

ULL —eee ee 7)

Arrocha v. Panama Canal Comm'n, 609 F. Supp.

Nd ened eke en duene te. 19

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

ape a et ta eR i a 13

Bainbridge v. Merchants & Miners Transp. Co.,

a lp ak a 19

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

DT <i cis steussbnedaseestes? cabeet 18, 24, 25

Blackmer v. United States, 284 U.S. 421 (1932)... 9, 26

Cases — Continued:

Branch v. FTC, 141 F.2d 31 (7th Cir. 1944) .......

Brunette Machine Works Ltd. v. Kockum Indus.,

Fig GP PTE og ccc cccccccccccccece

Bryant v. International Schools Services, Inc.,

502 F. Supp. 472 (D.N.J. 1980), rev'd, 675 F.2d

8 IR a a a

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

CFTC v. Nahas, 738 F.2d 487 (D.C. Cir. 1984) ...

Cole v. Secretary of the Army, EEOC Dec. No.

05890142 (Aug. 23, 1989) ....................

Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690 (1962) ..................

Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923) ...

De Yoreo v. Bell Helicopter Textron, Inc., 785 F.2d

EEOC v. Commercial Office Products Co., 486

EE EE

EEOC vy. Pacific Press Publishing Ass'n, 676 F.2d

Ee ee

EEOC Dec. No. 85-10, Empl. Prac. Dec. (CCH)

EEE

EEOC Dec. No. 85-16, Empl. Prac. Dec. (CCH)

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

Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) . .

10, 13, 15, 17,

FTC v. Campagnie de Saint-Gobain-Pont-a-

Mousson, 636 F.2d 1300 (D.C. Cir. 1980) ......

Hedges v. Department of Defense, EEOC Dec.

No. 05900454 (June 1, 1990) .................

Kern v. Dynaelectron Corp., 577 F. Supp. 1196

(N.D. Tex. 1983), aff'd, 746 F.2d 810 (Sth Cir.

DT SENGEUNSGEbGhO ah oo 6640 64606n6 oes cecec

3, 14

3, 9,

18, 24

Cases — Continued: Page

Lauritzen v. Larsen, 345 U.S. 571 (1953) ......... 28, 29

Lopez v. Pan Am World Services, Inc., 813 F.2d

NC ok cridvindauss crceosene ee 31

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

(BNA) 423 (D. Colo. July 21, 1976); aff'd, 569

F.2d 1074 (10th Cir. 1978) ..... 2... cece eee 14

McClure v. Salvation Army, 460 F.2d 553 (Sth

Cir.), cert. denied, 409 U.S. 896 (1972) ........ 14

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963) ............. 9, 18, 24,

25, 27, 29

Murray v. The Schooner Charming Betsy, 6 U.S.

I 5 8 on conanncagpaseeecses 28, 29

New York Central R.R. v. Chisholm, 268 U.S.

DE chide ined cid tcbaeneddbaeees dees 7)

Patterson v. Bark Eudora, 190 U.S. 169(1903).... 9, 10

Pennsylvania v. Union Gas Co., 109 §. Ct. 2273

SED da dctaes ta 60db cde dee Wes bebesecced< 13

Pfeiffer v. William Wrigley Jr. Co., 755 F.2d SS 4mm

rn, Ge Le. ors ced ukebbedeocs 31

Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir.

ee tn 2 Bh, cue ldbeadews biedee 31

Romero v. International Terminal Operating Co.,

EE ee 28

Sandberg v. McDonald, 248 U.S. 185 (1918) ...... vy)

Schoenbaum v. Firstbrook, 405 F.2d 200, modi-

fied, 405 F.2d 215 (2d Cir. 1968), cert. denied,

.F 8B a gS arr 9

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

Ce i4

Skiriotes v. Florida, 313 U.S. 69 (1941)... 0... ... 9, 26

Societe Nationale Industrielle Aerospatiale v.

United States District Court, 482 U.S. §22

SED neendaoncdan seecvesscceesesecedecess 21

Steele v. Bulova Watch Co., 344 U.S. 280 (1952)... 9, 10,

12, 24

Vil

Cases — Continued:

Stewart v. Pacific Steam Navigation Co., 3 F.2d

EE ee

Sumitomo Shoji America, Inc. v. Avagliano, 457

EEE

Tamari v. Bache & Co. (Lebanon) S.A.L., 730

F.2d 1103 (7th Cir.), cert. denied, 469 U.S. 871

inp apa iE RS a ee a

Thomas v. Brown & Root, Inc., 745 F.2d 279 (4th

EE ee a a

United States v. Aluminum Co. of America, 148

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

United States v. Flores, 289 U.S. 137 (1933) ......

United States v. Palmer, 16 U.S. (3 Wheat.) 610

tine tte de een oe eee id been eae ane c

United States v. Rodgers, 150 U.S. 249 (1893) ....

Vermilya-Brown Co. v. Connell, 335 U.S. 377

PT CPEEUGIThs . cudecddedacthededcéateccce

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

Yellow Freight System, Inc. v. Donnelly, 110

ds scab chccecetectect =y

Zahourek v. Arthur Young & Co., 750 F.2d 827

rk ks ce weecncenes

Constitution, statutes and rule:

U.S. Const:

cen ocesecethensbecceseees

Act of Sept. 28, 1971, Pub. L. No. 92-129, Tis. 1,

TE 656k bedbeeebes ces cedecs

Age Discrimination in Employment Act, 29 U.S.C.

ia ieee eck bee boesiieneeescces

Civil Rights Act of 1964, Pub. L. No. 88-352,

Tu. Vil, 78 Stat. 253, 42 U.S.C. 2000 ef seq. ...

§ 701(b), 42 U.S.C. 2000e(b) . 5...

§$ 701g), 42 U.S.C. 20000(g) ...........

vill

Statutes and rule — Continued: Page

§ 70i(h), 42 U.S.C. 2000e(h) ............... 11

§ 702, 42 U.S.C. 2000e-1 (78 Stat. 255) idee 3, 6, 12

pe ee 11, 14, 27

§ 703(a), 42 U.S.C. 2000e-2(a) ......... «.. 11

ph © fe” Ee 11

§ 706(a), 42 U.S.C. 2000e-S(a) ............. 21

§ 706(b), 42 U.S.C. 2000e-S(b) ............. 21

§ 706(b)-(d), 42 U.S.C. 2000e-S(b) to

nae a ea w

§ 706(f), 42 U.S.C. 2000e-S(f) ... . 2... .. 21

§ 706(1)(1), 42 U.S.C. 2000e-S(TMT) 3

§ 706(13), 42 U.S.C. 2000e-S(TM3) ......... 18

) © | w

es IE oc ccccccscccecess 21

§ 70%(b), 42 U.S.C. 2000e-B(b) ............. w

DD Pe ie See MD ocntibocecccceccces 20, 22

§ 710(a), 42 U.S.C. 2000e-9(a) (78 Stat. 264) .. 20

Ds ee ID a cncceccoceseee: 23

Outer Continental Shelf Lands Act, 43 U.S.C. 1331

PARE SPOUT TEC TT Cee TT Teer )

Re ie feacnaul 22

eS a ee ape 21

i i a hl 20, 22

Ee. ack nseecéece renin’ 19

SE EE MED ac ccocevesnceesececnt 32

SA ED oeccceccucse: 21

Miscellaneous:

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. (1983) . 23,30

Miscellaneous — Continued:

Civil Rights: Hearings Before Subcomm. No. 5

of the House Comm. on the Judiciary on Mis-

p ib R line the Civil Righ

of Persons Within the Jurisdiction of the United

States, 88th Cong., Ist Sess. (1963) ............

/Nscriminatory 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.

DT etineeEGbideesseues saganeceeoncess<

Federal Agencies: Hearings Before a Subcomm.

of the House Comm. on Government Opera-

tions, 94th Cong. ist & 2d Sess. (1975-1976) .. ..

Foreign Investment and Arab Boycott Legislation:

Hearings Before the Subcomm. on International

Finance of the Senate Comm. on Banking,

Housing and Urban Affairs, 94th Cong., !st

H.R. 4453, 8ist Cong., Ist Sess. (1949)...

H.R. 405, 88th Cong., Ist Sess. (1963)...

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

H.R. Rep. No. $70, 88th Cong., Ist Sess. (1963) . .

H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963) -.

Note, Equal Employment Opportunity for Ameri-

cans Abroad, 62 N.Y.U. L. Rev. 1288 (1987) . ..

Policy Statement No. N-915.033, EEOC Compl.

16, 25

Man. (BNA), at 60520055 (Sept. 2, 1988) .... 23, 28, 29

Restatement (Third) of the Foreign Relations Law

of the United States (1986) ........... apenas

Miscellaneous — Continued: Page

S. 1937, 88th Cong., Ist Sess. (1964) ............ 16

S. Rep. No. 867, 88th Cong., 2d Sess. (1964) ..... 16

Steinhardt, The Role of International Law As a

Canon of Domestic Statutory Construction, 43

WS Wns SEs IE cc ccccancovseneecs 29

In the Supreme Court of the Anited States

OCTOBER TERM, 1990

No. 89-1838

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, PETITIONER

ARABIAN AMERICAN OIL CO., ET AL.

No. 89-1845

ALI BOURESLAN, PETITIONER

ARABIAN AMERICAN OIL CO., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

OPINIONS BELOW

The panel and en banc opinions of the court of appeals (Pet.

App. la-76a)' are reported, respectively, at 857 F.2d 1014 and

892 F.2d 1271. The opinion of the district court (Pet. App.

77a-82a) is reported at 653 F. Supp. 629.

JURISDICTION

The judgment of the court of appeals upon rehearing en banc

was entered on February 2, 1990. On April 24, 1990, Justice

' “Pet. App.” refers to the appendix to the petition in No. 89-1838.

(1)

White extended the time for filing a petition for a writ of cer-

tiorari to and including May 23, 1990. The petitions for writs of

certiorari were filed on May 23, 1990, and were granted on Oc-

tober. 1, 1990. This Court has jurisdiction under 28 U.S.C.

1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of Tithe VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e ef seqg., are set forth at Pet. App.

86a-88a.

STATEMENT

1. Ali Boureslan, the plaintifi in this Tithe VIL action, is a

naturalized American citizen. The defendants are two Delaware

corporations, Arabian American Oil Company (Aramco) and

Aramco Services Company (ASC). During the period relevant

to this case, Aramco explored for; produced, and refined oil

and gas in Saudi Arabia. All of Aramco’s shares were owned by

Texaco, Exxon, Mobil, and Chevron, or their subsidiaries.

Aramco’s principal place of business was Dhahran, Saudi

Arabia, but it was licensed to do business in Texas. ASC was a

wholly owned subsidiary of Aramco; its principal place of

business was Houston, Texas. J.A. 21, 24, 41; see Br. in Opp.

App. la.

In 1979, Boureslan was hired by ASC to work as an engineer

in Houston. A year later, Boureslan’s request for a transfer to

Aramco was granted, and he relocated to Saudi Arabia. In that

country, Boureslan alleges, his supervisor systematically mis-

treated him because of his national origin, religion, and race,

and respondents sought to create a record that would justify his

termination. On June 16, 1984, Boureslan was discharged. His

complaint alleges that the stated grounds for the termination

Were pretextual and that he was actually discharged because of

his national origin, race, and religion. J.A. 7-10, 31-36.

2. After filing a charge of discrimination against Aramco

with the EEOC and receiving a right to sue letter, Boureslan

commenced this action against Aramco and ASC. His amended

complaint seeks relief under Title VII and also asserts pendent

state law claims. J.A. 9-10. Aramco moved to dismiss the com-

plaint for lack of subject matter jurisdiction, arguing that Title

VII does not apply to discrimination outside the United States.

J.A. 11-12. The district court agreed with that contention and

dismissed the Title VII claims against both defendants. Pet.

App. 77a-82a. The court also dismissed Boureslan’s state law

claims for lack of pendent jurisdiction and entered final judg-

ment in favor of both Aramco and ASC. See id. at 82a; J.A. 44.

3. A divided panel of the court of appeals affirmed. Pet.

App. 28a-82a. The court then granted rehearing en banc; upon

rehearing, the court affirmed the district court’s judgment by a

Y-5 vote. Id. at la-27a.?

a. The en banc majority held that Title VII does not apply

to discrimination outside the United States. In reaching that

conclusion, it relied on the “canon of construction * * * that

legislation of Congress, unless a contrary intent appears, is

meant to apply only within the territorial jurisdiction of the

United States.” Pet. App. 3a (quoting Foley Bros. Inc. v.

Filardo, 336 U.S. 281, 285 (1949)). Title VII, the majority con-

cluded, “does not reflect the necessary clear expression of con-

gressional intent to extend its reach beyond our borders.” Pet.

App. 7a.

The majority dismissed the contention that the statute’s “alien

exemption” — which provides that Title VII “shall not apply to

an employer with respect to employment of aliens outside any

State,” 42 U.S.C. 2000e-1 — demonstrates that Title VII was de-

signed to apply to discrimination against American citizens out-

side the United States. Citing Espinoza v. Farah Mfg. Co., 414

U.S. 86, 95 (1973), the majority ruled that the alien exemption —

reflects “a congressional intent to provide Title VII coverage to

> In the court of appeals, the EEOC participated as an amicus curtae before

the panel. After entry of the panel's decision, the Commission was granted

leave to intervene tor the purpose of seeking further review and participated as

a party in the rehearing en bane. Pet. App. 85a. See 42 U.S.C. 2000e-5(1)1)

(authorizing court, in its discretion, to permit the Commission to intervene in

a civil action upon the Commission's certification that the case ts of general

public importance).

aliens employed within the United States.” Pet. App. 4a. Thus,

it reasoned, the provision would remain a “meaningful and

useful part of the Act” even if Tithe VII were interpreted not to

apply to discriminatory conduct abroad. /bid.

The majority found additional support for its interpretation

in what it characterized as the “domestic focus” of the Act and

in Tithe VII's “repeated references” to the “United States”,

“states” and “state proceedings.” Pet. App. Sa. Because Title

VII “accommodate[s] state employment discrimination pro-

ceedings,” the majority continued, “[{i]f Congress had intended

the Act to apply in foreign countries,” it would “have been even

more careful to address conflicts with foreign discrimination

laws.” Ibid. The majority also found the Act to be “curiously

silent” On issues raised by extraterritorial application of Title

VII, saying that Title VII “fails to address venue problems that

arise with foreign violations” and that the EEOC’s “in-

vestigatory powers are limited to evidence obtained in the

United States and its territories.” /bid.

If the Act were applied extraterritorially, the majority con-

tinued, its plain language would reach foreign employers of

American citizens. The majority expressed doubt “that Con-

gress ever intended to impose Title VII on a foreign employer

who had the grace to employ an American citizen in its own

country.” Pet. App. 6a. Finally, the court contrasted Title VII

with other statutes having undoubted extraterritorial effect — in

particular, the Age Discrimination in Employment Act, 29

U.S.C. 630(f). In those other statutes, the majority observed,

“Congress demonstrated * * * its awareness of the need to make

a clear statement of extraterritorial application, address the con-

cerns of conflicting foreign law, and provide the usual nuts-and-

bolts provisions for enforcing those rights.” /bid.

b. Five members of the court dissented. The dissenting

opinion concluded that “a fair and reasonable reading” of Title

Vil “compels the conclusion that Congress did, in fact, intend

Tithe 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 foreign soil.” Pet. App. 7a.

The alien exemption, the dissent explained, provides a clear ex-

pression of Congress’s intent to apply the statute extrater-

ritorially; “{iJf Congress had not envisioned an extraterritorial

application of Title VII, a specific provision exempting only

aliens from such coverage would not have been needed.” /d. at

Ya. The dissent found further support for its interpretation of.

Title Vil in the alien exemption’s legislative history and in the

EEOC’s interpretation of the statute. /d. at 12a-l6a & nn.3-7.

SUMMARY OF ARGUMENT

Like Ali Boureslan, many Americans spend a portion of their

careers working outside the United States for American

employers. Foreign assignments provide employees with

valuable experience and are essential for advancement in many

firms. The question presented by this case is whether Title VII

provides Americans with protection from discrimination on the

basis of race, sex, national origin, and religion while they are

employed by American employers abroad.

|. There is no doubt that Congress has constitutional

authority to prohibit such discrimination. In determining

whether Congress has exercised that authority here, it is ap-

propriate to refer to the canon of construction that, unless a

contrary intent appears, legislation is interpreted to apply only

within the territorial limits of the United States. Title Vil

satisfies the requirement imposed by this presumption; the

language of the statute clearly manifests Congress’s intention to

prohibit employment discrimination abroad by American

employers against American citizens. |

A. By its terms, Title VII reaches discrimination against

Americans employed abroad. The Act prohibits discriminatory

employment practices by “an employer”—a defined term in-

cluding all firms that employ a specified number of employees

and are engaged in an industry affecting commerce. The

statutory definition provides no exclusion for employers con-

ducting operations abroad, and the term “commerce” is defined

to include foreign commerce. Accordingly, American corpora-

tions that employ American citizens abroad are among the

employers subject to the Act.

B. Section 702 of the Act, 42 U.S.C. 2000e-1, provides that

litle VII does not apply to “the employment of aliens outside

any State.” This exemption demonstrates that Congress in-

tended to protect American citizens from employment

discrimination abroad. Congress could not rationally have

enacted an exemption for aliens (but not citizens) with respect to

employment abroad while at the same time believing that Title

Vil could not apply extraterritorially in the first place. The

court of appeals’ surmise that Congress enacted the alien exemp-

tion in order to confer coverage on aliens employed within the

United States is untenable. Indeed, the legislative history of the

alien exemption contirms that its purpose was to limit the poten-

tial for conflicts with foreign law by withdrawing coverage from

aliens abroad.

C. No provision of Title VII is inconsistent with its applica-

tion to the employment of American citizens by American

employers abroad. Contrary to the court of appeals’ suggestion,

Tithe VII does not create a venue gap for cases arising from

discrimination abroad. And even if such a gap existed, it would

reflect at most a decision to limit plaintiffs’ choice of forum, not

an intention to withdraw all protection from Americans

employed abroad. Similarly, the statute’s limitation on the

scope of the EEOC’s subpoena power does not suggest a limit

on the statute’s substantive provisions. The remainder of the

EEOC’s authority and the rights conferred on private plaintiffs

embody no geographical limitation. As other statutes contain-

ing Virtually identical subpoena provisions reflect, there is no

necessary relationship between an agency’s subpoena power and

the scope of the statute m administers.

D. The EEOC, the agency charged with principal respon-

sibility for administering Tithe VII, has interpreted the statute to

apply extraterrittorially. The Justice Department, which also has

responsibilities in this area, has reached the same conclusion.

These consistent constructions of the statute by the responsible

ee ree

agencies confirm that Congress’s intent was to apply Title VII to

Americans employed by American employers abroad.

ll. Concern for potential conflicts between Title VII and the

laws of foreign states, on which the court of appeals placed

great emphasis, does not justify restricting the statute to

discrimination within the United States.

A. Congress has spoken to the possibility that Title VII may

conflict with foreign law. The exemption for the employment of

aliens outside the United States embodies the balance that Con-

gress struck between the goals of eradicating employment

discrimination and avoiding conflicts with foreign laws. The

courts are not at liberty to restrike that balance.

B. Applied to discrimination by American corporations

against American citizens, Title VII does not raise a serious

prospect of irreconcilable conflicts with foreign laws. Interna-

tional law recognizes a state’s right generally to prescribe legal

rules for its nationals outside the state’s boundaries. Title VII

provides potential defenses to employers that are compelled by

the law of the territorial sovereign to engage in conduct that

would otherwise be prohibited by Title VII. Application of Title

VII to cases such as this does not infringe upon the sovereignty

of foreign states.

C. In providing for limited deference to state fair employ-

ment proceedings but not to foreign procedures, Title VII does

not suggest that Congress intended to limit Title VII to

discrimination within the United States. Congress’s decision not

iG require reference of charges of discrimination to unfamiliar

foreign proceedings scarcely suggests that it turned a blind eye

to employment discrimination by American employers against

Amezican citizens abroad. Indeed, because Title VII supersedes

all inconsistent state law, it is even less tolerant of conflicts with

state law than it is of conflicts with foreign law. The statutory

provisions accommodating state fair employment laws provide

no basis for doubt as to Congress’s intention to prohibit

discrimination abroad.

D. In 1984, Congress amended the Age Discrimination in

Employment Act to make clear its intention to prohibit age

discrimination against Americans employed abroad. Contrary

to the court of appeals’ suggestion, those amendments do not

reflect an intention to distinguish between age discrimination

and discrimination based on race, sex, national origin, or

religion. Indeed, it would be anomalous to construe Title VII to

provide Americans abroad with less protection from discrimina-

tion based on race, sex, national origin, or religion than from

discrimination based on age. In fact, the legislative history of

the ADEA amendments reflects that Congress believed that it

was bringing the ADEA into line with Title VII and providing

Americans working abroad with substantially the same protec-

tion from all forms of discrimination. Construing Title VIE to

be inapplicable abroad would resurrect (in reverse) the anomaly

that the 1984 Congress acted to eliminate.

ARGUMENT

1. TITLE Vil MANIFESTS A CLEAR CONGRESSIONAL IN-

TENTION TO PROHIBIT DISCRIMINATION OUTSIDE

THE UNITED STATES BY AMERICAN EMPLOYERS

AGAINST AMERICAN CITIZENS

The issue in this case — whether Tithe VII protects American

citizens against invidious employment discrimination by

American corporations outside of the United States!—is ex-

clusively one of statutory interpretation. Congress’s power to

legislate under the Commerce Clause, the primary source of

constitutional authority for Tithe VIL, is not confined to the ter-

ritorial limits of the United States. As long as it acts within its

enumerated powers, Congress can “regulate the actions of our

citizens Outside the territorial jurisdiction of the United States

’ For purposes of Tithe VIL, “the term ‘State’ includes a State of the United

States, the District of Columbia, Puerto Rico, the Virgin Islands, American

Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shell

lands detined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 ef

seqy.|.” This briefs references to the “United States” encompass all territory

within the contines of these “States.”

whether or not the act punished occurred within the territory of

a foreign nation.” Vermilya-Brown Co. v. Connell, 335 U.S.

377, 381 (1948).4

In determining whether Congress has exercised its authority

to regulate extraterritorially, this Court has employed a canon

of construction “that legislation of Congress, unless a contrary

intent appears, is meant to apply only within the territorial

jurisdiction of the United States.” Foley Bros., Inc. v. Filardo,

336 U.S. 281, 285 (1949).> That canon “is based on the assump-

tion that Congress is primarily concerned with domestic condi-

tions” (ibid.); it also serves to protect against needless conflicts

between our laws and those of other states, cf. McCulloch v.

Sociedad Nacional de Marineros de Honduras, 372 U.S. 10,

21-22 (1963). The ultimate issue, however, remains one of

legislative intent.

* Accord Blackmer v. United States, 284 U.S. 421, 437 (1932); Patterson v.

Bark Eudora, 190 U.S. 169, 178-179 (1903); Skiriotes v. Florida, 313 U.S. 69,

73 (1941); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-285 (1949); Steele v.

Bulova Watch Co., 344 U.S. 280, 282, 285-286 (1952); McCulloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10, 17 (1963).

> See also American Banana Co. v. United Fruit Co., 213 U.S. 347, 357

(1909); Sandbere v. McDonald, 248 U.S. 185, 195 (1918); United States v.

Bowman, 260 U.S. 94, 98 (1922); New York Central R.R. v. Chisholm, 268

U.S. 29, 31-32 (1925); Blackmer v. United States, 284 U.S. 421, 437 (1932);

Unued States \. Flores, 289 U.S. 137, 155 (1933); Steele v. Bulova Watch Co.,

344 U.S. 280, 285 (1952); Argentine Republic y. Amerada Hess Shipping Co.,

109 S. Ct. 683, 691 (1989). The Court has retreated somewhat trom the strict

concept of territoriality advanced in American Banana. See Steele v. Bulova

Watch Co., 344.U.S. at 288; Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690, 704 (1962).

In other contexts, the Court has indicated that a different form of analysis

may apply. See United States v. Bowman, 260 U.S. at 98 (presumption against

e\traterritoriality is not applicable to statutes designed to protect the United

States government from fraud, because those statutes “are not logically de-

pendent on their locality for the Government's jurisdiction”). See also Tamari

\. Bache & Co. (Lebanon) S.A.L., 730 F.2d 1103, 1107 ntl (th Cir.), cert.

denied, 469 U.S. 871 (1984); Schoenbaum vs. Firsthrook, 408 F.2d 200, 206 (2d

Cur), modified on other grounds, 405 F.2d 215 (1968), cert. dented, 395 U.S.

906 (1969). In this case, the Court need not determine the outer perimeter of

the presumption against extraterritoriality of the scope of any exceptions to

the presumption that may exist.

To rebut the presumption against extraterritoriality, Congress

need not express its intent to regulate outside the United States

in any particular way. At the most obvious level, a statute may

explicitly be maue applicable to foreign parties. See Patterson v.

Bark Eudora, 190 U.S. 169, 173 (1903). So too, broad jurisdic-

tional language suffices to sustain extraterritorial applications

of tederal statutes that prevent evasion of “the thrust of the laws

ot the United States in a privileged sanctuary beyond our

borders.” Steele v. Bulova Watch Co., 344 U.S. 280, 287 (1952).

Other possibilities exist as well. In determining whether a statute

reaches conduct abroad, courts may ‘appropriately consult all

materials customarily employed in statutory interpretation. See

Foley Bros., 336 U.S. at 285-291 (referring to the language of

the statute at issue, its legislative history and “scheme”, and ad-

ministrative interpretations).

Interpreted in accordance with these principles, Tithe VII ap-

plies to discrimination outside the United States by an American

employer against an American citizen. On its face, (he Statul Cem

prohibits discrimination by an employer engaged in an indvstry

affecting interstate or foreign commerce, without regard to

where the discrimination occurs. Understanding that the statute

would apply to discrimination beyond the Nation’s borders,

Congress added an exemption withdrawing protection from

aliens with respect to employment outside the United States.

Congress must have understood that —were it not for the ex-

press exemption — Title VIL would apply to aliens employed by

American employers outside the United States. The exemption

powerfully demonstrates that Congress intended Title VII to ap-

ply to the employment of American citizens outside this coun-

try. Nothing in Tithe VII supports a different interpretation.

Finally, both the EEOC and the Justice Department, the agen-

cles charged by Congress with enforcing Tithe VII, have con-

sistently construed Tithe VII to apply to discrimination against

American citizens abroad.

A. By Its Terms, Title VII Prohibits invidious Employment

Discrimination Against American Citizens Outside the United

States

Title VII prohibits various discriminatory employment prac-

tices. 42 U.S.C. 2000e-2, 2000e-3. It is an “unlawful employ-

ment practice” for “an employer” (42 U.S.C. 2000e-2(a))

(1) to fail or refuse to hire or to discharge any in-

dividual, or otherwise to discriminate against any in-

dividual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such in-

dividual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or ap-

plicants for employment in any way which would deprive

or tend to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status as an

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

religion, sex, Or national origin.

In general, the applicability of this provision to alleged

employment discrimination is dependent upon whether the

employer satisfies the statutory definition of “an employer,” 42

U.S.C. 2000e(b). An employer is subject to Title VII if it has

employed 15 or more employees for a specified period and is

“engaged in an industry affecting commerce.” /bid. An industry

affecting commerce is “any activity, business, or industry in

commerce or in which a labor dispute would hinder or obstruct

commerce and includes any activity or industry ‘affecting com-

merce’ within the meaning of the Labor-Management Reporting

and Disclosure Act of 1959 [29 U.S.C. 401 ef seq.}.” 42 U.S.C.

2000e(h). Commerce, in turn, is defined as “trade, traffic, com-

merce, 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.” 42 U.S.C. 2000e(g).°

* Respondents have not contended that they lack the requisite number of

employees of are not engaged im “an industry affecting commerce”.

By their terms, these provisions reach employment

discrimination occurring Outside the United States. The statute's

prohibition on “unlawful employment practices” is not limited

to discriminatory practices Occurring at any particular place,

and the definition of employer includes both interstate and

foreign commerce. Nothing in the statute makes the protection

available to American citizens who are “individual[s],”

“employees,” or “applicants for employment” dependent on

where they may be located when they are victimized by

discrimination. In this respect, Title VII's jurisdictional provi-

sions are similar to the “broad jurisdictional grant in the

Lanham Act” upon which this Court relied in holding the

trademark statute applicable to conduct outside this country.

Steele v. Bulova Watch Co., 344 U.S. at 286. See also Branch v.

FTC, 141 F.2d 31, 34-35 (7th Cir. 1944).

B. Title VII's Exemption for Aliens With Respect to Employment

Outside the United States Clearly Manifests An Intention to

Protect American Citizens With Respect to Employment Out-

side the United States

1. In determining whether Title VII applies to discrimina-

tion by U.S. employers outside the United States, it is un-

necessary to rely exclusively on the statute’s broad jurisdictional

provisions, for the “alien exemption” provision powerfully

demonstrates Congress’s intent to apply Title VII extrater-

ritorially. That exemption is found in Section 702 of Title VII,

42 U.S.C. 2000e-1, which provides that the statute “shall not ap-

ply to an employer with respect to the employment of aliens out-

side any State.” Against the bac':ground of Title VII's jurisdic-

tional provisions, the thrust of this exemption is unmistakable.

Congress understood that Title VII would apply to discrimina-

tion outside the United States, but chose-not to confer protec-

tion On aliens outside this country. Accordingly, it fashioned an

exemption for that group, limiting the statute’s extraterritorial

application to the employment of American citizens outside any

State.

No other plausible explanation of the alien exemption exists.

It Congress believed that the statute did not apply extra-

territorially, it would have had no reason to include an exemp-

tion for a certain category of individuals employed outside the

United States. Alternatively, if Congress believed that the

statute would (or might) be interpreted to apply overseas but

wished to withhold protection from both Americans and aliens

employed abroad, the only sensible way to express that inten-

tion would have been to include an exemption encompassing the

employment of all individuals abroad. The statute’s jurisdic-

tional provisions cannot possibly be read to confer coverage

only upon aliens employed outside the United States. Thus,

Congress could not rationally have enacted an exemption for

the employment of aliens abroad if it intended to foreclose a/l/

potential extraterritorial applications of the statute.

In this respect, this case is similar to Pennsylvania v. Union

Gas Co., 109 S. Ct. 2273 (1990). In Union Gas, the Court noted

that a provision exempting States from certain liability for

hazardous waste cleanup manifested Congress’s intention that

States would be liable for cleanup costs beyond the scope of the

exemption. The Court explained that the exemption “is,

needless to say, an explicit recognition of the potential liability

of States under this statute; Congress need not exempt States

from liability unless they would otherwise be liable.” /d. at

2278. The same inference should be drawn from the alien ex-

emption in this case.’

The Eleventh Amendment imposes a more stringent clear statement re-

quirement than the presumption against extraterritorialny; Congress may

abrogate the States’ Eleventh Amendment immunity “only by making its in-

tention unmistakably clear in the language of the statute.” Atascadero State

Hosp. s. Scanlon, 473 U.S. 234, 242 (1985). Compare Foley Bros., 336U_S. at

285 (presumption against extraterritoriality is “a valid approach whereby unex-

pressed congressional intent may be ascertained”). Thus, the reasoning of

Union Gas applies a fortiori to this case. See also Andrus v. Glover Constr.

Cu., 446 U.S. 608, 616-617 (1980) (“Where Congress explicitly enumerates cer-

tain e\ceptions to a general prohibition, additional exceptions are not to be

umplied, in the absence of evidence of a contrary legislative intent.”).

lithe VII also contains an exemption for religious institutions “with respect

to the employment of individuals of a particular religion to pertorm work con-

nected with” the institutions’ “religious activities.” This exemption — like the

alien exemption as we construe it— clearly withdraws coverage that would

2. With the exception of this case, all judicial decisions ad-

dressing the territorial scope of Title VII have concluded that

the alien exemption reflects an intention to provide American

citizens with protection: from employment discrimination

abroad.* The court of appeals, however, ruled that the exemp-

tion could plausibly be read as a means of “provid{ing] Title VII

coverage to aliens employed within the United States,” and sug-

gested that the “negative inference” arising from the exemption

was too insubstantial to sustain an extraterritorial application of

the statute. Pet. App. 4a, 7a. This line of reasoning is strained

and untenable. It requires an exemption to be read as a

backhanded grant of coverage; what is more, the court’s inter-

pretive gymnastics embody a fundamental misconception of the

principles of statutory interpretation that govern the extrater-

ritorial application of statutes.

a. Whatever its implications may be, the alien exemption’s

office is not to confer statutory protection on aliens inside the

United States. The plain language of another provision does

that. As this Court noted in Espinoza, 414 U.S. at 95, aliens in

this country are entitled to protection because they are among

the “individuals” referred to in Section 703 of Title VII, 42

U.S.C. 2000e-2. If Congress had entertained any doubt as to

whether Section 703 was sufficient to protect resident aliens, the

only rational way to erase that uncertainty would have been to

include a provision specifically conferring coverage on those in-

dividuals. The roundabout tactic of carving out an exemption

otherwise exist. Further, courts have rejected clams, comparable to

respondents’ here, that Tithe VII should be construcd to allow discrimination

by religious institutions that ts outside the scope of the exemption. See Mc-

Clure v. Salvation Army, 460 2d $53, 558 (Sth Cir.), cert. demied, 409 U.S.

896 (1972); EFOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1276-1277

(Mth Cir, 1982). . ‘

* Jheun \. Boeine Co., No. C89-1319D (WD. Wash. June 7, 1990); Seville

v. Martin Marietta Corp., 638 F. Supp. 590 (D. Md. 1986); Brvant v. Interna-

tional Schools Services, Inc., 5302 &. Supp. 472 (D.N_J. 1980), rev'd on other

grounds, 675 f.2d 562 (3d Cir. 1982); Love v. Pullman Co., 13 Faw Empl

Prac. Cas. (BNA) 423, 426 n.4 (D. Colo. July 21, 1976), atfd on other

grounds, 569 F.2d 1074 (10th Cir, 1978).

from coverage for a different class would not have had the

strangely generative effect of creating coverage that did not

otherwise exist.

As this Court noted in Espinoza v. Farah Mfg. Co., supra,

the alien exemption does confirm Congress’s intention to pro-

vide protection to aliens within the United States. If the statute

could never apply to discrimination against aliens, it would have

been unnecessary to exempt aliens with respect to their employ-

ment outside this country. It does not follow, however, that the

exemption can plausibly be viewed as “meaningful and useful”

(Pet. App. 4a) only to the extent it bears on aliens in this coun-

try.

To the contrary, the inferences that the exemption supports

with respect to the employment of aliens within the United

States and the employment of citizens abroad are inseparable

and equally compelling. By withdrawing protection from aliens

with respect to their employment outside the United States, the

exemption establishes that two groups falling outside the ex-

emption —in Espinoza, aliens employed inside the United States

and, here, citizens employed abroad —are covered. Those in-

ferences are in no sense alternatives to one another. Both flow

equally from the alien exemption. ;

b. The court of appeals’ suggestion that a “negative in-

ference” is insufficient to support a statute's extraterritorial ap-

plication misconceives the nature of the presumption against ex-

traterritoriality. The presumption is an “approach whereby

unexpressed congressional intent may be ascertained,” Foley

Bros., 336 U.S. at 285, not a requirement of form. Title VII

combines a broad grant of protection from discrimination with

an exemption for the employment of aliens abroad. That com-

bination is an entirely natural way to express an intention to

conter coverage on Americans employed abroad. The presump-

tion against extraterritoriality demands nothing more.

3. The legislative history of the alien exemption confirms

that ts function was to withdraw coverage from aliens abroad

(not, as the court of appeals suggested, to extend coverage to

aliens in this country). In the 88th Congress, the alien exemption

was initially included in H.R. 405, 88th Cong., Ist Sess. (1963).

The committee report on this bill stated that the purpose of the

exemption was “to remove conflicts of law which might other-

wise exist between the United States and a foreign nation in the

employment of aliens outside the United States by an American

enterprise.” H.R. Rep. No. 570, 88th Cong., Ist Sess. 4 (1963).°

This explanation demonstrates that the exemption’s function

was what its form suggests —to withdraw coverage from aliens

with respect to their employment abroad. The potential “con-

flicts of law” to which the report referred could only arise out-

side the United States; in stating that the exemption was design-

ed to “remove” those potential conflicts, the report manifested

the committee’s understanding that Title VII would otherwise

apply outside the United States.

The committee report on the Senate’s employment discrimi-

nation bill, S. 1937, 88th Cong., Ist Sess. (1964), included a very

similar explanation of the alien exemption: “Exempted from the

bill are * * * U.S. employers employing citizens of foreign

countries in foreign lands.” S. Rep. No. 867, 88th Cong., 2d

Sess. 11 (1964). Like its House counterpart, the Senate report

made clear that the exemption’s purpose was to limit the ex-

traterritorial application of the statute in “foreign lands,” not to

extend coverage to aliens in this country. If there were any

* After H.R. 405 was reported to the Moor of the House, the House Com.

mittee on the Judiciary held hearings on a number of civil rights bills, in-

cluding H_R. 405. The committee report on H.R. 405 was incorporated in the

record of those hearings. See € wil Rights: Hearings Before Subcomm. No. §

of the House Comm. on the Judiciary on Miscellaneous Proposals Regarding

the Civil Rights of Persons Within the Jurisdiction of the United States, 88th

Cong , Ist Sess. 2303 (1963). The upshot of the hearings was an omnibus civil

rights bill, H.R. 7152, 88th Cong, Ist Sess. (1963) H.R. 405 was incorporated

(with amendments not touching the alien exemption) into E.R. 7152, which in

turn was subsequently enacted as the Civil Rights Act of 4964. See H.R Rep

No- 914, 88th Cong , Ist Sess. 57 (1963) (additional views of Rep. Meader).

doubt as to the untenability of the court of appeals’ understand-

ing, the provision’s legislative history would lay it to rest.

4. The alien exemption distinguishes Tithe VII from other

statutes that this Court has held do not apply outside the United

States. For instance, in Foley Bros. v. Filardo, supra, the Court

relied very heavily on the fact that the Eight Hour Law—a

Statute obligating government contractors to pay overtime to

employees who worked more than eight hours in a given

day — drew “no distinction * * * between Americans and foreign

laborers.” 336 U.S. at 286. The Court continued (ibid. (em-

phasis added)):

Unless we are to read such a distinction into the statute we

should be forced to conclude, under respondents’ reason-

ing, 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. Such

a conclusion would be logically inescapable although labor

conditions in Iran were known to be wholly dissimilar to

those in the United States and wholly beyond the control

of this nation. 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 ex-

pressed purpose. * * * The absence of any distinction be-

tween citizen and alien labor indicates to us that the statute

was intended to apply oaly to those places where the labor

conditions of both citizen and alien employees are a prob-

able concern of Congress.

By us terms, Tithe VII draws the very distinction whose absence

this Court stressed in Foley Bros. In so doing, Title VII

manifests Congress's intention to prohibit discrimination by

American employers against American citizens abroad.

Indeed, the alien exemption first appeared in proposed tair

employment legislation shortly after the decision in Foley Bros.,

sugevesting that it was conceived as a response to that decision.

The decision in Foley Bros. was issued on March 7, 1949. Six

weeks later, on April 29, 1949, Rep. Adam Clayton Powell in-

troduced a fair employment bill, H.R. 4453, 8Ist Cong., Ist

Sess. (1949), that was apparently the first to include an alien ex-

emption. Evidently, this bill was designed to avoid the problem

created by the Eight Hour Law’s failure to distinguish between

Americans and aliens abroad.

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

(1957), and McCulloch v. Sociedad Nacional de Marineros de

Honduras, supra, involved attempts to apply American labor

statutes to aliens employed aboard foreign flag vessels, which

are analogous to foreign territory'® — a point that was stressed in

both cases. In Benz, the Court concluded that “Congress did not

tashion [the LMRDA] to resolve labor disputes between na-

tionals of other countries operating ships under foreign laws.”

3§3. U.S. at 143. Similarly, in McCulloch, the Court framed the

“basic” question as “whether [the NLRA] as written was in-

tended to have any application to foreign registered vessels

employing alien seamen.” 372 U.S. at 19. The alien exemption

precludes comparable applications of Title VII.

By virtue of the alien exemption, applying Title VII to

employment discrimination abroad against American citizens

by American corporations ts entirely consistent with the reason-

ing ot Foley Bros., Benz, and McCulloch.

(. Other Provisions of Tithe VIL Are Consistent With Its Applica-

tion to Discrimination by American Employers Against

American Citizens Abroad

The court of appeals identified two teatures of Tithe VIE that

it beheved were inconsistent with extraterritorial application of

the statute —the statute’s venue provision and its limitation on

the reach of the EEOC’s subpoena power. Pet. App. Sa-6a.

Upon analysis, neither provision weighs against applying Title

Vil to discrimination abroad against American citizens by

American corporations.

1. Section 70613) of Tithe VIL, 42 U.S.C. 2000e-5(1)(3),

allows an action to be brought “in any judicial district in the

State in which the unlawtul employment practice ts alleged to

‘See, ee, Cunard SS Co ». Mellon, 262 US. WO, 123-124 (1923);

C nited States Rodeers sot S 249. 44 (is9})

have been committed, in the judicial district in which the em-

ployment records relevant to such practice are maintained and

administered, or in the judicial district in which the aggrieved

person would have worked but for the alleged unlawful employ-

ment practice” —or, “if the respondent is not found within any

such district, * * * within the judicial district in which the re-

spondent has his principal office.” Contrary to the court of ap-

peals’ suggestion, this provision does not create any significant

venue gap for cases arising from discrimination abroad.

Only the first of the alternatives recognized by the

statute — venue in a district in a State in which the unlawful

employment practice has occurred — is necessarily unavailable in

a case arising from discrimination outside the United States. An

American corporation that has engaged in discrimination

against an American employee may maintain employment

records in the United States; the employee may be able to

demonstrate that he or she would have been employed in this

country but for the alleged discrimination; and, if venue is

unavailable under euher of those alternatives, the employer is

subject to suit in the district in which its “principal office” is

located. Identical language in the Jones Act, 46 U.S.C. 688, has

been construed to refer to a defendant's principal office in the

United States.'' Thus, tederal venue will be available in any case

in Which the defendant has an office in the United States.

'' Stewart \— Pacific Steam Navieation Co., 3 F.2d 329, WIS DNY

924,01. Hand, 3.) (The phrase ‘in which its principal office ts located’ clear

ly means m which the principal office of the foreign steamship company is

kxated within the United States.”). See Arrocha \. Panama Canal Comm'n,

OY F.Supp. 231, 235 4b D.N_Y. 1985) (reaching same result under Tithe VIL)

They interpretation is consistent with the language of Tithe VII's venue provi-

sion, Ht gains further support trom the principle that because “Congress does

not m general intend to create venue gaps,” “im construe venue statutes it ts

reasonable to preter the construction that avoids leaving such a gap.” Brunette

Vachine Works Lid. s. Kockhum Indus, Inc., 306.US. 706, 710 0.8 (1972)

In dellow Frewht System, Inc. +. Donnelly, IOS. Ct. 1566 (1990). thes

Court held that state courts have concurrent purndaction over Tithe Vil ac-

Hons. In our view, Tithe VIL should not be construed to lumat the venue of state

courts hearme Tithe VEE suits. See Bambridee .. Merchants & Miners Transp

Co. 287 LS. 278 (1932)

Even if Title VII were construed to create a venue gap for

some cases arising out of discrimination abroad, it would not

follow that Title VII should be interpreted to exempt all

discrimination outside the United States. At most, the existence.

of such a gap would suggest that Congress was unwilling to

allow Americans employed abroad a wider choice of venue than

that available to victims of discrimination in this country. There

is no indication that the venue provision was tied to Congress’s

understanding of the scope of the statute — and no other reason

to assume that Congress intended Title VII's venue tail to wag

the statutory dog.

2. For similar reasons, Title VII's limitation on the Commis-

sion’s subpoena power does not justify restricting the Act to

discrimination within the United States. At present, the Com-

mission is empowered to issue subpoenas requiring attendance

of witnesses and production of evidence “from any place in the

United States or any Territory or possession thereof.” 42 U.S.C.

2000e-9 (incorporating 29 U.S.C. 161(1)).'? This limita-

tion — which operates solely on Commission subpoenas, not (as

the majority below suggested) on the EEOC’s “investigatory

powers” —falls far short of suggesting that the Commission

lacks any authority to remedy discrimination against Americans

abroad, let alone that the statute fails to reach such discrimina-

ton.

In all respects save its subpoena authority, the Commission’s

investigatory powers are subject to no geographical restriction.

'? This provision was enacted in 1972. Before that ume, the Commission

secured evidence by means of demands that were enforceable by court order,

but “the attendance of a witness [could] not be required outside the State

where he is found, resides, or transacts business and the production of

evidence could] not be required outside the State where such evidence ts

kept.” Civil Rights Act of 1964, Pub. L. No. 88-352, Tu. VII, § 710fa), 78

Stat. 264. In our view, the difference between this provision and the provision

substituted mn 1972 is not material to the question presented in this case. In one

respect, however, the 1972 amendment has apparently enhanced the Commis-

sion’s ability to investigate discrimination abroad. Comparable statutes have

been held to permit service of a subpoena in this country tor documents

located elsewhere. See, e.¢.. CFTC v. Nohas, 738 £.2d 487, 492 & ntl,

495-496 (D.C. Cir, 1984).

Section 706(a) of the Act, 42 U.S.C. 2000e-5(a), empowers the

Commission to conduct an investigation “[w]henever a charge is

filed” alleging an unlawful employment practice. For purposes

of those investigations, the Commission enjoys “access to, for

the purposes of examination, and the right to copy. any evidence

of any person being investigated or proceeded against that

relates to unlawful employment practices covered by [Title VII]

and is relevant to the charge under investigation.” 42 U.S.C.

2000e-8. Although the Commission’s right of access may not be

fully enforceable by subpoena, there is no suggestion that its in-

vestigatory authority is limited to discrimination occurring in

the United States.

Nor is there any territorial limitation on the Commission’s

other functions under the Act. Nothing in the provisions confer-

ring authority on the Commission to conciliate charges of

discrimination, to initiate lawsuits, and to seek interim relief

restricts the Commission to discrimination in the United States,

42 U.S.C. 2000e-5(b) and (f). The limit on the EEOC’s ad-

ministrative subpoena authority does not foreclose the Commis-

sion’s performance of those functions — or impose any restraint

on the pursuit of private actions under Title VII. Upon the filing

of a lawsuit, the Commission or a private plaintiff may obtain

evidence required for a judicial action by means of judicial sub-

poenas served in this country (Fed. R. Civ. P. 45), subpoenas to

American citizens abroad (28 U.S.C. 1783), discovery under the

Federal Rules of Civil Procedure, and procedures available

under international agreements. See Societe Nationale In-

dustrielle Aerospatiale v. United States District Court, 482 U.S.

522 (1987) (discussing the principles regulating the choice

among these alternatives).

Finally, there is no necessary relationship between an agency's

subpoena power and the scope of the statute it is empowered to

enforce.'*? The statute authorizing the EEOC to issue sub-

‘See FIC .. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 t.2d

1300), 1322 (D.C. Cir. 1980) (noting the distinction between the FTC's authori-

ty to serve subpoenas outside the United States and “the larger question of the

EIC’s authority to investigate both domestic and forein corporations whose

achions have harmtul effects on US. commerce”).

poenas compelling the attendance of witnesses “from any place

in the United States or any Territory or possession thereof” (42

U.S.C. 2000e-9 (incorporating 29 U.S.C. 161(1)) is virtually

identical to provisions conferring subpoena authority on many

other federal agencies, some of which administer statutes

reaching conduct outside the United States.'* A limitation on

Title VII's substantive provisions may not properly be inferred

trom the scope of the Commission’s subpoena authority.

D. The EEOC, the Agency Charged With Administrative Enforce-

ment of Title Vil, Has Interpreted the Statute to Apply to

Discrimination Against Americans Abroad

The EEOC has consistently censtrued Tithe VIL to apply to

discrimination against American citizens outside the United

States. In 1975, the EEOC’s General Counsel, in a letter to

Senator Frank Church, stated that “[t}he language of Title VII

indicates a Congressional intent to make the Title applicable to

American citizens employed by American companies operating

overseas.” J.A. 48. If the alien exemption “is to have any mean-

ing at all,” the letter explained, “it is necessary to construe it as

expressing a Congressional intent to extend the coverage of Title

Vil to include employment conditions of citizens in overseas

operations of domestic corporations at the same time it excludes

aliens of the domestic corporation trom the operation of the

statute.” JA. 49. The letter added that this construction was

consistent with the purposes of the statute, noting that

“fo]verseas employment practices of covered employers can

have a very substantial impact on the empk-yment opportunities

in domestic corporations.” [bid.

In 1984, the Chairman otf the EEOC testified before a

subcommitiee of the Senate that the alien exemption was in-

dicative of an intention to prohibit discrimination against

* For instance. the subpoena authority that the Commission enjoys under

the ADEA, a statute applying abroad, ts limited to compelling the attendance

ol witnesses and the production of evidence “trom any place m the United

States" 18 USC. 49 Gncorporated in 29 U.S.C. 209, 626(4)). The SEC's

authors under the Securities Exchange Act of 1934 embodies the same linita-

il 1s I S ( TKD)

Americans abroad.'’ The Commission adhered to that inter-

pretation of the statute in a decision issued in 1985. EEOC Dec.

No. 85-16, Empl. Prac. Dec. (CCH) 4 6856 (Sept. 16, 1985).

Citing the alien exemption and district court decisions sustain-

ing Title VII’s extraterritorial application, the Commission con-

cluded that “the Act does apply to covered employers with

respect to their employment of U.S. citizens outside the United

States.” /d. at 7072.'* The EEOC is one of two federal agencies

with primary responsibility for enforcing Title VII. Its inter-

pretation, which is consistent with the language and legislative

history of the relevant provisions, reinforces the conclusion that

Congress intended the statute to apply to Americans employed

by American employers abroad. See, e.g., EEOC v. Commer-

cial Office Products Co., 486 U.S. 107, 115 (1988).

The Justice Department —the other federal agency with Title

VII responsibility—has also interpreted the statute to reach

discrimination abroad against American citizens. In 1975, an

Assistant Attorney General testified before committees of both

Houses of Congress that the alien exemptions in Sections 702

and 717 of Title VII imply that the statute applies outside the

United States. He stated:

It should be noted that both Executive Order 11478 and

§ 717 of Title VII specify that they are not applicable to

“aliens employed outside the limits of the United States.”

The implication of this is that they do apply to United

States citizens employed throughout the world.

'S Age Discrimination and Over Ameriwans, 1983: Hearing Before the

Subcomm. on Aging of the Senate Comm on Labor and Human Resources,

98th Cong., Ist Sess. 2-4 (1983) (testuemony of Clarence Thomas).

'* Recently, the Commission has issued a statement clarifying its policy with

respect to the handling of charges of discrimination against corporations

operating abroad. Policy Statement No. N-915.033, EEOC Compl. Man.

(BNA), at 605:0055 (Sept. 2, 1988). The Commission has also applied Title VII

to claims of federal employees employed by the federal government abroad. See

Cole v. Secretary of the Army, EEOC Dec. No. 05890142 (Aug. 23, 1989);

Hedges v. Secretary of Defense, EEOC Dec. No. 05900454 (June 1, 1990). Sec-

tion 717 of Tithe VII, 42 U.S.C. 2000e 16, prohibits invidious discrimination in

“[a]ll personnel actions affecting employees or applicants for employment (ex-

cept with regard to aliens employed outside the limits of the United States).”

With respect to discriminat.on in employment by private

companies and individuals, Title VII of the 1964 Civil

Rights Act, as amended, prohibits a broad range of

“unlawful employment practices” by any private employer

“engaged in an industry affecting commerce who has fif-

teen Or more employees.” * * * Once again the [statute]

contains an exemption “with respect to the employment of

aliens outside any State,” which implies that it is applicable

to the employment of United States citizens by covered

employers anywhere in the world.[{'’]

These administrative interpretations of Title VII provide fur-

ther support for the statute’s application to this case. See Foley

Bros., 336 U.S. at 288-290.

ll. CONCERN FOR POTENTIAL CONFLICTS WITH THE

LAWS OF OTHER NATIONS DOES NOT WARRANT

LIMITING TITLE Vil TO DISCRIMINATION WITHIN THE

UNITED STATES

In determining the scope of federal statutes, this Court has

been sensitive to potential conflicts between our laws and those

of foreign states.'* In this case, the court of appeals placed great

weight on what it perceived as Title VII's lack of attention to

such conflicts. The court drew a contrast between Title VII's

references to state fair employment laws and its treatment of

foreign law. “If Congress had intended the Act to apply in

foreign countries,” the court stated, “we would expect Congress

'” Foreign Investment and Arab Boycott Legislation: Hearings Before the

Subcomm. on International Finance of the Senate Comm. on Banking, Hous-

ing and Urban Affairs, 94th Cong., Ist Sess. 165 (1975) (testimony of Assis-

tant Au’y Gen. Scalia). Accord Discriminatory Arab Pressure on U.S

Business. Hearings Before the Subcomm. on International Trade and Com.

merce Of the House Comm. on International Relations, 94th Cong., Ist Sess

87-88 (1975); Discriminatory Overseas Assienment Policies of Federal Aven

cies. Hearines Before a Subcomm. of the House Comm. on Government

Operations, 94th Cong., Ist & 2d Sess. 87-89 (1975-1976)

'S AfcCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. at

21; Benz v. Compania Naviera Hidaleo, S§.A., 353 U.S. at 145-146. See also

Sieele \. Bulova Watch Co., 344 U.S. at 289

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.” Pet. App. 5a. In the

same vein, the court contrasted Title VII with statutes in which

Congress had “demonstrated * * * its awareness of the need to

* * * address the concerns of conflicting foreign law” (id. at 6a).

This reasoning mischaracterizes Title VII and overstates the

statute’s potential to generate conflicts with foreign law.

A. The Alien Exemption Represents Congress's Solution to

Potential Conflicts of Laws

Contrary to the court of appeals’ suggestion, Title VII does

speak to potential conflicts between Title VII and foreign law.

The stated purpose of the alien exemption is to mitigate poten-

tial conflicts with foreign law—in the words of the relevant

committee report, “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.” H.R. Rep. No. 570, supra, at 4. The alien

exemption thus embodies Congress’s accommodation of the

goals of eradicating employment discrimination and avoiding

conflicts with foreign law. Congress “alone has the facilities

necessary to make fairly such an important policy decision.”

Benz, 353 U.S. at 147; see McCulloch, 372 U.S. at 22. Congress

addressed the problem and struck a balance it considered appro-

priate; the courts are not at liberty to restrike the balance.

B. Properly Applied, Tithe VII Does Not Create a Serious Poten-

tial for Conflicts with International Norms or the Laws of

Foreign States

1. Applied to discrimination by American corporations

against American employees, Tithe VII does not give rise to

significant conflicts with international norms or the law of

foreign states. Both Boureslan and respondents are American

nationals.'* As this Court has recognized, “the United States is

not debarred by any rule of law from governing the conduct of

its Own citizens upon the high seas or even in foreign countries

when the rights of other nations or their nationals are not in-

fringed.” Skiriotes v. Florida, 313 U.S. 69, 73 (1941).?° That is

so even when the result is dual regulation; international law ac-

cepts the possibility that more than one state’s law may apply

simultaneously to a given course of conduct. Restatement

(Third) of the Foreign Relations Law of the United States

§ 403(3) & comment d (1986).

In cases of dual regulation, application of Title VII is unlikely

to generate serious conflicts with the laws of individual foreign

States. In view of the emerging international consensus on

employment discrimination, cases in which foreign law requires

American corporations to discriminate on the basis of race, sex,

national origin, or religion are likely to be rare.?' In this case,

for instance, respondents have not suggested that any Saudi law

mandated discrimination against Boureslan. The possibility that

the United States and another nation may both prohibit a par-

ticular form of discrimination —or that the other nation’s laws

neither compel nor prohibit discrimination that is unlawful

under Tithe VII —does not give rise to a conflict of the type that

'* See Restatement (Third) of the Foreign Relations Law of the United

States § 213 (1986) (“For purposes of international law, a corporation has the

nationalty of the state under the laws of which the corporation is

organized.”). Ct. Sumitomo Shoyi America, Inc. v. Avagliano, 457 U.S. 176

(1982) (under treaty between Japan and the United States, U.S.-incorporated

subsidiaries of Japanese corporations are deemed corporations of the United

States).

*” Accord Vermilya- Brown Co. v. Connell, 335 U.S. 377 (1948); Black mer

v. United States, 284 U.S. 421, 436-437 (1932); Restatement (Third) of the

Foreign Relations Law of the United States § 402(2) (1986) (except when it

would be unreasonable, “a state has jurisdiction to prescribe law with respect

to * * * the activities, interests, status, or relations of ts nationals Outside as

well as within its territory”).

*' See Note, Equal Employment Opportunity for Ameriwans Abroad, 62

N.Y.U. L. Rev. 1288, 1297-1299 (1987) (and authorities cuted therem)

could justify overriding the legislative judgment reflected in the

alien exemption. ??

Even when foreign law compels discrimination that Title VII

would otherwise prohibit, defenses available under Title VII

serve to mitigate the resulting conflicts. if foreign law requires

positions to be filled with persons of a particular sex, nationality,

or religion, then that particular characteristic can be considered

a bona fide occupational qualification within the meaning of 42

U.S.C. 2000e-2(e).23 In certain cases, compliance with foreign’

law may also furnish a non-discriminatory justification for

employment decisions that would otherwise be unlawful.?* The

22 By contrast, in McCulloch, 372 U.S. at 21, application of the NLRA to

the foreign crews of foreign flag vessels would have given rise to a “head-on

collision” with Honduran law. Under that law, a Honduran union was the ex-

clusive bargaining agent of the ships’ crews, and unions of other nationalities

were prohibited from acting in that capacity. Recognition of an American

union as the bargaining representative would have squarely violated Hon-

duran law.

2) That Section provides, in pertinent part:

Notwithstanding any other provision of this subchapter, (1) it shall not

be an unlawful employment practice for an employer to hire and employ

employees * * * on the basis of [their] religion, sex or national origin in

those instances where religion, sex, or national origin is a bona fide oc-

cupational qualification reasonably necessary to the normal operation of

that particular business or enterprise * * °.

in Kern v. Dynaelectron Corp., $77 F. Supp. 1196(N.D. Tex. 1983), aff'd, 746

F.2d 810 (Sth Cir. 1984), the court held that membership in the Islamic faith

was a bona fide occupational qualification for a position that involved flying

helicopters to Mecca, since under Saudi Arabian law non-Moslems are barred

from Mecca under penalty of death.

24 In EEOC Dec. No. 85-10, Empl. Prac. Dec. (CCH) 4 6851 (July 16, 1985),

a contract in which an American employer agreed to provide air traffic control

services to a foreign country authorized the host country to review and approve

the hiring of the air traffic controllers who were to perform the contract. The

country withheld a work permit from a female air traffic controller, explaining

that its customs and laws prohibited the employment of women in mosi jobs.

Finding that there was a “current, authoritative, and factual basis” for the

employer's belief that the host country would not admit the particular con-

troller, the Commission held that there was “a legitimate, nondiscriminatory

reason for not hiring {her].” /d. at 7053. See Restatement (Third) of the Foreign

Relations Law of the United States § 441 & comment b (1986).

availability of these defenses reduces the likelihood that em-

ployers will be placed in a position in which it is impossible to

comply with both Tithe VII and the law of a foreign state.

Courts may also take foreign law into account in fashioning

equitable relief.?>

2. As the court of appeals noted, more difficult issues

would be presented by Title VII's application to foreign em-

ployers with respect to the employment of Americans abroad.

Pet. App. S5a-6a. The court erred, however, in embracing the

all-or-nothing proposition that Title VII must be interpreted to

apply either to all Americans employed abroad or to none of

them. In United States v. Aluminum Co. of America, 148 F.2d

416, 443 (2d Cir. 1945), the Second Circuit noted that the excep-

tionally broad language in the Sherman Act could be interpreted

to embody accepted international limits on prescriptive juris-

diction The court explained that courts are “not to read general

words, such as those in [the Sherman Act], without regard to

the limitations customarily observed by nations upon the exer

cise of their powers.” /bid. This Court has employed a similar

approach in interpreting federal maritime statutes. Lauritzen v.

Larsen, 345 U.S. 571, 577 (1953).?¢

> The Commission's policy statement on the extraterritorial enforcement of

Tithe Vil requires field offices to contact the Commission's Tithe VIL Division

if an issue afises concerning a potential conflict with a foreign state's law; the

Division then coordinates with the Department of State. EEOC Policy State-

ment No. N-915.033, supra, at 605:0057.

** See Romero v. International Terminal Operating Co., 358 U.S. 354, ¥82

(1959); United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818). In

Lauruzen, thy Court held that the Jones Act —which creates a damages

remedy m tavor of “[ajny seaman who shall suffer personal injury in the

course Of his employment” — does not apply to an myury suffered by a foreign

seaman myured aboard a foreign flag vessel in a foreign port. The Court ex-

plained that “[b]y usage as old as the Nation, [American shipping] statutes

have been construed to apply only to areas and transactions im which

American law would be considered operative under prevalent doctrines of in-

ternational law.” 345 U.S. at 576-577. That approach, the Court continued,

was im “accord with the long-heeded admonition of Mr. Chiet Justice Marshall

that ‘an act of congress ought never to be construed to violate the law of nations

it any other possible construction remains.’ ” Jd. at 578 (quoting Murray v.

—

International law recognizes a state’s jurisdiction to prescribe

rules governing its nationals’ relations with one another, and the

depth of the United States’ interest in eliminating discrimination

from those relationships cannot be gainsaid. Thus, application

of American law to discrimination by an American corporation

against an American citizen is entirely consistent with interna-

tional law. Limiting principles applied in Alcoa and Lauritzen

are available to avoid extreme applications of Title VII that

would be violative of international law. Thus, Title VII does not

present the stark choice that the court of appeals perceived, and

concern about the consequences of applying Title VII to foreign

employers cannot justify withholding its protections from

Boureslan in this case.?’

C. Tithe VII's Treatment of Conflicts with State Law Provides No

Basis for Questioning the Extraterritorial Application of the

Statute

Citing Title VII's references to state fair employment laws,

the court of appeals suggested that Congress could not have in-

The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)). See also

Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (noting this principle’s force as ap-

plied “to the construction of statutes couched in general language which are

sought to be applied in an extraterritorial way”); McCulloch v. Sociedad Na-

cional de Marineros de Honduras, 372 U.S. at 21-22; Steinhardt, The Role of

International Law As a Canon of Domestic Statutory Construction, 43 Vand.

L. Rev. 1103, 1142-1143 (1990).

? In its policy statement on the application of Title VII to discrimination

outside the United States, the EEOC has recognized that “[whhere the

discrimination takes place overseas, the status of the employer as an American

or foreign company is significant.” EEOC Policy Statement No. N-915.033,

supra, at 605:0061.

The legislative history of the alien exemption suggests that Congress's focus

was on prohibiting discrimination by “American enterprise[s}." H.R. Rep. No.

570, supra, at 4. See S. Rep. No. 867, supra, at 11 (referring to “U.S.

employers” in “foreign lands”). This case, of course, presents only the question

of Tithe VII's application to alleged discrimination by an American corpora-

tion against an American citizen.

tended to apply Tithe VII to discrimination outside the United

States without including equivalent provisions addressing

foreign laws. Pet. App. Sa. This reasoning rests on a misappre-

hension of Tithe VIL. Tithe VIE provides for limited deference to

State fair employment procedures that are consistent with Title

VII, but does not subordinate its substantive provisions to any

conflicting requirements of state law. In this light, the fact that

the statute also provides no express exception for potentially

contheting foreign laws creates no anomaly that undercuts Title

VII's apphcation abroad.

When a State has a law prohibiting the unlawful employment

practice alleged in a particular case, the charging party is obli-

gated to file a charge with the State prior to filing a charge with

the Commission; the EEOC is obligated to afford the State an

opportunity to remedy the practice before seeking its own relict;

and, in making its determination as to whether there is reasonable

cause to beheve that a charge ts true, the Commission must “ac-

cord substantial weight to final findings and orders made by State

or local authorities” in’ proceedings triggered by those re-

quirements. 42 U.S.C. 2000e-S(b) to 2000e-5(d).?* The fact that

Congress chose not to extend these procedures to foreign govern-

ments administering untamihar employment laws does not even

remotely suggest that it intended to withdraw all protection from

Americans employed abroad.

Lule VII does not accommodate conflicting state tair employ-

ment laws. To the contrary, Tithe VII supersedes any state law

that “purports to require or permit the doing of any act which

would be an unlawtul employment practice under Title VII.” 42

U.S.C. 2000e-7. Thus, Tithe VII is, if anything, less tolerant of

conthets with state law than it is of conflicts with foreign

substantive law. Even assuming for the moment that Congress

can be expected to view foreign law as equivalent to state law,

Tithe VIE does not distinguish between them in a manner casting

doubt on its application to Americans abroad.

* Section 709(b), 42 0 SC 20006-80b), also authorizes the Commission to

clgage mM Sarious forms of Cooperation with state and local tau employment

avencies

ot oe me ee oe

a wm

DD. The 1984 Amendments to the ADEA Do Not Justify A

Distinction Between Age Discrimination and Discrimination

Based Upon Race, Sex, National Origin, or Religion

The court of appeals’ emphasis on the distinction between Ti-

tle VII and the 1984 amendments to the Age Discrimination in

Employment Act was also misplaced. The ADEA amendments

were enacted after several courts of appeals had held that that

statute did not apply abroad.?* The legislation’s express purpose

was to confer on American citizens employed abroad the same

protection against age discrimination that, Congress was ad-

vised, Americans already enjoyed from other forms of invidious

employment discrimination. Senator Grassley, sponsor of the

ADEA amendments, explained that the amendments would

“clear{ ] up an anomaly” between the ADEA and Title VII as

applied to discrimination abroad. 129 Cong. Rec. 34,499

(1983).°° The ADEA amendments thus provide no support for

the view that the 1964 Congress that enacted Title VII was less

concerned with eradicating discrimination against Americans

abroad based on race, sex, national origin, and religion than the

1984 Congress was with age discrimination.’'

*» Zahourek v. Arthur Young & Co., 750 F.2d 827 (10th Cir. 1984); Cleary

v. United States Lines, Inc., 728 €.2d 607 (3d Cir. 1984). After the ADEA was

amended, other courts reached the same conclusion regarding the original ver-

sion of the statute. Lopez v. Pan Am World Services, Inc., 813 F.2d 1118

Cu. 1986); Ralis v. REE/RL, Inc., 770 £.2d 1121 (D.C. Cir. 1985); Pfeiffer v.

Wiliam Wrigley Jr. Co., 755 F.2d $54 (7th Cir. 1985); Thomas v. Brown &

Root, Inc., 745 | .2d 279 (4th Cir. 1984). These decisions often noted that the

alien exemption distinguished Tithe Vil from the ADEA. &.¢., Cleary v.

United States Lines, Inc., 728 F.2d at 609.

’ During hearings on the proposed legislation, the EEOC’, Chairman

testified that Tithe VII had been construed to apply to discrimination outside

the United States. See Age Discrimination and Overseas Amerwans, 1983:

Hearing Before the Subcomm. on Aging of the Senate Comm. on Labor and

Human Resources, 98th Cong., Ist Sess. 2-4 (1983) (testimony of Clarence

Thomas).

'' The provisions of Tithe VIEL at issue in this case and the ADEA are not the

only prohibinons on employment discrimination outside the United States

See Act of Sept. 28, 1971, Pub. L. No. 92-129, Tit. 1, § 106, 8S Stat. 3585 (pro-

Title VII, no less than the ADEA, manifests a clear intention

to provide American citizens with protection from invidious

employment discrimination abroad. The language of Title VII

demonstrates that Congress foresaw the statute’s application to

discrimination outside the United States and tailored its

coverage by exempting aliens with respect to employment out-

side the United States. Nothing in the statute is inconsistent with

its application to employment discrimination by American cor-

porations against Americans abroad. The courts below erred in

failing to enforce Tithe VII according to its terms.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

DONALD R. LIVINGSTON

Acting General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel

VINCENT J. BLACKWOOD

Assistant General Counsel

SAMUEL A. MARCOSSON

Attorney

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOUN G. ROBERTS, JR

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

Equal Employment Opportunity Commission

NOVEMBER 1990

hibeting discrummnation agaist American citizens and then dependents on

American military bases abroad); 50 U.S.C. App. 2407 (authorizing regula-

tions prohibiting discrimimation on basis of race, religion, sex or national

origin to comply with foreign boycotts).

US GOVERNMENT PRINTING OFFICE 1990 262 O61 20195

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