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

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, PETITIONER

Vv.

ARABIAN AMERICAN OIL CO., ET AL.

ALI BOURESLAN, PETITIONER

Vv.

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

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

DONALD R. LIVINGSTON

Acting General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel _ n — yy 30

ashington, D.C.

VINCENT J. BLACKWOOD (202) $14-2217

Assistant General Counsel

SAMUEL A. MARCOSSON

Attorney

Equal Employment Opportunity Commission

Washington, D.C. 20507

Ho A?

«ail

QUESTION PRESENTED

Whether Tithe Vil of the Civil Rights Act of 1964, 42 U.S.C.

2000e ef seq., prohibits employment discrimination outside the

United States by an American corporation against an American

ciizen.

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. Ali Boureslan, the plaintiff-appellant below, is

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

and Aramco Services Company, defendants-appellees below,

are the respondents in both cases.

Opinions below

Jurisdiction ...

TABLE OF CONTENTS

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Statutory provisions involved ......................

Statement .....

[awe ewe eee eee eee eeeeseeeeeeee ee ee 8 @

EE

Argument:

1. Tithe VII manifests a clear congressional inten-

tion to prohibit discrimination outside the

United States by American employers against

EEE ee

A.

By its terms, Title VII prohibits in-

vidious employment discrimination

against American citizens outside the

ee

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

ee ee chee ec he cece Bs’

Other provisions of Tithe VII are con-

sistent with its application to

discrimination by American employers

against American citizens abroad .....

The EEOC, the agency charged with

administrative enforcement of Title

Vil, has interpreted the statute to apply

to discrimination against’ Americans

EE pase

Il. Concern for potential conflicts with the laws

ot other nations does not warrant limiting

Tithe VIL to discrimination within the United

States

18

IV

Cases:

Page

A. The alien exemption represents Con-

gress’s solution to potential conflicts of

De ands hind eee beneek nea es 25

B. Properly applied, Title VII does not

create a serious potential for conflicts

with international norms or the laws of

PORES oc ccc cntasnscccescceces 25

C. Title VII's treatment of conflicts with

state law provides no basis for ques-

tioning the extraterritorial application

GEE ocuncdascbhatacdsueace: 29

D. The 1984 amendments to the ADEA do

not justify a distinction between age

discrimination and_ discrimination

based upon race, sex, national origin,

OF GHD oa wethecvecucerestccesni 31

COMIN «0 cc ccccctscesséeceecessesses sevesecees 32

~ TABLE OF AUTHORITIES

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

rer eee 14

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

Serr eT oer )

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

IRR Rete me en mre 13

Argentine Republic v. Amerada Hess Shipping

i) ee I oon os na cde deseo us 9

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

re ee occ dbneageceure ees 19

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

PE een ccc sched ahasusduneesan ees cies 13

Bainbridge v. Merchants & Miners Transp. Co.,

i en . ove dec eter ee sbaninuess 19

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

ES ioe bobs sok pa he ees nos 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.,

Big GE ee PP OIETED ov veces cccevcosceces

Bryant v. International Schools Services, Inc.,

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

ec iee cud ouessheucees «st

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

et ee ees Poa a be he

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

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

05890142 (Aug. 23, 1989) ................005,

Continental Ore Co. v. Union Carbide & Carbon

ee knees

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

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

a i a

EEOC vy. Commercial Office Products Co., 486

FR Ee a

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

Ne Se ck us

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

ee ee

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

Ps I ED cb scn-coccdavatesessase

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

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

10, 13, 15, 17,

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

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

Hedges vy. Department of Defense, EEOC Dec.

No. 05900454 (June 1, 1990) 2.00000,

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

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

SE GG aCRsceedneawee eecueei Week ered cows

Vi

Cases — Continued: Page

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

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

OR, BED on dc cceandbéccectsdveces 3}

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

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

PP | .f Ye % . FT ITTTr ee 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.

1 CGD cc ccc cccccccsccetececess 28, 29

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

Ds ctcudheausbeeveavaesetnsesessee y

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

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

SY Lessa ui ewodcbnensdbs 6deeanececsesi 13

Pfeiffer v. William Wrigley Jr. Co., 755 F.2d 554

en . ces echadkbbstentsenees ve 31

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

DD cheteceutakisdutse savsbaucdudndskes ve 31

Romero v. International Terminal Operating Co.,

Es vind wah ebeeebseb 0006: 28

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

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

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

sn od lee adaaeensese- y

Seville vy. Martin Marietta Corp., 638 . Supp.

i chic bee baceseneseces 14

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

Societe Nationale Industrielle Aerospatiale \

United States District Court, 482 U.S. 522

DD ci) opeebdeneendeeenhe ended seéasanext 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

I i on Di ede cebavetes

Sumitomo Shoji America, Inc. v. Avagliano, 457

EE

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

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

I eee re

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

i ebedhud de cde a) nde sthbdauneee se

United States vy. Aluminum Co. of America, 148

FS RS a ee

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

SN ANE Ge cored down ebbkne ew ciiekaeex cea

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

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

lp Re ERE ie ea ce na ei ee

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

Yellow Freight System, Inc. v. Donnelly, 110

ge ean ae

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

EG a iran eee ee een

Constitution, statutes and rule:

U.S. Const:

al cera ee ea le tL

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

ST acluuécadkesweesoeduvennes

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

CE bas pte ibeeE es edd eens ante dics ce

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

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

§$ 701(b), 42 U.S.C. 2000e(b) .. es...

§ 701(g), 42 U.S.C. 2000e(2) . 2...

Page

Vill

Statutes and rule — Continued: Page

§ 701(h), 42 U.S.C. 2000e(h) ..... 22... -- 11

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

ph SB LS Pe eee 11, 14, 27

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

SD Fes Gite MEINE nv ccccccccccccccss 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-5(b) to

eee Lae pegn scenes w

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

§ 706(f(1), 42 U.S.C. 2000e-S(I)1) . 2.2... 3

§ 706(f)(3), 42 U.S.C. 2000e-5(f)(3) . 2... .... 18

§ 708, 42 U.S.C. 2000e-7 «2... ee eee 3

hb © 4 fh 0” errr 2 21

§ 70%(b), 42 U.S.C. 2000e-8(b) ............. Ww

© Fe Ge ice SI ov ccccccectecceses 20, 22

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

DS Fete Gee as SED os ccccscccccccees 23

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

| POPPPPerTrrrrirrrrrrrririire ett 8

nS coeds dg ab ebandl veseeeeeuun 22

Rl be beh ebebeeheeheeenéeen 21

I oe ns eed eeneeneie 20, 22

ke ee ee agehae> ubenowas 19

CC ME PD scccccccnconvndedwoueses 32

oi nae cena weed emibewes 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, 31

IX

Miscellaneous — Continued: Page

Civil Rights: Hearings Before Subcomm. No. 5

of the House Comm. on the Judiciary on Mis-

cellaneous Proposals Regarding the Civil Rights

of Persons Within the Jurisdiction of the United

States, 88th Cong., Ist Sess. (1963) ............ 16

SSP COS. THOS. DEAR GOOD 6 cc ccccccccccccces 31

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.

Pt ssetihidadiedebaksdsdbetdieecduenesss 24

Discriminatory Overseas Assignment Policies of

Federal Agencies: Hearings Before a Subcomm.

of the House Comm. on Government Opera-

tions, 94th Cong. Ist & 2d Sess. (1975-1976) .... 24

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., Ist

EE SG ete eh eid aseeteetkeseeso< 24

H.R. 4453, 81st Cong., Ist Sess. (1949) .......... 17, 18

H.R. 405, 88th Cong., Ist Sess. (1963) ........... 16, 29

H.R. 7152, 88th Cong., Ist Sess. (1963) .......... 16

H.R. Rep. No. 570, 88th Cong., Ist Sess. (1963) .. 16, 25

H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963) .. 16

Note, Equal Employment Opportunity for Ameri-

cans Abroad, 62 N.Y.U. L. Rev. 1288 (1987) |... 26

_Policy Statement No. N-915.033, EEOC Compl.

Man. (BNA), at 605:0055 (Sept. 2, 1988)... . 23, 28, 29

Restatement (Third) of the Foreign Relations Law -

of the United States (1986) ........00000...... 26, 27

Miscellaneous — Continued: Page OCTOPER TERM, 1990

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

S. Rep. No. 867, 88th Cong., 2d Sess. (1964) ..... 16 No. 89-1838

oe a Role 7 International Law As a EQUAL EMPLOYMENT OPPORTUNITY

ry y= palatine ee

v.

ARABIAN AMERICAN OIL CO., ET AL.

Sr Ee om

No. 89-1845

. AL! BOURESLAN, PETITIONER

v.

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

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 Title VII of the Civil Rights Act of

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

STATEMENT

1. Ali Boureslan, the plaintiff in this Title VII 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 EFOC and receiving a right to sue letter, Boureslan

commenced this action against Aramco and ASC. His amended

3

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

9-5 vote. Jd. 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 1 apply only within the territorial jurisdiction of the

Unite’ States.” Pet. App. 3a (quoting Foley Bros. Inc. vy.

Filardv., 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 thai 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 Mfe. Co., 414

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

reflects “a congressional intent to provide Title VII coverage to

* Inthe court of appeals, the EEOC participated as an amicus curiae before

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

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

a party m the rehearimg en banc. Pet. App. 8Sa. See 42 U.S.C. 2000e-S¢TM 1)

(authorizing court, in its discretion, to permit the Commission to mtervene im

a oni action upon the Commession’s certilication that the case ts of general

publi umportance)

4

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 Title 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

Vil “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 Tithe 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

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 foreign soil.” Pet. App. 7a.

5

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

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

ritorially; “{i}f 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

9a. 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, i 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 VII

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, Tithe VII reaches discrimination agaist

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” ts defined

to include foreign commerce. Accordingly, American corpora-

6

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

Title 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 alens (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 alién exemp-

tion in order to confer coverage on aliens employed within the

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

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

tial for conflicts with foreign law by withdrawing coverage from

ahens 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,

Tule Vil does not create a venue gap for cases arising from

discromination abroad. And even if such a gap existed, n would

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

an imtention 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 state . substantive provisions. The remainder of the

EEOC’s authority and the rights conferred on private plaintiffs

embody no geographical lumuation. As other statutes contaim-

ing virtually identical subpoena provisions reflect, there is no

necessary relationship between an agency's subpoena power and

the scope of the statute u administers.

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

sibiluy for admunsstering Title VIL, has interpreted the statute to

apply extraterrnorially. The Justice Department, which also has

responsibilities mm thes area, has reached the same conclusion.

These consistent constructions of the statute by the responsible

7

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

Americans employed by American employers abroad.

Il. 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

to 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

American 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 substantiaily the same protec-

tion from all forms of discrimination. Construing Title VII to

be inapplicable abroad would resurrect (in reverse) the anomaly

that the 1984 Congress acted to eliminate.

ARGUMENT

I. TITLE VII MANIFESTS A CLEAR CONGRESSIONAL IN-

TENTION TO PROHIBIT DISCRIMINATION ©» TSIDE

THE UNITED STATES BY AMERICAN EM ‘LOYERS

AGAINST AMERICAN CITIZENS

The issue in this case — whether Title 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 Title VII, 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 Vii, “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 defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 er

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

within the confines of these “States.”

9

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).*

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 térritorial

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

Nucional 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 \. McDonald, 248 U.S. 185, 195 (1918); United States v.

Bowman, 260 U.S. 94, 98 (1922); New York Central R.R. \. 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, 185 (1933); Steele v. Bulova Watch Co.,

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

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

concept of territoriality advanced in American Banana. See Steele ». 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 torm of analysis

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

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

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

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

\. Bache & Co. (Lebanon) §.A.L., 730 &.2d 1103, 1107 a. tt Oth Cir.), cert.

demed, 469 U.S. 871 (1984); Schoenbauwm . Firsthbrook, 405 F.2d 200, 206 (2d

Cir.), modified on other grounds, 405 F.2d 215 (1968), cert. demed, 395 US.

906 (1969). In this case, the Court need not determine the outer permmeter ot

the presumption agaist extraterrnoriality of the scope of any exceptions to

the presumption that may exist.

10

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 made 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 federal statutes that prevent evasion of “the thrust of the laws

of 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, Title VII ap-

plies to discrimination outside the United States by an American

employer against an American citizen. On its face, the statute

prohibits discrimination by an employer engaged in an industry

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 VII wou/d 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-

iry. Nothing in Title VII supports a different interpretation.

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

cies charged by Congress with enforcing Title 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, lransportation, 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 or are not engaged in “an industry alfecting commerce”.

12

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. Tithe 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, u 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 Vil,

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 background of Title VII's jurisdic-

tional provisions, the thrust of this exemption is unmistakable.

Congress undersiood 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

appication 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-

13

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 al

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.” Jd. at

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

emption in this case.’

’ The Eleventh Amendment imposes a more sirmeent clear statement re

qurement than the presumption agamst extraterrmonalty, Congress may

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

tention unmestakably clear m the language of the statute.” Atascadero Siate

Hosp. «. Scanton, 473.U.S. 234, 242 (1985). Compare Foley Bros., 336 U.S. at

285 (presumption agamst evtraterrmoriality ts “a valid approach whereby unex-

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

Umon Gas applies a fortior: to this case. See also Andrus v. Glover Constr.

C0, 446. US. 608, 616-617 (1980) (“Where Congress explicitly enumerates cer-

lam c\ceptions to a general prohibition, addimional exceptions are not do be

umphed, m the absence of e\idence of a contrary legnlatiwe mient.”).

Tule Vil also contams an exemption for religious mstitutions “with respect

to the employment of mundi iduals of a particular rchgion to perform work con.

nected wath” the mstitutions’ “rehgrous activities.” This exemption — like the

ahen exemption ay “we construe a — clearly withdraws, coverage that would

14

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. lt 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

otherawe cust. Forther, courts have rejected claims, comparable to

respondents’ here, that Tule Vil should be construed to allow dixcrummation

by rehgiows mstntutions that ts Outside the scope of the exemption Sec Me.

Clure +. Salvation Army, 460 © 2d 553, 558 (Sth Cir), cont. demed, 409 US

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

(Hh Cur. 1982).

* Jheun sy. Boewne Co., No. CBD-119D (WD. Wash. bune 7, 1990), Seville

». Martin Marietta Corp., 6381. Sapp. S900D. Md. 1986), Brvant +. Interna

vonal Schools Services, Inc., 3021. Sapp. 472 (DN 1. 1980), rev'd on other

erounds, 675 F.2d 562 (3d Cir, 1982), Lowe ¥. Pullman Co., 13 baw bt mpl

Prac. Cas. (BNA) 423, 426 0 4 (D. Colo. July 21, 1976), aff d on other

erounds, 569 F 2d 1074 (10th Cur 1978)

1S

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-

memt outside this country. lt 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 withtrawing 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-

traterrnoriality. 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-

thon against extraterritoriality demands nothing more.

3. The legislative history of the alien exemption confirms

that ts function was to withdraw coverage from aliens abroad

16

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

seen tn Gin cnunand, tothe Gite Congeen, to cienenmmgtion

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. a.

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 floor of the House, the House Com-

mittee on the Judiciary held hearings on a number of civil rights Dilly, m-

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

record of those hearings. See Civil Rights: Hearings Before Subcomm No 5

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

the Civil Rights of Persons Within the Jurisdiction of the Unued 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 HR. 7152, which in

turn was subsequently enacted as the Civil Rights Act of 1964. See H.R. Rep.

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

17

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 Title 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 only to those places where the labor

conditions of both citizen and alien employees are a prob-

able concern of Congress.

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

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

manifests Congress's intention to prohibit discrimination by

American employers against American citizens abroad.

Indeed, the alien exemption first appeared in proposed fair

employment legislation shortly after the decision in Foley Bros.,

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

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

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

troduced a tair employment bill, H.R. 4453, 81st 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 terriory'® — a point that was stressed in

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

fashion [the LMRDA| to resolve labor disputes between na-

tionals of other countries operating ships under foreign laws.”

353 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 vil to

employment discrimination abroad against American citizens

by American corporations is entirely consistent with the reason-

ing of Foley Bros., Benz, and McCulloch.

C. Other Provisions of Tithe VI Are Consistent With Its Applica-

tien to Discrimination by American Employers Against

American Citizens Abroad

The court of appeals identified two features of Title VII that

it believed were inconsistent with extraterrmmtorial apphcation 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, netther provision weighs agaist applying Title

Vil to discrimination abroad against American citizens by

American corporations.

1. Section 706(1M3) of Tithe VIL, 42 U.S.C. 2000e-5¢1 5),

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

State in which the unlawtul employment practice ty alleged to

1° Ser, ee. Cunard SS Co +s Mellon, 2 US. tam, 123-124 (1924),

i weed Seotes §. Rodweers, (SOUS. 249, 264 (IR)

19

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-

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

m which the defendant has an office in the United States.

a

Stewart \. Paciix Stew Navigation Co, 3 F.2d 329, 180 1S. DN-Y

192401 Hand, 3.) ¢° The phrase ‘in which its principal office is located” clear

ly means wm which the principal office of the foreign steamship company 1

kxated when the United States"). See 4rrocha +. Paname Canal Comm'n,

NT Supp 231, 23506 DN.Y 1985) (reaching same result wader Tithe Vil)

This uterpretation 6 comitient with the language of Tithe VIT'S venue prove

won Tt gammy turther support trom the principle that becauye “Congress does

not m general intend to create Venue gaps,” “wm CONMIFrUME VenUE Matutes Hs

tcayonable to preter the construction that avords leaving such a gap ” Brunette

Machine Works Lid < Kockum Indus, Inc, 4060S. 706, 710 0 8 11972)

in Dellow freveht Sestem, Im + Donnelly, 1105 Cl. 1566 (11990). this

Count held that vate courts have concurrent purndiction over Tate VI ac

toms In own view, Toth Vil should mot be construed to heat the venue of state

courts hearmg Tike Vil saws, See Bawmbradee \ Merchants & Miners Transp

fe I7US DS CNVND

20

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

some cases arising out of discrumimation abroad, u would not

follow that Tithe 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 Amencans employed abroad a wider chotce 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

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

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

the statutory dog.

2. For similar reasons, Tithe VII's limitation on the Commus-

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

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

mission Is empowered to issue subpoenas requiring attendance

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

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

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

tron — which operates solely on Commission subpocnas, not (as

the majority below suggested) on the EEOC'S “wvestigatory

powers” —falls far short of suggesting that the Commission

lacks any authority to remedy discrumination against Americans

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

ton

In all respects save ts subpoena authority, the Commussion’s

mvestligatory powers are subject to no geographical resiriction,

The prowmon way cnacted m 197) Before that time, the ( om won

vocured ev adernce by means of demands that were catorceabdle Dy Court onder.

but “the attendance of a witeess foowkd) aot be required outwde the State

where he & found, sevides, oF tramsacts buwnes and the production of

evndemce foowld) mot be requaed ounade the State where wach cudeme ©

kept” Civd Rights Act of 1964. Pub Lo No. 88-352, Ta Vil, § ita), 78

Seat 264 tn our view, the difference between thy prov mon and the prownmon

substituted wa 1972 6 aot material to the question pecveatéd im thr cave bn one

respect, however the 197) amendment hay apparceth cohasm ed the ( ome,

eons abelity to unvestigate dicremnaton abroad (C omparatke vatutes havc

been held to perma sersne of 2 vabpecna m the Country for documents

hnated chewhere See. ee. CFTC s Nokes TE We oe? 22 A oO,

~~ 40D 0 Coe Pee)

21

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

Commission to conduct an investigation “[w}henever a charg” 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 FITC +. Compaeme de Saint-Gobain-Pont-a-Mousson, 6% t 2d

1M), 1322(D.C. Cur. 1980) (noting the distinction between the FTC's authori-

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

FIC 's authority to mvestigate both domestic and forewn corporations “hose

actions have harmful effects on U.S. commerce”).

22

‘ 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 VH’s substantive provisions may not properly be inferred

from the scope of the Commission’s subpoena authority.

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

ment of Tithe VII, Has Interpreted the Statute to Apply to

Discrimination Against Americans Abroad

The EEOC has consistently construed Title VII 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

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.” J.A. 49. The letter added that this construction was

consistent with the purposes of the statute, noting that

“[o]verseas employment practices of covered employers can

have a very substantial impact on the employment opportunities

in domestic corporations.” /bid.

In 1984, the Chairman of the EEOC testified before a

subcommittee of the Senate that the alien exemption was in-

dicative of an intention to prohibit discrimination against

'* For mstance, the subpoena authority that the Commission enjoys under

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

of witnesses and the production of evidence “trom any place in the United

States.” 15 U.S.C. 49 (incorporated in 29 U.S.C. 209, 626(a)). The SEC's

authority under the Securities Exchange Act of 1934 embodies the same limita

ton 18 U.S.C. 78sib)

- ep Re ema 2, - -

23

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.

'* 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. 2-4 (1983) (testimony 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-

ton 717 of Tule VII, 42 U.S.C. 2000e-16, prohibits invidious discrimination in

“[ajll personnel actions affecting employees or applicants for employment (ex-

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

24

With respect to discrimination 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.

i. CONCERN FOR POTENTIAL CONFLICTS WITH THE

LAWS OF OTHER NATIONS DOES NOT WARRANT

LIMITING TITLE VITO 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

' Forewn Investment and Arab Boyvcout Legistation: Hearings Before the

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

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

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

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

meree of the House Comm. on International Relations, 94th Cong., Ist Sess.

87-88 (1975); Discriminatory Overseas Assignment Polictes of Federal Agen-

cies: Hearings Before a Subcomm. of the House Comm. on Government

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

'* WeCulloch ». Sociedad Nacional de Marineros de Honduras, 372 U.S. at

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

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

ed

2 OR, oe nee eee

25

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. Sa. 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 Vil 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

26

—_—

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).2° 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 imternational law, a corporation has the

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

orgamzed.”). Ct. Sumitomo Shox: America, Inc. v. Avaghano, 457 U.S. 176

(1982) (under treaty between Japan and the Unned States, US. -sncorporated

subsidiaries of Japanese corporations are deemed corporations of the United

States).

_ ** Accord Vermilya-Brown Co. vy. Connell, 335 U.S. 377 (1948), Blackmer

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

Toregn Relations Law of the United States § 4022) (1986) fexcept when u

would be unreasonable, “a siate hay jurisdiction to prescribe law with respect

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

well as withen its territory”).

*' See Note, Equal Emplowment Opportunity for Amerwans Abroad, 62

N.YV.U_ LL. Rew. 1288, 1297-1299 (1987) (and authormes cted therem)

— ee ee

27

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).?’ In certain cases, compliance with foreign

law may also furnish a non-discriminatory justification for

employment decisions that would otherwise be unlawful.?* The

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

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

cothsion” with Honduran law. Under that law, a Honduran umon was the ex-

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

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

umon as the bargaming representative would have squarely violated Hon-

duran law

** That Section provides, in pertinent part:

Notwithstanding any other provision of thes subchapter, (1) tt shall not

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

employees * * * on the basis of [thei] rehgion, sex or national origin in

those instances where religion, sex, or national origin ts 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.

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

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

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

the hiring of 'ne au traffic controllers who were to perform the contract. The

country withheld a work perma from a female ai traffic controller, explamimng

that ts customs and laws prohibtted the employment of women in most jobs.

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

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

troller, the Commussion held that there was “a legitimate, nondiscrminatory

reason for not hirung fher].” fd. 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 Title Vil and the law of a foreign state.

Courts may also take foreign law imto 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. Sa-6a. The court erred, however, in embracing the

all-or-nothing prop: tion that Tithe Vil must be interpreted to

apply ether 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-

tonally 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 tet powers.” Ibid. This Court has employed a similar

approach in interpreting federal maritime statutes. Lauritzen v-

Larsen, 345 US. 571, 577 (1953).**

The Commissson’s polny statement on the extratermmtonal enforcement of

Title Vil requires field offices to contact the Commsion’s Tithe VI Divison

Hf af hyuc atives Concerning 4 potential conflat with a toremgn state's law, the

Divison then coordinates with the Department of State ELOC Poly State

«nem No. N-915.033, supra, at 605-0057

* See Romero +. International Terminal Operating Co., 8 US. 154, W2

(1959), Uniued States +. Palmer, 16 US. (8 Wheat.) 690, 631 (1898). In

lL aurucen, the Court held that the Jones Act — which creates a damages

remedy m favor of “jajny seaman who shall suffer personal myury in the

course of his employment” — does not apply to an myury sutlered by a lorengn

seaman myured aboard a foremgn tlag vessel m a torengn port The ( ourt ev

plamed that “[bly usage as old as the Nation, [American shipping} statutes

have been comtrucd to apply only to areas and twamactions im which

Amernan law would be comsdered operatwe under prevalent doctrmes of m-

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

wasn “acond with the long heeded admonmion of Mir Chict Justice Marshall

that “an at of Congress ought never to be Comstrued to vwlate the law of mations

iW any other powible comiruction remams” ” Jd at 578 iquotme Murray +

29

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 ts 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

Bouresian in this case.”’

(. Tithe Vil's Treatment of Conflicts with State Law Provides No

Basis for Questioning the ft xtraterritorial 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 US. 25, 32 (1982) (noting this principle’s force as ap-

phed “to the construction of statutes couched im general language which are

sought to be applied in an extraterritorial way”), McCulloch ¥. Sociedad Na-

ctonal de Marineros de Honduras, ¥72 US. at 21-22, Seewmhardi, The Role of

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

L. Rev. 1003, 1142-1143 (1990)

*’ In ts policy statement on the application of Tule Vil to discrimmnation

dicrummation takes place overseas, the satus of the employer as an Ameri an

or foreign company 6 significant.” EEOC Policy Statement No. N-915.033,

supra, a GOS-0061.

The legsslative history of the ahen exemption suggests that Congress's focus

was on prohibiting discrummation by “American enterprise|s| "HR Rep No

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

employers” m “foregn lands”). This case, of course, prevents only the question

of Tale VII's apphcation to alleged dincrummation by an American corpora

thon again an Amernan citizen

w

tended to apply Title VII to discrimination outside the United

States without including equivaient provisions addressing

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

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

state fair employment procedures that are consistent with Tithe

Vil, 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

conflicting foreign laws creates no anomaly that undercuts Title

VII's application 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 secking its own relief;

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

cause to believe that a charge is 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-5(b) to 2000e-5(d).** The fact that

Congress chose not to extend these procedures to foreign govern-

ments administering unfamihar employment laws does not even

remotcly suggest that it intended to withdraw all protection from

Americans employed abroad.

Title VII does not accommodate conflicting state fait 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 unlawful employment practice under Tithe VII.” 42

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

contlets 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 VII does not distinguish between them in a manner casting

doubt on its application to Americans abroad.

* Seoteen 70h), 420) S.C Jiliie Bib), abe authorizes the ( om mon to

ehgage 1 various form, of Cooperation with vate and local law employment

aye tes

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

tle VIL 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, ser, national origin, and relighon than the

1984 Congress was with age discrimination.’'

* Zahourek v. Arthur Young & Co., 1590 ¥ 2d 827 (10th Cir, 1984); Cleary

v Unied States Lines, Inc., 128 F.2d 607 (3d Cir, 1984). Alter the ADEA was

von of the statute. Loper v. Pan Am World Services, Inc, MIN F.2d Te

(itth Cir. 1987); De Yoreo ». Bell Helicopter Textron, Inc, 78S F 2d 1282 (Sth

Cir, 1986), Ralis y. RFE/RL, Inc., TOF 2d 1121 D.C. Cin, 1985), Pfeiffer +

Witham Wrigley Jr, Co, 195 © 2d $54 (7th Cir, 1985); Thomas v. Brown 4

Root, Inc, 145 F.2d 279 (4th Cir, 1984). These decisions often noved that the

alen exemption distinguished Title Vil from the ADEA. Fe, Cleary »

United States Lines, Inc, 78 F.2d at 9.

During hearings on the proposed legislation, the PROCS Chairman

teviilied that Tile VII had been construed to apply to discrummation outside

the Unued States See Age Discrummation and Overseas Amerwans, 1983

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

Human Resources, Vih Cong , It Sevs. 2-4 (1983) (hestimony of Clarence

Thomas)

The provisions of Tithe Vil at sue 9 this cave and the ADEA are not the

onh prohibitions on employment disxcrimmation outvde the United States

See Act of Sept. 28, 1971, Pub L No. 92-129, Tw 1, § 106, 8S Seu 185 (pre

32

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

failing to enforce Title VII according to its terms.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitied.

KENNETH W. Stare

e Sohmutor General

Joun RK. Downe

Assistant Attorney General

Joun G. Rowers, Jr

Deputy Solwitor General

Donatb R. Liven~cusTron STEPHEN L. Necaeitincart

Acting General Counsel Assistant to the Sotwnor General

GWENDOLYN Young RE ans

Associate General Counsel

Vincent J. BL aAckWwooo

Assasvant General Counsel

Samutt A. Margcosson

Attorney

Equal Employment Opportunity Commission

Novi Mat R 1990

hibtiing dixrummation aga Amencan ciizens and thew dependents on

Amercan miliary bavey abroad), SOU SC) App MMO? (authorizing regula

toms prohibiting discrimination on bass of race, rohgion. vex of national

ong to Comply wah furcign Beywatty).

US GOVERNMENT Pretty OFFICE feRe fer et More)

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OO ———

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