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

~~-

No. 89-1845

—_—

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

ALI BOURESLAN,

Petitioner,

v.

ARABIAN AMERICAN OIL COMPANY, et ai.

Respondents.

BRIEF OF THE

INTERNATIONAL HUMAN RIGHTS LAW GROUP

AS AMICUS CURIAE IN SUPPORT

OF THE POSITION OF PETITIONER

WASHINGTON, PERITO & DUBUC

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 857-4000

Attorneys for Amicus Curiae

THE INTERNATIONAL HUMAN RIGHTS

LAW GROUP

OF COUNSEL

Steven M. Schneebaum, Esquire

Janelle M. Diller, Esquire

THE INTERNATIONAL HUMAN RIGHTS

LAW GROUP

1601 Connecticut Avenue, N.W.

Suite 700

Washington, D.C. 20009

(202) 232-8800

TABLE OF AUTHORITIES ..... eoeeceesece

INTEREST OF AMICUS ee ereeeeeneeneeeeneneee

SUMMARY OF THE ARGUMENT ......-seee6-

ARGUMENT

I.

CONGRESS INTENDED

TITLE VII’S PROHIBITION

AGAINST DISCRIMINATORY

CONDUCT TO APPLY EXTRA-

TERRITORIALLY ...--eeeececccees

A.

Established Rules of

Statutory Interpretation

Demonstrate Expressed

Congressional Intent to

Apply Title VII

Extraterritorially ........

(1) Statutory Language

and Legislative

HiStOry .....eeeeeecees

(2) Administrative

Decisions ......sssee0%

A Comparison of

Title VII with Other

Statutes Supports a

Finding of

Extraterritorial

Application .....-eeeeeeeee

i.

11

12

15

20

22

Il.

(1) The 1984 Amendment to

the Age Discrimination

in Employment Act

Supports a Similar

Extraterritorial

Application of

BEEN TEE seccccccccces

(2) Although Title VII

Regulates the

Relationship Between

Employer and Employee,

Title VII is a Civil

Rights Statute and

is Therefore Distinct

From Labor Management

Relations Statutes ....

THE EXTRATERRITORIAL

APPLICATION OF

TITLE VII IN THIS CASE

IS CONSISTENT WITH

ESTABLISHED PRINCIPLES

OF INTERNATIONAL LAW

AND REACHES DISCRIMINATORY

EMPLOYMENT PRACTICES BY

AMERICAN CORPORATIONS

AGAINST AMERICAN

CITIZENS ABROAD.......eeeeeeee>

ii.

26

28

Under the Nationality

Principle, Title VII

Applies to the Conduct

in this Case Because

Respondents and

Petitioner are United

States Nationals..........

Respondent is Properly

Under United States

Jurisdiction Because

the Exercise Of Extra-

Territorial

Jurisdiction is Not

Unreasonable .....eeeeeees

(1) The United States

Has a Strong and

Legitimate

Interest in Pro-

tecting Citizens

Employed Abroad by

American Corpora-

tions from Dis-

crimination in

Employment .......

iii.

39

—

TABLE OF CONTENTS

(2)

(3)

(4)

CONCLUSION ..

APPENDIX .....

The Regulation of

Discrimination

Under Title VII

Involves Funda-

mental Human

Rights and Is

Important to the

United States .......

Americans Have a

Legitimate

Expectation that

They Will Not

Lose the Pro-

tection of Title

VII when they

Accept a

Position with

the Foreign

Office of a

United States

Firm eeeeseeeeeeeeeee

The Potential for

Conflicts With

Foreign Law is

Negligible ........

iv.

42

52

CASES

No. C89-1319D, slip op.

(W.D. Wash. June 7, 1990) ....eeeeees 19

Alaska Packers Ass’n v.

Industrial Accident Comm’n,

294 U.S. 532 (1935) eeeeeeeeeeeeeeees 51-52

Alexander vy. Gardner-Denver Co.

415 U.S. 36 (1974) ceccecceeseeeseees 63

Blackmer v. United States

Se ee SEE. nacccoccccccccces 13

Boureslan v. Arabian American

Oil Co. & Aramco Service Co.,

857 F.2d 1014 (5th Cir.)

, , 863 F.2a 8 (1988),

aff’d, 892 F.2d 1271 (1990),

cert. granted,

American Oi] Co., _.._ ~*U.S. __,

7

111 S. CO. 40 (1990) .n ewe eeccececccess 6-57,

60

American Oi] Co., 892 F.2d

1271 (Sth Cir. 1990),

cert. granted, EEOC v. Arabian

American Oi) Co.

—— © ° ———ee

é

111 S. Ct. 40 (1990) .. ccc eeecceeccees 41

CASES (Cont ’d.)

Brown v. Marsh, 777 F.2d 8 (D.C.

| | Perrrrrrrrreesersrrs+rrerre 22

Serv. Inc., 502 F. Supp.

472 (D. N.J. 1980), rev'd

on other grounds, 675 F.2d

nn cc cccccecees 19,35

Decision No. 90-1, Empl. Prac. Dec.

(CCH) 4 6875 (April 10, 1990) ........ 20

Espinoza v. Farah Mfg. Co. Inc.

ET nae oc ccc ccocccecs 17

Foley Bros. v. Filardo

lt MT needbeeeeeeecocoeoececes 13,14,26

Kern vy. Dynaelectron, 577

F. Supp. 1196 (N.D. Tex. 1983),

d -, 746 F.2d 810

Te Gs EE Secccocccocecoecocccce 60

Lavrov v. NCR Corp., 600 F. Supp.

Se PE Rcccccceseccccccce 19

Love vy. Pullman Co., 13 Fair

Empl. Prac. Cas. (BNA) 423

(D. Colo. 1976), aff’d

, 569 F.2d 1074

(10th Cir. 1978) wnceseeeseceseeccecs 19

vi.

Page

CASES (Cont ’d.)

McCulloch vy. Sociedad Nacional de

Marineros de Honduras,

kK 26

Murray v. Schooner Charming Betsey,

6 U.S. (2 Cranch) 64 (1804).......... 14

Reiter vy. Sonotone Corp,

Se es ST ee ceéscceccoccees 17

Corp., 638 F. Supp.

ee es Es ED eddccsdcccccccccecs 19

Steele v. Bulova Watch Co.

= ae = 12,13

STATUTES —¢

29 U.S.C. §630(f) (1989).........44.. 23

42 U.S.C. § 2000e (1989) ........... passin

50 U.S.C. § 2407(a) (1) (B) (1989) ..... 51

Civil Rights Act of 1964,

Pub. L. No. 88-352,

7E BSAC. BBD cccccccccccccesccccccce passim

Saudi Arabian Labour and Workmen

Regulations of 1969,

Royal Decree No. M/21: Labour Code

(15 November 1969) .....cccecccececees 54-55

Age Discrimination and Overseas

oy ee ee ae a

Comm, on Labor & Human Resources,

98th Cong., ist Sess. 5 (1983) ...... 20-21

Civil Rights: Hearings on H.R.

, 88th Cong.,

1st Se@SS. 2303 (1963) .cceenccccccces 18

Cong., ist Sess. 165 (1975).......... 21-22

H.R. Rep. No. 570, 88th Cong.,

eg 18

129 Cong. Rec. 34,499 (1983) ........ 24

INTERNATIONAL MATERIALS

Convention on the Elimination

of All Forms of Discrimination

Against Women, G.A. Res. 34/180,

U.N. DOC. A/34/46 (1979) «nen ccccces 46

viii.

TABLE OF AUTHORITIES

INTERNATIONAL MATERIALS (Cont ‘d.)

International Convention on

the Elimination of All Forms

of Racial Discrimination,

G.A. Res. 2106, 21 GAOR Supp.

(No. 14) DOC. A/6014 (1969) ......... 46

International Covenant on Civil and

Political Rights, G.A. Res. 2200,

21 GAOR Supp. (No. 16)

U.N. DOC. A/6316 (1976) .....eeeeeees 45,62

International Covenant on Economic,

Social, and Cultural Rights,

G.A. Res. 220, 21 GAOR Supp.

(No. 16) U.N. DOC. A/6316 (1976) .... 47-48

International Labour Organization

Convention (No. 111) Concerning

Discrimination in Respect

of Employment and Occupation,

362 U.N.T.S. 31 (1958) wn. cece eennes 46,

Report of the World

Conference to Combat Racism

and Racial Discrimination,

U.N. DOC A/CONF. 92/40

Annex 1C (1979). «sn ewe eecnccccccces 44

ix.

TABLE OF AUTHORITIES

INTERNATIONAL MATERIALS (Cont'd. )

The Universal Declaration of

Human Rights, G.A. Res. 217, 3 U.N.

GAOR (No. 1) U.N. DOC. A/81l

CA9ED) ccccccccecccccecceeccceecocoes

United States § 401 (1987) ..........

Restatement (Third) of Foreign

Relations Law of the

United States § 402 (1987) ..........

Restatement (Third) of Foreign

Relations Law of the

United States § 403 (1987) ..........

Restatement (Third) of Foreign

Relations Law of the

United States § 414 (1987) ..........

TABLE OF AUTHORITIES

OTHER AUTHORITY

Diller, Title VII_ of the Civil

Rights Act of 1964 and the

Multinational Enterprise

73 Geo. L.J. 1465 (1985) ............ 25,27

Note,

, 62 N.Y.U.

L. Rev. 1288 (1987) .....seeeeeecece: 40,51

L. Henkin, R. Pugh, 0. Schachter &

H. Smit, International Law (2d

ed. 1987) e*eeseeensees#eseses#seseseseseseeeer#se+feegsehe#ee#e#ee#e#e# 29,32

Introduction to 1 World Trade

Academy Press, Directory of

American Firms Operating in Foreign

Countries (10th ed. 1984)............ 51

H. Lauterpacht, International Bill

of Rights of Man, 115 (1945),

Ramacharan, “Equality

and Justice", jin, =

247

(L. Henkin ed. 1981) eeoeeeeeeeeeeeee 42-43,

A. Lerrick & Q.J. Mian, Saudi

Business and Labor Law (1982)........ 55-56

Policy Statement No. N-915.033,

EEOC Compl. Man. (CCH) 42164

"jE 21

xi.

xii.

No, 89-1845

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1990

AuI BOURESLAN,

Petitioner,

Vv.

ARABIAN AMERICAN OIL COMPANY, et. al.

Respondents.

The International Human Rights Law

Group ("Law Group") is a nonprofit legal

organization which seeks to promote the

observance of international human rights

norms. Founded in 1978, the Law Group

provides legal assistance and information

in the field of international human rights

law and has consultative status with the

United Nations Economic and Social Council

(Ecosoc). With the assistance of

attorneys who contribute their services to

the Law Group, the Law Group’s expertise

is offered on a pro bono basis to

individuals and groups concerned with

respect for human rights.

In United States courts, the Law

Group has participated as amicus in many

cases urging United States compliance with

international human rights norms. Over

the past several years, the International

Human Rights Law Group has also developed

a special interest in states’ compliance

with international norms prohibiting

discrimination against ethnic and racial

groups. The issues briefed have concerned

the use of human rights standards which

may guide the interpretation of the United

States constitution to comply with

international norms.

The International Human Rights Law

Group, interested in securing United

States compliance with international human

rights norms, urges reversal of the

decisions below. In reversing the lower

court, the United States will reaffirm its

commitment to the universally recognized

principle of nondiscrimination in

employment and to human rights and

fundamental freedoms for all without

distinction as to race, sex, language or

religion.

SUMMARY OF THE ARGUMENT

The case presently before the Court

represents the intersection of two areas

of law that have long been the subject of

American interest and advocacy: the

bolstering of human rights and the

aspiration for equality in the workplace.

Antipathy to discrimination has become a

matter of international consensus.

Indeed, protection from employment

discrimination is included in numerous

international treaties setting forth the

bases of human rights. At issue here is

whether the United States can aid in the

international effort to eradicate

discrimination from the workplace by

allowing its domestic protection to apply

extraterritorially when both an employer

and employee are United States citizens.

The first issue to «xamine is

whether the extraterritorial application

of Title VII is authorized as a matter of

United States law. There must be an

affirmative showing that Congress intended

Title VII to be applied beyond United

States territory. The Language of the

statute evidences Congress’s intent that

Title VII have an extraterritorial effect

by exempting aliens employed by a United

States employer abroad from Title VII’s

protection. This exemption allows a

negative inference to be drawn that

Congress intended to include non-aliens,

or United States citizens, within its

protection. This conclusion is supported

by an examination of the legislative

history of Title VII, the decisions of the

bodies vested with the duty to enforce

Title VII, and by a recent amendment to

the Age Discrimination in Employment Act

by which Congress affirmatively created

extraterritorial jurisdiction in the

belief, that by doing so, that amendment

would be brought into line with Title VII.

The second question presented is

whether the United States possesses the

capability to assert jurisdiction over a

matter that occurred outside of its

territory. Both parties to this matter

are United States nationals. Petitioner

is a naturalized citizen. Respondent

Aramco Services Company (hereinafter ASC)

and respondent Arabian American Oil

Company (hereinafter ARAMCO) were United

States nationals at the time of the

conduct in question in this case.

Petitioner worked for ARAMCO, a United

States corporation, until he was fired in

June 1984. Thus, unlike a situation where

American law might be forced upon

unwilling foreign parties, at the time the

alleged discriminatory conduct occurred,

respondents were both United States

nationals and subject to United States law

under the nationality principle of

jurisdiction.

In addition to authorization by

Congress and a jurisdictional basis for

such extraterritorial application in this

case, the remaining inquiry is whether

exercise of jurisdiction is reasonable.

The interest of the United States in

protecting its citizens from

discrimination, particularly from

employers who are also United States

citizens, is overwhelming. Likewise,

United States citizens have a legitimate

expectation of being protected by Title

VII when working abroad for a United

States employer and in avoiding a result

that would allow such employers to

discriminate on the basis of a transfer

outside of the United States. Moreover,

the reasons favoring an application of

extraterritorial jurisdiction are not

outweighed by arguments to the contrary.

Saudi Arabia is a party to an

international treaty that prohibits a

broader range of discriminatory practices

than Title VII and explicitly prohibits

the practices identified in Title VII. In

addition, nothing in Saudi domestic law

presents a conflict with an

extraterritorial application of Title

VII. Given the strong reasons for

protecting United States expatriates from

discrimination by United States employers

abroad and the lack of conflict occasioned

by doing so, an extraterritorial

application of Title VII in this instance

can only be reasonable.

This case requires the court to

determine whether Title VII of the Civil

Rights Act of 1964 extends protection

against discriminatory employment

practices by American corporations to

American citizens abroad.

Title VII has become an extremely

effective piece of civil rights

legislation passed by Congress in this

century. The history of discrimination in

our culture is a social reality which

cannot be ignored. Moreover, America’s

history demonstrates that laws prohibiting

discrimination by United States nationals

against American citizens both

domestically and abroad are indeed

necessary.

The question of America’s commitment

to enforcing nondiscrimination in

employment on behalf of American citizens

working abroad is of critical importance.

Congress’s intent for Title VII’s

protection to reach such citizens is borne

out through established sources of

- 10 =

statutory interpretation and is cogently

argued in Judge King’s dissenting opinion

below. In addition, the norms of

international law as affirmed in

international agreements, customary law,

and general principles of law common to

the world’s major legal systems prohibit

governmental support of discrimination in

employment. For the reasons argued below,

this Court should reverse the decision of

the Fifth Circuit below and remand this

case with instructions to reinstate the

action for further proceedings below.

I. CONGRESS INTENDED TITLE VII’s

PROHIBITION AGAINST DISCRIMINATORY

CONDUCT TO APPLY EXTRATERRITORIALLY

Congress’s intent to ensure equality

and nondiscrimination domestically and

abroad through Title VII is evident

through application of established rules

- il -

of statutory construction. As

demonstrated below, in enacting Title VII,

Congress intended that al] Americans are

entitled to be free from the intolerable

barrier of discrimination in employment

based on race, color, religion, sex or

national origin. In addition, a

comparison of Title VII with other

statutes supports a finding of

extraterritorial application under the

circumstances of this case.

A. Established Rules of Statutory

Interpretation Demonstrate

Expressed Congressional Intent

to Apply Title VII

Extraterritorially

Congress has the power to enact

legislation with extraterritorial effect

when regulating the conduct of United

States nationals. See, @.g., Steele v.

Bulova Watch Co., Inc., 344 U.S. 280,

282-83 (1952) (trademark infringement by

corporation of United States nationality) ;

Blackmer vy. United States, 284 U.S. 421,

443 (1932) (imposition of fines on United

States citizen abroad for failure to obey

subpoenas in criminal case). However, in

determining whether Congress intended to

exercise this power when it enacted

Title VII, one must presume that the acts

of Congress are intended to apply within

the territorial boundaries of the United

States unless there is a clear showing of

congressional intent to the contrary. See

Foley Bros. v. Filardo, 336 U.S. 281, 285

(1949): Steele, 344 U.S. at 282-83. There

need not be a direct and explicit

statement of extraterritorial application

to overcome this presumption.“ In

addition, Congress’s intent is to be

construed consistently with international

law. Murray v. Schooner Charming Betsey,

6 U.S. (2 Cranch) 64, 118 (1804) (a

statute may not be construed to violate

international law unless Congress has

Clearly stated its intent to the do so).

Here, the language and legislative

history of Title VII rebut the presumption

that the Act was intended to apply only

within the territory of the United

States. Moreover, the extraterritorial

application of Title VII in this case is

ie extraterritorially.

Foley Bros., 336 U.S. at 285.

consistent with international law as

demonstrated in Part II, infra.

1. Statutory Language and

The language of Title VII provides

firm ground for concluding Congress

intended the statute to be applied

extraterritorially. Although the

definitional sections, particularly those

for the terms "commerce" and "industry

affecting commerce," exhibit an intent to

cover at least certain types of

enterprises involved in foreign commerce,

the alien exemption clause of the statute

particularly demonstrates Congress’s

intent that Title VII reach United States

nationals abroad, both individuals and

corporations. Section 702 of the statute

provides that Title VII “shall not apply

to an employer with respect to the

- 15 -

employment of aliens outside any

State..." 42 U.S.C. § 2000e-1 (1989).

The language of that clause exempts the

employment of aliens abroad by employers

as defined by Title VII but does not

exempt the employment of United States

nationals abroad or the employment of

aliens within the boundaries of the United

States. The application of the statute to

the employment of aliens within the United

States is already provided for in the

definition of "employee," which covers "an

individual employed by an employer," 42

U.S.C. § 2000e(f). Accordingly, the most

logical positive inference from the clause

is that, in expressly excluding only

aliens from extraterritorial application,

United States nationals abroad are

- 16 -

covered. 2/ Any other interpretation of

the statute would render the exemption

superfluous and is thus a result to be

avoided. See Reiter v. Sonotone Corp.,

442 U.S. 330, 339 (1979) (An

interpretation of a statute that renders

any part of it superfluous and does not

give effect to all of the words used by

Congress should be avoided).

The legislative history of the alien

exemption clause reveals Congress’s

intention that Title VII’s protection

extend extraterritorially to United States

2/—s In Espinoza v. Farah Mfg. Co. Inc.,

414 U.S. 86 (1973), this Court

analyzed the alien exemption clause

and drew a negative inference from

the exemption clause that aliens in

the United States are covered. The

Court recognized its result

as derived from a negative inference

from the exemption in § 702. Jd.

at 95.

-i17 -

nationals employed by American

corporations abroad. For example, a 7

committee report explained that the

purpose of the alien exemption clause was

to eliminate conflicts of law that may

arise when an American enterprise employed

alien citizens in a foreign nation. H.R.

Rep. No. 570, 88th Cong., 1st Sess. 4

(1963). See also Civil Rights Hearings on

H.R. 7152 Before the House Committee on

the Judiciary, 88th Cong., lst Sess. 2303

(1963). If Title VII was not intended to

apply extraterritorially, Congress would

not have been concerned with conflicts of

law "which might otherwise exist." Id.

Other courts have relied on the

evidence of Congressional intent in the

alien exemption clause in finding an

application of Title VII to U.S. nationals

- 18 -

affected by discriminatory conduct of U.S.

corporations abroad. E.g., Akgun v.

Boeing Co., et. al., No. C89-1319D, slip

op. at 2 (W.D. Wash. June 7, 1990);

Seville v. Martin Marietta Corp., 638

F. Supp. 590, 592 (D. Md. 1986); Lavrov v.

NCR Corp., 600 F. Supp. 923, 931-932 &

n. 5 (S.D. Ohio 1984); Bryant v.

Internationa] Schools Serv., 502 F. Supp.

472, 482 (D. N.J. 1980), rev’d on other

grounds, 675 F.2d 562 (3d Cir. 1982);

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

Cas. (BNA) 423, 426 n.4 (D. Colo. 1976),

aff’d on other grounds, 569 F.2d 1074

(10th Cir. 1978) ("Since Congress

explicitly excluded aliens employed

outside of any state, it must have

intended to provide relief to American

citizens employed outside of any

etate . « « o™)-

- 19 -

(2) Administrative Decisions

The agency charged with

administering Title VII, the Equal

Employment Opportunity Commission,

{hereinafter EEOC], has consistently

maintained that Title VII does apply to

protect American citizens working abroad

from employment discrimination by American

Employers. See, e.g., Decision No. 90-1,

Empl. Prac. Dec. (CCH) 46875 (April 10,

1990) (". . . [T]he EEOC’s position, which

is recognized by the courts, is that

Title VII protects American citizens

employed by American companies abroad") ;

Age Discrimination and Overseas Americans,

1283: Hearing Before The Subcomm. on Aging

of the Sen. Comm. On Labor & Human

Resources, 98th Cong., lst Sess. 5 (1983)

(During hearings on the proposed

amendments of the Age Discrimination in

- 20 -

Employment Act, the EEOC’s Chairman

testified that Title VII had been

construed to apply to discrimination

outside of the United States); Policy

Statement No. N-915.033, EEOC Compl. Man.

(CCH) 42164 (Sept. 2, 1988). The Justice

Department has also interpreted Title VII

to apply to discrimination by United

States nationals abroad. In 1975, former

Assistant Attorney General Scalia

testified before Congress that the alien

exemption clause jmplies that Title VII

applies abroad. Foreign Investment and

Arab Boycott Legislation: Hearings Before

the Subcomm. on International Finance of

the Senate Comm. on Banking, Housing and

- 21 <-

Urban Affairs, 94th Cong., lst Sess. 165

(1975) .2/

B. A Comparison of Title VII with

other Statutes Supports a

Finding of Extraterritorial

Application

A comparison of Title ViI with other

statutes supports a finding of

extraterritorial application in this

case. Although Title VII regulates

relationships between employers and

employees, it is a civil rights statute

2/ Consistent with the tenet that § 703

of Title VII applies

extraterritorially to private

discriminatory conduct, § 717 of

Title VII, 42 U.S.C. §2000e-16,

applies extraterritorially to the

discriminatory conduct of federal

agencies. See, e.g., Brown v.

Marsh, 777 F.2d 8 (D.C. Cir. 1985)

(applying § 717(c) of Title VII

extraterritorially to cover

discriminatory conduct of the United

States Army).

|

:

.

.

- 22 -

and thus distinct from labor management

relations statutes which have been held

not to apply extraterritorially.

1. The 1984 Amendment of the Age

Discrimination in Employment Act

Supports A Similar Extraterri-

torial Application of Title VII

The recent amendment of the Age

Discrimination in Employment Act

{hereinafter ADEA] to allow for

extraterritorial jurisdiction supports a

similar application of Title VII. In

1984, after several circuit courts had

inappropriately held that the ADEA did not

apply extraterritorially, Congress amended _

the statute’s definition of employee to

include United States nationals employed

by an employer in a foreign country. 29

U.S.C. § 630(f) (1989).

a

- 23 -

In amending the ADEA, then Senator

Grassley, sponsor of the ADEA amendments,

stated that "the substantive prohibitions

of the [ADEA] were worded nearly exactly

as those in Title VII, which at least two

district courts have held does apply

abroad," and argued that this proposed

amendment would "clear [ ] up an anomaly"

that "Congress never intended." 129 Cong.

Rec. 34,499 (1983).

If Title VII is now construed so as

to not afford protection to American

citizens employed abroad from private

discriminatory conduct, the only type of

prohibited discrimination will be based on

age with no protection for the more

traditionally protected categories of

race, color, sex, religion or national

origin. Clearly such a result is

- 24 <-

unwarranted. Cf. Diller, Title VII of the

Civil Rights Act of 1964 and the

Multinational Enterprise, 73 Geo. L.J.

1465, 1481-1482 (1985) (". . . [The]

constitutional status [of Title VII] may

support greater legislative concern with

private discrimination of the sort

prohibited by Title VII. ...

[D])iscrimination on the basis of age has

not reached constitutional stature and

does not merit the same level of concern")

(hereinafter Diller]. The fact that

Congress has not amended Title VII to

address this policy evidences its belief

that Title VII was intended to, and

therefore does, apply to protect American

citizens employed by American employers on

foreign soil.

- 25 -

i as

2. Although Title VII Regulates the

Relationship Between Employer

and Employee, Title VII is a

Civil Rights Statute and is

Therefore Distinct From Labor

Management Relations Statutes _

Although Title VII is a statute

which regulates the relationship between

employer and employee, it is distinct from

statutes regulating labor relations which

have been denied extraterritorial

application even where both parties to the

suit are United States nationals as in

this case. +/ Unlike the labor

4/ See e.g., McCulloch v. Sociedad

’

372 U.S. 10, 22 (1963). (The

Supreme Court held that Congress had

not demonstrated the requisite clear

intent in the Labor Management

Relations Act and that therefore,

the protections of that Act did not

extend extraterritorially); Foley

Bros., 336 U.S. at 286 n.2. (The

Supreme Court held that the

jurisdiction of the Eight Hour Law

did not apply extraterritorially).

- 26 -

management relations statutes,

extraterritorial application of Title VII

would grant the United States jurisdiction

to protect fundamental, inherently

individual rights of American laborers

from infringement by American employers.

See generally Diller, supra, at 1480. ("A

primary difference between Title VII and

the employment-related statutes that have

been denied extraterritorial application

is Title VII’s explicit exclusion of

aliens employed abroad. [footnote

omitted]. The restricted statutes contain

no such exclusion and thus present no

formal bar to extending United States

jurisdiction from the United States

plaintiff in the case before the court to

foreseeable alien plaintiffs claiming

United States statutory protections over

their employment conditions

- 27 -

+ oe a ose! ede Len On

abroad... . [footnote omitted].

Unlike these statutes regulating

collective interests in labor-management

relations, Title VII exhibits legislative

concern for the protection of individual

interests").

II. THE EXTRATERRITORIAL APPLICATION OF

TITLE VII IN THIS CASE IS CONSISTENT

WITH ESTABLISHED PRINCIPLES OF

INTERNATIONAL LAW AND REACHES

DISCRIMINATORY EMPLOYMENT PRACTICES

BY AMERICAN CORPORATIONS AGAINST

AMERICAN CITIZENS ABROAD _

The extraterritorial application of

Title VII in this case is consistent with

established principles of international

law because both plaintiff and defendant

are United States nationals and because

application of the law extraterritorally

is not unreasonable. Under international

law, “the jurisdiction of a state depends

- 28 -

on the interest that state, in view of its

nature and purposes, may reasonably have

in exercising the particular jurisdiction

asserted and on the need to reconcile that

interest with the interests of other

states in exercising jurisdiction." L.

Henkin, R. Pugh, 0. Schachter & H. Smit,

International Law 823 (2d ed. 1987)

(hereinafter International Law).

Moreover, the “nature and significance of

the interests of a state in exercising

jurisdiction depend on the relation of the

transaction, occurrence, or event, and of

the person to be affected, to the state’s

proper concerns." Jd.

The Restatement (Third) of Foreign

Relations Law of the United States

identifies the circumstances which justify

a state’s exercise of extraterritorial

- 29 -

jurisdiction. In analyzing whether

discriminatory conduct under Title VII may

be applied to United States nationals

abroad, the jurisdictional question

involves the ability of a state to

prescribe, that is, to make its law

applicable to the activities, relations or

status of persons, or the interest of

persons in things. Restatement (Third) of

Foreign Relations Law of the United States

§ 401(a) (1987) (hereinafter Third

Restatement). The Third Restatement

provides a two-pronged test to determine

the legitimacy of exercising

extraterritorial jurisdiction. First,

there must be a jurisdictional basis to

prescribe. Jd. at § 402. Second, the

assertion of jurisdiction must not be

unreasonable. Jd. at § 403(1). As shown

below, in this case, there is both a

- 30 -

jurisdictional basis for the United States

to prescribe the activities of its

nationals abroad, and the assertion of

that jurisdiction is not unreasonable.

A. Under the Nationality Principle,

Title VII Applies to the Conduct

in this Case Because Respondents

and Petitioner are United States

Nationals

The jurisdictional basis for

applying Title VII extraterritorially to

the conduct in this case is found in the

nationality principle of jurisdiction.

The Third Restatement provides that "a

state has jurisdiction to prescribe law

with respect to... the activities,

interests, status, or relations of its

nationals outside as well as within its

territory. ..." Jd, at § 402(2). This

basis of jurisdiction, known as the

- 31 <=

nationality principle, applies to

juridical persons such as corporations.

The nationality of a corporation is that

of the state under whose law it is

organized. Jd. at § 402 comment e.

The nationality principle recognizes

a state’s significant interest in

exercising jurisdiction over the conduct

of any national, whether an individual or

corporation, and in protecting its

nationals. International Law at 823.

Consequently, an application of the

nationality principle in this case

requires a determination whether the

parties are United States nationals. If

the alleged discriminatory conduct was

committed abroad by an

employer-corporation of United States

nationality against an employee who is a

United States citizen, then the bases for

application of the nationality principle

allow prescription of such conduct by the

United States.

The record in this case firmly

establishes that petitioner is a United

States citizen and that both the Arabian

American Oil Company and its subsidiary,

ARAMCO Services Company were United States

corporations at the time the alleged

discriminatory conduct occurred.

Petitioner worked for ARAMCO, a United

States corporation, until he was fired in

June, 1984. 2/ Unlike a situation where

2/ Although the respondent ASC is now a

wholly-owned subsidiary of the Saudi

Arabian Oil Company, a Saudi Arabian

company, ASC was a Delaware

corporation with its principle place

[Footnote Continued On Next Page)

- 33 -

lala

American law might be forced upon

unwilling foreign parties, respondents

ARAMCO and ASC were both United States

nationals at the time the alleged

discriminatory conduct occurred. As such,

they are subject to United States law

under the nationality principle.

In sum, international law permits

the assertion of the nationality principle

to hold that Title VII applies to the

discriminatory conduct of individuals and

corporations of United States

3/ [Footnote Continued From Previous

Page}

of business in Houston, Texas at the

time it hired petitioner in 1979.

The petitioner applied for

employment with ASC’s parent

company, respondent Arabian American

Oil Company, a Delaware corporation

with its principle place of business

in Dhahran, Saudi Arabia.

nationality. 2 That the prohibited

conduct occurred in a foreign country does

not destroy jurisdiction but requires only

that such exercise be reasonable.

|

;

8/ The nationality principle has been

the subject of previous Title VII

litigation involving affiliated

foreign entities of American

corporations. See, ¢@.9., Bryant v.

International School Serv., Inc.

502 F. Supp. 472, 482 (D. N.J.

1980), xev’d on other grounds, 675

F.2d 562 (3d Cir. 1982) (in applying

Title VII to the discriminatory

conduct of a branch office of a

United States corporation in Iran,

the district court relied on

numerous Supreme Court cases

applying the nationality principle

to assert various United States

statutes extraterritorially). See

also Third Restatement § 414

(detailing the exercise of

jurisdiction with respect to

activities of foreign branches and

subsidiaries).

a

B. Respondent is Properly Under

United States Jurisdiction

Because the Exercise of

Extraterritorial Jurisdiction

is not Unreasonable

It is a universally recognized

principle of international law that a

country may govern the conduct of its

citizens in foreign countries when the

exercise of such jurisdiction is

reasonable. See, e.g., Third Restatement

§ 403 comment a (the principle that an

exercise of jurisdiction on the basis of

nationality “is nonetheless unlawful if it

is unreasonable is established United

States law, and has emerged as a principle

of international law as well"). The Third

Restatement provides that a determination

whether an exercise of jurisdiction is

unreasonable is “determined by evaluating

all relevant factors." Third Restatement

at § 403(2). Those factors consist of the

following:

(a) the link of the activity to the

territory of the regulating

state, i.e., the extent to which

the activity takes place within

the territory, or has

substantial, direct, and

foreseeable effect upon or in

the territory;

(b) the connections, such as

nationality, residence, or

economic activity, between the

regulating state and the person

principally responsible for the

activity to be regulated, or

between that state and those

whom the regulation is designed

to protect;

(c) the character of the activity to

be regulated, the importance of

regulation to the regulating

state, the extent to which other

states regulate such activities,

and the degree to which the

desirability of such regulation

is generally accepted;

(dad) the existence of justified

expectations that might be

protected or hurt by the

regulation;

id.

(e)

(f)

(g)

(h)

the importance of the regulation

to the international political,

legal, or economic system;

the extent to which the

regulation is consistent with

the traditions of the

international system;

the extent to which another

state may have an interest in

regulating the activity; and

the likelihood of conflict with

regulation by another state.

An application of the above factors to

this case demonstrates that application of

Title VII here would not be unreasonable

and thus the exercise of jurisdiction in

this case is justified under international

law.

(1) The United States Has a Strong

and Legitimate Interest in

Protecting Citizens Employed

Abroad by American Corporations

from Discrimination in

Employment

A factor in considering whether the

exercise of exterritorial jurisdiction is

reasonable is "the connections, such as

nationality, residence, or economic

activity, between the regulating state and

the person principally responsible for the

activity to be regulated, or between that

state and those whom the regulation is

designed to protect." Third Restatement at

§403(2)(b). An examination of this factor

reveals the reasonableness of the

application of United States law abroad in

this case because both respondents and

Boureslan are United States nationals.

- 39 -

ee me Ne ae el alae

Although ARAMCO’s principal place of

business is in Saudi Arabia, as noted

supra, it is incorporated in the United

States and the person to be protected is

an American citizen. Protecting a U.S.

national abroad based on nationality is a

factor which weighs heavily in favor of

applying United States law. Note, Equal

Employment Opportunity For Americans

Abroad, 62 N.Y.U. L. Rev. 1288, 1320

(1987).

As the dissent in the opinion below

noted, employment discrimination by

American employers against American

citizens, wherever practiced, has

devastating effects both on the economy of

this country and on the dignity and

livelihoods of Americans who have come to

rely on civil rights legislation.

- 40 =-

Boureslan, 892 F.2d at 1282 (King, J.,

dissenting). The number of Americans

employed abroad is greater now than at any

other time in United States history and is

continually increasing. In those

corporations in which successful

performance in overseas assignments is

essential or desirable for promotion, the

effects of discrimination abroad will be

reflected in employment decisions and

career paths within the United States.

For all of the above reasons, the strong

connections of the United States to the

parties and activity in this case bear out

the reasonableness of applying Title VII

under these circumstances.

- 41 =

(2) The Regulation of Discrimination

Under Title VII Involves

Fundamental Human Rights and is

Important to the United

States

In accordance with the Third

Restatement, § 403(2), the exercise of

extraterritorial jurisdiction in this case

is not unreasonable because the regulation

of employment discrimination involves

fundamental and generally-accepted human

rights and is important to the United

States. Indeed, the claim to equality,

enforced under Title VII has been termed

"the starting point of alli other

liberties." H. Lauterpacht, International

Bill of Rights of Man, 115 (1945), quoted

in Ramcharan, “Equality and Justice," jn,

The International Bill of Rights 247 (L.

Henkin ed. 1981) [hereinafter Ramcharan).

The inherent dignity and equal and

inalienable rights of "all members of the

- 42 -

human family" are recognized in the

opening lines of the Universal Declaration

of Human Rights, which was passed

unanimously by the United Nations General

Assembly on Dec. 10, 1948, as a “common

standard of achievement for all peoples

and all nations as “the foundation of

freedom, justice, and peace in the

world. *2/ Id. at 247. The Universal

LY/ The principles of equality and

nondiscrimination in the

international law of human rights

were eloquently described in an

address by the Head of the Federal

Political Department of Switzerland

at the opening of the World

Conference to Combat Racism and

Racial Discrimination on August 14,

1978:

Of all human rights, the right

to equality is one of the most

important. It is linked to the

concepts of liberty and justice,

and is manifested through the

observance of two fundamental

[Footnote Continued On Next Page)

- 43 -

Declaration of Human Rights, also declares

that:

Everyone is entitled to all the

rights and freedoms set forth in

this declaration, without

distinction of any kind, such as

race, color, sex, language,

religion, political or other

opinion, national or social

origin, property, birth or other

status...

Universal Declaration of Human Rights,

G.A. Res. 217, 3 U.N. GAOR (No. 1) at 71,

L/ [Footnote Continued From Previous

Page)

and complementary principles of

international law. The first of

. these principles, that "all

| human bei are born free and

| equal in dignity and rights,"

appears in the 1948 Universal

Declwration of Human Rights; the

second, the principle of

nondiscrimination, has been

solemnly reaffirmed in Article 1

of the Charter of the United

Nations.

See Report of the World Conference to

Combat Racism and Racial Discrimination,

U.N. Doc. A/CONF. 92/40 Annex 1C (1979).

- 44 -

U.N. Doc. A/81l (1949). Moreover, the

principles of equality and

nondiscrimination have been widely

acknowledged as forming part of

international customary law. 2/

&/ Ramcharan, gupra, at 247, 249

(1981). In fact, some have even

argued that the ideals of

international rights are jus cogens

and are thus preemptory norms

binding on all as superior law.

Articles 2(1), 3, and 26 of the

International Covenant on Civil and

Political Rights set forth five

related principles: (1) the

principle of equal enjoyment of

rights; (2) the general principle of

equality and the corollary principle

of equality between men and women;

(3) the principle of equality before

the law and equality before the

courts; (4) the principle of equal

protection of the law; and (5) the

principle of nondiscrimination.

International Covenant on Civil and

Political Rights, G.A. Res. 2200, 21

GAOR Supp. (No. 16) at 52, U.N. DOC.

A/6316 (1976). The principles of

equality and nondiscrimination were

intended to be in effect the same

[Footnote Continued On Next Page)

There is a growing international

consensus against the type of

discrimination prohibited by

Title vir.2/ Consequently,

international attention has increasingly

focused on enforcing fair employment

requirements. That no person shall be

8/ [Footnote Continued From Previous

Page]

principles as those contained in the

United Nations Charter, the

Universal Declaration, and the

International Covenant on Economic,

Social and Cultural Rights.

2/ The international community has

adopted many conventions deploring

discrimination including the

International Convention on the

Elimination of All Forms of Racial

Discrimination, G.A. Res. 2106, 21

GAOR Supp. (No. 14) at 47, U.N. DOC.

A/6014 (1969); Convention on the

Elimination of All Forms of

Discrimination Against Women, G.A.

Res. 34/180, U.N. DOC. A/34/46

(1979); and the International Labour

Organization Convention (No. 111)

Concerning Discrimination in Respect

of Employment and Occupation, 362

U.N.T.S. 31 (1958).

- 46 -

deprived of the right to employment based

on race, color, sex, religion, or national

origin has finally received global

recognition. Street, Fair Employment

Practices and International Commerce, 34

National Bar Association Magazine (1990)

(hereinafter Street]. All the member

states of the United Nations, furthermore,

have pledged to promote and encourage

respect for human rights and for

fundamental freedoms for all without

discrimination. [JId.

The International Covenant on

Economic, Social, and Cultural Rights*¥

reiterates the principle of

nondiscrimination in employment and

demonstrates the international community’s

10/ G.A. Res. 220, 21 GAOR Supp. (No.

16) at 49, U.N. Doc. A/6316 (1976).

- 47 -

desire to address the need for uniform

employment rights for all working

individuals. Street, gupra, at 34.

Article 2(2) of the Covenant provides that:

The States Parties to the present

Covenant undertake to guarantee that

the rights enunciated in the present

covenant will be exercised without

discrimination of any kind as to

race, color, sex, language, religion

- « « [or]) national or social

origin.

Id. at Art. 2. Furthermore, Article 6

recognizes “the right to work" as an

economic freedom. Jd. at Art. 6. Such

provisions are best understood to mean

that individuals have a right to

employment without regard to race, color,

creed, sex, religion, language, or

national origin. Street, gupra, at 34.

Regional enforcement of such norms

is also in practice. For example, in

light of the move in 1992 toward a

collective trade agreement, an increasing

number of legal proceedings are occurring

in the European Economic Community to

enforce fair employment requirements

against employers. f§ee Id., at 18.

In 1944, the International Labour

Organization (hereinafter ILO) established

the principle of non-discrimination in

employment. Street, International

Commercial and Labor Migration

Requirements as a Bar to Discriminatory

Employment Practices, 31 Howard L.J. 497,

499 n.5 (1988). In 1958, the ILO declared

the protection of employees against

inequalities based on race, color, sex,

religion, political opinion, national

extraction or social origin in the

International Labour Organization

Convention (No. 111) Concerning

Discrimination in Respect of Employment

and Occupation, 362 U.N.T.S. 31 (1958).

The United States is presently examining

American labor and employment laws

relating to Convention No. 111. Saudi

Arabia and at least 108 nation members of

the ILO have already ratified Convention

(No. 111).

The importance to the United States

of protecting its citizens against

discrimination is in accord with the

grwwing international consensus against

discrimination based on race, religion,

sex, and national origin. The number of

Americans employed by American firms

overseas is substantial. Currently, it is

estimated that over 2000 United States

firms operate more than 21,000 foreign

subsidiaries in at least 121 foreign

nations. Introduction to 1 World Trade

Academy Press. Directory of American Firms

Qperating in Foreign Counzries (10th ed.

1984). The State Department has estimated

that almost 2.2 million American citizens

reside abroad. See The World Almanac and

Book of Facts: 1990 555 (1989). The

United States has demonstrated its

commitment to eliminating discrimination

by enacting and enforcing numerous laws to

that end.44” see Alaska Packers Ass’n_

ii/—s In the employment area, Congress has

demonstrated such commitment by

passing Title VII and other

legislation such as the 1977

Amendments to the Export

Administration Act. Note, Equal

Employment Opportunity For Americans

Abroad, supra, at 1321-1322 (citing

50 U.S.C. » § 2407(a) (1) (B)

(1982) (prohibiting discrimination

against any United States person in

support of boycott against country

friendly to United States)).

vy. Industrial Accident Comm’n, 294 U.S.

532, 543 (1935) ("States, of course, have

‘as great an interest in affording

adequate protection’ to individuals who

are employed by companies incorporated

there and work outside the state as to

employees within the state").

(3) Americans Have a Legitimate

Expectation That will

Not Lose the Protection of Title

VII When They Accept a Position

with the Foreign Office of a

U.S. Firm

Another factor examined in

determining reasonableness is “the

existence of justified expectations that

might be protected or hurt by the

regulation.” Third Restatement at

§ 403(2)(d). As an American citizen,

petitioner justifiably expected that the

anti-discrimination protections he was

afforded while in the United States would

also apply while working for an American

company in a foreign country. Such

expectations are especially strong for

United States citizens when only the mere

location of employment has changed but

neither their qualifications nor job

description has been varied. Given the

involvement of both an American citizen

and an American company, it was reasonable

for Boureslan to justifiably expect

Title VII to apply and to protect him from

discrimination.

(4) The Potential for Conflicts with

Foreign Law are Negligible ._

A final factor in determining the

reasonableness of extraterritorial

application of a statute is "the

likelihood of conflict with regulation by

another state." Third Restatement at

- 53 -

§403(2)(h). The definition of conflict is

quite narrow. Comment e states that

§ 403(3) “applies only when one state

requires what another prohibits, or where

compliance with the regulations of two

states exercising jurisdiction

consistently with this section is

otherwise impossible." This definition

excludes the situation in which a person

can comply with the laws of both states.

Third Restatement § 403 comment e. In

this case, application of Title VII

comports with Saudi Arabia’s domestic law

and international obligations.

The Saudi Arabian law applying to

contractual relationships between

employers and employees is set forth in

the Saudi Arabian Labour and Workmen

Regulations of 1969, Royal Decree No.

M/21: Labour Code (15 November 1969)

{hereinafter Saudi Labour Code). The

Saudi Labour Code prohibits discrimination

in general terms. For example, Article

91(a) obliges an employer to "treat his

employees with respect and refrain from

any word or act that may affect their

dignity or religion." Article 22 declares

practices inconsistent with "the freedom

to work" to be illegal. The Saudi Labour

Code also provides procedural remedies for

employees “dismissed for no valid

reason." Saudi Labour Code Art. 74

(describing factors to be considered in

assessing damage), Art. 75 (delineating a

terminated employee’s procedural

remedies); see also Lerrick & Mian at 42

("the employer’s act of termination [under

the Saudi Labour Code) may not be

arbitrary, nor imputable to a

discriminatory, retaliatory, or in general

bad faith purpose"). Moreover, although

Saudi Arabia has enacted employment laws,

Saudi legislation does not specifically

state that those laws apply to the

employment activity between foreign

citizens and foreign companies on Saudi

soil. Given this lack of specificity in

the Saudi employment laws, it is

impossible to ascertain "to what extent a

foreign state would enforce its own laws

to regulate the employment relationship

between a United States corporation and

employees who are United States citizens,

or whether it would make its

administrative and judicial procedures

available to a United States employee

seeking to bring a grievance against a

United States employer." Boureslan v.

Aramco, Arabian American Oi] Co. & Aramco

= $6 -

Serv. Co., 857 F.2d 1014, 1028 (Sth Cir.)

reh’g granted, 863 F.2d 8 (1988), aff'd,

892 F.2d 1271 (1990), (King, J.,

dissenting), cert. granted, EEOC v.

Arabian American Oi] Co., ___iU.S.

111 S. Ct. 40 (1990). In sum, since Savii

employment laws may not apply to

Giscrimiratory practices of American

employers against American employees, the

likelihood of conflict with the Saudi

Labour Code appears minimal.

Title VII also comports with Saudi

Arabia’s international obligations. Saudi

Arabia is a signatory to the International

Labour Organization Convention (No. 111)

Concerning Discrimination in Respect of

Employment and Occupation, 362 U.N.T.S. 31

(1958) (hereinafter ILO (No. 111))} which

is a multilateral treaty conceived under

the authority of the International Labour

Organization. In Article 1, the ILO (No.

111) defines discrimination as “any

distinction, exclusion or preference made

on basis of race, colour, sex, religion,

political opinion, national extraction or

social origin which has the effect of

nullifying or impairing equality of

opportunity or treatment in employment or

occupation.” Jd. at Art. 1(1)(a). As a

member state to the Convention, Saudi

Arabia thereby seeks to protect its

citizens from the forms of discrimination

prohibited verbatim by Title VII as well

as a broader range of discriminatory

practices set forth in ILO (No. 111). In

this instance, the extraterritorial

application of Title VII mirrors the

antidiscriminatory purpose of the

Convention. Not only does Title VII

comport with Saudi Arabia’s domestic laws

and international obligations, but the

“likelihood of conflict" between Saudi law

and Title VII is negligible.

Given the narrow definition of a

conflict, it is highly unlikely that

application of Title VII in this case will

cause an actual conflict between United

States law and Saudi law. An actual

conflict does not arise merely because one

state has already exercised jurisdiction

with respect to a given person or activity

or simply because one state has “a strong

p licy to permit or encourage an activity

which the other state wishes to

prohibit." Third Restatement at § 403

comment d. Indeed, Title VII itself

provides for minimizing potential

conflicts with foreign laws through the

bona fide occupational qualification

(hereinafter BFOQ] exception. 42 U.S.C.

§ 2000e-2(e) (1981). See, e.g., Kern v.

Dynaelectron, 577 F. Supp. 1196 (N.D. Tex.

1983), aff’d mem., 746 F.2d 810 (5th Cir.

1984) (employer’s requirement of Moslem

pilots to fly helicopters into Mecca

constituted BFOQ when Saudi law imposed

death penalty on non-Moslems entering

Mecca). ,

Furthermore, as aptly noted in the

dissent below, 857 F.2d at 1031 (King, J.,

dissenting), the application of Title VII

to discriminatory practices by American

employers against American employees would

not be an affront to the concept of state

sovereignty. Comment d of §403 of the

Third Restatement states that concurrent

jurisdiction may be reasonable, "for

example, when one state exercises

jurisdiction on the basis of

territoriality and the other on the basis

of nationality; or when one state

exercises jurisdiction over activity in

its territory and the other on the basis

of the effect of that activity in its

territory..." In the present case, the

reasonableness of applying Title VII

extraterritorially is supported by the

availability of concurrent jurisdiction

and the United States’ intention to apply

this provision only to its own nationals.

Id.

sf

a

:

|

:

The right to equality and

nondiscrimination is widely recognized

within the international community .+4/

As previously discussed, the changing

world economy and increasing global

interdependence has resulted in unifying

initiatives for international employment

requirements which play a significant role

in focusing international efforts on the

common sense principle of fair play and

equal employment opportunity for all.

Street, supra, at 34. Thus, global

awareness of the right to employment free

from discrimination has become a part of

international jurisprude: e. Id.

12/ For instance, equality and

nondiscrimination constitute the

dominant single theme of the

International Covenant on Civil and

Political Rights, G.A. Res. 2200, 21

GAOR Supp. (No. 16) at 52, U.N. DOC

A/6316 (1976). Ramcharan, at 247.

The United States adheres to the

principles of equality and

nondiscrimination and enacted Title VII to

implement a national goal of the “highest

priority." Alexander v. Gardner-Denver

Co., 415 U.S. 36, 47 (1974).

Congress’s intent to enforce

Title VII’s prohibitions to the conduct of

United States corporations affecting

United States nationals abroad is evident

from the language of the statute,

legislative history, administrative

decisions, and a comparison of Title VII

with other United States statutes

Now, for the first time in Title

VII’s 26-year history, a federal trial and

appellate court have held that

discrimination inflicted on American

citizens by American employers does not

violate federal civil rights legislation

if it transpires outside the United

States. Contrary to such a conclusion,

expressed Congressional intent and

international jurisdictional principles

; support extraterritorial application of

Title VII. In reversing the decisions

below, this Court will further Congress’s

attempt to ensure that all Americans, both

inside and outside the United States, are

free from suffering the intolerable

consequences of discrimination.

- 64 -

For the foregoing reasons, the

decisions below should be reversed.

Respectfully submitted,

Robert Plotkin, Esquire

Counsel of Record

Michelle D. Bernard, Esquire

Jacqueline F. Brown, Esquire

Conan Louis, Esquire

William S. Shackelford, Esquire

WASHINGTON, PERITO & DUBUC

1120 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 857-4000

Attorneys for Amicus Curiae

THE INTERNATIONAL HUMAN RIGHTS

LAW GROUP

OF COUNSEL

Steven M. Schneebaum, Esquire

Janelle M. Diller, Esquire

THE INTERNATIONAL HUMAN RIGHTS

LAW GROUP

1601 Connecticut Avenue, N.W.

Suite 700

Washington, D.C. 20009

(202) 232-8500

DATED: November 15, 1990

0702N/6798z

- 65 -

APPENDIX

APPENDIX A

INTERNATIONAL LABOR ORGANIZATION

CONVENTION (NO. 111) CONCERNING

DISCRIMINATION IN RESPECT OF

EMPLOYMENT AND OCCUPATION

362 U.N.T.S. 31 (1958)

Article 1

1. For the purpose of this Convention

the term "discrimination" includes--

(a) any distinction, exclusion or

preference made on the basis of

race, colour, sex, religion,

political opinion, national

extraction or social origin, which

has the effect of nullifying or

impairing equality of opportunity or

treatment in employment or

occupation;

(b) such other distinction, exclusion or

preference which has the effect of

nullifying or impairing equality of

opportunity or treatment in

employment or occupation as may be

determined by the Member concerned

after consultation with

representative employers’ and

workers’ organizations, where such

exist, and with other appropriate

bodies.

2. Any distinction, exclusion or

preference in respect of a particular job

based on the inherent requirements thereof

shall not be deemed to be discrimination.

3. For the purpose of this Convention

the terms “employment” and "occupation"

include access to vocational training,

access to employment and to particular

occupations, and terms and conditions of

employment.

Article 2

Each Member for which this

Convention is in force undertakes to

declare and pursue a national policy

designed to promote, by methods

appropriate to national conditions and

practice, equality of opportunity and

treatment in respect of employment and

occupation, with a view to eliminating any

discrimination in respect thereof.

Article 3

Each Member for which this

Convention is in force undertakes by

methods appropriate to national conditions

and practice--

(a) to seek the co-operation of

employers’ and workers’

organizations and other appropriate

bodies in promoting the acceptance

and observance of this policy;

(b) to enact such legislation and to

promote such educational programmes

as may be calculated to secure the

acceptance and observance of the

policy;

(Cc)

(d)

(e)

(f)

to repeal any statutory provisions

modify any administrative

instructions or practices which are

inconsistent with the policy;

to pursue the policy in respect of

employment under the direct control

of a national authority;

to ensure observance of the policy

in the activities of vocational

guidance, vocational training and

placement services under the

direction of a national authority;

to indicate in its annual reports on

the application of the Convention

the action taken in pursuance of the

policy and the results secured by

such action.

APPENDIX B

The Age Discrimination in Employment Act

of 1967 provides in pertinent part:

(h) Practices of foreign corporations

controlled by American employers;

foreign persons not controlled by

American employers; factors

determining control

(1)

If an employer controls a

corporation whose place of incorporation

is in a foreign country, any practice by

such corporation prohibited under this

section shall be presumed to be such

practice by such employer.

(2)

The prohibitions of this

section shall not apply where the employer

is a foreign person not controlled by an

American employer.

(3)

For the purpose of this

subsection the determination of whether an

employer controls a corporation shall be

based upon the--

(A)

(B)

(C)

(D)

29 U.S.C.

interrelation of operations,

common management,

centralized control of labor

relations, and

common ownership cf financial

control, of the employer and the

corporation.

§ 623(h) (1989).

APPENDIX C

Title VII of the Civil Rights Act of 1964

provides in pertinent part:

This subchapter shall not apply to

an employer with respect to the employment

of aliens outside any State, or to a

religious corporation, association,

educational institution, or society with

respect to the employment of individuals

of a particular religion to perform work

connected with the carrying on by such

corporation, association, educatioral

institution, or society of its activities.

42 U.S.C. § 2000e-2(a) (Title VII,

§ 703(a)).

(a) It shall be an unlawful employment

practice for an employer--

(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

discriminate against any individual with

respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual’s race, color,

religion, sex, or national origin; or

(2) to limit, segregate, or

Classify his employees or applicants for

employment in any way which would deprive

or tend to deprive any individual of

employment opportunities or otherwise

adversely affect his status as an

employee, because of such individual’s

race, color, religion, sex, or national

origin.

42 U.S.C. § 2000e-1 (Title VII, §702)

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Ao a ly A a A

APPENDIX D

Saudi Arabian Labour and Workmen

Regulations of 1969, Royal Decree

No. M/21: Labour Code (15 November 1969)

Article 22

It is illegal for any employee or

employer to do any act that may constitute

an abuse of any of the provisions of this

Code, or of the decisions and rules issued

in execution of the provisions hereof. It

is also illegal for any employee or

employer to do any act that may bring

pressure to bear on the freedom of the

other or on the freedom of other employees

or employers with the object of obtaining

any interest or supporting any point of

view and which is inconsistent with the

freedom of work and the jurisdiction of

the authorities concerned with the

settlement of disputes.

Any offender shall be liable to the

penalties provided for in this Code and in

the general regulations.

ee

Article 74

If the contract is cancelled for no

valid reason, the party prejudiced by such

cancellation shall be entitled to

compensate to be assessed by the competent

board. Provided that such assessment

shall take into account actual and

contingent material and moral prejudice

suffered by such party. In the case of

the employee such assessment shall take

into account the nature of the work, the

period of service, the employee’s age, the

pay he was receiving, his family

responsibilities, the extent to which his

income from his new job is lower than the

income from his old job, the degree of

arbitrariness of the decision to dismiss

him, the extent to which this decision

affects his reputation, and any other

conditions and concomitant circumstances

in accordance with the rules of equity and

current generally accepted practice.

Article 75

An employee who is dismissed for no

valid reason may apply for a stay of

execution of such dismissal. The

application shall bé submitted to the

director of the labour office of the area

in which his workplace is located, within

a period not exceeding fifteen days from

the date on which the employer delivers

the dismissal notice to the employee or

notifies him of such dismissal by

registered letter or by any other means

proving receipt. The director of the

appropriate labour office shall,

immediately upon submission of the

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application to him, take the necessary

action to settle the dispute amicably. If

a settlement is not reached the director

shall, within one week from the date of

submission of the application, refer the

same to the appropriate board of the area

in which the workplace is located,

together with a memorandum, in five

copies, containing a summary of the

dispute and the arguments of both parties,

accompanied by the labour office’s

comments and recommendations for the

settlement of the dispute.

The chairman of the board shall,

within three days from the date of

referral of the application to the board,

fix a hearing for the examination of the

stay of execution, within two weeks from

the date of such referral. The employee

and the employer shall be given notice of

the time and place of the hearing, and

both the employee and the employer shall

be summoned to attend such hearing.

A copy of the memorandum from the

labour office shall be attached to each

notice, which shall be served by

registered letter or by any other means

proving receipt.

The board shall expeditiously decide

on the application for stay of execution

within two weeks from the date of the

first hearing. Its decision in this

respect shall be final. The decision

shall fix a date for a hearing to examine

the basic issue within the week following

the issuance of the decision. If the

board orders a stay of execution, the

employer shall simultaneously be ordered

to pay to the employee forthwith a sum

equivalent to his pay from the date of his

dismissal.

The employer may, within one week at

the most from the date of issuance of the

decision ordering the stay of execution,

reinstate the employee in his post and pay

him his wage arrears, whereupon the

dispute shall be considered settled and

such settlement shall be recorded in a

report to be drawn up before the chairman

of the board, signed by the employer and

the employee and approved by the chairman

of the board. This report shall have the

force of a decision issued by the board.

If the said period expires and no

settlement is reached, the board shall

decide on the basic issue within a period

not exceeding fifteen days from the date

of issuance of the decision ordering the

stay of execution.

If the board finds that the

employee’s dismissal was without valid

justification, it may order his

reinstatement with payment of his wage

arrears, or it may order payment of his

statutory entitlements as well as any

compensation due him for damages he has

sustained. The onus of proof that the

dismissal was for a valid reason shall lie

with the employer. The board’s decision

in this respect shall be considered a

decision of first instance.

Dismissal shall be regarded as

having no valid reason if it is

established that it followed the

employee’s demand for legitimate rights

D-4

et noth eed owt

due to him by the employer and no other

valid reason for termination is

established. In such case, the employer

shall be ordered to reinstate the

employee, pay his wages from the date of

his dismissal to the date of his

reinstatement, and to consider his

services as continuous.

The employee’s dismissal shall also

be regarded as being without valid

justification of such dismissal was caused

by the employee’s refusal to comply with

an order transferring him from his

original place of employment when such

transfer is not based on an adequate,

valid reason dictated by work

requirements, or is such as to cause

serious prejudice to the employee. In

such case the employer shall also be

ordered to return the employee to his

original place of employment and to pay

his wage arrears from the date of his

dismissal to the date of his

reinstatement, and to consider his

services as continuous.

The employee’s right to apply for a

stay of execution of the decision to

dismiss him shall lapse if he fails to

submit his application within the

prescribed period of fifteen days, without

prejudice to his right to claim his other

statutory rights within the one-year

period prescribed in section 13 of this

Code.

Article 91

In addition to the obligations

provided for in this Code and in the rules

and decisions issued for its

implementation, the employer shall:

(a) treat his employees with due respect

and refrain from any word or act

that may affect their dignity or

religion;

6034H