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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

—<-

ALI BOURESLAN and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioners,

—_—vV—

ARABIAN AMERICAN OIL COMPANY and

ARAMCO SERVICES COMPANY,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

: =—————aaoooEaEaEeE=al—=ae—e—eE=>=El=E—e=E=E=E=S=S=S=E_NELH"E

BRIEF OF THE SOCIETY FOR HUMAN

RESOURCES MANAGEMENT A£ AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

Of Counsel: KENNETH KIRSCHNER*

BREED, ABBOTT & JOHN E. PARAUDA

MORGAN Citicorp Center

153 East 53rd Street

New York, New York 10022

(212) 888-0800

—and—

Of Counsel: LAWRENCE Z. LORBER

KELLEY DRYE & 2300 M Street, N.W.

WARREN Washington, D.C. 20037

(202) 955-9600

Attorneys for Amicus Curiae

Society for Human Resources

Management

December 17, 1990 (* Counsel of Record)

;

TABLE OF CONTENTS

TABLE OF AUTHIORITIES ......cccccccccsccccess

STATEMENT OF INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT ....................4.

PPT TTTT TIT TTT TTT TT TTT TTT TTT TTL

1.

Il.

Ill.

lV.

EXCEPT FOR THE ADEA, CONGRESS

HAS NEVER SUBJECTED EMPLOYMENT

PRACTICES ABROAD TO U.S. PROTEC-

TIVE LABOR LEGISLATION..............

A. Title VII, Like Most Employment Laws,

Only Applies Within American Territorial

Ds Leetcbendntaseedenanseseoee

B. Similar to Other Protective Labor Legisla-

tion, Title VII's Legislative History Does

Not Support Extraterritorial Application. .

NO DEFERENCE SHOULD BE ACCORDED

TO THE EEOC’S INTERPRETATION OF

TITLE VII’s ALLEGED EXTRATERRITOR-

eee GPW s owcccccccccccecesececcces

CONGRESSIONAL ACTION SUBSEQUENT

TO THE PASSAGE OF TITLE VII SHOWS

THAT CONGRESS DID NOT PROVIDE

FOR TITLE VII’S EXTRATERRITORIAL

FP TREES co vec csccteecceccceseccocce

THE PRESUMPTION AGAINST EXIRA-

TERRITORIAL APPLICATION OF

UNITED STATES PROTECTIVE LABOR

LAWS IS BASED ON FIRM POLICY

ED Bre Ses vevenssdcevesevcccesesese:

1]

A. Practical Considerations of Title VII in a

Foreign Context Preclude Extraterritorial

AQGEREIBR «oc ccccccsseseuensenee

B. Congress Did Not Apply Title VIi to Many

Americans in the United States Let Alone

te TRess ARUGRG . cocccccteeesennenanee

C. The United States Government Itself Rec-

ognizes the Differences in Employment

Penctisss ABSGRG «.+cccccsseesennl

D. Principles of Foreign Sovereignty and

Comity Dictate that Title VII Not Be

Applied Extraterritorially................

CONCLUSION 2. cccccccccscenesenceueunnnee

PAGE

14

16

18

21

25

iil

TABLE OF AUTHORITIES

Cases PAGE

Abrams v. Baylor College of Medicine, 805 F.2d 528

Nee cs ccc cc cucesccecccces 16

Air Line Dispatchers Ass’n v. National Mediation

Board, 189 F.2d 685 (D.C. Cir.), cert. denied, 342

Nene eee cc ccc ec ccesccccscccece 5

Ambach v. Norwick, 441 U.S. 68 (1979) ............ 7

Ansonia Board of Education v. Philbrook, 479 U.S. 60

Nees cc ccc cc cccccccccccces 4

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

Nees ccc ccc eccceccecccces . 3

Boureslan v. Aramco, 857 F.2d 1014 (Sth Cir. 1988) . 14

Boureslan v. Aramco, 892 F.2d 1271 (Sth Cir. 1990) . 2, 13

Broussard v. L.H. Bossier, Inc., 789 F.2d 1158 (Sth

UEC CE GEES s ccecesceccccccccccccces 17

CFTC v. Nahas, 738 F.2d 487 (D.C. Cir. 1984)...... 9

Cabell v. Chavez-Salido, 454 U.S. 432 (1982)........ 7

Cleary v. United States Lines, Inc., 728 F.2d 607 (3d °

TEE CEES Gheseecccccccscccsccccescs: 9

Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.

Dee ee cs cess ccsccscncocceess 17

County of Washington, Oregon v. Gunther, 452 U.S.

Neck ce ccccccccccccccccces ]

DeYoreo v. Bell Helicopter Textron, Inc., 785 F.2d

Ne. cece ccc cccccccess 6

iv

PAGE

Donovan v. Texaco, Inc., 535 F. Supp. 641 (E.D. Tex.

1982), aff’d, 720 F.2d 825 (Sth Cir. 1983)......... 5

EEOC v. Cherokee Nation, 871 F.2d 937 (S.D. Fila.

— Prerryperrerr rere rrr ry re rey errr 17

EEOC vy. Kloster Cruise Ltd., 743 F. Supp. 856 (S.D.

Pek SR cscccesetsececsssccsdendeuussuseeeens 6

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)....7, 9-10

FTC v. Campagnie de Saint-Gobain-Pont-A-Mousson,

G56 F.28 BORD GAS. Ca. Bea cc cccccswtcccecess 9

Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir.

SOE nc ccnccnnescanesédbwenadsecusauasevenssact 16, 24

Foley v. Connelie, 435 U.S. 291 (1978).............. 7

Foley Bros. v. Filardo, 336 U.S. 281 (1949) ......... S 39

General Electric Co. v. Gilbert, 429 U.S. 125 (1976) . 9-10

Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir.

1981), vacated, 109 S. Ct. 1736 (1989) ............ 15

Johnson v. Transportation Agency, 480 U.S. 616

CRETE sn censnccuendacsnndndiandeeankitwesedearunt ]

Lopez v. Pan Am World Services, Inc., 813 F.2d 1118

it oS re re ry ere tre 6

MacNamara v. Korean Airlines, 863 F.2d 1135 (3d Cir.

1988), cert. denied, 110 S. Ct. 349 (1989) ......... &

McCulloch v. Sociedad Nacional de Marineros de Hon-

Qe, Soe Ws Be ek 6 6c caceckaciveducdssere 5, a8

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . 5

Office of Communication of the United Church of

Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983), cert.

Gomied., G75 U.S. TE GReeee sb hoc cvcccvecesusiues y

PAGE

Oyama v. California, 332 U.S. 633 (1948)........... 7

Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.

1988), cert. denied, 489 U.S. 1011 (1989).......... 7

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

RIES EO AE eo Te een eee Ee ee 10

Saucido v. Brothers Well Service, 464 F. Supp. 919

Se Ss SE oN ond nig cdé cebu sense beanseseuaewn 15

Smith v. Berks Community Television, 657 F. Supp.

Fare Ss I d's 6h 05-6050 dk 00s ss dakeeuens 17-18

Smith v. Dutra Trucking Co., 410 F. Supp. 513 (N.D.

Cal. 1976), aff'd mem., 580 F.2d 1054 (9th Cir.

1978), cert. denied, 439 U.S. 1076 (1979).......... 17

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.

Se Ss avnavinasenséddahekibnsuaeuernealicks 22-23

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ....... 7

Takahashi v. Fish & Game Commission, 334 U.S. 410

6s 54 0 RESEARARS ERNE MEAS Serie aatens 7

Wards Cove Packing Co. v. Antonio, 490 U.S. 642,

as es ee NC evas bbsdeal eduseenbannren. l

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

SE 000.6d0-te6eke ce eias eee en eae eek ]

Weber v. Kaiser Aluminum & Chemical Co., 563 F.2d

216 (Sth Cir. 1977), rev’d, 443 U.S. 193 (1979).... 21

Western Coal Traffic League v. United States, 694

F.2d 378 (Sth Cir. 1982), cert. denied, 466 U.S. 953

SD kn 4060 0incccseedsctvasccdueseusenesnasetetcs 9

Zahourek v. Arthur Young & Co., 567 F. Supp. 1453

(D. Colo. 1983), aff’d, 750 F.2d 827 (10th Cir. 1984) 1]

vi

PAGE

Statutes and Constitutional Provisions

Age Discrimination in Employment Act of 1967, 29

Sania Me OM cacceveccescucscesesecs a & ER, FF

Americans With Disabilities Act of 1990, 29 U.S.C.

a A Nd vecdbns Sac seer sueedvendé visius 14-15

Caomeds Labour Code, 8S CIT 2 cc cccccccccecccess 23

Code du Travail arts. L. 122-35, 122-45, 123-1 (Fr.).. 23

Code du Travail art. 511-1 (Fr.)............0eeeeeee 23

Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C.

Da On coceiee cae eweb din eanedseeseeeees 3, 12-13

Eight Hour Law, 40 U.S.C. § 321, ef seq. .......... 5

Employment Equality Act (Ir. 1977).............006- 23

Equal Pay Act, 29 U.S.C. § JOG)... ccccccccess 6

Export Administration Act of 1979, 50 U.S.C. § 2401,

et seq. (1982 & Supp. III 1985)................. 3, 11-12

Fair Labor Standards Act, 29 U.S.C. § 201, ef seq. . 3

Industrial Training Act, 12 Eliz. 2, § 12 (Eng. 1964) . 23

Labor and Workmen Law of 1969 of the Kingdom of

EE chee ee uenesbebesenbenatad ees 18, 23

National Labor Relations Act, 29 U.S.C. § 151, ef

| SPPePrrrryerrrererrrrrrrr eririiirirti ee, 5, 6

Occupational Safety & Health Act of 1970, 29 U.S.C.

| £§ GT TIITT Tree 5, 6

Race Relations Act, 24 Eliz. 2, ch. 74 (Eng. 1976)... 23

Railway Labor Act, 45 U.S.C. § 151, ef seq. ........ 5

Sex Discrimination Act, 23 Eliz. 2, ch. 65, (1975).... 23

Vii

~ ‘PAGE

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

NT ee ie eee i Bees ay passim

Unfair Dismissals Act, §§ 1, 6 (Ir. 1977) ............ 23

United States Constitution, Art. Il.................. 21

Rules and Regulations

BP Gis B BBD CIT oc ccc cccccccccvccceses 5

SP Cds B BD CITED nce ccccccccccccccsscces 6, 10

29 C.F.R. § 1606.2 (1980)........ edebeueueseucenear 10

ee es EE rd ce adnedud daesewnctacescevsc 21

Executive Order 11246, 30 F.R. 12319 (1965) ........ 21

Congressional Materials

Civil Rights: Hearings on Miscellaneous Proposals

Before Subcomm. No. 5 of the House Comm. on the

Judiciary, 88th Cong., Ist Sess. (1963) ............ 7

Equal Employment Opportunity: Hearings on H.R.

405 Before the Subcommittee on Labor of the House

Committee on Education & Labor, 88th Cong., Ist

Se IN bbe bu bbe weundsuncedsasseeteneas cibes 8

Federal Fair Employment Practice Act: Hearings on

H.R. 4453, Before a Special House Subcommittee on

Education & Labor, 8\st Cong., Ist Sess. (1949)... 8

Testimony of General Colin Powell, Chairman of the

Joint Chiefs of Staff, before the Senate Armed Ser-

vices Committee on September 11, 1990, Legi-Slate

es, SE, GE Sd acenkandes ss8b0ccbeeakekens 20

U.S. Law Affecting Americans Living and Working

Abroad, A Report to the Committee on Foreign

Relations, United States Senate, August 1980, Gov-

ernment Document No. Y4.F76/2:Am3/5.......... 1]

Viil

Periodicals

Boston Globe, Nov. 13, 1990, at 12 ................

An Extra Enemy for Women Soldiers, Chicago Trib-

fe SS FY & » PRVTrreerr rer err Tiere

Chicago Tribune, Aug. 27, 1990, at C3 .............

T. Eisenberg & S. Schwab, The Facts Clearly Show

that Reversal of Anti-Bias Precedent Would Create

Hardship, Manhattan Lawyer, Feb. 28-Mar. 6, 1989,

New York Times, Nov. 21, 1990, at 10, col. 3.......

Some Saudi Women Push Changes, New York Times,

ee A Me oo wi cet tendeunebeawess

Saudi Interior Minister Prohibits All Protests for

Change by Women, New York Times, Nov. 18,

a Me Gs GUD dé cccccccesccccedUUETSeccccsses

Americans Rushing to Learn Saudi Culture, Washirg-

ton Post, Dec. 13, 1990, at A48, col. 1...........

Observing Hanukah in Saudi Arabia: An American’s

Test of Faith, Washington Post, Dec. 13, 1990, at

Be ME. Bh 666600654600 bn tb eeereenscecceneesene

Saudi Religious Police Turn More Aggressive, Wash-

ington Post, Dec. 13, 1990, at A43, col. 1 ........

Washington Times, Sept. 14, 1990, at AlO..........

Washington Times, Nov. 22, 1990, at Al ...........

Miscellaneous

R. Blanpain & F. Millard, Comparative Labour Law

and Indusirial Relations, 339-340 (BNA) (1982) ....

PAGE

19

19

20

18

20

20

23

ix

PAGE

Daily Labor Report, No. 206, p. A-3 (BNA) (Oct. 26,

DP itbeaecesusaesebneded$eeesssnieenteneeenes 8

HQDA, Office of the Chief of Public Affairs, Com-

mand Information Division, A Soldier’s Guide to

Ne i oo eee ea eneees 19-20

International Labor Organization, Convention 111,

Discrimination (Employment and Occupation’

re il oe ee ee eee eauews . 5emle 24-25

K. Kirschner, The Extraterritorial Application of Title

VII of the Civil Rights Act, 34 Lab. L.J. 394

SD ARKh Gna SRNR OedAS ad hObdKbeeh bKeadeneeReN 6, 7, 10

Note, Commercial Treaties and the American Civil

Rights Laws: The Case of Japanese Employers, 31

Ss aiid I I a ni i i ee ees 23

Walker, Treaties for the Encouragement and Protec-

tion of Foriegn Investment: Present United States

Practice, 5 Am. J. Comp. L. 229 (1956) .......... 21-22

STATEMENT OF INTEREST OF AMICUS CURIAE*

The Society for Human Resources Management

(‘‘SHRM’’), formerly known as the American Society for

Personnel Administration (‘‘ASPA’’), is the world’s largest

association of personnel and human resource professionals,

representing over 46,000 members in business, government

and education both in the United States and abroad dedi-

cated to the furtherance of personnel and human resource

management. Organizations represented by SHRM members

collectively employ more than 53 million workers. SHRM

and its members have an interest in the orderly development

and enforcement of the myriad laws and regulations which

govern every aspect of employment, including employment

discrimination.

SHRM or ASPA have been specifically invited or partici-

pated as amicus curiae in cases before this Court involving

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e, ef seq. (1982) (‘‘Title VII"’), including Wards

Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); Waison v.

Fort Worth Bank & Trust, 487 U.S. 977 (1988); Johnson v.

Transportation Agency, 480 U.S. 616 (1987); and County of

Washington, Oregon v. Gunther, 452 U.S. 161 (1981), as well

as in numerous cases in the various Circuit Courts of Appeal.

SHRM’s affiliate, International HR (‘‘Int’] HR’’), includes

international human resource practitioners from hundreds of

multinational companies and promotes the personal and pro-

fessional development of those directly involved in interna-

tional personnel management. Also, SHRM is one of the

co-founders of the World Federation of Personnel Manage-

ment Associations (‘‘WFPMA’’), an umbrella organization

formed for the purpose of bringing communication and

knowledge-sharing to the personnel profession throughout the

world. The WFPMA represents 60 national personnel associ-

* This amicus brief is filed pursuant to Supreme Court Rule 37.3, with

the written consent of all parties. Letters of consent have been filed

with the Clerk of this Court.

2

ations with approximately 200,000 members worldwide. As

the major associations of the human resources profession,

SHRM and its affiliates, Int’) HR and WFPMA, are vitally

concerned with the law regarding Title VII and its proper role

in the international workplace.

The extraterritorial application of Title VII would

adversely impact SHRM members and the global business

community. The extension of Title VII abroad would create

significant problems for multinational employers in attempt-

ing to comply with the inconsistent laws of the host country

and the United States. Hence, SHRM submits this Brief sup-

porting the Respondents and urges this Court to affirm the

decision below of the Fifth Circuit en banc, 892 F.2d 1271,

which held that Title VII does not apply extraterritorially,

based upon, inter alia, the Act’s language and its legislative

history. Moreover, such interpretation is consistent with

important practical and policy considerations.

SUMMARY OF ARGUMENT

Petitioners’ expansive reading of Title VII to encompass all

American citizens in whatever country they may be employed

blithely disregards the considerable burden such an interpre-

tation places on the enforcement mechanisms of the statute

and the problems it creates for personnel and human resource

professionals of foreign and American corporations based

abroad. Companies operating in the international market-

place must be sensitive to local laws and customs. Congress

has not extended the jurisdiction of most United States pro-

tective labor legislation abroad precisely for this reason.

Petitioners’ reliance on the deference they claim should be

accorded to the EEOC, the agency charged with the enforce-

ment of Title VII, is misplaced in this case. Courts have

never blindly adhered to the interpretation of a statute by an

agency and have only deferred to such interpretation to the

extent it is consistent with statutory language and its accom-

panying legislative history. Moreover, judicial deference is

3

inappropriate especially where, as here, an agency attempts to

redefine and expand its own jurisdictional boundaries after

adhering to a different, more constricted view. This Court

should not hesitate to reject the EEOC’s erroneous statutory

construction which seeks to expand the territorial limits of

Title VII far beyond what Congress authorized.

Based upon Congressional action subsequent to the enact-

ment of Title VII, when Congress seeks to apply laws extra-

territorially, it does so in specific detail and with narrow

proscriptions. For example, the Export Administration Act of

1979 and the Comprehensive Anti-Apartheid Act of 1986

prohibit the exact same types of discrimination as Title VII

but, unlike Title VII, they expressly apply to foreign concerns

and establishments. If Congress intended Title VII to apply

abroad, the above statutes would be completely duplicative of

Title VI]. Moreover, Congress had to specifically amend the

Age Discrimination in Employment Act to apply abroad

because the Fair Labor Standards Act, the statute upon

which its jurisdiction is based, only applies domestically like

all other protective employment legislation including labor

relations, Occupational safety and health, equal pay, and so

forth.

Petitioners give the misimpression that Title VII has exten-

sive application when in fact the opposite is more correct.

Title V11 does not cover many employees in the United States

since it only effects employers with fifteen or more employees

which excludes approximately 15% of the domestic

workforce. Moreover, religious organizations, independent

contractors, volunteer workers, etc. are also exempted within

the United States. Expanding the reach of Title VII beyond

the territorial borders of the United States, as the EEOC and

Boureslan urge, should not be allowed, especially since Title

VII was not even intended to reach many employees working

within American jurisdictional boundaries.

Petitioners seek to impose United States laws, and the con-

comitant American beliefs and values which underlie those

laws, On other nations which may have differing employee

4

protection laws, beliefs and values. The U.S. military’s

instructions to all troops presently stationed in Saudi Arabia

not to openly practice or display their religious beliefs and to

female troops to conform their behavior to the limitations

placed on women by Saudi society, evidences the need to

defer to local laws, beliefs and values to avoid actual con-

flicts. It is for these very reasons that this Court has fash-

ioned a presumption against extraterritoria) application of

U.S. employment laws and has required a clear expression of

Congressional intent to overcome that presumption. Because

neither the specific language of the statute nor the legislative

history of Title VII expresses such an intent, or even indicates

any purpose or need to regulate foreign employment, Title

VII should not be applied extraterritorially.

Indeed, absent a treaty, foreign corporations doing busi-

ness in the United States must comply with our protective

laws. Conversely, American corporations or their foreign

subsidiaries located abroad must comply with the labor laws

of the host foreign country. Many of the laws and customs

of foreign countries, to which companies operating overseas

must adhere, materially conflict with the mandates of Title

VII or create different responsibilities for employers regard-

ing employment rights and obligations. Hence, extraterritorial

application would create practical international employee

relations problems.

5

ARGUMENT

POINT I

EXCEPT FOR THE ADEA, CONGRESS HAS NEVER

SUBJECTED EMPLOYMENT PRACTICES ABROAD TO

U.S. PROTECTIVE LABOR LEGISLATION

A. Title VII, Like Most Employment Laws, Only Applies

Within American Territorial Boundaries.

; The claim that Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e er seq., is unlike other employment legislation

ignores the express language of the statute which deals with

hiring, discharging, and compensating employees as well as

all other terms of employment. 42 U.S.C. § 2000e-2(a)(1).

Title VII is an employment statute prohibiting discrimination

against persons within protected classes in all areas of work-

place activities including job assignments, work schedules,

promotions, benefits, compensation, corrective action and so

forth. . The protection of employee rights through laws

respecting self-organization, concerted protected activity

wages and hours and occupational safety and health? are no

less significant than fair employment practices. Congress did

not expressly differentiate Title VII from any other protective

labor legislation and, indeed, premised Title VII on the same

jurisdictional bases as laws pertaining solely to labor rela-

tions. See 42 U.S.C. § 2000e(h).

1 In fact, the EEOC regulates the entire work atmosphere through its

guidance on a hostile work environment. Meritor Savings Bank v. Vin-

son, 477 U.S. $7 (1986); 29 C.F.R. § 1604. 11(b) (1986).

2 = See, e.g., McCulloch v. Sociedad Nacional de Marineros de Hondu-

ras, 372 U.S. 10 (1963), Benz v. Compania Naviera Hidalgo, $.A., 353

U.S. 138 (1957) (National Labor Relations Act); Foley Bros. vy.

Filardo, 336 U.S. 281 (1949) (Eight Hour Law); Air Line Dispatchers

Ass'n v. National Mediation Board, 189 F.2d 685 (D.C. Cir.), cert.

denied, 342 U.S. 849 (1951) (Railway Labor Act); Donoven v. Texaco,

Inc., S35 F. Supp. 641 (E.D. Tex. 1982), aff'd, 720 F.2d 825 (Sth Cir.

1983) (Occupational Safety and Health Act).

6

Petitioners and their amici state that Title VII is different

from other protective labor legislation because it deals with

discrimination. However, the Equal Pay Act, 29 U.S.C.

$$ 206(d), 213(f), which addresses discrimination based on

Sex, and other laws dealing with discrimination based on

union activity (29 U.S.C. § 158(a)(3)) or safety complaints

(29 U.S.C. § 660(c)), all of which reflect vital national policy

concerns regarding employment, do not apply abroad. See

n.2, supra. The EEOC’s and its amici’s bald assertion, with-

out legal or factual support, that Title VII is more analogous

to antitrust, securities or copyright laws rather than employ-

ment laws, does not provide a valid basis to extend extraterri-

torial jurisdiction. See K. Kirschner, The Extraterritorial

Application of Title VII of the Civil Rights Act, 34 Labor

L.J. 394, 400-01 (1983) (“‘Extraterritorial Application’’).

B. Similar to Other Protective Labor Legislation, Title VII's

Legislative History Does Not Support Extraterritorial

Application.

Like other protective labor legislation, Congress has not

specifically and clearly enunciated Title VII's application to

foreign countries.” EEOC v. Kloster Cruise Lid., 743 F.

Supp. 856, 858-59 (S.D. Fla. 1990). Congress’ oblique refer-

ence to aliens in the alien exemption provision was to ensure

that such legislation would apply, as the EEOC expressly

stated in its initial regulations on this subject, to citizens and

non-citizens, domiciled or residing in the United States. 29

C.F.R. § 1606.1(c) (1970). For Petitioners and their amici to

3 It is up to Congress, not the courts, to expand the jurisdiction of

Title VII. When the courts unanimously rejected extraterritorial! appli-

cauon of the Age Discrimination in Employment Act, 29 U.S.C. § 601

et seq. (‘ADEA’), Congress amended such legislation and placed spe-

cific appropriate proscriptions on the ADEA’s extended coverage. See

Lopez v. Pan Am World Services, Inc., 813 F.2d 1118, 1119 0.3 (1ith

Cir. 1987); DeYoreo v. Bell Helicopter Textron, Inc., 785 F.2d 1282,

1283 (Sth Cir. 1986); 29 U.S.C. § 623(h). See Point III, infra. Unlike

the ADEA, which only pertains to age discrimination, application of

the panoply of rights in Title VII would cause great problems for

employers abroad.

7

rely on this cryptic reference to aliens, which has its genesis

in legislation originally proposed in 1949, stretches advocacy

to the outer bounds of reason. Such words were probably

inserted regarding aliens to ensure protection of aliens in the

United States.* The protection of aliens within the United

States, as this Court later held,” was needed due to the dis-

criminatory application of many laws against aliens in the

United States at the time.® Indeed, there is still a furor raging

with respect to application of protective labor legislation to

aliens within the United States.’

Most assuredly, if Congress had intended to apply such

legislation abroad, Congressional leaders and supporters of

Title VII, including representatives of Petitioners’ amici

herein, would have discussed its alleged global application in

their testimony. In numerous hearings prior to the passage of

Title VII, representatives of the Anti-Defamation League of

B’nai B’rith (‘‘ADL’’), the American Jewish Congress

(‘‘AJC’’) and the National Association for the Advancement

of Colored People (‘“‘NAACP”’) testified before Congress."

4 The Brief of Respondents also points to the need for the alien

exemption provision based on a concern of Congress to avoid prob-

lems and ~onflicts with the application of United States employment

laws to aliens in U.S. possessions.

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

6 See, e.g., Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948);

Oyama vy. California, 332 U.S. 633 (1948); Extraterritorial Applica-

tion, supra at 400 n.26 (1983).

7 Compare Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) and Patel v.

Quality Inn South, 846 F.2d 700 (11th Cir. 1988), cert. denied, 489

U.S. 1011 (1989) with Cabell v. Chavez-Salido, 454 U.S. 432 (1982);

Ambach v. Norwik, 441 U.S. 68 (1979) and Foley v. Connelie, 435

U.S. 291 (1978).

8 See, e.g., Civil Rights: Hearings on Miscellaneous Proposals Before

Subcomm. No. 5 of the House Comm. on the Judiciary, 88th Cong.,

Ist Sess. (1963) (statement of Herman Edelsberg of the ADL; state-

ment of Will Maslow of the AJC; statements of Roy Wilkins, Clarence

Mitchell, Dr. Aaron E. Henry and Rev. Walter Fauntroy of the

The hearings on Title VII contain no statements urging or

suggesting extraterritorial application. Instead, the content of

the speeches focused on domestic concerns and the eradica-

tion of discrimination in this country. Federal Fair Employ-

ment Practice Act: Hearings on H.R. 4453, Before a Special

House Subcomm. on Eaucation and Labor, 8\st Cong., Ist

Sess. (1949). The statements emphasized throughout that

individuals in America should be treated with equal rights.”

POINT II

NO DEFERENCE SHOULD BE ACCORDED TO THE

EEOC’S INTERPRETATION OF TITLE VII'S ALLEGED

EXTRATERRITORIAL COVERAGE

Each federal agency’ responsible for enforcing protective

labor legislation correctly believes its job is of paramount

NAACP); Equal Employment Opportunity: Hearings on H.R. 405

Before the Subcomm. on Labor of the House Comm. on Education

and Labor, 88th Cong., Ist Sess. (1963) (statement of Murray Gordon

of the AJC; statements of Herbert Hill and Rev. Richard Allen Hilde-

brand of the NAACP); Hearings on H.R. 4453, infra (statement of

Herman Edelsberg of the ADL; statement of Will Maslow of the AJC;

statement of Clarence Mitchell of the NAACP).

9 Civil Rights; Hearings on Miscellaneous Proposals, supra at n.8.

10 The State Department which is responsible for foreign affairs has

not joined the EEOC and the Department of Justice in this case, unlike

the recent case of MacNamara v. Korean Air Lines, 863 F.2d 1135,

1138 (3d Cir. 1988), cert. denied, 110 S. Ct. 349 (1989), dealing with

foreign employers doing business in the United States.

On October 24, 1989, in a panel session sponsored by the American

Bar Association, the Federal Bar Association and the District of

Columbia Bar, a Legal Advisor for the State Department disagreed

with the EEOC’s extraterritorial interpretation relating to employment

discrimination:

The general counsel of the Equal Employment Opportunity Com-

mission [Charles A. Shanor] and a legal adviser for the Department

of State [Ted A. Borek] were unable even to agree on the...

application of fair employment laws to transnational corporations

in the United States and abroad.

Daily Labor Report, No. 206 at A-3 (BNA) (Oct. 26, 1989).

9

importance. However, an agency’s belief that its laws should

apply abroad, as has been erroneously asserted at different

times by the National Labor Relations Board, the National

Mediation Board, the Department of Labor, etc., should not

be given credence over the express language of enabling legis-

lation of such agencies or in the absence of any such support

in the legislative history thereof.

Ample authority supports the proposition that an adminis-

trative agency’s interpretation of its extraterritorial jurisdic-

tion may not be entitled to any deference. CFTC v. Nahas,

738 F.2d 487, 493 & n.13, 495 & n.17 (D.C. Cir. 1984); FTC

v. Compagnie de Saint-Gobain-Pont-A-Mousson, 636 F.2d

1300, 1323 & n.130 (D.C. Cir. 1980). The deference argument

should not be indulged whenever an agency purports to deter-

mine the scope of its own jurisdiction. Cleary v. United

States Lines, Inc., 728 F.2d 607, 610 n.6 (3d Cir. 1984);

Office of Communication of the United Church of Christ v.

FCC, 707 F.2d 1413 (D.C. Cir. 1983), cert. denied, 471 U.S.

1069 (1985); Western Coal Traffic League v. United States,

694 F.2d 378, 383-84 (Sth Cir. 1982), cert. denied, 466 U.S.

953 (1984). ,

The EEOC has often sought to expand the coverage of

Title VII beyond its intended boundaries, only to have its

interpretation of the Act rebuked by the federal courts.

Ansonia Board of Education v. Philbrook, 479 U.S. 60, 69

n.6 (1986); General Electric Co. v. Gilbert, 429 U.S. 125, 141

(1976). For example, in Espinoza, supra, this Court held that

the EEOC’s broad interpretation of Title VII to prohibit dis-

crimination on the basis of citizenship was incorrect. In

Espinoza, the EEOC argued as amicus curiae that its inter-

pretation of the Act was entitled to great deference. While

acknowledging that EEOC guidelines are entitled to defer-

ence, this Court held:

{[D]eference must have limits where, as here, application

of the guideline would be inconsistent with an obvious

congressional intent not to reach the employment

practice in question. Courts need not defer to an admin-

10

istrative construction of a statute where there are ‘‘com-

pelling indications that it is wrong.”’

414 U.S. at 94-95 (quoting Red Lion Broadcasting Co. v.

FCC, 395 U.S. 367, 381 (1969)).

There are several infirmities in the EEOC’s argument that

its extraterritorial interpretation is entitled to deference. First,

neither the EEOC nor the Department of Justice has any spe-

cial expertise in the area of foreign employment or affairs.

This is not a question of whether certain conduct amounts to

a prohibited form of employment discrimination but, instead,

a matter of statutory interpretation as to whether an act of

Congress can be applied outside the United States in the

absence of any clear indication of such foreign coverage.

Second, the position now taken by the EEOC ‘‘contradicts

the position which the agency had enunciated at an earlier

date, closer to the enactment of the governing statute.’’ Gen-

eral Electric, 429 U.S. at 142. Thus, until 1980, the EEOC

provided that Title VII protects all individuals, both citizens

and noncitizens, domiciled or residing in the United States,

against discrimination. . . .”’ 29 C.F.R. § 1606.1(c) (1970)

(emphasis added). Indeed, the EEOC’s pre-1980 regulations

regarding the alien exemption provision seemed te comport

with the Espinoza Court’s interpretation which cited such

regulations approvingly. Espinoza, 414 U.S. at 95 n.8; Extra-

territorial Application, supra, 399 & n.24. However, in 1980,

the EEOC revised its regulations and eliminated this provi-

sion without explanation. See 29 C.F.R. § 1606.2 (1980).

Hence, the EEOC’s position has been inconsistent and con-

tradictory.

Finally, the lack of any specific Congressional grant of

authority for extraterritoriality also cuts against deferral to

the EEOC. The very fact that the EEOC must rely on a nega-

tive inference or an implication to be discerned from the alien

exemption in Section 702 shows the lack of explicitness

required to find that a United States labor law should apply

extraterritorially. The EEOC’s position rests ultimately on the

proposition that the Congress acts by silence and obfusca-

1]

tion. See McCulloch, Benz and Foley, supra. Moreover, Con-

gress itself has not indicated in any way that Title VII applies

to Americans working abroad. See Zahourek v. Arthur

Young & Co., 567 F. Supp. 1453, 1455-56 (D. Colo. 1983),

aff'd, 750 F.2d 827 (10th Cir. 1984); U.S. Law Affecting

Americans Living and Working Abroad, A Report to the

Committee on Foreign Relations, United States Senate,

August 1980, Government Document No. Y4.F76/2:Am3/5.

Accordingly, this Court should not defer to the EEOC’s

position on its own jurisdiction and instead should decline to

apply Title VII extraterritorially.

POINT Ul

CONGRESSIONAL ACTION SUBSEQUENT TO THE

PASSAGE OF TITLE VII SHOWS THAT CONGRESS

DID NOT PROVIDE FOR TITLE VII’S

EXTRATERRITORIAL APPLICATION

Congress’ rare forays into the field of labor relations

affecting foreign countries have always been done deliber-

ately, through the use of specific and express language. In the

Export Administration Act of 1979, 50 U.S.C. App. §§ 2401-

2420 (1982 & Supp. III 1985) (‘‘EAA’’), Congress demon-

strated that it knows how to apply United States’ laws

extraterritorially when it so chooses. Unlike the oblique alien

exemption language in Section 702 of Title VII relied on by

Boureslan and the EEOC, the EAA’s extraterritorial reach is

clearly stated. The term ‘‘United States person’’ is defined to

include ‘‘any domestic concern (including any permanent

domestic establishment of any foreign concern) and any for-

eign subsidiary or affiliate (including any permanent foreign

establishment) of any domestic concern which is controlled in

fact by such domestic concern ... .’’ 50 U.S.C. App.

§ 2415(2) (1982). The EAA then provides that:

[T]he President shall issue regulations prohibiting any

United States person, with respect to his activities in the

interstate or foreign commerce of the United States,

12

from taking ... any of the following actions with

intent to comply with ... any boycott fostered or

imposed by a foreign country against a country which is

friendly to the United States .

(B) Refusing . . . to employ or otherwise discriminating

against any United States person on the basis of race,

religion, sex or national origin of that person. . . .

50 U.S.C. App. § 2407(a)(1) (1982) (emphasis supplied).

The above provisions prohibit an American corporation, or

its foreign affiliates, from discriminating against United

States citizens in their employment overseas on the basis of

race, religion, sex or national origin pursuant to a boycott

ordered by a foreign country. Congress obviously did not

view Title VII as having extraterritorial coverage when it

promulgated the EAA in 1979 because the EAA’s discrimina-

tion provisions would then be merely redundant to the dis-

crimination provisions set forth in Title VII.

If Congress viewed Title VII as having extraterritorial

reach, which is not indicated in its legislative history, then the

EAA’s prohibition of employment discrimination by Ameri-

can corporations against American citizens need never have

been drafted. Indeed, the EAA evidences Congress’ recogni-

tion that Title VII does not apply overseas and provides a

vivid example of how Congress uses express language to over-

come the presumption against extraterritorial coverage.

In the Comprehensive Anti-Apartheid Act of 1986, 22

U.S.C. §§ 5001-5116 (Supp. V 1987), Congress required that

“*[a]ny national of the United States that employs more than

25 persons in South Africa shall take the necessary steps to

insure that the Code of Conduct is implemented. . . .”’ 22

U.S.C. § 5034 (emphasis supplied). The term ‘‘national of

the United States’’ is defined to include any corporation

incorporated in the United States. 22 U.S.C. § 5001(5). Like

the EAA, this statute provides another example of how Con-

gress explicitly sets forth its intention to apply United States’

13

laws extraterritorially, and how Congress does not resort to

negative inferences for this purpose.

The types of discrimination prohibited by the Code of

Conduct are limited to race and ethnic origin. 22 U.S.C.

§ 5035(a)(2). Congress did not include religion and sex in

drafting this statute specifically dealing with employment in a

foreign nation. Even with respect to the common prohibitions

against race and ethnic discrimination, if Title VIl applied

overseas, it would cover an employer in South Africa with

fifteen or more employees while the Comprehensive Anti-

Apartheid Act applies to employers with more than twenty-

five employees. This variance in coverage over allegedly

identical prohibitions is puzzling if ome accepts the theory

that Title VII applies overseas. More importantly, if Congress

had originally intended Title VII to apply extraterritorially, it

is inexplicable why it would subsequently draft a redundant

equal employment opportunity provision that was already

encompassed by Title VII.

The explicit language in the EAA and the Anti-Apartheid

Act, as well as the amended ADEA, indicating Congress’

intent to apply such laws abroad, is consistent with the cau-

tious approach the United States Congress has taken in

addressing issues impacting on United States corporations

doing business abroad. It also contrasts markedly with the

EEOC’s newfound willingness (after many years of taking a

different position) to traipse into foreign countries and

administratively dictate American employment policies on the

strength of only a negative inference. Indeed, as the en banc

majority stated below regarding the EAA and the Anti-

Apartheid Act:

Congress demonstrated in the above acts its awareness

of the need to make a clear statement of extraterritorial

application, address the concerns of conflicting foreign

law, and provide the usual nuts-and-bolts provisions for

enforcing those rights.

Boureslan, supra, 892 F.2d at 1274.

14

POINT IV

THE PRESUMPTION AGAINST EXTRATERRITORIAL

APPLICATION OF UNITED STATES PROTECTIVE

LABOR LAWS IS BASED ON FIRM POLICY GROUNDS

A. Practical Considerations of Title VII in a Foreign Context

Preclude Extraterritorial Application

In advancing policy arguments for applying Title VII

abroad, the EEOC and the amici supporting Boureslan con-

veniently ignore the policy considerations which are embodied

in the presumption itself. As summed up by the initial Fifth

Circuit majority in this case:

[W]e cannot ignore strong countervailing policy argu-

ments against the application of Title VII abroad. The

religious and social customs practiced in many countries

are wholly at odds with those of this country. Requiring

American employers to comply with Title VII in such a

country could well leave American corporations the dif-

ficult choice of either refusing to employ United States

citizens in the country or discontinuing business.

857 F.2d at 1020. Will U.S. and foreign employers in foreign

countries, which would be swept into the ambit of the

EEOC’s interpretation, now be required to include Americans

abroad in affirmative action plans based upon worldwide

employment, be required to file EEO-1 forms and reports,

and be subject to EEOC inspection, recordkeeping and notice

posting requirements in foreign work places? These issues

were never addressed by Congress in either Title VII or its

legislative history, not because of an oversight by Congress,

but because foreign application of Title VII was never

intended.

Under the EEOC’s theory, if Title VII applies abroad, so

would the statutory provisions of the Americans with Disabil-

ities Act of 1990, 29 U.S.C. § 12101, ef seg. (“‘ADA"’).

Thus, United States and foreign employers abroad would

have to reconstruct their facilities to ensure accessibility,

15

accommodate handicapped persons abroad, make qualified

interpreters and readers available, and so forth because the

remedial section of the ADA incorporates Title VII's enforce-

ment mechanism. 42 U.S.C. § 12117. To further show Con-

gress could not have intended Title VII to apply abroad, the

remedial measures currently taken by the EEOC within the

United States with respect to English-only rules, prohibitions

on speaking foreign languages, requiring fluency and proper

accents, would pose great problems in foreign countries. See,

e.g., Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir.

1988), vacated, 109 S. Ct. 1736 (1989); Saucido v. Brothers

Well Service, 464 F. Supp. 919 (S.D. Tex. 1979).

The workforce at a foreign worksite of a U.S. corporation

will usually be multinational. The greatest percentage of the

employees, as in the case of Aramco, will often be from the

host country. Thus, the legal fiction of assigning U.S. nation-

ality to a corporation does not change the underlying fact

that persons who act on behalf of the corporation, i.e., its

managers, supervisors and employees, are often not U.S. citi-

zens. Consequently, the persons allegedly engaging in dis-

criminatory conduct such as creating a hostile work

environment,'' denying promotions on the basis of national

origin, tertiiating employees on the basis of race or assign-

ing work on the basis of sex will be foreign nationals or citi-

zens of other nations.’? Therefore, although a plaintiff in

such actions may be a U.S. citizen, application of Title VII

to U.S. or foreign corporations abroad would inevitably

result in the regulation of foreign nationals which would be a

11 Applying Title VII abroad to allegations of sexual harassment may

be extremely difficult. The social mores of certain Latin American and

European cultures may permit as perfectly acceptable words or con-

duct that may be offensive here in the United States and proscribed by

the EEOC’s rules on sexual harassment. In Saudi Arabia, women are

not even permitted to work with men based on the Saudi’s interpreta-

tion of the Koran. Labor and Workmen Law of Saudi Arabia, Article

160.

12 _—In this particular case, the supervisor corplained of by Boureslan

was a citizen of Great Britain.

16

source of international discord. These same foreign nationals,

while they would be subject to Title VII's prohibitions in

conducting themselves towards U.S. citizens, would not enjoy

the benefits of Title VII.

Without any empirical or other support, Petitioners

attempt to paint an ominous picture of the future for Ameri-

cans employed abroad in the event Title VII is not applied

extraterritorially. They speculate that minorities and women

will decline overseas assignments to avoid being subject to

discrimination, will lose opportunities for advancement if

they decline such assignments and will be terminated if they

accept such assignments. They further surmise that employers

will in turn hire only white Anglo-Saxons to work abroad,

will launder their discrimination and will send persons over-

seas in an effort to avoid compliance with fair employment

laws. Contrary to the hypotheticals posed by Petitioners, the

courts have already addressed the issue of discriminatory con-

duct in the United States having potential effect on foreign

employment. Such conduct has already been held to be a vio-

lation of Title VII and would not be affected by the outcome

of this case. Abrams v. Baylor College of Medicine, 805 F.2d

528 (Sth Cir. 1986); Fernandez v. Wynn Oil Co., 653 F.2d

1273 (9th Cir. 1981). Moreover, Petitioners ignore the numer-

ous discrimination laws of other countries, adapted to the cir-

cumstances of each country, which would protect against any

discrimination abroad.

Any U.S. corporation doing business in a foreign country

will be subject to the host country’s laws by virtue of having

availed itself of the benefits of doing business in that coun-

try. Indeed, it is not the prospect of regulation that SHRM

and its members fear, but the prospect of dual and, inevita-

bly, inconsistent and conflicting regulation.

B. Congress Did Not Apply Title VII to Many Americans in

the United States Let Alone to those Abroad

Title VII has never applied to all American citizens

employed by American companies even in the United States.

17

Indeed, according to the EEOC’s own statistics, Title VII

does not apply to over 85 percent of all domestic business

establishments or to about /5 percent of the workforce

employed in this country amounting to the exclusion from

Title VII of more than ten million working Americans within

the territorial borders of the United States. T. Eisenberg & S.

Schwab, The Facts Clearly Show that Reversal of Anti-Bias

Precedent Would Create Hardship, Manhattan Lawyer, Feb.

28-Mar. 6, 1989, at 16."

Indeed, under the terms of the statute itself, Title VII does

not protect numerous Americans and aliens working in the

United States. See, e.g., 42 U.S.C. § 2000e(b) (employers

with fewer than 15 employees not subject to Title VII); 42

U.S.C. § 2000e(f) (elected public officials and their personal

staff, immediate advisers and policy-making appointees not

protected by Title VII); 42 U.S.C. § 2000e-1 (employees of a

religious society or religious educational institution alleging

religious discrimination not protected by Title VII); 42

U.S.C. § 2000e-2(i) (employees of business on or near an

Indian reservation alleging preferential treatment of Indians

not protected by Title VII).

In addition to these statutory exceptions, case law has

established further situations to which Title VII is not appli-

cable. See, e.g., Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints v. Amos, 483

U.S. 327 (1987) (religious organizations exempted from

aspects of Title VII); Broussard v. L.H. Bossier, Inc., 789

F.2d 1158, 1160 (Sth Cir. 1986) (independent contractor not

protected by Title VII); Smith v. Dutra Trucking Co., 410 F.

Supp. 513 (N.D. Cal. 1976), aff'd mem., 580 F.2d 1054 (9th

Cir. 1978), cert. denied, 439 U.S. 1076 (1979) (same); Smith

13 Apparently, the EEOC is seeking to expand its jurisdiction and cov-

erage on all froms. The EEOC was recently rebuffed in its attempt to

apply the ADEA to Indian tribes. The Tenth Circuit held that the

ADEA, like Title VII, should not apply to the Cherokee Nation.

EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989).

18

v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa.

1987) (volunteer workers are not employees under Title VII).

Since Title VII does not even apply to many Americans in

the United States, it would be ludicrous to assume that Con-

gress intended it to apply to all American citizens working in

foreign countries. Moreover, contrary to the assertion of

Petitioners’ amici, if Title VII does not apply to all persons

within the United States, why would anyone working over-

seas believe that such law would apply to them, especially

when almost all other protective labor legislation does not?

See Point 1, supra.

C. The United States Government Itself Recogiizes the Dif-

ferences in Employment Practices Abroad

The practical and political pitfalls of applying Title VII

extraterritorially are well-exemplified by the instant case.

Saudi Arabia is an Islamic country. The Koran, or Moslem

holy book, serves as the state’s guiding document and the

customs and practices of Islam are protected by the legal sys-

tem of Saudi Arabia. In Saudi Arabia, the Labor and Work-

men Law of 1969 (‘‘Labor Law’’) regulates all employment

within its borders, including that of foreign companies and

foreign employees.

Obvious conflicts exist betweer Title VI] and Saudi Ara-

bian law. Thus, the law requires Saudi Arabs to be favored

over all others (Article 45 of the Labor Law) and, consistent

with Islamic Law, prohibits women from commingling in the

workplace with men (Article 160 of the Labor Law). Addi-

tionally, Islam is the official state religion and guiding force

of the Kingdom."

The limits placed on women in Saudi society highlight the

magnitude of the conflict that would ensue if employers

applied Title V11 in Saudi Arabia. Legally, Saudi women can-

not do anything alone that might allow them to somehow

encounter a man on their own to whom they were not

14 = See Saudi Religious Police Turn More Aggressive, Washington Post,

Dec. 13, 1990, at A43, col. 1.

19

related, including leaving home, travelling, eating, or staying

in a hotel.’ Women are also prohibited from driving. ‘‘In

public, Saudi women are required to wear a black robe cover-

ing almost all their body and usually a veil to cover their hair

and face as well.’’ Saudi Women, New York Times, Dec. 8,

1990, at 8, col. 3. Yet, if U.S. employers were to apply even

some of these limitations to U.S. women working abroad,

they would conflict with the mandates of Title VII if the stat-

ute is found to apply overseas.

In recognition of these cultural differences between the

United States and its host in the Persian Gulf, the U.S.

Department of Defense has implemented policy guidelines for

American military personnel in Saudi Arabia. In a booklet

entitled A Soldier’s Guide to Saudi Arabia, published by the

United States Army," the government states: “‘As in other

nations, foreigners must comply with the laws of Saudi Ara-

bia while staying there’’ whether or not they conflict with

American Laws. Guide at 27. The Guide further states: ‘‘As

guests within a host country, you should avoid subjects or

situations which are sensitive to Saudis and other Arabs,”’

listing a dozen such sensitive areas. Guide at 29. The Army

then provides a list of ‘‘Do’s’’ and ‘‘Don’ts’’ for its person-

nel in Saudi Arabia under such headings as ‘“‘working with

Arabs,”’ “‘religion,’’ ‘‘women,’’ ‘“‘foreigners and the law,”

and ‘‘sensitivities.”’ In deference to the Islamic religion, mili-

tary personnel are not to “‘[djisplay a crucifix or star of

David in public, even as jewelry.’’ Guide at 19. As reported

in the press, U.S. chaplains and rabbis are not permitted to

wear crosses or stars of David while in Saudi Arabia, all non-

Muslim religious services are to be conducted secretly, reli-

gious items often are removed from packages sent to U.S.

1S See Some Saudi Women Push Changes, New York Times, Dec. 8,

1990, at 8, col. 3 (“Saudi Women"’), Saudi Interior Minister Prohibits

All Protests for Change by Women, New York Times, Nov. 18, 1990,

at 16, col. 3; Americans Rushing to Learn Saudi Culture, Washington

Post, Dec. 13, 1990, at A48, col. 1.

16 HQDA, Office of the Chief of Public Affairs, Command Informa-

tion Division, A Soldier's Guide to Saudi Arabia (1990).

20

service personnel, and in the event U.S. troops are in Saudi

Arabia over Christmas and Hanukah any celebrations are to

be severely curtailed."

| The Army has advised women military personnel to ‘dress

in a manner acceptable to Arabs.’’ Guide at 23. While uni-

forms are always acceptable, ‘‘for civilian attire Western

clothing is OK if it fits loosely and covers the neck, arms and

legs. . . . Don’t wear pants in public unless they're part of

your authorized uniform ... fand don’t] wear tight or

revealing clothing in public, considered immodest and undig-

nified in Arab culture.’ Jd. Women are also advised to

““[e]xpect to ride in the back of public buses’’ and “‘to be

excluded from some stores.”’ Jd. They are also told not to

‘*[k]iss, touch or show affection toward any man, including a

non-Saudi man, in public’’ and that “*[djancing in public and

mixed swimming/bathing are forbidden .. . .”" Jd. at 22- -

23." According to General Colin Powell, United States

women are being requested to “‘respect the customs and tra-

ditions of the country in which we are guests.”’’”

It is quite appropriate for the U.S. government to impose

such restrictions on its own civilian and military personnel in

Saudi Arabia out of a concern for the religious and other

practices and sensitivities of their foreign host. It is inconsis-

17 See Washington Times, Nov. 22, 1990, at Al; New York Times

Nov. 21, 1990, at 10, col. 3; Washington Times, Sept. 14, 1990, pe

A1l0. The seizure of religious items was confirmed by General Colin

Powell, Chairman of the Joint Chiefs of Staff, in testimony before the

Senate Armed Services Committee on Sept. 11, 1990. Reported in

Legi-Slate Report, Nov. 30, 1990 at 27, 41, 46-47. See also Observing

Hanukah in Saudi Arabia’ An American's Test of Faith, Washington

Post, Dec. 13, 1990, at A43, col. 1.

18 US. servicewomen are required to cover their arms and legs at all

umes, and “‘have been told to avoid wearing shorts, uncovering their

arms, driving vehicles, walking unescorted, chatung casually in public

with men who are not their husbands or stripping down to their T-

shurts, as their male counterparts do."" An Extra Enemy for Women

Soldiers, Chicago Tribune, Sept. 2, 1990, at C3. See also Boston

Globe, Nov. 13, 1990, at 12; Chicago Tribune, Aug. 27, 1990, at C3.

19 Testimony of General Colin Powell, supra, at n.17.

21

tent, howeve:, for the same government to seek to impose

different standards and values on U.S. private employers of

U.S. citizens in foreign workplaces without the same solici-

tude to the same host. It is obvious that Congress never con-

sidered any of these matters when it passed Title VII in 1964.

Of particular interest in this regard are the regulations of

the Office of Federal Contract Compliance Programs

(‘“OFCCP”’), the agency within the U.S. Department of

Labor charged with administering Executive Order 11246.

Executive Order 11246 creates the nondiscrimination and

affirmative action requirements for all Federal contractors.

The parallel responsibilities and obligations of Title VII and

Executive Order 11246 have long been recognized by the

courts. See, e.g., Weber v. Kaiser Aluminum & Chemical

Co., 563 F.2d 216 (Sth Cir. 1977), rev’d on other grounds,

443 U.S. 193 (1979). The regulations of the OFCCP explicitly

exempt from coverage work performed outside the United

States. 41 C.F.R. § 60-1.5(a)(3). It is an anomalous position

for one part of the government’s nondiscrimination enforce-

ment mechanism to claim extraterritorial reach without statu-

tory support while its sister agency, created by Executive

Order, and thus expressly representing the intent of the Exec-

utive Branch, disclaims such reach.

D. Principles of Foreign Sovereignty and Comity Dictate

That Title VII Not Be Applied Extraterritorially

Since its inception, the United States has favored the free

international movement of private capital, encouraging the

investment of foreign capital in this country and encouraging

United States corporations to invest their capital abroad. H.

Walker, Treaties for the Encouragement and Protection of

Foreign Investment: Present United States Practice, 5 Am. J.

Comp. L. 229 (1956). The United States has effectuated this

policy through the bilateral treaty of friendship, commerce,

and navigation (‘‘FCN treaty’)? which ‘‘provide extensively

for the rights of each country’s citizens, their property and

20 FCN treaties are Article II treaties in that they are ratified by the

Senate pursuant to Article II of the Constituuon.

22

other interests, in the territories of the others, and for the

rules mutually to govern their trade and shipping.’’ Jd. at

230.

The purpose of the FCN treaties is to ensure equality of

treatment, known as national treatment, to foreign businesses

and their employees in a foreign country. The treaties allow

Americans to work overseas subject only to the limitations

imposed by the host country on its own citizens.

The EEOC’s position in this litigation runs contrary to the

FCN treaties and the notion of national treatment by unilat-

erally giving American citizens further noncontingent rights

not accorded to the host country’s citizens. American compa-

nies doing business abroad would be required to comply with

the inconsistent provisions of the laws of the host country

and with Title VII. As such, they would be disadvantaged

compared to their foreign counterparts because the latter

would only have to comply with the laws of the host country.

By contrast, foreign corporations doing business in the

United States must comply with Title VII but need not

adhere to their own countries’ employment laws here. Indeed,

if certain foreign countries such as South Africa sought to

apply their laws to companies in the United States, it would

surely run afoul of American laws. Likewise, American com-

panies abroad should only be legally required to adhere to

the host country’s rules without the dual obligation of com-

pliance with United States protective labor legislation abroad.

The international employment arena was explored by this

Court in Sumitomo Shoji America, Inc. v. Avagliano, 457

U.S. 176 (1982), which held that a commercial treaty between

the United States and Japan did not insulate an American

subsidiary of a Japanese company doing business here from

the prohibitions of Title VII. Plaintiffs alleged sex and

national origin discrimination in the company’s hiring of its

employees in the United States. This Court held that foreign

enterprises that engage in business in the United States are

subject to the provisions of Title VII.

: 23

Based upon the same reasoning in Sumitomo, foreign

nations apply their employment laws with equal force to

American corporations or foreign subsidiaries doing business

abroad. Such American companies, like foreign corporations

in the United States, must comply with the employment laws

governing all employees, both U.S. citizens and aliens, within

the host country’s borders, as well as the customs or practices

which are protected or given effect by the foreign legal sys-

tem. Foreign countries impose restrictions against discrimina-

tion,” promulgate laws requiring or permitting favoritism to

certain groups,” and establish laws setting up tribunals to

resolve these matters,” all of which may be different from

Title VII. Accordingly, applying employment laws extraterri-

torially often creates irreconcilable conflicts because a foreign

based employer would be required to comply not only with

the laws of its host nation, but also with different American

21 See, e.g., Code du Travail (C. Trav.], arts. L. 122-35, 122-45, 123-1

(French laws prohibiting employment discrimination on the basis of

sex, marital status, national origin, religion or handicap); Sex Discrim-

ination Act, 23 Eliz. 2, ch. 65 (1975), Race Relations Act, 24 Eliz. 2,

ch. 74 (1976), (English laws prohibiting sex, race or national origin dis-

crimination); Unfair Dismissals Act, § 6 (1977), Employment Equality

Act (1977) (Irish laws prohibiting employment discrimination on basis

of religious or political beliefs, race, pregnancy, sex and marital sta-

tus); Canada Labour Code, § 5 (1970) (prohibition against race,

national origin and religious discrimination).

22 ~=See, e.g., Labor and Workmen Law of 1969 of the Kingdom of

Saudi Arabia, arts. 44, 45, 49 and 50 (Saudi Arabia) (Saudi Arabian

laws requiring 75% of workforce to be nationals and giving hiring

preference to nationals); Note, Commercial Treaties and the American

Civil Rights Laws: The Case of Japanese Employers, 31 Stan. L. Rev.

947, 953 n.33 (1979) (American treaties with Nicaragua and France, in

deference to laws of those countries, limit hiring of foreign employ-

ees). See generally R. Blanpain & F. Millard, Comparative Labour

Law and Industrial Relations 339-340 (BNA) (1982).

23 = See, e.g., Labor and Workmen Law of 1969 of the Kingdom of

Saudi Arabia, arts. 172-178 (Saudi Labor Tribunals); C. Trav. art.

$11-1 (French Labor Tribunal); Unfair Dismissals Act, § 1 (1977)

(Irish Employment Appeals Tribunal); Industrial Training Act, 12

Eliz. 2, § 12 (1964) (English Industrial Tribunals).

24

laws, even though the employees in question work solely

within the host nation.

Examples of these conflicts include laws and practices

favoring those of particular religions or non-religions (such as

the favoring of Catholics or Moslems in countries predomi-

nately of that religion or of atheists in communist countries),

favoring men over women (as in Japan or some South Amer-

ican countries), favoring certain racial or ethnic groups (as

Japanese in Japan) or discriminating against persons of cer-

tain national origins (as Greeks in Turkey and Turks in

Greece). Although favoritism laws and practices contravene

American morals and values and conflict with Title VII, an

American employer abroad would have to comply with such

laws and customs just as foreign companies in America must

comply with Title VII. As the court held in Fernandez vy.

Wynn Oil Co., 653 F.2d 1273, 1277 (9th Cir. 1981), ‘‘the

United States cannot impose standards of non-discriminatory

conduct on other nations through its legal system,”’ just as

‘“‘[njo foreign nation can compel the non-enforcement of

Title VII here.’’ (Footnote omitted).

SHRM’s position is predicated on the practical and legal

problems which would be created by the adoption of

Boureslan’s and the EEOC’s position. While the application

of our own democratic and humane notions of workplace

equity is a desirable development in the United States, and

one to which our government devotes considerable energy,

the position advanced by Boureslan and the EEOC is quite

different. They ask this Court to endorse the internationaliza-

tion of our domestic labor laws. Such a development runs

counter to the historical practices of the United States.

For example, of the 149 ratified conventions of the Inter-

national Labor Organization (‘‘ILO’’), the United States has

ratified only ten. While the conventions merely commit rati-

fying countries to pass domestic implementing legislation,

Congress has historically refused to subject domestic labor

legislation to international oversight. In particular, Conven-

tion 111, Discrimination (Employment and Occupation),

25

adopted by the ILO in 1958, has not been ratified by the

United States even though our domestic legislation, including

Title VII, exceeds the standards set by that convention. It

thus defies logic and historical experience to believe that the

Congress intended by silence and indirection to international-

ize the reach of Title VII.

Accordingly, important policy concerns dictate that Title

VII should not be applied extraterritorially.

CONCLUSION

For all of the foregoing reasons, Amicus Curiae Society for

Human Resources Management respectfully urges this Court

to affirm the decision below.

Respectfully submitted,

Of Counsel:

BREED, ABBOTT & KENNETH KIRSCHNER*

MORGAN JOHN E. PARAUDA

Citicorp Center

153 East 53rd Street

New York, New York 10022

(212) 888-0800

Of Counsel: —and—

KELLEY DryeE & LAWRENCE Z. LORBER

WARREN 2300 M Street, N.W.

Washington, D.C. 20037

(202) 955-9600

Attorneys for Amicus Curiae,

Society for Human Resources

Management

(*Counsel of Record)

Dated: December 17, 1990