# Amicus Curiae Brief — Espinoza v. Farah Mfg. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0207%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 414 U.S. 86 ## Text = ~ 1 "RILED , 1973 | MICHAEL RODAK, JR.CLE In THE - Supreme Court of the United States Ocroser Term, 1973 No. 72-671 —> Cecmia Espinoza and Rupotro Espinoza, Petitioners, —_—V.— Faran Manuractunine Co., Inc., Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT — —~ — -— BRIEF OF MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, AMICUS CURIAE Mario G. OBLEDO Sanrorp Jay Rosen Mexican American Legal Defense and Educational Fund, Inc. 145 Ninth Street San Francisco, California 94103 Attorneys for Amicus Curiae —— ———————ss INDEX Interest of Amicus PAGE * Question Presented Statement of the Case ARGUMENT ConcLusION APPENDIX: Opinion Letter of Acting General Counsel, Equal Employment Opportunity Commission ................ TaBLE OF AUTHORITIES Cases: Bustos v. Mitchell, 41 U.S.L. Week 2573 (D.C. Cir. I i IE isnt alice cast cine siecioccapacedhineccietisheanans. Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970) Graves v. Barnes, 343 F. Supp. 704 (W.D. Texas 1972), aff'd sub nom. White v. Regester, 41 U.S.L. Week 4885 (June 18, 1973) | Griggs v. Duke Power Co., 401 U.S. 424 (1971) .............. Hernandez v. Texas, 347 U.S. 475 (1954) PAGE In re Griffiths, 41 U.S.L. Week 5143 (June 25, 1973) _.. 9 Keyes v. School District No. 1, Denver, Colorado, 41 U.S.L. Week 5002 (June 21, 1973) 2 Sugarman v. Dougall, 41 U.S.L. Week 5138 (June 25, 1973) 9 Statute: Title VII of the Civil Rights Act of 1964 —......... 4-6, 8-9 Regulations : 29 C.F.R. §1601.30(a) 222... 7 29 C.F.R. §1606.1(d) ........ ...4, 6-7, 8 Other Authorities: F. Belair, Operation Intercept: Success on Land, Futility in the Air, N.Y. Times, p. 43, Oct. 2, 1969... 5 35 F.R. 18692, December 9, 1970; 1 Employment Prac. Guide 4070.30 n. 1 w 7 Opinion Letter of the Acting General Counsel of the EEOC, released April 28, 1967 7 — IN THE Supreme Court of the United States Octoser Term, 1973 No. 72-671 i Ceca Espinoza and Ruvo.ro Espinoza, Petitioners, —_—vV.— ~/ Faran MANUFACTURING Co., Inc., Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT —~—<— BRIEF OF MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, AMICUS CURIAE Interest of Amicus* The Mexican American Legal Defense and Educational Fund (MALDEF) was established on May 1, 1968, prima- rily to provide legal assistance to Mexican-Americans. It is headquartered in San Francisco with additional offices in San Antonio, Los Angeles, Denver, Albuquerque, and Washington, D.C. *The letters of Petitioner and Respondent, consenting to the filing of this brief amicus curiae out of time, have been filed with the clerk. 2 The term “Chicano” is a shortened version or corruption of the term “Mexicano”. The term has often been applied broadly and loosely to Mexican-Americans in the South- west. This group includes recent immigrants to the United States as well as people whose connection with the United States goes back a number of generations. Many Mexican- Americans are United States citizens. Many others are not. A significant part of this group includes persons “lawfully admitted for permanent residence,” the status that is one step before citizenship. Courts have recognized that Mexican-Americans con- stitute a separate group, often subject to distinct dis- crimination in today’s society. E.g., Hernandez v. Texas, 347 U.S. 475 (1954). Quite recently a federal district court surveyed the situation as regards the Mexican-American in Texas. Because of long standing educational, social, legal, economic, political and other widespread and prevalent restrictions, customs, traditions, biases and prejudices, some of a so-called de jure and some of a so-called de facto character, the Mexican-American population of Texas, which amounts to about 20%, has historically suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics, and others. Graves v. Barnes, 343 F. Supp. 704, 728 (three-judge court) (W.D. Texas 1972), aff’d sub nom. White v. Regester, 41 U.S.L. Week 4885 (June 18, 1973). See also, Keyes v. School District No. 1, Denver, Colorado, 41 U.S.L. Week 5002 (June 21, 1973). 3 There are approximately ten million Mexican-Americans, making them one of the largest as well as one of the most discriminated against groups in the United States. They are also one of the most powerless in the political arena. A significant reason for this powerlessness is the fact that many persons of Mexican origin who lawfully reside in the United States are not citizens and are thus ex- eluded from the franchise. Mexicans who are permanent resident aliens make important contributions to American life and assume fundamental duties toward the United States (such as paying taxes and serving in the armed forces), but are unable to use the electoral process to ad- vance their interests. MALDEF thus sees as one of its roles the effective use of the courts to safeguard and secure the legal rights of persons of Mexican origin who are per- manent resident aliens. Question Presented Whether refusal to hire a permanent resident alien actu- ally residing in the United States solely on the basis of alienage is unlawful under Title VII of the Civil Rights Act of 1964 or 42 U.S.C. §1981. Statement of the Case It is important to consider the exact scope of the facts and issues in this case. On July 19, 1969, Cecilia Espinoza was denied employment by Farah Manufacturing Company because she was not a United States citizen. Cecilia Espi- noza is a permanent resident alien actually residing in the United States. She is married to Rudolfo Espinoza, also a plaintiff in this case, who is an American citizen. They have a four year old daughter. Cecilia Espinoza has ex- T “7 4 dressed the desire to become a citizen herself when she can acquire the necessary language skills and education. App, yp. 77-78. No one for a moment suggests that Title VII or any fed- sral regulation or statute compels Farah to employ any alien who is not legally in this country. See 29 C.F.R. 31606.1(d) (applicable Equal Employment Opportunity Sommission regulation) ; Brief of Petitioners at p. 11. Simi- arly Farah is not being asked to employ any alien if to do 30 would violate any valid Immigration and Naturalization Service or Department of Labor policy concerning aliens. Furthermore, a decision in this case need have no applica- tion to the problem of “seasonal commuter aliens,” agri- sultural workers whose legal status within this country has been put in doubt by the recent case of Bustos v. Mitchell, 41 U.S.L. Week 2573 (D.C. Cir. April 16, 1973). The instant case also has no relevance to the situation of the “daily commuter aliens” (see Bustos v. Mitchell, supra), who, by means of an Alien Registration Receipt Card (Form I-151, the “green card’’), commute daily over the border to work in the United States while actually living in Mexico (or Canada). Refusal to hire permanent resident aliens actually resid- ing in the United States (persons in Cecilia Espinoza’s posi- tion) constitutes national origin discrimination. Refusal to hire alien commuters (or even American citizens commut- ing from their homes in Mexico), on the other hand, does not automatically constitute national origin discrimination as such a refusal could be wholly based on residence. Actual residence within the United States could be a bona fide occupational qualification, within the meaning of Title VII, for Farah employees. Since there is always the possibility _ 5 of restriction and delay involved in the crossing of inter- national boundaries, Farah might well demonstrate that effective plant operation requires reliability of personnel which foreign residence could jeopardize. Point might be given to such a demonstration by certain activities not too long ago along the United States-Mexican bord. The Bureau of Customs and the Immigration and Naturaliza- tion Service cooperated to seal the border to narcotics traffic. Delays in border crossings of up to four hours were reported. F. Belair, Operation Intercept: Success on Land, Futility in the Air, N.Y. Times, p. 43, Oct. 2, 1969. In the instant case, however, no bona fide occupational qualification exists to justify refusal to hire permanent resident aliens actually residing in the United States. In- deed since the inception of the original cause of action in 1969 Farah has not even attempted to offer any business reason for its policy. Since its policy is arbitrary and since it operates to discriminate on the basis of national origin, itis unlawful. ARGUMENT MALDFEF is in accord with the arguments presented in the Brief for Petitioners. It offers the following argument _ only in amplification of points made by the petitioners. Farah has made much of the fact that 95% of its em- ployees are Spanish-surnamed. Like the Fifth Cireuit it makes the too quick identification of ethnic discrimination with national origin discrimination. What must be re- membered, however, is that national origin discrimination has never been a phenomenon distributed evenly over an entire ethnic group. The “national origin” discrimination sg 6 one suffers naturally decreases the further in years and generations one is removed from foreign origins. The ae. quiring of United States citizenship, the increased famil- iarity with the language, customs, and mode of life of one’s new home increase the assimilation process. It is unrealis. tie to expect a third generation American citizen and a newly arrived immigrant to be subject to similar dis- crimination because their last names are both Rivera. A law that could be satisfied with a list of employees’ last names would be similarly unrealistic. It must be assumed that the drafters of Title VII were aware of the true nature of the “national origin discrimination” problem, and it should be interpreted to meet it. Farah’s discrimination comes into play only for the foreign born. If the discrimination was based solely on place of birth, it would clearly be national origin dis- crimination regardless of the number of Spanish surnamed employees Farah has. By basing the discrimination on citizenship, Farah has merely substituted another element in the classification. This additional element further disad- vantages that class of persons most victimized by “national origin” discrimination, i.e., recent immigrants, and those least assimilated into mainstream American life. It is hard to see how this additional discriminatory element operates to nullify the “national origin” discrimination which is the net effect of Farah’s policy. The Equal Employment Opportunity Commission cor- rectly concluded that “ . . . discrimination on the basis of citizenship has the effect.of discriminating on the basis of national origin ... ” Hence it has ruled that “a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of 4 7 his citizenship ... ” 29 C.F.R. §1606.1(d). The EEOC regulation represents the most realistic approach, con- sistent with the broad ameliorative mandate of Title VII. Farah’s argument that the regulation is valid in those instances when citizenship based discrimination is com- bined with or substituted for a clear-cut total discrimina- tion against a particular ethnic group hides the real issue. Nor can it be said that EEOC policy has been confused or contradictory on this matter. At pages 9 and 10 of their brief in the Fifth Circuit, Farah cites an EEOC General Counsel opinion in which it is stated that employment dis- crimination against non-resident aliens does not violate Title VII. They then analogize that case to the present one. Researchers will discover that neither the opinion nor any reference to it are to be found in the Employment Prac- tices Guide. In the periodic revision which the Guide under- goes all reference to the opinion was removed and discarded. Amicus has succeeded in obtaining directly from Farah’s attorney and from the publisher of the Guide the material cited. A copy is appended to this brief, at pp. 11-15. The material proves to be an Opinion Letter of the Acting ‘General Counsel of the EEOC, released April 28, 1967, and issued pursuant to 29 C.F.R. $1601.30(a). In a sub- sequent notice published by the EEOC in the Federal Register it is stated, “Matter issued pursuant to 29 C.F.R. §1601.30(a) is issued to a specific addressee(s) and has no effect upon situations other than that of the specific ad- dressee(s).” 35 F.R. 18692, December 9, 1970; 1 Employ- ment Prac. Guide 4070.30 n. 1. To imply that the opinion letter and the EEOC regulation may be placed on the same - footing is simply incorrect. Furthermore, the opinion letter deals with an issue not relevant to this case. As we have made clear, the situation of non-resident aliens is not before-this Court. Farah’s attempt to analogize this case to the situation of resident aliens must also fail. First, the notice in the Federal Register cited above shows the clear intention of the EEOC that each opinion letter is designed for one fact situation only. Second, the letter itself: carefully limits its discussion of issues. Generally speaking, our immigration laws seek to pro- tect domestic labor from competition from foreign labor. .. . To construe Title VII of the Civil Rights Act to protect non-resident aliens from discrimination in favor of United States citizens .and resident aliens _ would place that statute in flat opposition to the policy — of the Immigration & Nationality Act, and this result, we are sure, was not Congress’ intention, These considerations are clearly intpplicable in the case of aliens lawfully admitted for permanent residénce. Al- though there is also language in the letter that “national origin” does-not refer to whether a- person is or is not a United States citizen, the Acting General Counsel makes sure to point out: We also reserve any decision regarding discrimina- tion against non-resident aliens of a particular national origin or regarding discrimination in favor of United . States citizens and against resident aliens. Id. (emphasis supplied). It is precisely that reserved ques- tion to which the EEOC addressed its subsequent regula- tion, 29 C.F.R. §1606.1(d). 9 Withdrawing Title VII’s protection from aliens would do much to cripple the national origin discrimination pro- hibition. Not only is it important that EEOC regulations continue to be given “great deference” by this Court, Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971), but it is also “the duty of the courts to make sure that the Act. works, and the intent of Congress is not hampered by a combination of a strict construction of the statute and a battle with semantics.” Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970). Further, a decision in favor of the Petitioners would be fully consistent with constitutional principle, so recently rearticulated by this Court, that disfavors discrimination against lawfully ad- mitted “resident aliens. Sugarman v. Dougall, 41 U.S.L.. Week 5138 (June 25, 1973) ; In're Griffiths, 41 U.S.L. Week 5143 (June 25, 1973). CONCLUSION For the reasons indicated above, the decision of. the Court of Appeals for the Fifth Circuit should be reversed and the case remanded to the District Court for the grant- ing of appropriate relief. Respectfully submitted, 8 Mario G. OBLEDo Sanrorp Jay Rosen . - Mexican American Legal Defense and Educational Fund, Inc. 145 Ninth Street San Francisco, California 94103 Attorneys for Amicus Curiae Counsel are indebted to George Schneider of the Columbia Law — Class of 1974, for his assistance in the preparation of bis brief. - _ 1l APPENDIX Opinion Letter of Acting General Counsel, Equal Employ- ment Opportunity Commission, March 21, 1967. Released April 28, 1967. In your letter you present the following fact situation: Our client employs a substantial number of pro- fessional performers. These employees are repre- sented by a labor organization as their collective bargaining agent. For many years the company and the union have enjoyed a harmonious and wholesome relationship. The union has presented a proposal for adoption by the company which has Gaused the client much concern because it may be violative of the Civil Rights Act of 1964, particularly Sec. 703(a)(1) and (2). The union urges that the company agree that it maintain a policy of employing one citizen of the United States or one resident alien in the United States on each occasion that it employs a non-resident alien. The com- pany’s business is based upon the premise that it en- gages the world’s greatest performers, and there has been public acceptance of this fact; consequently, the sole criteria used by the company in the hiring of its professional performers is the ability of the individual to perform, the uniqueness of the act, and the recep- tivity of the audience. __ __. When the employees are engaged in a foreign coun- _ try by our client, they are permitted to render their services in the United States by obtaining an H-1 Visa, 12 granted to individuals with exceptional and unique talent. Although national origin is not the reason for employment, nevertheless, the historical fact is that the overwhelming proportions of new acts and per- formers in this particular field have been and are non- resident aliens. As a general rule, the non-resident alien is employed in a foreign country and is then brought to the United States to perform his services; however, on occasion the non-resident alien may come to the United States for the purpose of seeking em- ployment with our client and after his arrival, he may be employed by the company. On the basis of the above facts you ask the following ques- tions: 1. May a company and a union agree between them- selves that for each non-resident alien who is employed outside of the country, employment must be given by the company to a citizen of the United States or a resident alien? 2. May a company and a union agree that for each non-resident alien who comes to the United States seek- ing employment with the company and is employed by the company after his entry into the United States, the company must hire a citizen of the United States or a resident alien? Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex or national origin. You present a situation in which the union has proposed that the company hire at least one United States citizen or resident alien for each non-resident alien 13 that it hires. The company would, of course, be free to hire a greater proportion of United States citizens or resident aliens if it so desired. This proposal, by placing a quota limit on the employment of non-resident aliens, discrimi- nates against this group as a class, and the question is whether such discrimination is consistent with Title VII. We conclude that it is. It is evident that discrimination against non-resident aliens generally is not the same as discrimination on the basis of national origin. “National origin” refers to the country from which the individual or his forebears came, see 110 Cong. Rec. 2549, not to whether or not he is a United States citizen, nor a fortiori, to whether, if an alien, he re- sides in or without the United States. It may be conceded that a limitation not specifically phrased in terms of na- tional origin may neVertheless have the effect of unlawfully discriminating on the basis of national origin. But where the discrimination is merely against non-resident aliens, it does not appear to us that the limitation is levelled at any particular national group, nor that it is even intended to benefit persons of a particular national origin, since citizens and resident aliens are equally the beneficiaries of the limitation. Furthermore, it is not the policy of our law to grant to non-resident aliens as a class opportunities for employ- -* Thus, we have previously concluded that an advertisement for ‘British-trained” or “British-educated” office help would be viewed as an expression of a preference based on national origin unless it could be demonstrated that the preference was in fact based on differences in the nature or quality of their training as opposed to that available in this country. 25 | 14 ment on equal terms with citizens and resident aliens. Gen- erally speaking, our immigration laws seek to protect do- mestic labor from competition from foreign labor, see Immigration and Nationality Act, as amended, § 203, 8 U. S. C. 1153; 1965 U. S. Code Cong. & Adm. News, pp. 3333-34. Indeed, the non-resident aliens described in your letter may be admitted to this country for the purpose of employment only upon petition of the prospective employer and upon a showing that they are “of distinguished merit and ability” and are coming “to perform temporary ser- vices of an exceptional nature requiring such merit and ability,” 8 U. S. C. 1101(a)(15)(H); 8 C. F. R. 214.2(h). To construe Title VII of the Civil Rights Act to proteet non-resident aliens from discrimination in favor of United States citizens and resident aliens would place that statute in flat opposition to the policy of the Immigration & Na- tionality Act, and this result, we are sure, was not Con- gress’ intention. We conclude, therefore, that it is not an unlawful employment practice under Title VII of the Civil Rights Act for an employer or a labor organization, by collective bargaining agreements or otherwise, to dis- criminate against non-resident aliens, generally, and in favor of United States citizens and resident aliens. In view of the above disposition, we do not reach the question whether the first exemption of section 702 of the Civil Rights Act is applicable to contracts of employment entered into abroad for performance in the United States. We also reserve any decision regarding discrimination against non-resident aliens of a particular national origin or regarding discrimination in favor of United States citi- zens and against resident aliens. a 15 ‘Finally, you ask whether there is a distinction under Title VII between a native-born citizen and a naturalized citizen. We prefer not to pass on such a question in the abstract, but we might point out that as a general propo- sition “the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive.” Schneider v. Rusk, 377 U. S. 163, 84 S. Ct. 1187, 1189 (1964). This is an opinion letter issued pursuant to 29 C. F. R. 1601.30. » al --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0207%3A06. Public record. Not legal advice.