Amicus Curiae Brief — Espinoza v. Farah Mfg. Co.

TABLE OF CONTENTS

Page

OU MICUS

MORANDUM AS Amicus CuRIAE:

~ Decision Below ..............: esse eee ee eeeeeeeee 1

ccd dss hekes 1b heh ke ReeKerees 2

Question I Skike rah ordre asad sdceseieess 2

SE MUUORUOEL «of cn cescnsvenncevnccocdouseones 2

a EG CEA ee Cr meer rere er 2

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_ Discrimination in employment on the ground of

- _ alienage is discrimination based on national ori-

= gin, forbidden by Title VII .................... 3

A. The E.E.0.C. Guidelines are a proper inter-

pretation of the statute .... 2. ....05..000% 3

B. The E.E.0.C. Guidelines interpret the statute

in a manner consistent with the purpose of

the statute to accord to individuals the right

to be free from discrimination in private

SIP ee ey :

: one aN te

4 employment similar to the rights protected

2 by the Fourteenth Amendment against

a infringement by the states ................ 7

C. Nothing in the legislative history of the

statute negates the interpretation of the

statute adopted by the E.E.0.C. Guidelines 10

ei cba s cabbies sede eevees 11

Memmidavit of Service ............cccccccecesscce cine 12

INDEX OF CITATIONS

spinoza v. Farah Manufacturing Company, Inc., 462 |

ee E ¢ 8 err eee passim

——

ii Table of Contents Continued

Page

In Re Griffiths, — U.S. —, No. 71-1336, decided June

MA: SEER: wiv Bian bau de bikca be hcb Oia 8,9

Griggs v. Duke Power Co., 401 U.S. 424 .............

Lansdale v. United Airlines, 437 F.2d 454 (5th Cir.) 8

Miller v. International Paper Co., 408 F.2d 283....... 7

Perry v. Commerce Loan Co., 383 U.S. 392 ............ 7

Phillips v. Martin Marietta, 400 U.S. 542.............

Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir.)

OTs; Mae, GE UM. OO i hk oc kk a ke.

Sugarman v. Dougall, — U.S. —, No. 71-1222, decided

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Takahashi v. Fish € Game Commission, 334 U.S. 410. 7

VUE V, TOU, Be Ute MO ka cos beaks Co en ove 8

United States v. Bacto-Unidisk, 394 U.S. 784 ........ 7

Constitutions, Statutes, Recunations, ORDERS:

U.S. Constitution, Amendment XIV ............. passim

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PE SI LOO no o'e's v'k'ns ss cob vas peksnualecs 8

MEY COS FORINT ys hos k kc s x oo sek eckgwaeacs 8

ConGRESSIONAL Reports:

Sa See, MeO, INE os sb sn od 0d 6 vnoaxid es acank 10

H. R. Rep. No. 914, 88th Cong., Ist Sess. ............ il

2 U.S. Code Cong. 2 Ad. News 2445 ..............00- 11

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

QD

No. 72-671

Cecitia Espinoza and Rupo.ro Espinoza, Petitioners,

Vv.

FaraH MANnvuracturine Co., INc., Respondent.

On Writ of Certiorari to the United States Court of Appeals

For the Fifth Circuit

MEMORANDUM FOR THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS

AMICUS CURIAE

DECISION BELOW

The decision of the court of appeals (Pet. App. 1a-

9a) is reported at 462 F.2d 1331, (5th Cir.). The de-

cision of the district court (Pet. App. 10a-15a) is re-

ported at 343 F.Supp. 1205.

eR)

2

JURISDICTION

The judgment of the court of appeals was entered

on May 31, 1972. A petition for rehearing and rehear.

ing en bance was denied on July 21, 1972. The petition

for a writ of certiorari was filed on October 31, 1972,

and was granted on April 23, 1973. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether an employer’s refusal to hire a lawful

resident alien because that person is not a citizen

violates the prohibition against discrimination on the

basis of national origin contained in Section 703 of

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

§ 2000e-2.

STATUTE INVOLVED

Section 703(a)(1) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2(a)(1) provides in

pertinent part:

(a) It shall be an unlawful employment practice

for an employer— ~

_.(1) to fail or refuse to hire or to discharge

any individual . . . because of such indi-

dividual’s ... national origin....

STATEMENT

The petitioner is a lawfully. admitted resident alien

of Mexican birth living in San Antonio, Texas, with her

citizen husband (R. 74-75, 76-77). In July, 1969, she

_ was rejected by respondent Company for employment

as a seamstress at its San Antonio division company

solely because she was not a citizen (R. 79, 85-86).

The Company’s action was in conformity with its policy

—

3

of hiring only citizens (R. 37). Citizens of Mexican

ancestry make up more than 92 percent of the Com-

pany’s total employees, 96 percent of its San Antonio

employees, and 97 percent. of people doing the work

for which petitioner applied (R. 37-38).

In a suit brought by petitioner in the Western Dis-

trict of Texas under Title VII, the district court

ted petitioner’s motion for summary judgment,

holding that the Company’s refusal to hire her because

she was not a citizen constituted discrimination on

account of ‘‘national origin’’ within the meaning of

Section 703(a) of Title VII, 343 F.Supp. 1205 (R. 69;

Pet. App. 10a-15a).

The court of appeals reversed holding that Title VII

does not prohibit discrimination against resident aliens

except ‘‘where such a practice is symptomatic of or a

necessary element within prohibited national origin

discrimination, or where it is a mere pretense to camou-

flage national origin discrimination.”’ 462 F.2d 1331,

1334 (Pet. App. 1a-9a). ‘‘National origin,’’ the court

below stated, should not be read to include citizenship ;

rather ‘‘national origin means exactly and only that,’’ ;

at 1332. . 5

ARGUMENT

DISCRIMINATION IN EMPLOYMENT ON THE GROUND

OF ALIENAGE IS DISCRIMINATION BASED ON NA-

TIONAL ORIGIN, FORBIDDEN BY TITLE VII.

A. The E.E.O.C. Guidelines are a Proper Interpretation of the

Statute.

RT ee re NOE PE RAO Ree

Congress has stated in Title VII that private em-

ployers subject to the Act may not discriminate against

an individual because of the country from which that

person came. Section 703(a) (1) provides that it is

unlawful to fail to hire ‘‘any individual’’ because of

ss Zaks OES. A RS eR NO ON

AEE STRSTR peeienanienmensinsieeememesmeeal

4

‘‘national origin’. In implementation of that provyi-

sion the Equal Employment Opportunity Commission,

the agency charged by Congress with primary responsi-

bility for the implementation and enforcement of Title

-VII, has issued guidelines which state (29 C.F R.

1606.1(d)) :*

Because discrimination on the basis of citizenship

has the effect of discriminating on the basis of

national origin, a lawfully immigrated alien who is

domiciled or residing in this country may not be

discriminated against on the basis of his citizen-

ship, except that it is not an unlawful employment

practice for an employer, pursuant to section

* 703(g), to refuse to employ any person-who does

not fulfill the requirements imposed in the interests

of national security pursuant to any statute of the

United States or any Executive order of the Presi-

dent respecting the particular position or the par-

ticular premises in question.

This ‘is a reasonable interpretation of the statute

which is entitled to great weight. Griggs v. Duke

Power Co., 401 U.S. 424, 433-434. Since under the

Fourteenth Amendment all persons born in the United

States are citizens—a status which is nearly inde-

feasible *—the status of being an alien arises from the

fact that an individual was not born in this country

but came from elsewhere. To refuse to hire an indi-

vidual because such person is an alien is therefore to

disadvantage that person. because of the country of his

birth, é.e., a country other than the United States.

While persons born in this country automatically

obtain citizenship at birth, individuals born elsewhere

>

135 Fed. Reg. 421 (January 13, 1970)

2 See Afroyim v. Rusk, 387 U.S. 253.

a

5

can acquire citizenship only through a long and some-

times difficult process. Among the requirements for

naturalization are an extended residency period of

from three to five years, 8 U.S.C. 1427(a) and 1430

(see 8 C.F.R. 316a) ; a demonstration of the ability to

read, write and speak English, 8 U.S.C. 1423(1) (see

8 C.F.R. 312.1) ; and a demonstration. of ‘‘a knowledge

of the fundamentals of history, and of the principles

and form of the government of the United States,”’

8 U.S.C. 1423(2) (see 8 C.F.R. 312.2). The Company’s

citizenship requirement thus creates two different and

unequal standards for employment: the native born

are automatically eligible for employment while those

born elsewhere are eligible for employment only after

they have completed the requirement period of resi-

dency and passed the proficiency tests in English and

civies. If this Company’s policies were followed gen-

erally, lawfully resident aliens would be under an abso-

lute bar to employment for the three to five year period

during which a resident alien is not eligible for naturali-

zation because of the residency requirement. In other

words a group of employees is being deprived of the

opportunity for employment for the sole reason that

they were born outside the United States and have not

obtained citizenship. That is discrimination based on

birth outside the United States and is thus discrimina-

tion based on national origin in violation of Title VII.

As shown by its reference to the fact that there was

no claim that respondent used the citizenship require-

ment as a camouflage, the decision of the court of ap-

peals was influenced by its view that respondent has a

pro-citizen rather than an anti-alien intent. But so

long as the effect of respondent’s practice is discrimi-

natory, intent is immaterial. Griggs v. Duke Power

6

Co., 401 U.S. 424, 482. It is therefore not significant

that respondent does not refuse to hire naturalized citi-

zens who have the same birthplace as the petitioner

resident alien. She, as an individual, is being subjected

to employment discrimination because of her birth out-

side the United States. Thus she, as an individual, and

others in her class suffer discrimination in employment

based on their national origin.

An employer may not impose discriminatory condi-

tions on a class protected by Title VII merely because

there are other members of the class who are not di-

rectly affected by such conditions. In Phillips v. Martin

Marietta, 400 U.S. 542, this Court rejected the defend-

ant’s argument that it could refuse to employ mothers

with pre-school children, although employing fathers

with such children, because a large majority of appli-

eants hired for the position sought by the plaintiff

were women. It held that Title VII ‘‘requires that

[all] persons of like qualifications be given employ-

ment opportunities irrespective of their sex.’’ 400

U.S. at 544. See also Lansdale v. United Airlines, 437

F.2d 454 (5th Cir.) ; Sprogis v. United Air Lines, 444

F.2d 1194 (7th Cir.), certiorari denied, 404 U.S. 991.

Similarly here, each individual applicant has the

right, under Title VII, not to be subject to discrimina-

tion based on his or her individual status as a person

born outside the United States.

re!

B. The E.E.O.C. Guidelines Interpret the Statute in a Manner

Consistent with the Purpose of the Statute to Accord to

Individuals The Right to be Free from Discrimination in

Private Employment Similar to the Rights Protected by

the Fourteenth Amendment Against Infringement by the

States.

Even if it be assumed that the term ‘‘national

origin’’, as used in Title VII is unclear, it is reason-

able to interpret any ambiguity in the statute in a way

which accords with its fundamental purpose. United

States v. Baco-Unidisk, 394 U.S. 784, 799; Perry v.

Commerce Loan Co., 383 U.S. 392, 399-400.

The fundamental purpose of Title VII is to assure

that every person has the chance to seek and secure

employment without discrimination. As the Fifth Cir-

cuit said in one of the earliest Title VII cases, ‘‘The

ethic which permeates the American dream is that a

person may advance as far as his [or her] talents and

..+ merit will carry him.’’ Miller v. International

Paper Co., 408 F.2d 283, 294, (5th Cir.). As the dis-

trict court stated in the instant case at 1207 (Pet. App.

18a) :

By 42 U.S.C. § 2000e-2(a)(1) Congress meant to

prohibit all invidious employment discrimination

on the basis of national origin, including national

ancestry, ethnic heritage, nationality and citizen-

ship. }

This Court has recently reiterated,® in resounding

terms, the right under the Fourteenth Amendment of

lawfully resident aliens to be free from discrimination

in state employment on account of alienage. Sugar-

man Vv. Dougall, — U.S. —, No. 71-1222, decided June

* For earlier decisions to the same effect, see Graham v. Richard-

son, 403 U.S. 365; Takahashi v. Fish & Game Commission, 334 U.S.

410.

TAL cet IRR ETE SRT TITS ENGEL TI NRE HERE IRON SE SENT

8

25, 1973; See also In Re Griffiths, —— U.S. ——, No.

71-1336, decided June 25, 1973. In the latter case, the

Court quoted Mr. Chief Justice Hughes in Truar y,

Raich, 239 U.S. 33, 41:

It requires no argument to show that the right to

work for a living in the common occupations of

of the community is of the very essence of the

personal freedom and opportunity that it was the

purpose of the [Fourteenth] Amendment to

secure. [Citations omitted.] If this could be re-

fused solely upon the ground of race or national-

ity, the prohibition of the denal to any person

of the equal protection of the laws would be a

barren form of words.

The use of that quotation, dealing with race and na-

tionality, in the context of a decision dealing with

denial of rights on the basis of alienage, indicates the

interrelationship between nationality and alienage.

Title VII is properly interpreted to reflect that rela-

tionship.

In a prior memorandum submitted by the United

States in this matter, it was pointed out that Congress

had, in other contexts, apparently interpreted the term

‘‘national origin’? as not including alienage since by

executive order beginning in 1943,‘ and by Act of Con-

gress since 1964,° the federal government has been pro-

hibited from discriminating on the basis of ‘‘national

origin” even though, by the requirements of the Civil

4Exee. Order 9346, 8 Fed. Reg. 7183 (1943); Exec. Order

10308, 16 Fed. Reg. 12303 (1951); Exec. Order 10479, 18 Fed.

Reg. 4899 (1953); Exec. Order 10925, 26 Fed. Reg. 1977 (1961);

Exee. Order 11246, 30 Fed. Reg. 12319 (1965) ; Exec. Order 11478,

34 Fed. Reg. 12985 (1969).

55 U.S.C. 7151, originally enacted as Section 701(b) of Title

VII of the Civil Rights Act of 1964.

an ee

a

Service Commission since 1914 * and in various appro-

priation acts, non-citizens were made ineligible for serv-

ice in the federal competitive system. In light of the

Sugarman and Griffths decisions, however, it is evident

that the citizenship requirement for federal service

must be evaluated in terms of the special justification

of the federal government to have only citizens as em-

ployees—a question on which the Court specifically de-

¢lined to rule in the Sugarman case. Title VII also

recognizes that there are situations in which citizenship

may legitimately be a bona fide occupational qualifica-

tion for employment. Section 703(e) of Title VII, 42

U.S.C. § 2000e-2(e), provides in pertinent part:

Notwithstanding any other provision of this title,

(1) it shall not be an unlawful employment prac-

tice for an employer to hire and employ employees

... on the basis of their .. . national origin in those

certain instances where . . . national origin is a bona

fide occupational qualification reasonably neces-

sary to the normal operation of that particular

business or enterprise. . . .

9

We therefore have come to the conclusion that dis-

crimination on the basis of alienage should properly be

deemed, as the E.E.0.C. guidelines direct, to effectuate

discrimination on the basis of national origin unless a

bona fide occupational qualification is shown. No such

bona fide qualification exists for the position of seam-

stress here involved.

*5 C.F.R. 338.101.

10

C, Nothing in the Legislative History of the Statute Negates

the Interpretation of the Statute Adopted by the E.E.O.C.

Guidelines.

In view of the fact that the interpretation of the term

‘national origin’? adopted by the E.E.0.C. guidelines

accords with the natural meaning of the term and with

the underlying purpose of the statute, that interpreta-

tion should be followed unless a contrary Congressional

intent is apparent. We have already discussed the fact

that a contrary intent cannot be read into the require-

ment of citizenship for federal employment since the

justification for that policy must rest on the need for

citizenship as a condition for federal employment, a

consideration which does not pertain in this case. Be-

yond that, there is nothing in the legislative history of

Title VII which would militate against the interpreta-

tion adopted in the E.E.0.C. guidelines.

The single direct definition given to ‘‘national origin”

in the history of the Act—the remarks of Congressman

Roosevelt, 110 Cong. Ree. 2548-2549 (1964)—to which

the court below refers (Pet. App. 4a), furnishes no sup-

port for the Court’s reading of the Act. Congressman

Roosevelt said that national origin ‘‘means the country

from which you or your forebears came from.’’* (Em-

phasis supplied.) Since, as we have shown, discrimina-

tion against resident aliens is discrimination against

those who have come from another country, this state-

ment tends to support rather than negate the validity of

EEOC’s guideline. It is true that the words “‘or an-

cestry’’ appearing in the original bill were eliminated

from the bill as submitted by the House Judiciary Com-

* Congressman Roosevelt’s statement concerning the term ‘‘na-

tional origin’’ arose in the context of a discussion in which he was

distinguishing discrimination based on race from discrimination

based on national origin.

RELIED TEESE OY OTE APE PEI PIE PN

11

mittee. There was no discussion regarding the reason

for this deletion except for the House J udiciary Com-

mittee Minority Report * which states: 2

There is no material change in the substantive pro-

visions of this title and its predecessor title defining

‘unlawful employment practice.’ Hence the gen-

eral coverage of both versions is the same.

It is entirely consistent with the report.to assume that

the reason for the deletion was the broad scope of the

term ‘‘national origin”? which encompasses ancestry.

As we have discussed above, discrimination against non-

citizens is discrimination against persons born outside

the United States. It is therefore discrimination based

on national origin.

CONCLUSION

For the reasons stated, the judgment of the court of

appeals should be reversed and the judgment of the dis-

trict court should be reinstated.

Respectfully submitted,

WituiAM A. CarREy

General Counsel

JOsEPH T. Epprns, JR.

Acting Associate General Counsel

BEATRICE ROSENBERG

CHARLES REISCHEL

Ramon GoMEz

Attorneys

Equa EMPLOYMENT OpporTUNITY

CoMMISSION

1800 G Street, N.W.

Washington, D.C. 20506

* H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963), 2 U.S. Code

Cong. & Ad. News 2445 (1964).

12

Affidavit of Service

I hereby certify that on October 5, 1973, three copies

of the foregoing Motion for the Equal Employment

Opportunity Commisson For Leave to File a Mem-

orandum as Amicus Curiae and Accompanying Mem-

orandum were mailed, postage prepaid and special

delivery, to the following counsel of record:

Kenneth R. Carr

P. O. Box 9519

- El Paso, Texas 79985

Jack T. Chapman

William Duncan

2000 State National Plaza

El Paso, Texas 79901

Attorneys For Respondent

Harriet Rabb

George Cooper

435 West 116th Street

New York, New York 10027

Ruben Montemayor

1414 Tower Life Building

San Antonio, Texas 78205

Attorney For Petitioners

I further certify that all parties required to be

served have been served.

RaMon GOMEZ

Attorney for the Commission

EquaL EMPLOYMENT

OPPORTUNITY COMMISSION

1800 G Street, N.W.

Washington, D. C. 20506