Boureslan v. Arabian American Oil Company Brief for Respondents Arabian American Oil Company and Aramco Services Company

    Nos. 89-1838 and 89-1845

In The

0upn>m? (Emtrt of %  Itritpft Zlatas
October Term , 1990

Ali Boureslan and
E qual E mployment Opportunity Commission,

Petitioners, v. ’
Arabian American Oil Company and 

Aramco Services Company,
Respondents.

On Writs of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF FOR RESPONDENTS 
ARABIAN AMERICAN OIL COMPANY 
AND ARAMCO SERVICES COMPANY

Paul L. Friedman 
(Counsel of Record)

Thomas J. O’Sullivan 
Anne D. Smith 

White & Case
1747 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 872-0013 

Attorneys for Respondents

December 17,1990

Of Counsel:
J ohn D. Roady 

Hutcheson & Grundy 
3300 Citicorp Center 
1200 Smith Street 
Houston, Texas 77002

V. Scott Kneese 
Gregory B. Richards 

Bracewell & Patterson 
2900 South Tower 
Pennzoil Place 
Houston, Texas 77002

W il s o n  - E p e s  p r in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  -  W a s h in g t o n , D .C .  2 0 0 0 1



QUESTION PRESENTED

Did Congress intend in 1964 to extend the employ­
ment discrimination provisions of the Civil Rights Act 
of 1964 overseas to regulate the practices of U.S. em­
ployers of U.S. citizens in workplaces outside the United 
States?

(i)





TABLE OF CONTENTS
Page

QUESTION PRESENTED ___________ ____________  i

TABLE OF AUTHORITIES........................     vi

OPINIONS BELOW ......................................    1

STATUTORY PROVISIONS INVOLVED .................... 2

STATEMENT OF THE C A SE........ ........ .................... . 2

SUMMARY OF ARGUMENT............................................ 5

ARGUMENT___ _________ _____________ __________  9

I. CONGRESS DID NOT INTEND TO EXTEND 
TITLE VII TO WORKPLACES OVERSEAS 
TO REGULATE THE PRACTICES OF A U.S. 
EMPLOYER OF A U.S. CITIZEN IN A FOR­
EIGN COUNTRY .............................................    9

A. Acts Of Congress Are Presumed To Apply
Only Within The Territory Of The United 
States Unless Congress Clearly And Affirm­
atively Expresses A Contrary Intent__ ___  12

B. The Requisite Clear Expression Of Affirma­
tive Intent Necessary To Overcome The Pre­
sumption Against Extraterritoriality Cannot 
Be Found In Title VII’s Definition of “Com­
merce” ........           16
1. Title VII’s Definition Of “Commerce” By

Its Terms Does Not Reach Overseas 
Workplaces ..................    17

2. Title VII’s Definition Of “Commerce”
Was Derived From Statutes That This 
Court Had Previously Held Do Not 
Apply Extraterritorially.................................. 22

(iii)



IV

TABLE OF CONTENTS—Continued

C. The Requisite Clear Expression Of Affirma­
tive Intent Necessary To Overcome The Pre­
sumption Against Extraterritoriality Can­
not Be Found In The Negative Inference 
From The Alien Exemption Provision_____
1. The History Of The Alien Exemption

Provision Demonstrates That Its Dual 
Purposes Were To Exempt Employers Of 
Aliens From Coverage In U.S. “Posses­
sions” And To Confirm The Coverage Of 
Aliens In The United States ....................

2. A Negative Inference Cannot Provide
The Requisite Clear, Specific Congres­
sional Expression Of Intent Necessary 
For The Extraterritorial Application Of 
A U.S. Law ...................... ............... ...........

D. Extraterritorial Application Of Title VII
Would Be Inconsistent With Its Structure 
And Would Necessarily Result In Coverage 
Of Foreign As Well As U.S. Employers In 
Foreign Workplaces _________ _____ _____

E. Congress Could Not Have Intended In 1964
To Impose Our Method Of Dealing With 
Employment Discrimination On The Many 
Nations That Have Entered Into Treaties 
And Conventions Or Adopted Their Own 
Laws To Deal With Such Matters________

II. THE EEOC’S CURRENT INTERPRETATION 
OF TITLE VII IS ENTITLED TO NO DEF­
ERENCE BECAUSE IT IS NEITHER SUP­
PORTED BY THE STATUTE, CONTEMPO­
RANEOUS WITH ENACTMENT OF TITLE 
VII NOR CONSISTENT WITH PRIOR POSI­
TIONS TAKEN BY THE AGENCY ..................

Page

26

26

32

34

40

43



V

TABLE OF CONTENTS—Continued
Page

III. SOUND POLICY REASONS SUPPORT THE 
JUDGMENT OF THE COURTS BELOW
THAT TITLE VII SHOULD NOT BE AP­
PLIED TO OVERSEAS WORKPLACES 
UNLESS CONGRESS CLEARLY INDICATES 
THAT IT SHOULD ................ ..................... ..........  47

CONCLUSION___ ________________________ _____ _ 50

APPENDIX A: Relevant Statutory Provisions ........  la

APPENDIX B : Diplomatic Note No. 429 from Her 
Britannic Majesty’s Embassy to the 
U.S. Department of State ___ ___ _ 6a

APPENDIX C: Diplomatic Note No. 177 from the 
Embassy of Canada to the U.S. 
Department of State...... ............. ....... 8a

APPENDIX D: Diplomatic Note No. 370 from the 
Embassy of Australia to the U.S. 
Department of State ............ .......... 10a



VI

TABLE OF AUTHORITIES
CASES Page

Abrams V. Baylor College of Medicine, 805 F.2d
528 (5th Cir. 1986).......... ................. .....................  47

Addison V. Holly Hill Fruit Prods. Co., 322 U.S.
607 (1949) ................................ ............... ........... 11

A ir Line Dispatchers Ass’n V. National Mediation 
Bd., 189 F.2d 685 (D.C. Cir.), cert, denied, 342
U.S. 849 (1951) ___________________ ________  21

Air Line Stewards & Stewardesses Ass’n Int’l v. 
Northwest Airlines, Inc., 267 F.2d 170 (8th
Cir.), cert, denied, 361 U.S. 901 (1959) _______ 21

Akgun V. Boeing Co., No. C89-1319D (W.D. Wash.
June 7, 1990) ..... .............. ............ ..........................  34

Andrus V. Glover Constr. Co., 446 U.S. 608
(1980) ________ __________ ______ __________ _ 37

Argentine Republic V. Amerada Hess Shipping
Co., 109 S. Ct. 683 (1989) ................. ................ 12,13

Benz v. Compania Naviera Hidalgo, 353 U.S. 138
(1957) .......................................................... ...............passim

Blackmer v. United States, 284 U.S. 421 (1932).... 12, 13
Branch V. FTC, 141 F.2d 31 (7th Cir. 1944).... . 22
Bryant V. Int’l Schools Servs., Inc., 502 F. Supp.

472 (D.N.J. 1980), rev’d on other grounds, 675
F.2d 562 (3d Cir. 1982)_____ _________ ____ 33, 34, 48

CFTC V. Nahas, 738 F.2d 487 (D.C. Cir. 1984).. 39, 47 
Cleary v. United States Lines, Inc., 728 F.2d 607

(3d Cir. 1984) _______________________ _____ 34
Continental Ore Co. V. Union Carbide & Carbon

Corp., 370 U.S. 690 (1961) .................................... 24
Daniel V. Paul, 395 U.S. 298 (1969)........... .............  22
Dothard v. Rawlinson, 433 U.S. 321 (1976)..... . 36
EEOC V. Kloster Cruise Ltd., 53 Fair Emp. Prac.

Cas. (BNA) 1229 (S.D. Fla. 1990) .................... 33
Espinoza V. Farah Mfg. Co., 414 U.S. 86 (1973)..8, 30, 46 
ETSI Pipeline Project V. Missouri, 484 U.S. 495

(1988) __________ ________________ __________ 46, 47
Foley Bros., Inc. V. Filardo, 336 U.S. 281 (1949) ....passim 
General Electric Co. v. Gilbert, 429 U.S. 125

(1976) ........ ................................................................  46
Gibbons V. Ogden, 22 U.S. (9 Wheat.) 1 (1824).... 17



Vll

TABLE OF AUTHORITIES—Continued
Page

GTE Automatic Elec., Inc., 226 N.L.R.B. 1222
(1976) .......................... - ................ -.......................— 26

Heart of Atlanta Motel V. United States, 379 U.S.
241 (1964)-------- --- ----- ------- ----------- -----------  22

Hodel v. Virginia Surface Mining Reclamation
Ass’n, 452 U.S. 264 (1981) ....................................  17

Katzenbach V. McClung, 379 U.S. 294 (1964).......  22
Kern V. Dynalectron Corp., 577 F. Supp. 1196 

(N.D. Tex. 1983), aff’d, 746 F.2d 810 (5th Cir.
1984) ................................. ................ -.........- ........ 36

Lavrov V. NCR Corp., 600 F. Supp. 923 (S.D.
Ohio 1984) .................................. ............-.....-........-  38

Love V. Pullman Co., 13 Fair Emp. Prac. Cas.
(BNA) 423 (D. Colo. 1976), aff’d on other
grounds, 569 F.2d 1074 (10th Cir. 1978) .......... 34,48

Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64 (1804) .......... ........... ...............—-........- 43

McCulloch V. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10 (1963)..... ............ ............ passim

Mohasco Corp. V. Silver, 447 U.S. 807 (1980).......  46, 47
New York Central V. Chisholm, 268 U.S. 29

(1 9 2 5 ) .- -________________ ________________  20
NLRB V. Catholic Bishop of Chicago, 440 U.S.

490 (1979) ............................ ......................... ..........  16
NLRB V. United Food & Commercial Workers

Union, 484 U.S. 112 (1987)_____ _____ ______ 46
Pennsylvania V. Union Gas Co., 109 S. Ct. 2273

(1990) .................. ............. ............ -......----- -----------  34
Pfeiffer v. Wm. Wrigley, Jr. Co., 755 F.2d 554

(7th Cir. 1985) ......... ................... ..................... ..... 11, 47
Polish Nat’l Alliance V. NLRB, 322 U.S. 643

(1944) ............................ -......... ......... .....................-  17, 22
Sandberg v. McDonald, 248 U.S. 185 (1918)...... 12, 13, 33
Seville V. Martin Marietta Corp., 638 F. Supp. 590

(D. Md. 1986) ______________________ _____  34
Southeastern Community College V. Davis, 442

U.S. 397 (1979) „..... ................ ..................... -........ 46
Steele V. Bulova Watch Co., 344 U.S. 280 (1952).. 22, 23 
The Bremen V. Zapata Off-Shore Co., 407 U.S. 1

(1972).......................... ................. .............................. 48



V1U

TABLE OF AUTHORITIES—Continued
Page

United States v. Aluminum Co. of Am., 148 F.2d
416 (2d Cir. 1945)____ _______ __ _____-..........  25

United States V. Bass, 404 U.S. 336 (1971)...........  16
United States v. Bowman, 260 U.S. 94 (1922)___  13
United States V. Sisal Sales Corp., 274 U.S. 274

(1926)......... ...................... ............... ............ .............  24
Vermilya-Brown Co. V. Connell, 335 U.S. 377

(1948) ....... ............................ ............. - .................. .passim
Wickard V. Filburn, 317 U.S. I l l  (1942)_______  22
Will V. Michigan Dep’t of State Police, 109 S. Ct,

2304 (1989) ............................. ................................  15, 16

CONSTITUTIONAL PROVISION AND STATUTES

United States Const., art. I, sec. 8________________ 17
Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621-634 .............. ................ ............. .passim
29 U.S.C. § 623(f) .............................. ..................  36, 49
29 U.S.C. § 623(h) (1) ................. ......................... 49
29 U.S.C. § 623(h) ( 2 ) ........................... ..............  49
29 U.S.C. § 6 3 0 (f)____ ___ _____ _________ 14, 49

Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-
2000h-6 ............................................ .................... ......passim

42 U.S.C. § 2000a (c) .............. ................. ............  18
42 U.S.C. § 2000e (b )_______ ________ ___ 16, 22, 27
42 U.S.C. § 2000e(g).... ............. ........ ..............16,18, 27
42 U.S.C. § 2000e(h) ........... ............................ 16, 22
42 U.S.C. § 2000e(i)________ ______________  27
42 U.S.C. § 2000e-2 ........................ ............. ..........  27, 36
42 U.S.C. § 2000e-5........ ...................... ............34, 35, 38
42 U.S.C. § 2000e-7__________ ____________  34, 35
42 U.S.C. § 2000e-9 .......................... ................ . 39
42 U.S.C. § 2000h-4.......................................... 35

Civil Rights Act of 1964, Pub. L. No. 88-352,
§ 706(f), 78 Stat. 241 (1964) ........ .....................  19,39

Comprehensive Anti-Apartheid Act of 1986, 22
U.S.C. §§ 5001-5117 .... ............ .......................... ...... 14

22 U.S.C. § 5001.....................................................  14



IX

TABLE OF AUTHORITIES—Continued
Page

Consumer Product Safety Act, 15 U.S.C. §§ 2051-
2083 ................ ........................ .....................................  23

15 U.S.C. § 2052 (a) (1 2 )___________ ______ 23
Export Administration Act of 1979, 50 U.S.C.

App. §§ 2401-2420................................... .............. . 14, 45
50 U.S.C. App. § 2415 (2)  ......... ..................... . 14
50 U.S.C. App. § 2407_____ ________________ 45

Fair Labor Standards Act of 1938, 29 U.S.C.
§§ 201-219................. ...................... ..........................  29

29 U.S.C. § 203 (c) .............. ............................. 29
Federal Employers Liability Act, 45 U.S.C. §§ 51-

6 0 ................ ................ .......... ..................... ........... . 17,20
45 U.S.C. § 51 .................. .................... ..................  17, 20

Federal Food, Drug and Cosmetic Act, 21 U.S.C.
§§ 301-392_________________ ____________ _ 23

21 U.S.C. § 321(b) _____________ _____ _____  23
Labor Management Relations Act of 1947, 29

U.S.C. §§ 141-144, 169-187 .......... ............ ........... . 22
Labor-Management Reporting and Disclosure Act

of 1959, 29 U.S.C. §§ 401-531 ..... ............ ..............  16, 22
29 U.S.C. § 4 0 2 (c)__ ___________ __________  22

Logan Act, 18 U.S.C. §§ 951-970 ......................... ....... 14
18 U.S.C. § 953..... .................................................  14

National Labor Relations Act, 29 U.S.C. §§ 151
et seq.......................  passim

29 U.S.C. §§ 151-152 ................................ .............  17, 18
29 U.S.C. § 152(6) ............. ...................... ............  23
29 U.S.C. § 157 ...................... ................................ 26
29 U.S.C. § 158 (a) (3) ....................... ............. . 26

Noise Control Act of 1972, 42 U.S.C. §§4901-
4918.......        23

42 U.S.C. § 4 9 0 2 (7 )____________     23
Radiation Control for Health and Safety Act of

1968, 42 U.S.C. §§263b-263h.......    23
42 U.S.C. § 263c ( 4 )____ _________________ _ 23

Railway Labor Act, 45 U.S.C. § 151-181 et seq........  18, 21
45 U.S.C. § 1 5 1 .......................................................  18,21



X

TABLE OF AUTHORITIES—Continued
Page

Transportation Safety Act of 1974, 49 U.S.C.
§§ 1801-1812............... ...................... ................. ....... 23

49 U.S.C. § 1802(1) .......... ........... ........................  23

REGULATIONS
29 C.F.R. § 1606.1(c) (1970)________ _____ _____  44,45
45 Fed. Reg. 85,633 (1980)...........................................  44

LEGISLATIVE MATERIALS
Age Discrimination and Overseas Americans,

1983: Hearing Before the Suhcomm. on Aging 
of the Senate Comm, on Labor and Human Re­
sources, 98th Cong., 1st Sess. (1983)_____ ___ 45,49

Discriminatory Arab Pressure on U.S. Business: 
Hearings Before the Suhcomm. on International 
Trade and Commerce of the House Comm, on 
International Relations, 94th Cong., 1st Sess.
(1975) .................................. ...................................... 44

Foreign Investment and Arab Boycott Legislation: 
Hearings Before the Suhcomm. on International 
Finance of the Senate Comm, on Banking, Hous­
ing and Urban Affairs, 94th Cong., 1st Sess.
(1975) .............. .............................................. ........ 44

Hearings on H.R. UU53 Before the Suhcomm,. on 
Education and Labor, 81st Cong., 1st Sess.
(1949) ........ ................ ..................... .................. ....... 31

H.R. Rep. No. 187, 79th Cong., 1st Sess. (1945) .... 28
92 Cong. Rec. 184 (1946) ..... ......................... ............. 31
92 Cong. Rec. 887 (1946)  ........................ ............ . 31
H.R. 2824, 80th Cong., 1st Sess. (1947) ..................  28
H.R. 4453, 81st Cong., 1st Sess. (1949)......................  28
95 Cong. Rec. 1682 (1949) ..........      31
96 Cong. Rec. 2175 (1950) _____     31
H.R. Rep. No. 1165, 85th Cong., 1st Sess. (1957).. 29
S. Rep. 987, 85th Cong., 1st Sess. (1957)...................  31
H.R. 10,144, 87th Cong., 2d Sess. (1962).... ............. . 29
S. 1937, 88th Cong., 1st Sess. (1963) _____________ 32
H.R. 405, 88th Cong., 1st Sess. (1963)..................... . 18, 19
H.R. 7152, 88th Cong., 1st Sess. (1963).....................  19
H.R. Rep. 570, 88th Cong., 1st Sess. (1963)_______ 20, 32



X I

TABLE OF AUTHORITIES—Continued
Page

Interpretative Memorandum on Title VII, 110
Cong. Rec. 7212 (1964) ..................................... 20,23

110 Cong. Rec. 12,811 (1964).............. ............... .........  19
S. Rep. 867, 88th Cong., 2d Sess. (1964) .............. . 20, 32
S. Rep. 1580, 88th Cong., 2d Sess. (1964)....... ..........  33
110 Cong. Rec. 15,897 (1964) __________________  19
S. Exec. Doc. L., 92d Cong., 1st Sess. (1971)______ 41
129 Cong. Rec. 34,499 (1983)........................ ........... . 48
136 Cong. Rec. S1200 (daily ed. Feb. 20, 1990)..... . 41

BOOKS AND TREATISES
J. Atwood & K. Brewster, American Business

Abroad (2d ed. 1981 & Supp. 1990)............. ........ 25
M.R. Konvitz, The Alien and the Asiatic in Ameri­

can Law (1946) ................. ..................... ................  31
D. Lange & G. Born, The Extraterritorial Appli­

cation of National Laws (1987) ____ _________  25
L. Tribe, American Constitutional Law (2d ed.

1988) _________ ____________________ ______ _ 17
C. Whalen & B. Whalen, The Longest Debate:

A Legislative History of the 196U Civil Rights
Act (1985)....... .......................... .......... ....................  11

Restatement (Third) of Foreign Relations Law of
the United States (1986) .................... .................passim

§ 114 reporters’ note 1 ................ .......... ........... 43
§ 402 .................. ...................... ............................... 24
§ 402(c) .............................................. ............ . 25
§ 402 comment b ........... ........................ .................  4, 13

comment c .......................... ..........................  24, 25
comment d ............ ............. ............ .......... 25
reporters’ note 1 ................................. .........  13

§ 414 comment c ......... ...... ................ ....................  14, 25
§ 416 comment a ___________ ______ ___ _____ 25

Restatement (Second) of Foreign Relations Law
of the United States (1965) _____ _____ __ ___  24

ARTICLES
Gerber, Beyond Balancing: International Law 

Restraints on the Reach of National Laws, 10 
Yale J. Int’l. L. 185 (1984)............ ......................  25



TABLE OF AUTHORITIES—Continued
Page

Kirschner, Extraterritorial Application of Title 
VII of the Civil Rights Act, 34 Lab. L.J. 394
(1983) .................. ............. .................... ............. .......

Rosenthal, Jurisdictional Conflicts Between Sover­
eign Nations, 19 Int’l. Law. 487 (1985)___ __ _

MISCELLANEOUS
Constitution of the International Labour Organi­

zation ___ __________ ____________....__ ____ _
art. 19, section 7 .......... ............... ....................... .
art. 26 ............................................................. ........

Decision No. 85-16, Emp. Prac. Guide (CCH)
§ 6857 (1985)______________________ _______ _

International Labour Organization Convention 
(No. I l l )  Concerning Discrimination in Re­
spect of Employment and Occupation, 362
U.N.T.S. 31 (1958) .................... ....................... ....8, 9,

Kingdom of Saudi Arabia, Labor and Workmen
Law (1969) ................ ........................ ....................  3,

New York Times, Mar. 2, 1949, at 20, col. 5 ............
Policy Statement No. 88-15, EEOC Compl. Man.

(CCH) 'If 2187 (1989)................... ............ ..........37, 38,
The Vienna Convention on the Law of Treaties, 

May 23, 1969, art. 18, U.N. Doc. A/CONF. 39.. 
International Labour Organization, Legislative 

Services, General Subject Index 1919-1989
(1989)...................................................

United States Equal Employment Opportunity 
Commission, Legislative History of Titles VII 
and XI of the Civil Rights Act of 196U (1968)..

31

25

41
41
41

45

40

41
31

45

41

40

19



In  The

Bnpxmxx (tart ni tip Itttfrft Bttxtts
October Term, 1990

Nos. 89-1838 and 89-1845

Ali Boureslan and
E qual E mployment Opportunity Commission,

Petitioners,v.
Arabian American Oil Company and 

Aramco Services Company,
Respondents.

On Writs of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF FOR RESPONDENTS 
ARABIAN AMERICAN OIL COMPANY 
AND ARAMCO SERVICES COMPANY

OPINIONS BELOW

The en banc decision of the court of appeals is reported 
at 892 F.2d 1271 (Pet. App. l a ^ a ) . 1 The panel decision 
is reported at 857 F.2d 1014 (Pet. App. 28a-76a). The 
district court decision that was affirmed by both the panel 
and the en banc court is reported at 653 F. Supp. 629 
(Pet. App. 77a-82a).

1 “Pet. App.” refers to the Appendix to the Petition for Cer­
tiorari filed by the Solicitor General on behalf of the EEOC in 
No. 89-1838. “J.A.” refers to the Joint Appendix filed by the 
parties in this Court.



2

STATUTORY PROVISIONS INVOLVED

The most relevant provisions of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e-2000eCL7 (“Title 
VII” ), and of the Age Discrimination in Employment Act 
of 1967 (“ADEA”), 29 U.S.C. §§ 621-634, are set out in 
Appendix A, la-5a.

STATEMENT OF THE CASE

At all relevant times, the Arabian American Oil Com­
pany (“Aramco” ) was a Delaware corporation whose 
principal place of business and records were located in 
Dhahran, Saudi Arabia. Since its inception and until 
recently, Aramco’s business had been the exploration for 
and the production, refining and sale of oil and gas ex­
clusively in Saudi Arabia. Aramco Services Company 
(“ASC”), formerly a subsidiary of Aramco, is a Dela­
ware corporation headquartered in Houston, Texas. J.A. 
21.2

Petitioner Boureslan is a naturalized American citizen 
of Lebanese origin, who “is by race an Arab, whose reli­
gion is Moslem.” J.A. 7. Boureslan was employed as a 
cost engineer by ASC in Houston. At his request he was 
transferred to Saudi Arabia and became employed by 
Aramco. J.A. 21, 34. He remained at Aramco for nearly 
four years until his employment was terminated in Saudi 
Arabia as part of a general reduction in force. J.A. 
24, 33.

2 Aramco employed a multinational workforce, including Saudi 
Arab and U.S. citizens as well as citizens of many other countries. 
It was owned by Transocean Chevron Company, Exxon Overseas 
Corporation, Mobil International Petroleum Corporation and Texaco 
International Trader, Inc. Following the creation in 1988 of the 
national oil company of Saudi Arabia, the Saudi Arabian Oil Com­
pany (Saudi Aramco), substantially all of the assets, business and 
employees of Aramco were transferred to Saudi Aramco. ASC now 
is a wholly owned subsidiary of Saudi Aramco. Aramco has filed 
a Certificate of Dissolution in Delaware, but remains a body cor­
porate under Delaware law for certain purposes, including this 
litigation.



3

In charges filed with the Equal Employment Oppor­
tunity Commission (“EEOC” ), Boureslan alleged that his 
immediate supervisor (a citizen of the United Kingdom) 
discriminated against him on the basis of national origin, 
race and religion during part of the period he was em­
ployed by Aramco in Saudi Arabia. J.A. 31-32. He later 
brought suit against Aramco and ASC in the United 
States District Court for the Southern District of Texas, 
alleging violations of Title VII and state- law. J.A. 7-10.

Aramco and ASC each moved to dismiss Boureslan’s 
complaint for lack of subject matter jurisdiction, assert­
ing that Title VII did not apply to Boureslan’s employ­
ment by Aramco in Saudi Arabia. J.A. 11-19. In its 
motion to dismiss, Aramco noted that the Labor and 
Workmen Law of the Kingdom of Saudi Arabia “applies 
to all employment within Saudi Arabia” and that “ap­
plication of Title VII in this case would unduly infringe 
on the sovereign right of the Kingdom of Saudi Arabia 
to regulate employment within its borders.” J.A. 12. 
Aramco’s motion was supported by the Declaration of 
Ismail S. Mazer, an expert on Saudi law, who described 
the Labor and Workmen Law and its application both to 
Saudi Arab and foreign nationals working in Saudi 
Arabia:

. . . The Kingdom of Saudia Arabia has an exten­
sive code, the Labor and Workmen Law of 1969, 
which regulates all employment within its borders, 
including that of citizens of foreign countries. This 
Code contains numerous substantive provisions and 
a procedural framework consisting of two judicial 
commissions by which aggrieved persons may vindi­
cate their rights under the code. These commissions 
make no distinction between citizens of Saudia Ara­
bia and foreign nationals who work in Saudi Arabia.

J.A. 27-28.
The district court dismissed the complaint, finding that 

the language and legislative history of Title VII lacked 
any clearly expressed statement of intent by Congress to



4

apply Title VII extraterri tori ally. Pet. App. 79a-81a. 
The court applied the presumption, articulated by this 
Court in Foley Bros., Inc. v. Filardo, 336 U.S. 281 
(1949), that statutes are generally presumed not to have 
extraterritorial application, and concluded:

It is doubtful that Congress reserved the question of 
Title VIPs application for the courts to decide. It is 
much more likely that Congress never considered the 
issue.

Pet. App. 81a.
A divided panel of the United States Court of Appeals 

for the Fifth Circuit affirmed the district court’s deci­
sion. The majority held that a statute should not be 
applied extraterritorially absent a clear expression of 
intent by Congress. It found no such clear expression of 
intent in the language of Title VII and concluded that 
the three general statements from the legislative history 
cited by the EEOC “ [fell] far short of the clear expres­
sion of congressional intent required to overcome the pre­
sumption against extraterritorial application.” Pet. App. 
38a. The panel found that Congress simply “did not turn 
its attention to the possibility” of the extraterritorial ap­
plication of Title VII, and “ [i] t is not for this court to 
decide this policy issue for the legislative' branch.” Id. 
at 41a.

The dissent conceded that territoriality “is considered 
the normal, and nationality an exceptional, basis for the 
exercise of jurisdiction.” Pet. App. 44a n.2 (quoting 
Restatement (Third) Foreign Relations Law of the 
United States (“Restatement (Third)” ) § 402 comment 
b (1986)). It also acknowledged the presumption that 
Congress intends legislation to apply only within the ter­
ritorial jurisdiction of the United States unless a con­
trary intent appears. Pet. App. 43a-44a. The dissent 
nevertheless concluded that Title VII applies to U.S. em­
ployers employing U.S. citizens overseas, It did not rely, 
however, on “the broad jurisdictional language” of Title



5

VII because “requiring a ‘clear’ expression of congres­
sional intent may mean that the broad jurisdictional lan­
guage of a statute is not sufficient in itself to support 
the exercise of extraterritorial jurisdiction.” Id. at 45a.

On rehearing en banc, the court reaffirmed the district 
court’s dismissal of Boureslan’s complaint by a vote of 
9-5. Pet. App. la-2a, 7a. It concluded that neither the 
provisions of Title VII nor the legislative history demon­
strate a “clear congressional intent” to apply the Act to 
employers outside the borders of the United States. Pet. 
App. 2a-3a. The court rejected the argument that a nega­
tive inference from the alien exemption provision was a 
clear expression of congressional intent to apply Title 
VII extraterritorially. Id. at 4a. It found that both the 
statutory provisions and the legislative history of Title 
VII demonstrate a strong “domestic focus,” noting that 
they make repeated references to “United States,” 
“states,” and “state proceedings,” with no parallel refer­
ences to foreign countries or procedures. Id. at 5a, 39a- 
40a.

SUMMARY OF ARGUMENT

The question in this case is whether Congress intended 
In 1984 to extend the employment discrimination provi­
sions of the Civil Rights Act to regulate the practices of 
U.S. employers of U.S. citizens in workplaces outside the 
United States. It is not whether it would have been good 
policy then, or would be now, to apply Title VII of the 
Act overseas, but rather whether the statutory language 
reflects clearly a congressional intent to so apply Title 
VII.

I. The passage of the Civil Rights Act of 1964 was 
the culmination of a 20-year struggle to enact a bill to 
eradicate discrimination within our own borders. In the 
extensive legislative history of the Civil Rights Act of 
1964, there was evident concern and discussion about dis­
crimination in employment, education, voting and public 
accommodations within the United States', but no expres­
sion of concern or any evidence that Congress actually



6

thought about, and chose to address employment discrimi­
nation involving U.S. citizens in foreign workplaces. To 
argue that Congress actually intended that Title VII 
apply beyond our borders., and that either the definition 
of “commerce” in the Act or a negative inference drawn 
from the so-called “alien exemption provision,” separately 
or in combination, constitute a clear expression by Con­
gress of such an intent, is wishful thinking.

A. Decisions of this Court have firmly established the 
strong presumption that legislation of Congress is meant 
to apply only within the territorial jurisdiction of the 
United States absent a clear indication from Congress 
that it intends to apply the legislation beyond our bor­
ders. That presumption is based on the fundamental con­
cept of respect for sovereign nations and their right to 
regulate conduct within their own borders, as well as on 
the assumption that Congress is concerned primarily with 
domestic conditions.

Nowhere does the presumption against the extraterri­
torial application of U.S. law apply with greater force 
than in the areas of employment and labor law, tradi­
tionally matters of local concern and prerogative. In 
such cases, this Court has always found that Congress 
must clearly and affirmatively express its purpose to 
abandon strict notions of territoriality. It did not do so in 
Title VII.

B. The requisite clear expression of affirmative intent 
necessary to overcome the presumption against extrater­
ritoriality cannot be found in Title VII’s definition of 
“commerce.” Unlike a variety of other statutes, Title 
VII’s definitions of “commerce” and “industry affecting 
commerce” make no mention of “commerce with foreign 
nations,” “foreign countries” or “foreign commerce.” In­
deed, language present in the bill first considered by the 
House of Representatives (H.R. 405) contained the terms 
“foreign commerce” and “foreign nations,” but those 
terms were deleted by the Senate before the Civil Rights 
Act of 1964 was passed. Passage of the Senate version



7

is inconsistent with the notion of a clearly expressed con­
gressional intent to apply Title VII extraterritorially.

Even statutes that do contain broad language expressly 
referring to “foreign countries,” “foreign nations” or 
“foreign commerce” have been held by this Court not to 
reflect a congressional intent that they apply extraterri­
torially. Furthermore, Title VII defines “an industry 
affecting commerce” and “affecting commerce” by refer­
ence to both the Labor-Management Reporting and Dis­
closure Act of 1959 and the National Labor Relations 
Act. Before Congress chose to model Title VII on these 
provisions, this Court had expressly held that neither 
statute has extraterritorial application.

C. The EEOC argues that the alien exemption provi­
sion of Title VII manifests an intention by Congress to 
protect U.S. citizens with respect to their employment out­
side the United States. The alien exemption provision, 
however, says nothing about the application of Title VII 
to U.S. employers, U.S. employees or U.S. nationals in 
workplaces in foreign nations. The negative inference the 
EEOC asks the Court to draw from the provision does 
not constitute the clear and affirmative expression re­
quired to find that Congress intended Title VII to apply 
extraterritorially.

The history of the alien exemption provision demon­
strates that its dual purposes were to exempt employers 
of aliens from coverage in U.S. “possessions” and to con­
firm the coverage of aliens in the United States. The alien 
exemption provision derives from the proposed 1949 Fair 
Employment Practices (“FEP” ) Act, and reflects the 
efforts by Congress to address the effects of this Court’s 
5-4 decision in Vermilya-Brown Co. v. Connell, 335 U.S. 
377 (1948). There the Court held that the term “posses­
sion” in the Fair Labor Standards Act (“FLSA” ) included 
leased bases in foreign nations that were within the con­
trol of the United States. The FEP bills redefined “pos­
sessions” and included the first alien exemption provision



8

in order to circumvent the implications of Vermilya- 
Brown. Read together, the definitions of “possession” and 
the alien exemption provisions were intended to exempt 
employers of aliens on military bases and leased areas 
that were subject to U.S. jurisdiction.

In view of the history of the alien exemption provision 
and the restrictions on employment opportunities for 
aliens within the United States after World War II, the 
alien exemption provision also was a meaningful and use­
ful way to confirm the intent of Congress to provide pro­
tection to aliens within the United States. See Espinoza 
v. Farah Mfg. Co., 414 U.S. 86, 95 (1973).

D. Title VII as a whole has a domestic focus, with 
numerous references to states and state proceedings but 
no references to foreign countries or foreign proceedings. 
Congress carefully provided requirements that the EEOC 
accord substantial weight to findings of state or local au­
thorities in proceedings under state or local law, gave a 
large degree of deference to state and local procedures, 
and took pains not to override the laws of the various 
states that were consistent with Title VII. If Title VII 
were intended to apply to employers in foreign work­
places, Congress also would have included parallel provi­
sions addressing the sensitive areas of conflicts with and 
deference to foreign laws and procedures. The absence of 
any such provisions indicates that Congress never con­
sidered the matter.

E. While the international community may share the 
goal of eliminating discrimination in employment and 
many countries are parties to conventions dealing with 
employment discrimination, that does not support uni­
laterally imposing Title VII on foreign workplaces. 
Congress could not have intended to impose U.S. sub­
stantive and procedural law on the many nations that 
have adopted laws of their own or that have ratified 
treaties and conventions dealing with employment dis­
crimination, such as ILO Convention No. I l l ,  cited by 
one of the amici.



9

Saudi Arab law regulates all employment within its 
borders, and provides a procedural framework for vindi­
cation of rights under the law for citizens and non-citi­
zens of Saudi Arabia alike. Under established principles 
of international law, the United States should not seek 
to impose its law on Saudi Arabia and on the 110 other 
countries that have ratified ILO Convention No. 111. 
The Diplomatic Notes sent to the U.S. Department of 
State by the Governments of Canada, Australia and the 
United Kingdom with respect to this case further support 
this view.

II. No deference should be given to the EEOC’s inter­
pretation of Title VII because it is not supported by the 
statute or the legislative history, was not announced con­
temporaneously with the enactment of Title VII, and has 
been far from consistent in the 26 years since enactment 
of Title VII. It was not until 1988, 24 years after the 
passage of Title VII, that the EEOC articulated any pol­
icy guidance on what it now asserts is the clear intent 
of Congress to reach U.S. employers of U.S. citizens 
abroad.

III. Only Congress should decide whether it is good 
policy to apply Title VII to workplaces overseas, and it 
has not yet done so. The courts below therefore properly 
declined to make the policy choices that are assigned to 
Congress, and this Court should do the same.

ARGUMENT

I. CONGRESS DID NOT INTEND TO EXTEND TITLE 
VII TO WORKPLACES OVERSEAS TO REGULATE 
THE PRACTICES OF A U.S. EMPLOYER OF A U.S, 
CITIZEN IN A FOREIGN COUNTRY.

There is much common ground between the positions of 
the EEOC and Respondents in this case. We agree that 
the issue before the Court is “exclusively one of statutory 
interpretation” and not one of policy (EEOC Br. 8); 
policy matters are for the Congress and not for the



10

courts.3 We also agree that Congress has the power to 
legislate extraterritorially and does on occasion regulate 
the actions of U.S. citizens outside U.S. territory. Id. at 
8-9. The EEOC and Respondents agree, too, that Con­
gress presumptively intends its acts to apply only within 
U.S. territory, absent a clear statement of intent to the 
contrary, and that this presumption applies in this case. 
EEOC Br. 9. We further agree that the established pre­
sumption against extraterritoriality is based on the recog­
nition that Congress is concerned primarily with domestic 
conditions and does not create needless and unintended 
conflicts between our laws and policies and those of other 
nations. Id.

With this common ground established, the question “re­
mains one of legislative intent” (EEOC Br. 9) : Did 
Congress in 1964 intend to apply the employment dis­
crimination provisions of the Civil Rights Act to regulate 
the practices of U.S. employers of U.S. citizens in work­
places overseas? Was any such intention expressed 
clearly and affirmatively to overcome the presumption 
against extraterritorial application of U.S. laws recog­
nized and applied repeatedly by this Court?

The most candid answer is that Congress simply gave 
no thought to the extraterritorial application of Title VII, 
and therefore did not manifest in Title VII a clear and

8 “EEOC Br.” refers to the brief on the merits filed by the Solici­
tor General on behalf of the EEOC. “EEOC Pet.” refers to the 
EEOC’s Petition for Certiorari, and “EEOC Reply Br.” refers to 
the EEOC’s brief filed in reply to Aramco’s Opposition to the Peti­
tion for Certiorari. “Boureslan Br.” refers to the brief on the 
merits filed by Petitioner Ali Boureslan, and “Boureslan Pet.” 
refers to his Petition for Certiorari.

“Lawyers Comm. Br.” refers to the brief filed by The Lawyers 
Committee for Civil Rights Under Law as Amicus Curiae. “Int’l 
Human Rights Br.” refers to the brief filed by The International 
Human Rights Law Group as Amicus Curiae. “ACLU Br.” refers 
to the brief filed by the American Civil Liberties Union and other 
amici. “LDF Br.” refers to the brief filed by the NAACP Legal 
Defense and Educational Fund, Inc. and other amici.



11

affirmative intent to apply it overseas. The passage of the 
Civil Rights Act of 1964 was the culmination of a 20-year 
struggle to forge a coalition of Senators and Congressmen 
sufficiently broad to enact a bill to eradicate discrimina­
tion within our own borders. Congress finally was able 
to accomplish that goal in 1964. See generally C. Whalen 
& B. Whalen, The Longest Debate: A Legislative History 
of the 196U Civil Rights Act (1985).

In the extensive legislative history of Title VII, there 
is no evidence that Congress thought about and chose to 
address employment discrimination in foreign workplaces. 
To argue that Congress actually intended that Title VII 
apply beyond our borders, and that the definition of “com­
merce” in the Act or a negative inference drawn from 
the “alien exemption provision,” either separately or in 
combination, constitutes a clear expression by Congress of 
such an intent, is little more than a “retrospective ex­
pansion of meaning.” Acldision v. Holly Hill Fruit Prods. 
Co., 322 U.S. 607, 618 (1949).

As Judge Posner has written in a related context: 
“ [L] ively debate would probably have ensued in Congress 
if anyone had thought that the new law might be applied 
to employees living and working in foreign countries. 
There was no such debate . . . .” Pfeiffer v. Wm. Wrig- 
ley, Jr. Co., 755 F.2d 554, 559 (7th Cir. 1985) (rejecting 
arguments for the extraterritorial application of the 
ADEA, passed three years after Title V II). Since Con­
gress “encounters difficulty enough in resolving points 
actually in dispute,” given its silence on this issue in the 
debates on Title VII there is “no basis for thinking” that 
Congress in 1964 intended to apply Title VII to employers 
of U.S. citizens living and working in foreign workplaces. 
See Pfeiffer v. Wm. Wrigley, Jr. Co., 755 F.2d at 559.



12

A. Acts Of Congress Are Presumed To Apply Only 
Within The Territory Of The United States Unless 
Congress Clearly And Affirmatively Expresses A 
Contrary Intent.

Firmly established in decisions of this Court and ac­
knowledged by the EEOC and Respondents alike is the 
strong presumption that applies here, that legislation of 
Congress is meant to apply only within the territorial 
jurisdiction of the United States unless Congress makes 
clear that it applies beyond our borders. See, e.g., Argen­
tine Republic v. Amerada Hess Shipping Co., 109 S.Ct. 
683, 691 (1989) ; Foley Bros., Inc. v. Filardo, 336 U.S. 
281, 285 (1949) ; Blackmer v. United States, 284 U.S. 
421, 437 (1932). The presumption is based on the funda­
mental concept of sovereignty, that nations have the right 
to regulate conduct within their own borders and not 
within the borders of another sovereign. Sandberg v. Mc­
Donald, 248 U.S. 185, 195 (1918) (“Legislation is pre­
sumptively territorial and confined to limits over which 
the law-making power has jurisdiction”) . It also is “based 
on the assumption that Congress is primarily concerned 
with domestic conditions.” Foley Bros., Inc. v. Filardo, 
336 U.S. at 285.

In applying the presumption against extraterritorial 
application of U.S. laws, this Court has required more 
than an implication drawn from a negative inference or 
from the supposed breadth of a statute’s jurisdictional 
provisions. It has required a clear statement affirmatively 
expressed by Congress that the coverage of a statute is 
intended to extend outside the territorial boundaries of 
the United States. Argentine Republic v. Amerada Hess 
Shipping Co., 109 S. Ct. at 691; McCulloch v. Sociedad 
Nacional de Marineros de Honduras, 372 U.S. 10, 18-20 
(1963) ; Foley Bros., Inc. v. Filardo, 336 U.S. at 285-86, 
291; Sandberg v. McDonald, 248 U.S. at 195.

If Congress intends a statute to apply beyond the 
borders of the United States, “ [i]t is natural for Con­
gress to say so in the statute, and failure to do so will



13
negative the purpose of Congress in this regard.” United 
States v. Bowman, 260 U.S. 94, 98 (1922). Provision for 
extraterritorial application must be “specifically made in 
the statute,” for if Congress intends such extraterritorial 
application “a few words would . . . stat[e] that intention, 
not leaving such an important regulation to be gathered 
from implication.” Sandberg v. McDonald, 248 U.S. at 
195. As the Court said in its most recent application of 
this requirement: “When it desires to do so, Congress 
knows how to place the high seas within the jurisdictional 
reach of a statute.” Argentine Republic v. Amerada Hess 
Shipping Co., 109 S. Ct. at 691.

In a challenge to these principles, the EEOC and several 
amici argue that Title VII applies extraterritorially here 
because this is a case where both the employer and the 
employee are U.S. nationals. EEOC Br. 7, 29; Lawyers 
Comm. Br. 25-26; Int’l Human Rights Br. 31-34; ACLU 
Br. 25-26. As even the dissent below recognized, however, 
“ [t] erritoriality is considered the normal, and nationality 
an exceptional basis for the exercise of jurisdiction.” Pet. 
App. 44a n.2 (quoting Restatement (Third) § 402 com­
ment b). Apart from the tax laws and certain laws re­
lating to national security and matters of war and peace 
—the treason statute, the selective service law, the Logan 
Act and the Trading With the Enemy Act—the United 
States rarely has applied its laws to individuals residing 
abroad on the basis of their United States nationality. 
Restatement (Third) § 402 reporters’ note l.4 See also 
infra p. 24 n.18.

Furthermore, the presumption against extraterritorial 
application and the requirement of a clear and affirmative 
expression of congressional intent to extend U.S. laws 
outside the territorial boundaries of the United States are 
as stringent where nationality is the basis for jurisdiction 
as in other contexts. Thus, when Congress chooses to legis­
late extraterritorially based on nationality it regularly

4 The 1984 amendments to the ADEA were an exception to this 
general principle, as was. the foreign subpoena law at issue in 
Blackmer v. United States, 284 U.S. 421 (1932), but Congress in 
both cases spoke clearly, expressly and affirmatively as to its intent.



14
uses quite explicit statutory language.5 Neither the defi­
nitional provisions nor the alien exemption provision of 
Title VII makes reference to U.S. nationals or U.S. citi­
zens. Nor does either apply by its terms only to nationals 
or citizens. Therefore neither can satisfy the requirement 
for a clear and affirmative expression of congressional in­
tent to apply Title VII extraterritorially on the national­
ity principle.

Nowhere does the presumption against extraterritorial 
application of U.S. law apply with greater force than 
in the areas of employment and labor law, traditionally 
matters of local concern and prerogative. Restatement 
(Third) § 414 comment c. As the EEOC has conceded 
(EEOC Pet. 11), when faced with the question whether 
Congress intended to apply extraterritorially other stat­
utes regulating the relationship between employer and 
employee, this Court has uniformly found that Congress 
must express its purpose to abandon strict notions of 
territoriality clearly and affirmatively. McCulloch v. 
Sociedad Nacional de Marineros de Honduras, 372 U.S. 
at 22; Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 
147 (1957) ; Foley Bros., Inc. v. Filardo, 336 U.S. at 
285.

The Court said in Foley:
The canon of [statutory] construction which teaches 
that legislation of Congress, unless a contrary intent 
appears, is meant to apply only within the territorial 
jurisdiction of the United States . . .  is a valid ap­
proach whereby unexpressed congressional intent may 
be ascertained. It is based on the assumption that 
Congress is primarily concerned with domestic con­
ditions. . . .  An intention . . .  to regulate labor con-

5 See, e.g., the Comprehensive Anti-Apartheid Act of 1986, 22 
U.S.C. § 5001 (defining- “national of the United States”) ; the Ex­
port Administration Act of 1979, 50 U.S.C. app. §2415(2) (defin­
ing “United States person”) ; the Logan Act, 18 U.S.C. § 953 
(“Any citizen of the United States, wherever he may be . . .”) ; 
the ADEA, 29 U.S.C. § 630(f) (“The term ‘employee’ includes any 
individual who is a citizen of the United States employed by an 
employer in a workplace in a foreign country.”) .



15
ditions which are the primary concern of a foreign 
country should not be attributed to Congress in the 
absence of a clearly expressed purpose.

336 U.S. at 285-86. As the Court later stated in Benz:
[S]uch a “sweeping provision” as to foreign applica­
bility was not specified in the Act. . . . For us to 
run interference in such a delicate field of interna­
tional relations there must be present the affirmative 
intention of the Congress clearly expressed.

353 U.S. at 146-47 (emphasis added). This identical 
language was used in McCulloch. 372 U.S. at 22.6

The importance of such a clear and affirmative state­
ment of congressional intent has been underscored by 
this Court in other areas as well. Recently, in consider­
ing whether Congress intended to subject a state to lia­
bility under 42 U.S.C. § 1983, the Court stated: “In tra­
ditionally sensitive areas,” such as federal-state rela­
tions, “the requirement of clear statement [by Congress] 
assures that the legislature has in fact faced, and in­
tended to bring into issue, the critical matters involved 
in the judicial decision.” Will v. Michigan Dept, of State

6 The EEOC argues that Benz, McCulloch and Foley are distin­
guishable because those cases turned on the issue of the application 
of U.S. law to aliens in foreign territory. EEOC Br. 17-18. In 
Benz, the ships and crew, while alien, were in the territorial 
waters of the United States, Benz v. Compania Naviera Hidalgo, 
353 U.S. at 139, and in McCulloch the Honduran ships were owned 
by a company controlled by a U.S. company that time chartered 
the vessels and dictated their ports of call, vessels and sailings. 
McCulloch V. Sociedad Nadonal de Marineros de Honduras, 372 
U.S. at 13-14. Both Benz and McCulloch relied on Foley, which 
concerned the application of U.S. law to U.S. citizens in foreign 
territory that was in no way part of the United States. Foley Bros., 
Inc. v. Filar do, 336 U.S. at 285 (“There is nothing brought to our 
attention indicating that the United States had been granted by 
the respective sovereignties any authority, legislative or otherwise, 
over the labor laws or customs of Iran or Iraq.”) While Foley 
noted that the absence of a distinction between aliens and citizens 
“buttresses our conclusion” (id. at 286), the Court applied the pre­
sumption to reach its holding that the U.S. law at issue did not 
clearly manifest congressional intent that it apply to U.S. citizens in 
a foreign workplace.



16
Police, 109 S. Ct. 2304, 2308-09 (1989) (quoting United 
States v. Bass, 404 U.S. 336, 349 (1971)).7

B. The Requisite Clear Expression Of Affirmative In­
tent Necessary To Overcome The Presumption 
Against Extraterritoriality Cannot Be Found In 
Title VII’s Definition of “Commerce”.

Title VII of the Civil Rights Act of 1964 applies to 
employers, who are defined to include any “person” who 
employs 15 or more employees for a specified period and 
is “engaged in an industry affecting commerce.” 42 
U.S.C. § 2000e(b). “Industry affecting commerce” is de­
fined in relation to the meaning of “affecting commerce” 
in the Labor-Management Reporting and Disclosure Act 
of 1959, 29 U.S.C. §401 et seq. 42 U.S.C. §20Q0e(h). 
“Commerce” is defined as ‘trade, traffic, commerce, trans- 
poration, transmission, or communication among the 
several States; or between a State and any place outside 
thereof; or within the District of Columbia, or a pos­
session of the United States; or between points in the 
same State but through a point outside thereof.” 42 
U.S.C. § 2000e(g).

Characterizing these provisions as ones that cover 
“both interstate and foreign commerce” (EEOC Br. 12), 
the EEOC argues that Title VII therefore reaches “em­
ployment discrimination occurring outside the United 
States.” Id. Ignoring the presumption that legislation 
is limited to the territorial jurisdiction of the United 
States, the EEOC attempts to shift the focus from the 
persons covered by Title VII (“employer” in an “indus­
try affecting commerce” ) to conduct (“discriminatory 
employment practices” ) and thereby broaden the juris­
dictional provisions. EEOC Br. 11-12. But neither this 
effort, the jurisdictional provisions themselves (which

7 See also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 
506-07 (1979) (absence of affirmative intention in the statutory 
language to bring teachers in church-operated schools within the 
jurisdiction of NLRB means that Congress did not contemplate 
extending that Act to sensitive areas of First Amendment Religion 
Clauses).



17
are not as broad as the EEOC suggests) nor the alien 
exemption provision provides the clear and affirmative 
expression of congressional intent necessary to overcome 
the presumption against extraterritorial application of 
Title VII.

1. Title VII’s Definition Of “Commerce” By Its 
Terms Does Not Reach Overseas Workplaces.

The Constitution gives Congress the power “ [t]o reg­
ulate Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes.” U.S. Const, 
art. I, sec. 8. While Congress has broad power coexten­
sive with the language of the Commerce Clause, Con­
gress does not exercise the full extent of that power in 
every statute it writes.18 If the language used by Con­
gress in the jurisdictional provisions of a statute is lim­
ited to less than “all commerce which may lawfully be 
regulated by Congress,” the reach of the statute neces­
sarily is circumscribed. As Professor Tribe has con­
cluded: “A law will not be held to affect all the activi­
ties Congress in theory can control unless statutory lan­
guage or legislative history constitutes a clear statement 
that Congress intended to exercise its commerce power 
in full.” L. Tribe, American Constitutional Law 316 
(2d ed. 1988) (emphasis in original) ; see Polish Nat’l 
Alliance v. NLRB, 322 U.S. 643, 647 (1944).

Unlike a variety of other statutes,9 Title VII’s defini­
tions of “commerce” and “industry affecting commerce”

8 While Congress’s power under the Commerce Clause is “ple­
nary,” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 193-94 (1824) 
(Marshall, J.), its power to regulate every species of commercial 
intercourse has limitations. Hodel v. Virginia. Surface Mining 
Reclamation Ass’n, 452 U.S. 264, 310-11 (1981) (Rehnquist, J., 
concurring) (“it would be a mistake to' conclude that Congress’ 
power to regulate pursuant to the Commerce Clause is unlimited 
. . . the connection with interstate commerce is itself a jurisdic­
tional prerequisite for any substantive legislation by Congress 
under the Commerce Clause”). See L. Tribe, American Constitu­
tional Law 314 (2d ed. 1988).

9 See, e.g., Federal Employees Liability Act, 45 U.S.C. § 51 (“any 
foreign nation”, “foreign commerce”) ; National Labor Relations



18
make no mention of “commerce with foreign nations”. 
See 42 U.S.C. § 2000e(g). Even within the Civil Rights 
Act of 1964 itself, Title II (governing public accommo­
dations) has “commerce” language that refers expressly 
to foreign countries.1'0 There is no such language in Title 
VII. Thus, the “commerce” provision of Title II is not 
parallel to the definition of “commerce” in Title VII. Cf. 
Lawyers Comm. Br. 10. Even if Title II and Title VII 
were parallel, however, Title II has never been held to 
reach a parallel suitation to the one in this case, i.e., the 
regulation of a place of public accommodation owned by 
a U.S. citizen that is operated exclusively in a foreign 
country.

H.R. 405, cited by the EEOC as a bill incorporated 
into Title VII (EEOC Br. 16 n.9), originally set forth, 
as to the intent of Congress, certain findings and declara­
tions that specifically referred to “foreign commerce” 
and “foreign nations.” 11 Before the Civil Rights Act was

Act, 29 U.S.C. i§ 151-52 (“any foreign country”) ; Railway Labor 
Act, 45 U.S.C. § 151 (“any foreign nation”).

10 Title II defines “commerce” as that “among the several States, 
. . .  or between any foreign country or any territory or possession 
and any State or the District of Columbia, or between points in 
the same State but through any other State . . .  or a foreign 
country.” 42 U.S.C. § 2000a(c) (emphasis added).

11 Sec. 2 of H.R. 405 (later part of Section 701 of Title VII of 
H.R. 7152) read in part as follows:

Sec. 2. (a) The Congress hereby finds that, despite the 
continuing progress of our Nation, the practice of discriminat­
ing in employment against properly qualified persons because 
of their race, religion, color, national origin, or ancestry . . . 
adversely affects the domestic and foreign commerce of the 
United States.

*  *  *  *

(c) The Congress further declares that the succeeding provi­
sions of this Act are necessary for the following purposes-



19

passed by the Senate, however, the “foreign commerce” 
and “foreign nations” language was deleted. The Senate 
version of H.R. 7152 was then acceded to by the House. 
110 Cong. Rec. 15,897 (1964).

On June 5, 1964, in anticipation of debate on the Sen­
ate’s substitute bill, the Dirksen-Mansfield Amendment 
(Amendment No. 656), Senator Dirksen inserted into 
the Congressional Record an annotated copy of the House 
bill that reflected the deletion by Senator Dirksen and 
others of the “foreign commerce” and “foreign nations” 
language. 110 Cong. Rec. 12,811-817 (1964) iSen. Dirk­
sen). The Civil Rights Act was passed by the Senate on 
June 17 and by the House on July 2 without the “foreign 
commerce” and “foreign nations” language. Pub. L. No. 
88-352, 78 Stat. 241 (1964). See EEOC, Legislative His­
tory of Titles VII and X I of Civil Rights Act of 196U 
(1968). There is no explanation in the publicly available 
legislative history for these deletions, which are incon­
sistent with the notion of a clearly expressed intent to 
apply Title VII extraterritorially.

The legislative history of Title VII as passed reflects 
a consideration of Congress’s power under the Commerce 
Clause, but that consideration was exclusively in terms 
of interstate and not foreign commerce. While there 
are suggestions that Congress intended to reach the full 
extent of its power to regulate commerce among the 
states, there is no mention of its power to regulate in 
connection with foreign commerce:

“Commerce” is, generally speaking, interstate com­
merce, but includes commerce within U.S. posses­
sions and the District of Columbia. It is, in short,

(1) To remove obstructions to the free flow of com­
merce among- the States and with foreign nations.

(2) To insure the complete and full enjoyment by all 
persons of the rights, privileges, and immunities secured 
and protected by the Constitution of the United States.

H.R. 405, 88th Cong., 1st Sess. 3 (1963) (emphasis added).



20

that commerce to which the regulatory power _ of 
Congress extends under the Constitution, a familiar 
concept which has been employed in other statutes.

Interpretative Memorandum on Title VII, 110 Cong. Rec. 
7212 (1964) ,1!2 Thus, the passage of the Senate version 
of Title VII in lieu of the earlier House version is incon­
sistent with the notion of a clearly expressed congres­
sional intent to apply Title VII extraterritorially.

Even statutes that contain broad language in their 
definitions of “commerce” that expressly refer to “for­
eign country,” “foreign nation” or “foreign commerce” 
have been held not to reflect a congressional intent that 
they apply extraterritorially. For example, the Federal 
Employers Liability Act (“FELA” ), 45 U.S.C. § 51, de­
clares that every common carrier by railroad while en­
gaging in interstate “or foreign commerce” shall be 
liable in damages to its employees who suffer injuries 
while employed by such carrier in commerce. It refers by 
its terms to “any foreign nation or nations.” Id. This 
Court in New York Central V. Chisholm, 268 U.S. 29 
(1925), nevertheless held that there was no jurisdiction 
under FELA for a damages action where a U.S. citizen 
employed on a U.S. railroad suffered fatal injuries at a

12 The legislative history emphasizes Title VII’s concern with 
national, and not foreign, application. See, e.g., S. Rep. 867, 
88th Cong., 2d Sess. 8 (1964) (concerning “goal of eliminat­
ing racial and religious barriers from the American labor mar­
ket”) ; H.R. Rep. 570, 88th Cong., 1st Sess. 2 (1963) (job dis­
crimination “permeates the national social fabric—North, South, 
East, and West” ; H.R. 405 “is directed at correcting such abuses 
wherever found and is not focused upon any single section of the 
country.”). H.R. Rep. No. 570, the report accompanying H.R. 405, 
cited by the EEOC (EEOC Br. 16), discusses the “international 
implications” of its provisions only in terms of the U.S. image 
abroad as a result of its actions at home: “Each [discrimination] 
incident pointing up our deficiencies in extending to all of our 
citizens full and equal rights and opportunities casts doubt upon our 
sincerity and motives in the international sphere.” H.R. Rep. 570, 
88th Cong., 1st Sess, 3 (1963).



21

point thirty miles north of the New York-Canadian 
border. 268 U.S. at 31-32.18

The dissent in the present case therefore expressly did 
not rely on the definitions of “commerce” and “industry 
affecting commerce” in Title VII as a basis for extrater­
ritorial application of Title VII. Pet. App. 18a. Rather, 
it characterized them as “traditional Commerce Clause 
language” that serves merely as “a ‘nexus’ requirement, 
providing a basis for Congress’s exercise of power under 
the Commerce Clause.” Icl.14

The EEOC, by contrast, now characterizes that juris­
dictional language as an affirmative, clear statement of 
congressional intent to extend Title VII’s coverage to 
“employment discrimination occurring outside the United 
States.” EEOC Br. 12. Only one of the cases cited to 
support this assertion, hcnvever, reached into foreign ter-

13 Similarly, despite’ the reference in the Railway Labor Act 
(“RLA”), 45 U.S.C. §151 et seq., as amended to cover air carriers, 
45 U.S.C. § 181 et seq., to “foreign nations” in the Act’s definition 
of “commerce,” the Eighth Circuit held that the RLA did not apply 
to employees working in American airplanes wholly outside the 
United States. Air Line Stewards & Stewardesses Ass’n, Int’l v. 
Northwest Airlines, Inc., 267 F.2d 170, 177-78 (8th Cir.), cert, 
denied, 361 U.S. 901 (1959) ; accord Air Line Dispatchers Ass’n 
v. National Mediation Bd., 189 F.2d 685 (D.C. Cir.), cert, denied, 
342 U.S. 849 (1951).

14 Properly analyzed, the statutory phrase “between a State and 
any place outside thereof” in the definition of “commerce” in Title 
VII is a formulation used to provide the jurisdictional nexus re­
quired to regulate commerce that is not wholly within a single 
state, presumably as it affects both interstate and foreign com­
merce. But it does not provide any basis to regulate conduct 
exclusively within a foreign country.

Vermilya-Brown Co. V. Connell, 335 U.S. 377 (1948), cited by 
the EEOC as support for the notion that Congress can regulate 
acts of U.S. citizens wholly within the territory of foreign nations 
(EEOC Br. 8-9), is not on point. The decision there turned on 
the Court’s finding that leased bases were within the sole control 
of the United States because they were included within the defini­
tion of “possession” in the Fair Labor Standards Act. 335 U.S. 
at 390.



22

ritory at all and then only because of direct economic 
effects in the United States,1'5 and none of the cited cases 
involved conduct occurring exclusively on foreign soil.16 
Similarly, Title VII’s definition of “commerce” does not 
evidence any congressional intent to regulate activities 
exclusively in other countries, let alone the clear expres­
sion of affirmative intent necessary to reach activities 
overseas.

2. Title  VIFs Definition Of “Commerce” Was De­
rived From  S ta tu tes  T ha t This Court H ad Pre­
viously H eld Do N o t A pp ly  E xtra territoria lly .

Title VII defines “employer” as “a person engaged in 
an industry affecting commerce,” 42 U.S.C. § 2000e(b), 
and defines “an industry affecting commerce” by refer­
ence to the meaning of “affecting commerce” in the 
Labor-Management Reporting and Disclosure Act of 
1959, 29 U.S.C. § 402(c). 42 U.S.C. § 2000e(h). That 
Act in turn defines “industry affecting commerce” as an 
industry included under the Labor Management Rela­
tions Act. This Court expressly has held that the Labor 
Management Relations Act does not have extraterritorial 
application. Benz v. Compania Naviera Hidalgo, 353 
U.S. at 142-43, 146-47.

13 That case, Steele V. Bulova Watch Co., 344 U.S. 280 (1952), 
is discussed infra 23-25.

18 Branch V. FTC, 141 F.2d 31 (7th Cir. 1944), the only other 
case cited by the EEOC (EEOC Br. 12), involved a correspondence 
school conducted from Branch’s home in Chicago and the distribu­
tion of correspondence courses by mail from Chicago to Latin 
American countries. 141 F.2d at 33. All of the cases cited by the 
Lawyers Committee (Lawyers Comm. Br. 10) are domestic in their 
focus: Daniel v. Paul, 395 U.S. 298 (1969) (an amusement park 
near Little Rock, Arkansas) ; Katzenbach V. MeClung, 379 U.S. 294 
(1964) (Ollie’s Restaurant located in Birmingham, Alabama) ; 
Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) 
(a motel in Georgia) ; Polish Nat’l Alliance v. NLRB, 322 U.S. 
643 (1944) (a fraternal and cultural benefit society in the busi­
ness of insurance, organized in over 1800 lodges in 27 states with 
weekly mailings all over the U.S.) ; Wickard v. Filburn, 317 U.S. 
I l l  (1942) (a wheat farmer in Ohio).



23

The legislative history of Title VII also refers to the 
National Labor Relations Act (“NLRA”), 29 U.S.C. 
§§ 151-168. Interpretative Memorandum on Title VII, 
110 Cong. Rec. 7212 (1964) (“The term ‘affecting com­
merce’ is also familiar, since this is the standard of cover­
age employed in the National Labor Relations Act . . .” ). 
Yet even though the NLRA, unlike Title VII, contained 
broad language that clearly referred by its terms to for­
eign commerce, 29 U.S.C. § 152(6), this Court refused to 
find a congressional intent to apply the NLRA extraterri- 
torially because there was not “any specific language” in 
the Act reflecting congressional intent to do so. McCulloch 
v. Sociedad National de Marineros de Honduras, 372 U.S. 
at 19.

Despite the holdings of the Court in Benz and 
McCulloch, the EEOC relies on an assertedly “similar . . . 
broad jurisdictional grant in the Lanham Act” that this 
Court held applied extraterritorially in Steele v. Bulova 
Watch Co., 344 U.S. at 286 (1952). EEOC Br. 12. The 
Lanham Act, however, also contained a clear statement of 
congressional intent to regulate the domestic effects within 
the United States resulting from the use of deceptive or 
misleading trademarks overseas and by its terms it 
reached “all commerce which may lawfully be regulated 
by Congress.” In Steele, the Court relied both on that 
clear intent and that broad Commerce Clause language. 
See 344 U.S. at 283-84. The Lanham Act and Steele are 
inapposite in view of Title VII’s more limited “commerce” 
language, its definitional provisions and its reliance on 
statutes that the Court held not to be subject to extrater­
ritorial application.17

17 A large number of other statutes employ similar or identical 
“commerce” and “affecting commerce” language to that used in 
Title VII. See, e.g., Consumer Product Safety Act, 15 U.S.C. 
§ 2052 (a) (12) ; Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 
§ 321(b) ; Noise Control Act of 1972, 42 U.S.C. §4902(7) ; Radia­
tion Control for Health and Safety Act of 1968, 42 U.S.C. § 263c (4) ; 
and Transportation Safety Act of 1974, 49 U.S.C. § 1802(1). The 
use of such language in these statutes does not evidence any affirma-



24
The EEOC’s references to Steele also suggest that it 

may be asking this Court to ignore the territoriality prin­
ciple and the presumption relied on by both the majority 
and the dissent in the court below in favor of a novel 
application of the so-called “effects principle,” a less 
favored basis for the exercise of jurisdiction.18 But the 
effects principle only provides a basis for the regulation 
of conduct abroad through legislation intended to reach 
such conduct when it substantially harms the domestic 
economy of the United States. See Continental Ore Co. 
v. Union Carbide & Carbon Corp., 370 U.S. 690, 704-05 
& n.13 (1961) (quoting United States v. Sisal Sales 
Corp., 274 U.S. 274, 276 (1926)).

There are limits to the applicability of the effects 
principle, and the mere fact that conduct in a foreign 
country may have some repercussions in the United 
States is not sufficient to find effects substantial or direct

tive intent by Congress to extend these statutes extraterritorially, 
and no court has held that any of these statutes so; apply.

18 The current version of the Restatement of Foreign Relations 
Law, published in 1986, emphasizes that “ [t]he territorial prin­
ciple is by far the most common basis for the exercise of jurisdic­
tion to prescribe . . . .” Restatement (Third) § 402 comment c. 
The Restatement sets forth the bases for a state to prescribe juris­
diction in a hierarchical order: first, conduct within the state’s 
own territory; second, the status of persons or interests present 
within its territory; third, conduct outside its territory that has 
“substantial effect” within its territory, and fourth, “the activities, 
interests, status or relations of its nationals outside as well as 
within its territory.” Restatement (Third) § 402. (There is a fifth, 
non-traditional jurisdictional basis, recently added, relating to 
international terrorist activity.)

In addition, courts today continue to rely on the presumption 
against extraterritorial application set forth by this Court in 
Foley Bros., Inc. V. Filardo, 336 U.S. at 285. Thus, the failure of 
the Restatement (Third) to include section 38 of the Restatement 
(Second) of Foreign Relations Law in haec verba (U.S. statutes 
apply “only to conduct occurring within, or having effect within, 
the territory of the United States, unless the contrary is clearly 
indicated by the statute”), hardly supports the argument that ter­
ritoriality is an outmoded concept under international law. See 
Lawyers Comm. Br. 5, 21.



25
enough to extend our laws extraterritorially. Cf. United 
States v. Aluminum Co. of Am., 148 F.2d 416, 443-44 
(2d Cir. 1945) (L. Hand, J.). Only conduct that has or 
is intended to have a direct and substantial economic ef­
fect within the United States is reached. See Restate­
ment (Third) §§ 402(c), 416 comment a; see also § 402 
comment d (discussing economic effects). Moreover, 
under the effects doctrine, as in other cases involving the 
extraterritorial application of U.S. law, the first step in 
the analysis remains whether Congress intended the stat­
ute to reach the conduct involved. United States V. 
Aluminum Co. of Am., 148 F.2d at 443.

In cases decided on the basis of the effects principle, the 
United States (frequently with considerable controversy 
and opposition) has reached into foreign markets because 
the economic effect of violations of the antitrust, insider 
trading or securities laws in this country make terri­
torial boundaries meaningless.119 Application of Title VII 
extraterritorially, on the other hand, would reach into 
foreign workplaces on a day-to-day basis to impose U.S. 
laws, procedures and remedies on essentially local activi­
ties such as labor, health and safety practices. See Re­
statement (Third) § 414 comment c. This is an unwar­
ranted extension of an already controversial doctrine 
into an area that traditionally has been recognized as 
being under local control.20

19 The effects doctrine has generated strong reactions from other 
countries in the form of diplomatic protest and the enactment of 
blocking statutes that place limits on compliance with the laws of 
another country. 1. J. Atwood & K. Brewster, American Business 
Abroad § 4.14-4.18 (2d ed. 1981 & Supp. 1990) ; D. Lange and 
G. Born, The Extraterritorial Application of National Laws 35 
(1987); Gerber, Beyond Balancing: International Law Restraints 
on the Reach of National Laws, 10 Yale J. Int’l L., 185, 219-20 
(1984). At least 16 nations have enacted such blocking statutes 
as “self-protection against the unilateral extraterritorial applica­
tion of United States law.” Rosenthal, Jurisdictional Conflicts 
Between Sovereign Nations, 19 Int’l Law. 487, 491 & n.22 (1985).

20 The International Human Rights Law Group attempts to dis­
tinguish Title VII from labor statutes on the basis that it protects



26
C. The Requisite Clear Expression Of Affirmative In­

tent Necessary To Overcome The Presumption 
Against Extraterritoriality Cannot Be Found In  
The Negative Inference From The Alien Exemption 
Provision.

The EEOC argues that the alien exemption provision 
“clearly manifests an intention” by Congress to protect 
U.S. citizens with respect to their employment outside 
the United States and that there is “no other plausible 
explanation” for the presence of the alien exemption pro­
vision in Title VII. EEOC Br. 12. The alien exemption 
provision, however, says nothing about the coverage of 
U.S. employers, U.S. employees or U.S. nationals in work­
places in foreign nations, as would be required to provide 
for the application of Title VII to foreign workplaces, 
whether based upon U.S. nationality or upon traditional 
principles of extraterritorial jurisdiction. See supra 13-14. 
Furthermore, the alien exemption provision does have 
“plausible explanations” that make sense historically, text- 
ually and logically.

1. The H istory Of The A lien  E xem ption Provision  
D em onstrates Tha t I ts  Dual Purposes Were To 
E xem pt Em ployers Of A liens From  Coverage In  
U.S. “Possessions” A nd  To Confirm The Cover­
age Of A liens In  The United States.

The EEOC’s alien exemption argument would have the 
Court view Title VII as if it only applied to two geo­
graphic regions: inside any State, that is, within the

against discrimination, an individual right. Int’l Human Rights 
Br. 26-28. The National Labor Relations Act, however, also pro­
tects employees against discrimination, on the grounds of union 
membership or non-membership. See 29 U.S.C. § 157 (guarantees 
individual employees the right to organize and form labor unions 
or to refrain); 29 U.S.C. § 158(a) (3) (unfair labor practice for 
employer to discriminate in order to encourage or discourage 
membership in union). Yet these individual protections do not 
apply to U.S. citizens in foreign countries. See e.g., GTE Auto­
matic Elec. Inc., 226 N.L.R.B. 1222 (1976) (citing Benz V. Compania 
Naviera Hidalgo, 353 U.S. 138 (1957)).



27

United States and the territories listed in the definition 
of “State” in the statute; and outside any State, or, as 
the EEOC repeatedly says “abroad”—a term found no­
where in the statute. In fact, however, the statute re­
quires an examination of three distinct geographic re­
gions: (1) inside any State, that is, within the United 
States and its many territories; (2) U.S. possessions, 
which also would include areas under the jurisdiction or 
sole control of the United States—an important and in­
tended separate category when viewed against the his­
torical derivation of the alien exemption provision; and 
(3) geographic regions outside any State or possession.

Aliens are included within the coverage of Title VII 
because they are “individuals” protected by the prohibi­
tions against unfair employment practices in 42 U.S.C. 
§ 2000e-2. The definition of “employer” includes all em­
ployers engaged in an industry affecting commerce, and 
the territory under the jurisdiction and control of the 
United States referred to in the definition of “commerce” 
includes “possessions” as well as “States” of the United 
States. 42 U.S.C. §§ 2000e(b), (g). The definition of 
“State,” by contrast, covers certain territories but does 
not cover all possessions. 42 U.S.C. § 2000e(i). The alien 
exemption provides that Title VII does not extend to the 
employment of aliens “outside any State.” Thus, employ­
ers of aliens in the possessions of the United States 
would be covered by Title VII but for the inclusion by 
Congress of the alien exemption provision that exempts 
them from coverage.

This reading of the alien exemption provision is con­
sistent with and supported by the historical development 
of the provision. The first legislative use of an alien ex­
emption provision was in the proposed 1949 Fair Em­
ployment Practices (“FEP” ) Act, H.R. 4453, governing 
the United States as employer and contractor.21 The

21 The first PEP bills introduced contained exemptions, for state 
and local governments, and for religious, charitable, and educa-



28
year before Congress considered H.R. 4453, this Court 
in Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948), 
had held that the term “possession” in the Fair Labor 
Stardards Act (“FLSA” ) included both the sovereign 
territory of the United States and leased bases in foreign 
nations that were within the sole control of the United 
States, Thus, the Court concluded, the protections of the 
FLSA extended to all individuals (including aliens) em­
ployed by private employers on U.S. leased bases in for­
eign nations. 335 U.S. at 390.

H.R, 4453, which covered government employers and 
government contractors as well as certain private em­
ployers, was one of the first FEP bills introduced after 
the Vermilya-Brown decision. Unlike previous FEP bills 
that included the phrase “State, Territory or possession” 
without definition in the legislation or accompanying 
committee reports, H.R. 4453 defined “possessions” to ex­
clude “other places held by the United States by lease, 
under international arrangements or by military occupa­
tion.” H.R. 4453, 81st Cong., 1st Sess., § 3(f) (1949). 
It also contained a new exemption provision that ex­
empted from coverage “any employer with respect to 
the employment of aliens outside the continental United 
States, its territories and possessions.” Id. § 4. H.R. 
4453 thereby effectively circumvented the strained rea­
soning of the Court in Vermilya-Brown. See 335 U.S. 
at 390-409 (Jackson, J., dissenting).

Coverage of the federal government as an employer 
and the exemption provision for employers of aliens were 
retained in subsequent FEP bills introduced during the 
1950’s and early 1960’s. The definition of “possession” 
continued to appear in many proposals for FEP legis-

tional institutions, but made no reference to aliens by exemption 
or otherwise. See, e.g., H.R. 2824, 80th Cong-., 1st Sess. § 4 (1947). 
These bills used the phrase “State, Territory or possession” to 
denote their geographic scope. No definition of these terms was 
included in the proposed legislation, and the terms were not men­
tioned in hearings and reports. See, e.g., H.R. Rep. No. 187, 79th 
Cong., 1st Sess, 2 (1945).



29

lation until 1962, when the term “State” was substituted 
for the phrase “State, Territory and possession” that ap­
peared in earlier FEP bills. See, e.g., H.R. 10,144, 87th 
Cong., 2d Sess. 10 (1962). “State” was defined in the 
same way as in the FLSA, which had been amended in 
1957 for the express purpose of overruling Vermilya- 
Brown and thereby relieving employers of the potential 
liability created by that decision.22 Read together, then, 
the definitions of “possession” and the alien exemption 
provisions in the FEP bills from 1949 until the early 
1960’s were intended to exempt employers of aliens on 
military bases and leased areas that, under the reasoning 
in Vermilya-Broivn, were subject to U.S. jurisdiction.

In Title VII coverage of federal employees was de­
leted. The provision exempting employers of aliens, 
which had been inherited from numerous predecessor 
bills, nevertheless remained in Title VII. Because Title 
VII contained an expanded definition of the term “State,” 
which listed the territories, but not possessions, to which 
Title VII extends, the purpose of the alien exemption 
provision remained the same: To continue to limit the 
impact of Vermilya-Brown by excluding from coverage 
employers of aliens in areas under U.S. control that did 
not meet the revised definition of “State.” The congres­
sional concern with exempting aliens employed within 
the possessions of the United States as a result of the 
Vermilya-Brown decision is a more likely reason for in­
clusion. of an alien exemption provision in Title VII than 
the EEOC’s explanation.

The EEOC argues that because the alien exemption 
first appeared in fair employment legislation six weeks 
after this Court’s decision in Foley, “it was conceived as

23 Under the FLSA, “ ‘State’ means any State of the United 
States or the District of Columbia or any territory or possession 
of the United States.” 29 U.S.C. § 203(c) (1978). The purpose of 
the 1957 amendment to the FLSA was “to exclude from any pos­
sible coverage work performed on United States bases in foreign 
countries.” H.R. Rep. No. 1165, 85th Cong., 1st Sess. 1, 6 (1957).



30
a response to that decision.” EEOC Br. 17. The legisla­
tive history of H.R. 4453 makes no mention whatsoever 
of Foley. But even assuming that the alien exemp­
tion provision was a response to the distinction between 
citizens and aliens raised in the Foley decision, the pro­
vision must be read in light of the geographic limi­
tation contained in H.R. 4453. Congress would not have 
restricted the geographic scope of the legislation in the 
definitional provision and simultaneously extended it 
extraterritorially to U.S. citizens overseas through the 
alien exemption provision. It is even more illogical to 
assume that Congress would expressly have excluded 
from coverage military bases, leased areas and posses­
sions, while silently including foreign countries over 
which the United States had no claim to jurisdiction, 
even under Vermilya-Brown.

There is another reason for the alien exemption pro­
vision, as the panel and en banc majorities in the court 
below noted. That explanation is found simply by read­
ing the exemption consistently with this Court’s decision 
in Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). In 
Espinoza, the Court noted that aliens in the United 
States are protected from discrimination both because 
Title VII uses the term “individual” rather than “citi­
zen” and because of the alien exemption provision. On 
these two bases, the Court stated in passing that “Title 
VII was clearly intended to apply with respect to the 
employment of aliens inside any State.” 414 U.S. at 95.

The EEOC now agrees with Respondents that the 
Espinoza decision stands for the proposition that “the 
alien exemption does confirm Congress’s intention to pro­
vide protection to aliens within the United States” 
(EEOC Br. 15), but it rejects the position of the ma­
jority below that the provision would remain a “mean­
ingful and useful part of the Act” even if Title VII were 
interpreted not to apply abroad. EEOC Br. 4, 14-15.

A confirmation of congressional intent by itself may 
have been quite “meaningful and useful,” if not essen­
tial, in 1949 when the alien exemption provision first



31

appeared. Aliens had been excluded from certain do­
mestic protective labor legislation and restricted in their 
employment opportunities within the United States.28 
There was considerable debate in Congress as to whether 
aliens in the United States should be covered by the FEP 
legislation. It therefore is quite likely that the alien ex­
emption provision was intended in 1949 as a “back- 
handed way” of extending coverage to aliens in the 
United States at a time when a more direct approach 
might not have been successful in the Congress. See 
Kirschner, Extraterritorial Application of Title VII of 
the Civil Rights Act, 34 Lab. L. J. 394, 399-400 & n.26 
(1983).34

In legislatively reversing this Court’s decision in Ver- 
milya-Brown and leaving Foley Bros, intact, Congress 
indicated that the application of U.S. labor standards to 
overseas areas is contrary to the best interests of both 
the United States and the foreign areas, see Rep. No. 
987, 85th Cong., 1st Sess. 2 (1957), precisely the view 
expressed by Justice Jackson in his dissent in Vermilya- 
Brown. To attribute to Congress in 1949 or in 1964 an 
intent to regulate employment conditions in areas out­
side the jurisdiction of the United States on the basis of

28 As late as 1949, Japanese, Chinese, Koreans, Filipinos, and 
other Asians were barred from United States citizenship. Racially 
restrictive immigration quotas prohibited most Asians from even 
entering the United States. See M.R. Konvitz, The Alien and the 
Asiatic in American Laiv, 171-211 (1946).

24 Congressman Powell, the author of H.R. 4453, was concerned 
about discrimination against aliens, particularly in the Panama 
Canal Zone. See Hearings on H.R. UU5S before Special Sub comm, 
on Education and Labor, 81st Cong., 1st Sess. 361-62 (1949). 
In March 1949, Congress was considering a bill to revise or elimi­
nate many racially restrictive immigration quotas. New York 
Times, Mar. 2, 1949, a t 20, col. 5. During consideration of this 
bill, Congressman Powell fought to remove immigration quotas for 
natives of the British West Indies, offering an amendment to this 
effect, 95 Cong. Rec. 1682, 1688-1981 (1949). See also 92 Cong. 
Rec. 184 (1946) ; 92 Cong. Rec. 887 (1946) ; 96 Cong. Rec. 2175 
(1950).



32
the alien exemption provision is to completely ignore the 
context in which it was formulated.215

2. A  N e g a tiv e  In feren ce  C an n ot P ro v id e  T h e  R eq u i­
s i te  C lear, S pecific  C o n g ressio n a l E x p ress io n  Of 
I n te n t N e c e ssa ry  F o r  T h e E x tr a te r r i to r ia l  A p ­
p lica tio n  O f A  U .S. L aw .

The EEOC argues that a negative inference, combined 
with the asserted broad jurisdictional provisions of Title

25 The EEOC cites only two pieces of legislative history in sup­
port of its alien exemption argument. It cites a House Report 
stating that the purpose of the alien exemption “is to remove con­
flicts of law which might otherwise exist between the United States 
and a foreign nation in the employment of aliens outside the 
United States by an American enterprise.” H.R. Rep. No. 570, 
88th Cong., 1st Sess. 4 (1963) ; see EEOC Br. 16, 25. It also cites 
S. 1937 and its accompanying report (S. Rep. No. 867, 88th Cong., 
2d Sess. (1964)) as laying to rest “any doubt” about the mean­
ing of the alien exemption provision. EEOC Br. 17.

The House Report was written to accompany H.R. 405 by the 
House Labor Committee, not the House Judiciary Committee, and 
H.R. 405 was not the bill ultimately enacted by Congress. The 
language of H.R. 405 also included references to “foreign com­
merce” and “foreign nations” that were deleted later. See supra 
18-20. As the panel majority noted, the impact of this sentence is 
further diluted by the indirect nature of the subcommittee’s role in 
developing the legislation that became Title V II: “In short, the 
EEOC looks for a clear expression of intention in a negative infer­
ence arising from one paragraph of a report rendered by members 
of a House subcommittee that did not participate in voting the bill 
out of the Judiciary Committee and sending it to the full House.” 
Pet. App. 40a-41a n.4.

S. 1937 differed substantially from Title VII as passed because 
it also covered government employees and government contractors 
regardless of their location. S. Rep. No. 867, 88th Cong., 2d Sess. 
23. (1964). Thus, the alien exemption provision would have related 
to such employees, particularly to government contractors in over­
seas possessions. Moreover, the report accompanying S. 1937 ex­
plained the exemption not as an exemption of employers from 
coverage only in respect of the employment of aliens, but as an 
exemption of “U.S. employers employing citizens of foreign coun­
tries in foreign lands” {id. at 11), which appears to suggest that 
all U.S. employers who employed even a single foreign citizen in 
a foreign country would be exempt from coverage.



33

VII, was an “entirely natural” way for Congress in 1964 
to express its intent to overcome the presumption against 
extraterritorial application. EEOC Br. 15. Congress, 
however, would not have left “such an important and 
unusual regulation [of employment in foreign nations] 
to be gathered from implication.” Sandberg v. McDonald, 
248 U.S. at 195. At the time Congress was considering 
Title VII in 1964, this Court had just decided McCulloch, 
in which it said that for an act of Congress to apply out­
side the borders of the United States, “there must be 
present the affirmative intention of Congress clearly ex­
pressed.” McCulloch v. Sociedad Nacional de Marineros 
de Honduras, 372 U.S. at 21-22. Thus, if Congress had 
intended Title VII to apply in foreign workplaces it 
would have said so clearly, expressly and affirmatively.28

The district court decisions cited by the EEOC and 
amici to support the negative inference argument 
(EEOC Br. 14) are neither persuasive nor uniform in 
their holdings. Contrary to the EEOC’s assertion, not 
all the “judicial decisions” but this one (id.) that have 
considered this issue have found that Title VII applies 
extraterritorially. See EEOC v. Kloster Cruise Ltd., 
53 Fair Emp. Prac. Cas. (BNA) 1229 (S.D. Fla. 1990).

Of those courts that have found extraterritorial appli­
cation, all rely on Bryant v. Int’l Schools Servs., Inc. 502
F. Supp. 472 (D.N.J. 1980) , rev’d on other grounds, 675 
F.2d 562 (3d Cir. 1982), which based its reasoning on

26 Congress certainly was aware of the need for a clear expression 
of intent at the time Title VII was being considered. Right after 
the McCulloch decision, the House and Senate Judiciary Commit­
tees considered and approved H.R. 9435, a bill to improve discovery 
procedures in international litigation. In its report, the Senate 
Judiciary Committee recognized the need to express clearly any 
intent to apply statutes extraterritorially: “Without the proposed 
amendment, section 1621 leaves in doubt whether it has extrater­
ritorial applications . . .  I t  is considered desirable to make un­
ambiguously clear that the section applies irrespective of whether 
the perjury is committed in the United States or in a foreign coun­
try. . . .” S. Rep. 1580, 80th Cong., 2d Sess. 2 (1964).



34
dicta in a footnote in Love v. Pullman Co., 13 Fair Emp. 
Prac. Cas. (BNA) 423, 426 n.4 (D. Colo. 1976), aff’d on 
other grounds, 569 F.2d 1074 (10th Cir. 1978).27 Bryant 
was reversed on appeal, however, and the Third Circuit 
expressly declined to reach the question of Title VIPs ex­
traterritorial application. Bryant v. Int’l. Schools Servs., 
Inc., 675 F.2d at 577 n.23. The Third Circuit later ex­
pressed doubt about the propriety of the negative infer­
ence rationale in Cleary v. United States Lines, Inc., 728 
F.2d 607, 609 (3d Cir. 1984).28

D. Extraterritorial Application Of Title VII Would 
Be Inconsistent With Its Structure And Would 
Necessarily Result In Coverage Of Foreign As Well 
As U.S. Employers In Foreign Workplaces.

The absence of congressional intent to apply Title VII 
extraterritorially is reflected in other provisions of Title 
VII. The statute as a whole indicates a domestic focus, 
with numerous references to states and state proceedings 
but no references whatsoever to foreign countries or for­
eign proceedings. See, e.g., 42 U.S.C §§ 2000e-5, 2000e-7.

27 See also Akgun v. Boeing Co., No. C89-1319D (W.D. Wash. 
June 7, 1990) ; Seville V. Martin Marietta Corp., 638 F. Supp. 590 
(D. Md. 1986).

28 The EEOC claims that Pennsylvania v. Union Gas Co., 109 
S. Ct. 2273 (1990), supports its position that a negative inference 
from an exemption provision is an adequate basis from which to 
find a manifestation of congressional intent. EEOC Br. 12-13. 
The Union Gas case, however, involved a statutory provision that 
had a clear affirmative expression of intent in addition to the nega­
tive inference to be drawn from an exemption. In concluding that 
the statute “clearly evinces an intent to hold States liable in dam­
ages in federal court,” the Court in Union Gas relied on “ [t]he 
express inclusion of States within the statute’s definition of persons 
and the plain statement that States are to be considered ‘owners or 
operators’ in all but very narrow circumstances, [which] together 
convey a message of unmistakable clarity: Congress intended that 
states be liable along with everyone else for cleanup costs recover­
able under CERCLA.” Pennsylvania v. Union Gas, 109 S. Ct. at 
2278, 2280. Thus, it was not a negative inference from an exemp­
tion that led to the Court’s, conclusion in Union Gas but a combina­
tion of factors.—particularly the express coverage provisions.



35
The EEOC attempts to justify, explain away or ignore 
these inconsistencies, which serves only to underline the 
difficulty with its position: If Congress had in fact in­
tended to apply Title VII in foreign workplaces it would 
have addressed the problems raised by doing so in the 
language of Title VII, as it addressed similar problems 
concerning the states.

For example, Title VII and its legislative history re­
flect congressional concern with resolving conflicts be­
tween the federal law and procedures created by Title 
VII and the law and procedures of the states regulating 
fair employment practices. Section 2000h-4 provides 
that Title VII should not be construed to exclude the 
operation of state law or invalidate any state law unless 
inconsistent with the purposes of the Act. 42 U.S.C. 
2000h-4. Section 2000e-5 requires the EEOC to “accord 
substantial weight” to findings of state or local authori­
ties in proceedings under state or local law, and requires 
certain deference to state and local procedures. 42 U.S.C. 
§ 200Ge-5. Section 2Q00e-7 states that nothing in Title 
VII shall affect the application of state or local law un­
less such law requires or permits practices that would be 
unlawful under Title VII. 42 U.S.C. § 20Q0e-7.

If Title VII were intended to apply to employers in 
foreign workplaces, Congress would have included paral­
lel provisions addressing the sensitive area of conflicts 
with foreign laws and procedures. The EEOC reasons, 
however, that foreign procedures and laws were “unfa­
miliar” to Congress in 1964 and it therefore chose not to 
deal with them in the same careful way it dealt with 
state law and procedures, EEOC Br. 30. This specula­
tive suggestion about why Congress was silent attributes 
to Congress an unjustifiable lack of capacity. Congress’s 
failure to act was not because of its supposed lack of 
familiarity with foreign laws and procedures but because 
Congress never considered the extraterritorial applica­
tion of Title VII at all.28

29 The EEOC argues that the alien exemption provision is the 
congressional resolution of the conflicts of law that arise from



36

Furthermore, the EEOC’s suggestion contrasts sharply 
with the careful consideration Congress gave to such 
matters in 1984 when, in amending the Age Discrimina­
tion in Employment Act, it specifically provided for po­
tential conflicts with foreign law, first by limiting the 
employers to whom the ADEA would apply abroad and 
then by expressly addressing conflicts: “ [I]t shall not be 
unlawful for an employer . . .  to take any action other­
wise prohibited . . . where such practices involve an em­
ployee in a workplace in a foreign country, and compli­
ance with [the ADEA] would cause such employer . . . 
to violate the laws of the country in which such work­
place is located [.]” 29 U.S.C. § 623(f).30

The absence of any similar statement concerning con­
flicts with foreign laws and procedures in either the 
statute or the legislative history of Title VII is especially 
peculiar in view of the EEOC’s position that the statute

extraterritorial application of Title VII. EEOC Br. 16-18. That 
supposed resolution, however, fails to address, much less, resolve, 
the many significant conflicts that would arise in foreign workplaces 
where the law of the country in which the workplace is located 
applies to citizens, and non-citizens alike, as is the case in Saudi 
Arabia. Even accepting the EEOC’s interpretation of its meaning, 
the alien exemption provision addresses only conflicts that would 
arise in the application of Title VII to foreign citizens in foreign 
workplaces,

30 If the EEOC is suggesting that the Bona, Fide Occupational 
Qualification (“BFOQ”) defense, 42 U.S.C. 2000e-2(e), is an ade­
quate substitute for such specific provisions (EEOC Br. 7, 27), 
suffice it to say that the BFOQ defense is an inadequate tool for 
minimizing conflicts, of law because it is, extremely narrow, apply­
ing only to religion, sex and national origin (not race) and only 
where distinctions on one of those bases is reasonably necessary to 
the normal operation of a particular business or enterprise. See 
Dothard V. Rawlinson, 433 U.S. 321, 333 (1976) ; Kern v. Dyna- 
lectron Cory., 577 F. Supp. 1196 (N.D. Texas 1983), aff’d, 746 
F.2d 810 (5th Cir. 1984). The BFOQ defense and defenses avail­
able under the ADEA referred to by the EEOC are uncertain in 
their availability and application under Title VII and thus are no 
substitute for a clearly stated provision on conflicts with the laws 
of foreign nations like those in the amended ADEA.



37
by its own terms applies even to foreign employers of 
U.S. citizens in foreign countries. There is no citizenship 
restriction in the definition of employer (“a person en­
gaged in an industry affecting commerce” ) or in the 
definition of employee (“an individual employed by an 
employer” ). As the EEOC has stated, an employer is 
subject to Title VII “if it has employed 15 or more em­
ployees for a specified period and is engaged in an in­
dustry affecting commerce.” EEOC Br. 11, 28. Thus, if 
Title VII reaches the activities of U.S. employers of U.S. 
citizens in foreign workplaces, as the EEOC argues, it 
necessarily would reach the activities of foreign employ­
ers of U.S. citizens as well. Cf. Andrus v. Glover Constr. 
Co., 446 U.S. 608, 616-617 (1980) (additional exemp­
tions are not to be implied absent contrary legislative 
intent).

Although the EEOC in its brief reluctantly concedes 
that application to foreign employers presents “more dif­
ficult issues” (EEOC Br. 28), it suggests that the cov­
erage of foreign employers could be read out of Title VII. 
The EEOC now suggests that Title VII “could be inter­
preted” to embody “accepted international limits on pre­
scriptive jurisdiction” (id.), even though it concluded in 
a very recent policy guidance that Title VII “contains no 
exemption from coverage for foreign employers” and that 
therefore Congress must have intended to cover “some 
foreign employers.” Policy Statement No. 88-15, EEOC 
Compl. Man. (CCH) f  2187 at 2393 (1989).131

31 The EEOC reasoned in its policy guidance:
[T]he Act contains no exemption from coverage for foreign 
employers even though Congress wrote numerous exemptions 
in the original statute and its amendments. . . .  it is neces­
sary to construe §702 as expressing a Congressional intent 
to extend the coverage of Title VII to American and some 
foreign employers.

Policy Statement No. 88-15, EEOC Compl. Man. (CCH) 2187, 
2393 (1989). The EEOC has assumed for itself the task of at­
tempting to determine which foreign employers will be covered 
under Title VII. I t  has said it will balance a number of factors



38
The problem is that neither the EEOC’s argument in 

this Court nor its 1988 policy guidance has any basis in 
the statutory language. By reading the definition of 
“employer” to mean only “American employer” by refer­
ence to the scant legislative history describing the alien 
exemption provision (EEOC Br. 29 n.27), the EEOC is 
arguing that the plain definition of “employer” in the 
statute does not really mean what it says. It is further 
suggesting that the statute can be rewritten by reliance 
on that early, limited legislative history relating to a 
different provision in a different bill (H.R. 405) or by 
resort to the economic effects cases that are in no way 
applicable here. See supra 32 n.25.a2

To apply Title VII extraterritorially also is inconsis­
tent with the venue provisions which, insofar as may be 
relevant here, provide for venue only in a judicial dis­
trict in the state where certain matters related to the 
employer occurred or were located. 42 U.S.C. § 2000e- 
5(f) (3). While the EEOC points out that some employ­
ers operating abroad “may” meet one of these venue 
provisions within the United States (EEOC Br. 19), 
others clearly would not. For example, there would be no 
venue as to a U.S.-incorporated or foreign corporation 
with no place of business in the United States. Thus, the 
limitations on venue to the United States would not be 
so easily avoided as the EEOC suggests.
to determine whether Title VII applies, including the foreign em­
ployer’s nationality, whether the foreign employer is doing “fur­
ther business” in the United States and whether the alleged dis­
criminatory act has a connection to “the business in the United 
States.” Id.

32 jn contrast to the EEOC’s argument, the ACLU asserts that 
Congress would not have intended to apply Title VII to “alien em­
ployers of Americans abroad” because in 1964 it would have been 
considered “an unwarranted exercise of jurisdiction” ; therefore, 
“ [t]his interpretation should . . .  be disfavored.” ACLU Br. 29. 
Cf. Lavrov V. NCR Corp., 600 F. Supp. 923, 931 (S.D. Ohio 1984) 
(foreign employers outside the United States are not “employers” 
covered by Title VII, because specific congressional intent is needed 
to extend coverage to foreign employers, citing Benz and 
McCulloch.)



39

Similarly, the investigative authority provided in the 
original Title VII strongly suggests that no thought was 
given by Congress to extraterritorial coverage. The 
EEOC’s subpoena power originally extended only to the 
“State” where the witness resided or the documents 
sought were kept, and the EEOC could not require pro­
duction beyond that State. Pub. L. No. 88-352, § 706(f), 
78 Stat. 241 (1964). The provision was amended in 
1972, but the current statutory language still permits the 
EEOC only to issue subpoenas for witnesses and docu­
ments from “any place in the United States or any Terri­
tory or possession thereof.” 42 U.S.C. § 2000e-9. This 
language hardly suggests authorization to export Title 
VII’s law and procedures worldwide*3

In order to sustain the argument that Congress in 
1964 intended Title VII to apply abroad, the EEOC must 
ignore the absence of provisions addressing conflicts with 
foreign law, rewrite the definition of employer and over­
look the limitations on venue and investigative authority, 
thus demonstrating that the structure of Title VII is not 
consistent with the EEOC’s view that Title VII was 
intended to be applied extraterritorially.

33 The subpoena power of the EEOC becomes particularly prob­
lematic if Title VII applies either to foreign employers or even 
just to activities within foreign countries. The EEOC argues that 
similar language to that in Title VII has been interpreted to re­
quire production of documents where individuals within the United 
States were served with subpoenas for documents located elsewhere. 
EEOC Br. 20 n.12. Such “comparable statutes” have been held in­
adequate, however, to compel the appearance of a foreign citizen 
either in a foreign country or in the United States. See, e.g., 
CFTC v. Nahas, 738 F.2d 487 (D.C. Cir. 1984). Thus, where the 
investigation in a particular case involves foreign witnesses, the 
EEOC would lack the necessary investigative power.



40
E. Congress Could Not Have Intended In 1964 To Im­

pose Our Method Of Dealing With Employment Dis­
crimination On The Many Nations That Have 
Entered Into Treaties And Conventions Or Adopted 
Their Own Laws To Deal With Such Matters.

There are sensitive and sometimes vast cultural dif­
ferences between this nation and other sovereign states, 
many of which already regulate employment discrimina­
tion through their own laws. At least 55 nations, includ­
ing Saudi Arabia, have employment discrimination laws 
of their own.®4 Some nations provide greater protection 
than does the United States, and each nation has its own 
laws and procedures to deal with discrimination in its 
territory. The fact that the international community may 
share the goal of eliminating discrimination by adopting 
“many conventions deploring discrimination” and that 
deal specifically with employment discrimination (Int’l 
Human Rights Br. 46 n.9), is not support for imposing 
Title VII on other countries. In fact, it strongly suggests 
that Congress could not have intended to impose U.S. sub­
stantive and procedural law on the many nations that 
have ratified such treaties and conventions or enacted 
laws to deal with such matters in their own way.

The International Labour Organization Convention 
(No. I l l )  Concerning Discrimination in Respect of Em­
ployment and Occupation, 362 U.N.T.S. 31 (1958)
(“ILO Convention 111”) cited by the International Hu­
man Rights Law Group (Int’l Human Rights Br. 58), 
was in existence when Congress passed Title VII. ILO 
Convention 111—ratified by Saudi Arabia and 110 other 
nations but not by the United States—obligates each 
party “to declare and pursue a national policy designed 
to promote, by methods appropriate to national condi­
tions and practice, equality of opportunity and treatment 
in respect of employment and occupation, with a view to 
eliminating any discrimination in respect thereof.” ILO

34 International Labour Organization, Legislative Services, Gen­
eral Subject Index 1919-1989 (1989).



41
Convention 111, art. 2 (emphasis added) (Int’l Human 
Rights Br. App. A-2). Each member undertakes “by
methods appropriate to national conditions and prac­
tice . . .  to enact such legislation . . . as may be calcu­
lated to secure the acceptance and observance of the pol­
icy.” Id., art. 3 (emphasis added).®6

The Labor and Workmen Law of Saudi Arabia regu­
lates “all employment” within the borders of Saudi- 
Arabia, “including that of citizens of foreign countries.” 
J.A. 27.13'6 It contains numerous substantive provisions, 
some of which deal with employment discrimination,37 
and “a procedural framework consisting of two judicial 
commissions by which aggrieved persons may vindicate 
their rights under the code.” Id. See Labor and Work­
men Law of Saudi Arabia, arts. 172-188. These com­
missions “make no distinction between citizens of Saudi 
Arabia and foreign nationals who work in Saudi 
Arabia.” J.A. 27.

85 As a member of the ILO, the United States has a continuing 
obligation under article 19, section 7, of the Constitution of the 
ILO, to bring a Convention “before the authority or authorities 
within whose competence the matter lies, for the enactment of 
legislation or other action.” Although the United States is not a 
party to ILO Convention 111, it continues to recognize its obliga­
tion under article 19, section 7, and in fact, is presently reconsider­
ing ratification of ILO Convention 111. 136 Cong. Rec. S1200 
(daily ed. Feb. 20, 1990) (statement of Sen. Hatch). It is implicit 
then that the United States has an obligation not to interfere 
with the application of ILO Convention 111, even though the 
United States has not yet ratified it. See Constitution of the ILO, 
art. 26. Similarly, under article 18 of the Vienna Convention on 
the Law of Treaties the United States must refrain from inter­
fering with the operation of the ILO in general and ILO Conven­
tion 111 in particular. See S. Exec. Doc. L., 92d Cong., 1st Sess, 6 
(1971).

86 The Labor and Workmen Law of Saudi Arabia was included 
in its entirety a t Tab B to the Appendix to Arameo’s Brief in 
the court below.

87 See in particular Labor and Workmen Law of Saudi Arabia, 
arts. 22, 48, 49, 78, 80, 91, 160.



42
While both the EEOC and various amici argue that 

the application of Title VII abroad would create “no 
serious potential for conflicts with international norms 
or the laws of foreign states” (EEOC Br. 25; see Int’l 
Human Rights Br. 53-61; Lawyers Comm. Br. 28-29), 
just the opposite appears to be the case. Serious conflicts 
with the specific laws of other countries—which have 
chosen to deal with discrimination by enacting legislation 
pursuant to their treaty obligations and otherwise “by 
methods appropriate to national conditions and prac­
tices”—would be inevitable if Title VII were applied 
overseas. Congress could not have intended to create such 
direct conflicts between U.S. requirements and proce­
dures for dealing with discrimination in the workplace 
and those of other nations.

The Governments of the United Kingdom, Canada and 
Australia have presented Diplomatic Notes to the United 
States Department of State with respect to this case, and 
their statements underscore precisely this point.38 The 
Government of Great Britain states that the application 
of Title VII in the United Kingdom could give rise to a 
“direct conflict” with U.K. law and policy:

[I] f the Supreme Court should now determine that 
Title VII has extraterritorial application, this could 
in some cases give rise to direct conflict with UK law 
and policy, especially if affirmative action require­
ments are imposed. Such conflict could have serious 
consequences for an employer who operated both in 
the United States and in the UK.

Diplomatic Note No. 429 from Her Britannic Majesty’s 
Embassy (Dec. 11, 1990) (App. 6a):39

38 Diplomatic Note No. 429 from Her Britannic Majesty’s Em­
bassy, dated December 11, 1990, is included as Appendix B hereto. 
Diplomatic Note No. 177 from the Embassy of Canada, dated 
December 12, 1990, is included as Appendix C hereto. Diplomatic 
Note No. 370 from the Embassy of Australia, dated December 12, 
1990, is included as Appendix D hereto.

39 The Government of Canada notes that its own “law and policy 
in this field reflect objectives and standards similar h> those of



43
“ [A]n act of Congress ought never to be construed to 

violate the law of nations if any other possible construc­
tion remains.” McCulloch v. Sociedad Nacional de Mari- 
neros de Honduras, 372 U.S. at 21 (quoting Murray v. 
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 
(1804)); Restatement (Third) §114 reporters’ note 1. 
In view of the treaty obligations of 111 nations—exclud­
ing our own, whose policies and values the EEOC and 
amici seek to impose on the rest of the world—and the 
views expressed by the Governments of the United King­
dom, Australia and Canada, it would be wrong to infer 
that Congress intended to extend Title VII to foreign 
workplaces.

II. THE EEOC’S CURRENT1 INTERPRETATION OF 
TITLE VII IS ENTITLED TO NO DEFERENCE 
BECAUSE IT IS NEITHER SUPPORTED BY THE 
STATUTE, CONTEMPORANEOUS WITH ENACT­
MENT OF TITLE: VII NOR CONSISTENT WITH 
PRIOR POSITIONS TAKEN BY THE AGENCY.

The EEOC contends that it has “consistently con­
strued” Title VII to apply to U.S. citizens working abroad. 
EEOC Br. 22. Citing a 1975 letter from the EEOC’s 
General Counsel, 1983 testimony by its Chairman and a 
1985 decision by the Commission, it argues that its 
administrative interpretations “reinforce” the conclusion 
that Congress intended Title VII to apply abroad. Id. at

Title VII.” Diplomatic Note No. 177 from the Embassy of Canada 
(Dec. 12, 1990) (App. 8a) (emphasis added). “The Government 
of Canada would be concerned, however, were the provisions of 
Title VII to be applied extraterritorially without regard to the law 
of the place where the conduct occurs.” Id. It suggests that there 
is a genuine possibility of “conflict with the law and policy of the 
territorial state,” at least absent sensitivity to “the principles of 
comity and respect for sovereignty.” Id. The Government of 
Australia says almost precisely the same thing and urges that if 
Title VII is held to apply extraterritorially the legislation should 
be applied “so' as to be consistent with the principles of comity and 
respect for sovereignty, thus avoiding any conflict with the law and 
practice of the territorial state.” Diplomatic Note No. 370 from 
the Embassy of Australia (Dec. 12, 1990) (App. 10a).



44
23. The EEOC does not mention, however, its numerous 
other pronouncements that demonstrate it has been far 
from consistent in its view, over the 26 years since en­
actment of Title VII, as to whether Title VII applies 
extraterritorially.

From 1964 until 1970 the EEOC was silent on the 
issue of Title VII’s extraterritorial application. In 1970, 
it issued a regulation stating:

Title VII of the Civil Rights Act of 1964 protects 
all individuals, both citizen and noncitizens, domi­
ciled or residing in the United States, against dis­
crimination on the basis of race, color, religion, sex, 
or natural origin.

29 C.F.R. § 1606.1(c) (1970) (emphasis added); J.A. 
46. This regulation was amended to delete the “both 
citizens and noncitizens, domiciled or residing” language 
in 1980, sixteen years after Congress enacted Title VII. 
45 Fed. Reg. 85,633 (1980). Nothing was substituted 
for the deleted language, and today the regulation re­
mains silent on the geographic reach of the statute.

In 1975, the General Counsel of the EEOC wrote a 
letter to the Senate Foreign Relations Committee in sup­
port of the extraterritorial application of Title VII. 
EEOC Br. 22. His statement, which was not reflected in 
the agency’s policy guidelines for another 13 years, was 
in conflict with the agency’s regulation then in force.40

40 In the same year then-Assistant Attorney General Scalia testi­
fied before a Senate Subcommittee (EEOC Br. 24) and stated that 
the alien exemption provision of Title VII “implies” that Title VII 
is “applicable to the employment of United States citizens by 
covered employers anywhere in the world.” Foreign Investment 
and Arab Boycott Legislation: Hearings Before the Subcomm. on 
International Finance of the Senate Comm, on Banking, Housing 
and Urban Affairs (“Senate Hearing”) , 94th Cong., 1st Sess. 165 
(1975); Discriminatory Arab Pressure on U.S. Business: Hearings 
Before the Subcomm. on International Trade and Commerce of 
the House Comm, on International Relations {“House Hearing”) , 
94th Cong., 1st Sess. 86 (1975). In 1975, however, the EEOC and 
not the Justice Department had civil enforcement responsibility 
with respect to Title VII (see Senate Hearing at 165; House Hear-



45
In 1983 the chairman of the EEOC testified before 

a Senate committee considering amendments to the Age 
Discrimination in Employment Act to the effect that 
Title VII applied extraterritorially to U.S. employers 
of U.S, citizens.41 In 1985, the EEOC rendered a deci­
sion holding that Title YII “does apply to covered em­
ployers with respect to their employment of U.S. citizens 
outside the United States,” despite its own recognition 
at the time that Title VII “contains no [statutory] pro­
vision specifically addressing its territorial reach” and 
that “the legislative history of the Act is similarly silent 
on this issue.” Decision No. 85-16, Emp. Prac. Guide 
(CCH) § 6857 at 7072 (1985) (emphasis added).

It was not until 1988, 24 years after the passage of 
Title VII, that the EEOC articulated any policy on what 
it now asserts was the clear intent of Congress to reach 
either U.S. employers or “covered employers” of U.S. 
citizens abroad. In September 1988, immediately before 
the panel decision in this case was announced but after 
oral argument, the EEOC issued a general policy state­
ment that Title VII applies to employers, including for­
eign employers, of U.S. citizens in foreign countries. 
Policy Statement No. 88-15, EEOC Compl. Man. (CCH) 
U 2187 (1989). Absent any legislative history specifically 
dealing with the application of Title VII to U.S. citi-

ing at 86), and the testimony was a t variance with the position 
of the EEOC in 1975 that Title VII applied only to individuals 
“domiciled or residing- in the United States.” 29 C.F.R. § 1606.1 (c) 
(1970) ; J.A. 46. Furthermore, the primary purpose of the testi­
mony was to express the Administration’s view that Arab boycott 
legislation was not needed because of the suggestion that Title VII 
might already fully protect U.S. citizens. Congress apparently dis­
agreed because it approved separate antiboycott bills in 1976 and 
enacted legislation in 1977. See 50 U.S.C. App. §2407 (prohibiting 
“any United States person” from refusing to employ “or otherwise 
discriminating against any United States person on the basis of 
race, religion, sex, or national origin of that person. . . .”).

41 Age Discrimination and Overseas Americans, 1983: Hearing 
Before the Subcomm. on Aging of the Senate Committee on Labor 
and Human Resources, 98th Cong., 1st Sess. 2-4 (1983) (testimony 
of Clarence Thomas).



46
zens employed abroad, the EEOC in its policy guidance 
drew upon the supposedly broad “commerce power” of 
Congress to suggest that Title YII was intended to apply 
to any employer “affecting commerce.”

Against this background, the Court should determine 
the intent of Congress by using the traditional tools 
of statutory construction, including the presumption 
against extraterritorial application involved here. Any 
agency view of the statute that is inconsistent with that 
intent must be disregarded. NLRB  v. United Food & 
Commercial Workers Union, 484 U.S. 112, 123 (1987). 
No deference is due to an agency’s interpretation of a 
statute that is not supported by the language of the 
statute or its legislative history. Mohasco Corp. v. Silver, 
447 U.S. 807 (1980) ; Southeastern Community College 
v. Davis, 442 U.S. 397, 411-12 (1979). “Courts need not 
defer to an administrative construction of a statute where 
there are ‘compelling indications that it is wrong.’ ” 
Espinoza v. Farah Mfg. Co., 414 U.S. 86, 93-94 (1973).

Similarly, agency positions that either conflict with 
earlier positions or that were not contemporaneous with 
enactment of the statute deserve no deference. South­
eastern Community College v. Davis, 442 U.S. at 412 
n .l l;  Espinoza v. Farah Mfg. Co., 414 U.S. at 93-94; 
see General Electric Co. v. Gilbert, 429 U.S. 125, 142 
(1976) (“ [an EEOC guideline respecting Title VII]
first promulgated eight years after the enactment of that 
Title” that “flatly contradicts” an earlier agency position 
“enunciated closer to the enactment of the governing stat­
ute” is not entitled to deference). The EEOC’s interpre­
tation of Title VII here has been neither contemporaneous 
with the statute’s enactment nor consistent over the 24 
years since enactment.

The jurisdictional reach of Title VII is a matter for 
Congress to decide. No deference need be given to an 
agency’s position on matters such as the scope of its own 
jurisdiction unless its position is consistent with the 
administrative structure that Congress enacted. ETSI



47
Pipeline Project v. Missouri, 484 U.S. 495, 516-17 (1988) ; 
Mohasco Corp. v. Silver, 447 U.S. at 825. See CFTC v. 
Nalias, 738 F.2d 487, 495 n.17 (D.C. Cir. 1984) (“judi­
cial deference to an agency’s interpretation of its in­
vestigative authority is not justified when the agency’s 
action may have extraterritorial impact” ). To defer to 
the EEOC here would be to permit it to speak where 
Congress has not.
III. SOUND POLICY REASONS SUPPORT THE JUDG­

MENT OF THE. COURTS BELOW THAT TITLE VII 
SHOULD NOT BE; APPLIED TO OVERSEAS WORK­
PLACES UNLESS CONGRESS CLEARLY INDI­
CATES THAT IT SHOULD.

The extraterritorial application of Title VII would cre­
ate serious conflicts with the laws of other countries and 
the operation of multinational corporations around the 
world. Many multinational companies employ work forces 
composed of individuals from many nations and religious 
groups. If Title VII were held to apply to United States 
citizens employed overseas, multiple employment systems 
depending upon the citizenship of particular employees 
would be required within companies.42 Foreign employers,

42 Through various hypothetical, Petitioner Boureslan makes the 
policy argument that the decision below permits U.S. companies to 
“launder” their discrimination by shipping employees overseas and 
then firing them, leaving the terminated employees with no recourse 
to the protections provided by Title VII. Boureslan Br. 8-15. In 
fact, however, the hypotheticals are already addressed under Title 
VII without reading into the Act an intent that it apply extra- 
territorially. In each hypothetical either the alleged discrimina­
tory conduct actually takes place in the United States, or as the 
Seventh Circuit explained in Pfeiffer V. Wm. Wrigley, Jr. Co., 
755 F.2d 554 (7th Cir. 1985), the “relevant work station” is in 
the United States. A U.S. citizen working for a U.S. company in 
the United States subjected to discrimination while on a foreign 
business trip would be regarded as having a U.S. work station, 
with the foreign business trip but an incidental part of that U.S. 
employment relationship. Similarly, an employee who is denied a 
transfer or an overseas assignment for a discriminatory reason is 
the object of discrimination in the United States. See Abravis v. 
Baylor College of Medicine, 805 F.2d 528 (5th Cir. 1986).



48
to which the Act would apply by its own terms and under 
existing EEOC policy (see supra 36-37), might well 
choose to forego employing U.S. citizens at all in order 
to avoid such difficulties. See The Bremen v. Zapata Off- 
Shore Co., 407 U.S. 1, 9 (1972) (the “expansion of Amer­
ican business and industry will hardly be encouraged if 
. . . we insist on a parochial concept that all disputes 
must be resolved under our laws and in our courts.” )

The absence of any statutory guidance in treating the 
difficult conflicts that would arise necessarily would lead 
to increased litigation to resolve them. Determining the 
applicability of Title VII on a case-by-case basis and rely­
ing on the EEOC and the courts to “minimize conflicts of 
jurisdiction by exercising a jurisdictional rule of reason 
in individual cases,” as the EEOC and the dissent below 
suggest (Pet. App. 25a; see EEOC Br. 28), would invite 
a needless proliferation of litigation on social and policy 
questions that would add to the burdens on our courts 
and cause unnecessary friction with friendly sovereigns.13

It is not enough to assert (EEOC Br. 31-32) that the 
1984 amendments to the ADEA underline a congressional 
determination to apply anti-discrimination legislation 
abroad, and to urge that the holding below creates “an 
anomaly” that Congress never intended between the reach 
of Title VII and the ADEA. EEOC Pet. 12-13.4 4 As the

43 Indeed, a similar ease-by-case balancing approach, a t one time 
used by the National Labor Relations Board under the National 
Labor Relations Act, was rejected by this Court in McCulloch V. 
Sociedad Nacional de Honduras, 372 U.S. at 19, in favor of “the 
affirmative intention of the Congress clearly expressed.” Id. at 22 
(quoting Benz, 353 U.S. at 147).

44 Reliance on the supposed “anomaly” is little more than an argu­
ment that Senator Grassley believed in 1984 that the ADEA as 
originally written in 1967 applied abroad because its “substantive 
provisions” were “worded nearly exactly as those in Title V I I ’s ”  
and that Title VII applied to employers of U.S. citizens abroad. 
129 Cong. Rec. 34,499 (Nov. 18, 1983). Senator Grassley based his 
comment on two district court opinions, Love and Bryant, one of 
which stated that conclusion in dicta {Love) and the other of which 
was subsequently reversed on appeal {Bryant). Id. See discussion



49
EEOC has conceded, the legislative history of the 1984 
ADEA amendments is not “indicative of the intent of 
the 1964 Congress that enacted Title VII.” EEOC Pet. 13 
n.10.

Far from, demonstrating congressional intent in 1964, 
the 1984 amendments to the ADEA are an instructive 
example of how Congress speaks directly and specifically 
when it intends legislation to apply extraterri tori ally. In 
the 1984 amendments, Congress changed the ADEA’s 
definition of employee expressly to include “any individual 
who is a citizen of the United States employed by an 
employer in a workplace in a foreign country.” 29 U.S.C. 
§ 630(f). It redefined the term “employer” to make clear 
that what it intended to cover was U.S. employers and 
only those foreign employers “controlled” by U.S. corpora­
tions. 29 U.S.C. § 623(h) (1). It expressly excluded em­
ployers “not controlled by an American employer” and 
expressly set out the factors constituting “control.” 29 
U.S.C. § 623(h) (2). And it provided a statutory defense 
to a discrimination charge where compliance with the 
ADEA would cause an employer to violate the laws of the 
country in which the workplace is located. 29 U.S.C. 
§ 623(f)(1).

Thus, only Congress should decide whether particular 
U.S. laws should govern workplaces in foreign nations 
where U.S. citizens are employed. But Congress has not 
done so in respect of Title VII, and the court below 
properly declined to make the policy choice that is as­
signed to Congress. Congress “alone has the facilities 
necessary to make fairly such an important policy deci­
sion where the possibilities of international discord are

supra 33-34. Moreover, six courts of appeals said that the ADEA 
did not apply extraterritorially befoi*e it was amended and even 
the EEOC agreed. See Age Discrimination and Overseas Ameri­
cans, 1983: Hearing Before the Subcomm. on Aging of the Senate 
Comm, on Labor and Human Resources, 98th Cong., 1st Sess. 1-4 
(1983) (Remarks of Sen. Grassley and Testimony of Clarence 
Thomas).



50

so evident and retaliative action so certain.” Benz v. 
Compania Naviera Hidalgo, 353 U.S. at 147.

CONCLUSION

For these reasons, the judgment of the court of appeals
should be affirmed.

Respectfully submitted,

Of Counsel:
J ohn D. Roady 

Hutcheson & Grundy 
3300 Citicorp Center 
1200 Smith Street 
Houston, Texas 77002

V. Scott Kneese 
Gregory B. Richards 

Bracewell & Patterson 
2900 South Tower 
Pennzoil Place 
Houston, Texas 77002

December 17,1990

Paul L. Friedman 
(Counsel of Record)

Thomas J. O’Sullivan 
Anne D. Smith 

White & Case
1747 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 872-0013 

Attorneys for Respondents



APPENDICES



la

APPENDIX A

Relevant provisions of the Civil Rights Act of 1964, 42 
U.S.C. §§ 2000e-2000e-17:

§ 2000e. Definitions
For the purposes of this subchapter— * * *
(b) The term “employer” means a person engaged 

in an industry affecting commerce who has fifteen or 
more employees for each working day in each of 
twenty or more calendar weeks in the current or pre­
ceding calendar year, and any agent of such a person, 
but such term does not include (1) the United States, 
a corporation wholly owned by the Government of the 
United States, an Indian tribe, or any department or 
agency of the District of Columbia subject by statute 
to procedures of the competitive service (as defined in 
section 2102 of Title 5), or (2) a bona fide private 
membership club (other than a labor organization) 
which is exempt from taxation under section 501(c) 
of Title 26, except that during the first year after 
March 24, 1972, persons having fewer than twenty- 
five employees (and their agents) shall not be con­
sidered employers.

#  *  *  *

(f) The term “employee” means an individual em­
ployed by an employer, except that the term “em­
ployee” shall not include any person elected to public 
office in any State or political subdivision of any State 
by the qualified voters thereof, or any person chosen 
by such officer to be on such officer’s personal staff, 
or an appointee on the policy making level or an 
immediate adviser with respect to the exercise of the 
constitutional or legal powers of the office. The ex­
emption set forth in the preceding sentence shall not 
include employees subject to the civil service laws of



2a

a State government, governmental agency or political 
subdivision.

*  *  *  -X-

(g) The term “commerce” means trade, traffic, 
commerce, transportation, transmission, or communi­
cation among the several States; or between a State 
and any place outside thereof; or within the District 
of Columbia, or a possession of the United States; 
or between points in the same State but through a 
point outside thereof.

*  *  -X*

(h) The term “industry affecting commerce” 
means any activity, business, or industry in com­
merce or in which a labor dispute would hinder or 
obstruct commerce or the free flow of commerce and 
includes any activity or industry “affecting com­
merce” within the meaning of the Labor-Management 
Reporting and Disclosure Act of 1959, and further 
includes any governmental industry, business, or 
activity.

-X- -X- -X- *

(i) The term “State” includes a State of the 
United States, the District of Columbia, Puerto Rico, 
the Virgin Islands, American Samoa, Guam, Wake 
Island, the Canal Zone, and Outer Continental Shelf 
Lands defined in the Outer Continental Shelf Lands 
Act.

*x* -X- -X- *

§ 2000e-l. Subchapter not applicable to employ­
ment of aliens outside State and individ­
uals for performance of activities of re­
ligious corporations, associations, educa­
tional institutions, or societies

This subchapter shall not apply to an employer 
with respect to the employment of aliens outside any 
State, or to a religious corporation, association, edu-



3a

cational institution, or society with respect to the 
employment of individuals of a particular religion 
to perform work connected with the carrying on by 
such corporation, association, educational institution, 
or society of its activities.
§ 2000e-2. Unlawful employment practices 

Employer practices
(a) It shall be an unlawful employment practice 

for an employer—
(1) to fail or refuse to hire or to discharge 

any individual, or otherwise to discriminate 
against any individual with respect to his com­
pensation, terms, conditions, or privileges of em­
ployment, because of such individual’s race, color, 
religion, sex, or national origin; or

(2) to limit, segregate, or classify his em­
ployees or applicants for employment in any 
way which would deprive or tend to deprive any 
individual of employment opportunities or other­
wise adversely affect his status as an employee, 
because of such individual’s race, color, religion, 
sex, or national origin.

Relevant provisions of the Age Discrimination Act of 
1967, 29 U.S.C. § § 621-634:

§ 623. Prohibition of age discrimination
(f) Lawful practices; age an occupational qualifica- 

cation; other reasonable factors; laws of foreign 
workplace; seniority system; employee benefit 
plans; discharge or discipline for good cause

It shall not be lawful for an employer, employment 
agency, or labor organization—



4a

(1) to take any action otherwise prohibited 
under subsections (a), (b), (c), or (e) of this 
section where age is a bona fide occupational 
qualification reasonably necessary to the normal 
operation of the particular business, or where 
the differentiation is based on reasonable factors 
other than age, or where such practices involve 
an employee in a workplace in a foreign country, 
and compliance with such subsections would cause 
such employer, or a corporation controlled by 
such employer, to violate the laws of the country 
in which such workplace is located;

*  *  *  *

(h) Practices of foreign corporations controlled by 
American employers; foreign persons not con­
trolled by American employers; factors deter­
mining control

(1) If an employer controls a corporation whose 
place of incorporation is in a foreign country, any 
practice by such corporation prohibited under this 
section shall be presumed to be such practice by such 
employer.

(2) The prohibitions of this section shall not apply 
where the employer is a foreign person not controlled 
by an American employer.

(3) For the purpose of this subsection the deter­
mination of whether an employer controls a corpora­
tion shall be based upon the—

(A) interrelation of operations,
(B) common management,
(C) centralized control of labor relations, and
(D) common ownership or financial control, 

of the employer and the corporation.



5a
§ 630. Definitions

For the purposes of this chapter— * * *
(f) The term “employee” means an individual em­

ployed by any employer except that the term “em­
ployee” shall not include any person elected to public 
office in any State or political subdivision of any 
State by the qualified voters thereof, or any person 
chosen by such officer to be on such officer’s personal 
staff, or an appointee on the policymaking level or 
an immediate adviser with respect to the exercise of 
the constitutional or legal powers of the office. The 
exemption set forth in the preceding sentence shall 
not include employees subject to the civil service laws 
of a State government, governmental agency, or po­
litical subdivision. The term “employee” includes any 
individual who is a citizen of the United States em­
ployed by an employer in a workplace in a foreign 
country.

* * * *



6a

APPENDIX B

DIPLOMATIC NOTE NO. 429

Her Britannic Majesty’s Embassy present their compli­
ments to the Department of State and have the honour 
to refer to the case of Boureslan v Aramco, Arabian 
American Oil—653—F. Supp. 629 (S.D. Tex. 1987), 
aff’d., 857 F.2d 1014 (5th Cir. 1988), reh’g granted, en 
banc, 863 F.2d 8 (5th Cir.), and adopted en banc 892 
F.2d 1271 (5th Cir. 1990), cert, granted 1990 US Lexis 
4313, 59 U.S.L.W. 3243 (Oct. 1, 1990). An appeal to the 
Supreme Court of the United States is pending. That 
Court is asked to decide whether Title VII of the Civil 
Rights Act applies to employment discrimination outside 
the United States by an American corporation against an 
American citizen.

Like the United States Government the British Govern­
ment is fully committed to the principle of non-discrimina­
tion on the grounds of race or sex. This is reflected in 
our legislation and practice. Nevertheless if the Supreme 
Court should now determine that Title VII has extrater­
ritorial application, this could in some cases give rise to 
direct conflict with UK law and policy, especially if af­
firmative action requirements were imposed. Such conflict 
could have serious consequences for an employer who op­
erated both in the United States and in the UK.

If the Supreme Court finds that as a matter of construc­
tion Title VII applies extraterritorially, the British Gov­
ernment hopes that the Court will conclude that it may be 
given extraterritorial effect only to the extent consistent 
with international law, particularly the principles of 
sovereignty and comity; and would expect the United 
States authorities to act consistently with these principles.



7a

Her Britannic Majesty’s Embassy avail themselves of this 
opportunity to renew to the Department of State the as­
surance of their highest consideration.

[seal]
11 December 1990

BRITISH EMBASSY 
WASHINGTON DC



8a

APPENDIX C 

[E m b l e m ]

Canadian Embassy Ambassade du Canada

Note No. 177
The Embassy of Canada presents its compliments to 

the Department of State, and wishes to bring to the 
attention of the Department its concerns respecting issues 
raised in the case of Boureslan v. Aramco, Arabian Amer­
ican Oil, 653 F. Supp. 629 (S.D. Tex. 1987), aff’d., 857 
F. 2d 1014 (5th Cir. 1988), reh’g granted, en banc, 863 
F. 2d 8 (5th Cir.), and adopted, en banc, 892 F. 2d 1271 
(5th Cir. 1990), cert, granted, 59 U.S.L.W. 3243 (Oct, 1, 
1990) currently before the Supreme Court of the United 
States. The Government of Canada notes that the Court 
is being asked to determine whether the provisions of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 2000e et seq., should be applied extraterritorially to 
actions taken abroad against U.S. citizens by companies 
incorporated in the United States.

Canadian law and policy in this field reflect objectives 
and standards similar to those of Title VII. The Govern­
ment of Canada would be concerned, however, were the 
provisions of Title VII to be applied extraterritorially 
without regard to the law of the place where the conduct 
occurs. If the Court decides that, as a matter of statutory 
interpretation, these provisions must be given extra- 
territorial effect, the Government of Canada would hope 
that guidance would be provided consistent with inter­
national law on their application outside the United 
States, In particular, the Government would expect that 
the provisions would be applied in a manner fully con­
sistent with international law, as well as with the prin­
ciples of comity and respect for sovereignty, thereby 
avoiding conflict with the law and policy of the territorial 
state.



9a

The Embassy of Canada avails itself of this opportunity 
to renew to the Department of State the assurances of its 
highest consideration.

Washington, D.C.
December 12, 1990

[SEAL]



10a
APPENDIX D

NOTE NO. 370
The Embassy of Australia presents its compliments to 

the Department of State, and has the honour to refer to 
the case of Boureslan v Aramco, Arabian American Oil, 
653 F. Supp, 629 (S.D. Tex. 1987), aff’d, 857 F,2d 1014 
(5th Cir. 1988), reh’g, granted, en banc, 863 F.2d 8 
(5th Cir.), and adopted en banc, 892 F.2d 1271 (5th 
Cir. 1990), cert granted 1990 US Lexis 4313, 59 U S L W 
3243 (Oct. 1, 1990) which is currently on appeal to the 
Supreme Court of the United States. The Government of 
Australia understands that the question to be determined 
by the Court is whether Title VII of the Civil Rights 
Act of 1964, 42 USC § 2000e et seq., should be given 
extraterritorial application to employment discrimination 
by companies incorporated in the United States against 
citizens of the United States overseas.

The Government of Australia is committed to objectives 
and standards which are similar to those of Title VII and 
are reflected in its law and practice in this area. Should 
the Court decide that, as a matter of construction, Title 
VII applies extraterritorially, the Government of Ausr- 
tralia would hope that due regard would be had to inter­
national law in the application of the legislation outside 
the United States. It follows that the Government of 
Australia would expect that the legislation would be 
applied so as to be consistent with the principles of comity 
and respect for sovereignty, thus avoiding any conflict 
with the law and practice of the territorial state. The 
Government of Australia would be concerned if Title VII 
was applied extraterritorially without regard to the law 
of the place where the relevant conduct occurs.

The Embassy of Australia avails itself of this oppor­
tunity to renew to the Department of State the assur­
ances of its highest consideration.

[seal]

Washington D.C.
December 12, 1990