Equal Employment Opportunity Commission v. Arabian American Oil Company Brief for the Equal Employment Opportunity Commission

    IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, )
)PETITIONER )
)v. )
)ARABIAN AMERICAN OIL COMPANY, ET AL )

____ ____________________________________________________________)
)ALI BOURESLAN, PETITIONER )
)

v.  )
)ARABIAN AMERICAN OIL COMPANY, ET AL. )

________________________________________________________________ )

No. 89-1838

No. 89-1845

CERTIFICATE OF SERVICE

It is hereby certified that 
have been served copies of the 
OPPORTUNITY COMMISSION, by mail,

[SEE ATTACHED

all parties required to be served BRIEF FOR THE EQUAL EMPLOYMENT 
this 15th day of November, 1990.

SERVICE LIST]

KENNETH W. STARR 
Solicitor General



2

VIA HAND DELIVERY AND FIRST-CLASS MAIL
Paul Friedman, Esq.
Thomas J. O'Sullivan, Esq.
Anne D. Smith, Esq.
White & Case1747 Pennsylvania Ave., N.W.
Suite 500
Washington, D.C. 20006
VIA AIRBORNE MAIL
Gerald Birnberg, Esq.
6671 Southwest Freeway 
Suite 303 
Houston, TX 77074
John D. Roady, Esq.
Hutcheson & Grundy 
3300 Citicorp Center 
1200 Smith St.
Houston, TX 77002
Michael A. Maness, Esq.
1900 North Loop West Ste. 500
Houston, TX 77018 
Steven R. Shapiro, Esq.
American Civil Liberties Union Foundation 
132 West 43rd Street 
New York, New York 10036
Charles Stephen Ralston, Esq.
NAACP Legal Defense and 

Educational Fund, Inc.
Suite 1600 
99 Hudson St.
New York, New York 10013
VIA FIRST-CLASS MAIL
Janelle M. Diller, Esq.
International Human Rights Law Group 
1601 Connecticut Ave., N.W., Ste. 700 
Washington, D.C. 20009
W. Hardy Callcott, Esq.
Wilmer, Cutler & Pickering 
2445 M St., N.W.
Washington D.C. 20037



Nos. 89-1838 and 89-1845

3ln ttje Supreme Court of ttje Umteb g>tate2
O ctober  T er m , 1990

E q u a l  E m p l o y m e n t  O p p o r t u n it y  
C o m m is s io n , p e t it io n e r

v.
A r a b ia n  A m e r ic a n  O il  C o ., e t  a l .

A li B o u r e s l a n , p e t it io n e r

v.
A r a b ia n  A m e r ic a n  O il  C o ., e t  a l .

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Donald  R. Livingston 
Acting General Counsel

Gwendolyn Young  Reams 
Associate General Counsel 

Vincent J. Blackwood 
Assistant General Counsel

Samuel a . Marcosson 
Attorney

Kenneth W. Starr 
Solicitor General

John R. Dunne  
Assistant Attorney General 

John G. Roberts, Jr .
Deputy Solicitor General 

Stephen L. N ightingale 
Assistant to the Solicitor General
Department o f Justice 
Washington, D.C. 20530 
(202) 514-2217

Equal Employment Opportunity Commission 
Washington, D.C. 20507



QUESTION PRESENTED

Whether Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000e el seq., prohibits employment discrimination outside the 
United States by an American corporation against an American 
citizen.

(1)



II

PARTIES TO THE PROCEEDING

The Equal Employment Opportunity Commission, which in­
tervened as an appellant in the court of appeals, is the petitioner 
in No. 89-1838. Ali Boureslan, the plaintiff-appellant below, is 
the petitioner in No. 89-1845. Arabian American Oil Company 
and Aramco Services Company, defendants-appellees below, 
are the respondents in both cases.



TABLE OF CONTENTS

Page

Opinions below ...............    1
Jurisdiction ...............      1
Statutory provisions involved ..................   2
Statement .................    2
Summary of argum ent.................................................. . 5
Argument:

1. Title VII manifests a clear congressional inten­
tion to prohibit discrimination outside the 
United States by American employers against
American citizens............................................ 8

A. By its terms, Title VII prohibits in­
vidious employment discrimination 
against American citizens outside the 
United States......................................... 11

B. Title VIPs exemption for aliens with 
respect to employment outside the 
United States clearly manifests an in­
tention to protect American citizens 
with respect to employment outside the
United States................................... .. 12

C. Other provisions of Title VII are con­
sistent with its application to 
discrimination by American employers 
against American citizens ab road ........ 18

D. The EEOC, the agency charged with 
administrative enforcement of Title 
VII, has interpreted the statute to apply 
to discrimination against Americans
abroad ..................................................  22

II. Concern for potential conflicts with the laws 
of other nations does not warrant limiting 
Title VII to discrimination within the United 
States ................................................................  24

( H I )



IV

A. The alien exemption represents Con­
gress’s solution to potential conflicts of
laws ......................................................  25

B. Properly applied, Title VII does not
create a serious potential for conflicts 
with international norms or the laws of 
foreign states.........................................  25

C. Title VII’s treatment of conflicts with 
state law . provides no basis for ques­
tioning the extraterritorial application
of the s ta tu te ......................................... 29

D. The 1984 amendments to the ADEA do 
not justify a distinction between age 
discrimination and discrimination 
based upon race, sex, national origin,
or religion............................................. 31

Conclusion.....................     32

TABLE OF AUTHORITIES

Cases:
Akgun v. Boeing Co., No. C89-1319D (W.D.

Wash. June 7, 1990)....................................    14
American Banana Co. v. United Fruit Co., 213

U.S. 347 (1909)...................................  9
Andrus v. Glover Constr. Co., 446 U.S. 608

(1980) ..............................................  13
Argentine Republic v. Amerada Hess Shipping

Co., 109 S. Ct 683 (1989).....................................  9
Arrocha v. Panama Canal Comm’n, 609 F. Supp.

231 (E.D.N.Y. 1985)..................................................  19
Atascadero State Hosp. v. Scanlon, 473 U.S. 234

(1985) .........................................................................  13
Bainbridge v. Merchants & Miners Transp. Co.,

287 U.S. 278 (1932).................................................... 19
Benz's. Compania Naviera Hidalgo, S.A., 353 U.S.

138 (1958) ........................................................  18, 24, 25
Blackmer v. United States, 284 U.S. 421 (1932) . . .  9, 26

Page



Branch v. FTC, 141 F.2d 31 (7th Cir. 1944)............ 12
Brunette Machine Works Ltd. v, Kockuin Indus.,

Inc., 406 U.S. 706 (1972)............................. . 19
Bryant v. International Schools Services, Inc.,

502 F. Supp. 472 (D.N.J. 1980), rev’d, 675 F.2d
562 (3d Cir. 1982).................................................  14

Cleary v. United States Lines, Inc., 728 F.2d 607
(3d Cir. 1984)......................................................... 31

CFTC v. Nahas, 738 F.2d 487 (D.C. Cir. 1984) . . .  20
Cole v. Secretary o f  the Army, EEOC Dec. No.

05890142 (Aug. 23, 1989).....................................  23
Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690 (1962).................................  9
Canard S.S. Co. v. Mellon, 262 U.S. 100 (1923) . . .  18
DeYoreo v. Bell Helicopter Textron, Inc., 785 F.2d

1282 (5th Cir. 1986).............     31
EEOC v. Commercial Office Products Co., 486

U.S. 107 (1988).............    23
EEOC v. Pacific Press Publishing Ass’n, 676 F.2d

1272 (9th Cir. 1982)............................................... 14
EEOC Dec. No. 85-10, Ernpl. Prac. Dec. (CCH)

1 6851 (July 16, 1985)........................................... 27
EEOC Dec. No. 85-16, Empl. Prac. Dec. (CCH)

1 6856 (Sept. 16, 1985).........................................  23
Espinoza v. Fa rah Mfg. Co., 414 U.S. 86 (1973) . . .  3,14
Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) .. 3 ,9 ,

10, 13, 15, 17, 18, 24
FTC v. Campagnie cle Saint-Gobain-Pont-a-

Mousson, 636 F.2d 1300 (D.C. Cir. 1980).......... 21
Hedges v. Department o f  Defense, EEOC Dec.

No. 05900454 (June 1, 1990)...............................  23
Kern v. Dynaelectron Corp., 577 F. Supp. 1196 

(N.D. Tex. 1983), affd, 746 F.2d 810 (5th Cir.
1984)

V

Cases —Continued: Page

27



VI

Lauritzen v. Larsen, 345 U.S. 571 (1953)................ 28, 29
Lopez v. Pan Am World Services, Inc., 813 F.2d

1118 (11th Cir. 1987)............................................. 31
Love v. Pullman Co., 13 Fair Empl. Prac. Cas.

(BNA) 423 (D. Colo. July 21, 1976), affd, 569
F.2d 1074 (10th Cir. 1978)...................................  14

McClure v. Salvation Army, 460 F.2d 553 (5th
Cir.), cert, denied, 409 U.S. 896 (1972).............. 14

McCulloch v. Socieclad Nacional de Marineros de
Honduras, 372 U.S. 10 (1963)............... 9, 18, 24,

25, 27, 29
Murray v. The Schooner Charming Betsy, 6 U.S.

(2 Cranch) 64 (1804)............................................. 28,29
New York Central R.R. v. Chisholm, 268 U.S.

29 (1925).............      9
Patterson v. Bark Eudora, 190 U.S. 169 (1903) . . . .  9, 10
Pennsylvania v. Union Gas Co., 109 S. Ct. 2273

(1990) ....................................................................  13
Pfeiffer v. William Wrigley Jr. Co., 755 F.2d 554

(7th Cir. 1985)......................................................  31
Palis v. RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir.

1985)......................................................................  31
Romero v. International Terminal Operating Co.,

358 U.S. 354 (1959)............................................... 28
Sandberg v. McDonald, 248 U.S. 185 (1918).......... 9
Schoenbaum v. Firstbrook, 405 F.2d 200, modi­

fied, 405 F.2d 215 (2d Cir. 1968), cert, denied,
395 U.S. 906(1969)............................................... 9

Seville v. Martin Marietta Corp., 638 F. Supp.
590 (D. Md. 1986)................................................. 14

Skiriotes v. Florida, 313 U.S. 69 (1941).................  9, 26
Societe Nationale Industrielle Aerospatiale v.

United States District Court, 482 U.S. 522
(1987) .................................................. .................  21

Steele v. Butova Watch Co., 344 U.S. 280 (1952) . . 9, 10,
12, 24

Cases— Continued: Page



VII

Stewart v. Pacific Steam Navigation Co., 3 F.2d
329 (S.D.N.Y. 1924)............................................. 19

Sumitomo Shoji America, Inc. v. Avagliano, 457
U.S. 176 (1982) .. ................................•..........26

Tamari v. Bache & Co. (Lebanon) S.A .L ., 730 
F.2d 1103 (7th Cir.), cert, denied, 469 U.S. 871
(1984) ...............................................................  9

Thomas v. Brown & Root, Inc., 745 F.2d 279 (4th
Cir. 1984)..............................................................  31

United States v. Aluminum Co. o f America, 148
F.2d 416 (2d Cir. 1945).........................................  28,29

United States v. Bowman, 260 U.S. 94 (1922)........ 9
United States v. Flores, 289 U.S. 137 (1933).......... 9
United States v. Palmer, 16 U.S. (3 Wheat.) 610

(1818) ....................................................................  28
United States v. Rodgers, 150 U.S. 249 (1893) . . . .  18
Vermilya-Brown Co. v. Connell, 335 U.S. 377

(1948) ....................................................................  9, 26
Weinberger v. Rossi, 456 U.S. 25 (1982)................ 29
Yellow Freight System, Inc. v. Donnelly, 110

S. Ct. 1566 (1990)........................................   19
Zahourek v. Arthur Young & Co., 750 F.2d 827 

(10th Cir. 1984) . ................................................. 31

Constitution, statutes and rule:
U.S. Const:

Amend. X I ...................................   13
Act of Sept. 28, 1971, Pub. L. No. 92-129, Tit. I,

§ 106, 85 Stat. 355 ................................................. 31
Age Discrimination in Employment Act, 29 U.S.C.

630(f) ....................................................................  4
Civil Rights Act of 1964, Pub. L. No. 88-352,

Tit. VII, 78 Stat. 253, 42 U.S.C. 2000e et seq. . . .  2
§ 701(b), 42 U.S.C. 2000e(b)...........................  11
§ 701(g), 42 U.S.C. 2000e(g)...........................  11

Cases —Continued: Page



VIII

§ 701(h), 42 U.S.C. 2000e(h)....................... .. 11
§ 702, 42 U.S.C. 2000e-1 (78 Stat. 255)........ 3, 6, 12
§ 703, 42 U.S.C. 2000e-2......................... . 11, 14, 27
§ 703(a), 42 U.S.C. 2000e-2(a)............ 11
§ 704, 42 U.S.C. 2000e-3............... ................  11
§ 706(a), 42 U.S.C. 2000e-5(a)......................  21
§ 706(b), 42 U.S.C. 2000e-5(b)............. .. 21
§ 706(b)-(d), 42 U.S.C. 2000e-5(b) to

2000c 5(d) ................................................   30
§ 706(f), 42 U.S.C. 2000e-5(f).........................  21
§ 706(f)(1), 42 U.S.C. 2000e-5(f)(l)...............  3
§ 706(f)(3), 42 U.S.C. 2000e-5(f)(3) ................  18
§ 708, 42 U.S.C. 2000e-7 ......................   30
§ 709, 42 U.S.C. 2000e-8 . . . . . . . . . . . . . . . . . .  21
§ 709(b), 42 U.S.C. 2000e-8(b) . ................ . 30
§ 710, 42 U.S.C. 2000e-9.................................  20, 22
§ 710(a), 42 U.S.C. 2000e-9(a) (78 Stat. 264) . . 20
§ 717, 42 U.S.C. 2000e-16...............................  23

Outer Continental Shelf Lands Act, 43 U.S.C. 1331
et seq.......................................................................  8

15 U.S.C. 78s(b) ....................................................  22
28 U.S.C. 1783 .......................................................  21
29 U.S.C. 161(1) ............... ...................................  20, 22
46 U.S.C. 688 ........................................................  19
50 U.S.C. App. 2407 ............................................. 32
Fed. R. Civ. P. 4 5 ......... . : ......................................  21

Miscellaneous:
Age Discrimination and Overseas Americans,

1983: Hearing Before the Subconun. on Aging 
o f the Senate Comm, on Labor and Human 
Resources, 98th Cong., 1st Sess. (1983).............  23, 31

Statutes and rule— Continued: Page



IX

Miscellaneous —Continued: Page
Civil Rights: Hearings Before Subcomm. No. 5 

o f the House Comm, on the Judiciary on Mis­
cellaneous Proposals Regarding the Civil Rights 
o f Persons Within the Jurisdiction o f the United
States, 88th Cong., 1st Sess. (1963).....................  16

129 Cong. Rec. 34,499 (1983).................................  31
Discriminatory Arab Pressure on U.S. Business: 

Hearings Before the Subcomm. on International 
Trade and Commerce o f the House Comm, on 
International Relations, 94th Cong., 1st Sess.
(1975) .....................        24

Discriminatory Overseas Assignment Policies o f  
Federal Agencies: Hearings Before a Subcomm. 
o f the House Comm, on Government Opera­
tions, 94th Cong. 1st & 2d Sess. (1975-1976) . . . .  24

Foreign Investment and Arab Boycott Legislation: 
Hearings Before the Subcomm. on International 
Finance o f the Senate Comm, on Banking, 
Housing and Urban Affairs, 94th Cong., 1st 
Sess. (1975) ...................................................... .. 24

H.R. 4453, 81st Cong., 1st Sess. (1949).................  17, 18
H.R. 405, 88th Cong., 1st Sess. (1963)...................  16, 29
H.R. 7152, 88th Cong., 1st Sess. (1963).................  16
H.R. Rep. No. 570, 88th Cong., 1st Sess. (1963) . . 16, 25 
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963) . . 16
Note, Equal Employment Opportunity for Ameri­

cans Abroad, 62 N.Y.U. L. Rev. 1288 (1987) . . .  26
Policy Statement No. N-915.033, EEOC Compl.

Man. (BNA), at 605:0055 (Sept. 2, 1988) . . . .  23, 28, 29 
Restatement (Third) of the Foreign Relations Law 

of the United States (1986)...................................  26,27



Miscellaneous— Continued: Page
S. 1937, 88th Cong., 1st Sess. (1964)............. 16
S. Rep. No. 867, 88th Cong., 2d Sess. (1964)........ 16
Steinhardt, The Role o f  International Law Ms a 

Canon o f Domestic Statutory Construction, 43 
Vand. L. Rev. 1103 (1990)................. .................  29

X



3tx t!)e Supreme Court of tt)e ®nitet» s ta te s
O c t o b e r  T e r m , 1990 

No. 89-1838

E q u a l  E m p l o y m e n t  O p p o r t u n it y  
C o m m is s io n , p e t it io n e r

v.

A r a b ia n  A m e r ic a n  O il C o ., e t  a l .

No. 89-1845
A li B o u r e s l a n , p e t it io n e r

V.

A r a b ia n  A m e r ic a n  O il  C o ., e t  a l .

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

OPINIONS BELOW

The panel and en banc opinions of the court of appeals (Pet. 
App. la-76a)‘ are reported, respectively, at 857 F.2d 1014 and 
892 F.2d 1271. The opinion of the district court (Pet. App. 
77a-82a) is reported at 653 F. Supp. 629.

JURISDICTION

The judgment of the court of appeals upon rehearing en banc 
was entered on February 2, 1990. On April 24, 1990, Justice

1 “Pet. App.” refers to the appendix to the petition in No. 89-1838.

(1)



2

White extended the time for filing a petition for a writ of cer­
tiorari to and including May 23, 1990. The petitions for writs of 
certiorari were filed on May 23, 1990, and were granted on Oc­
tober 1, 1990. This Court has jurisdiction under 28 U.S.C. 
1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. 2000e et seq., are set forth at Pet. App. 
86a-88a.

STATEMENT

1. Ali Boureslan, the plaintiff in this Title VII action, is a 
naturalized American citizen. The defendants are two Delaware 
corporations, Arabian American Oil Company (Aramco) and 
Aramco Services Company (ASC). During the period relevant 
to this case, Aramco explored for, produced, and refined oil 
and gas in Saudi Arabia. All of Aramco’s shares were owned by 
Texaco, Exxon, Mobil, and Chevron, or their subsidiaries. 
Ararnco’s principal place of business was Dhahran, Saudi 
Arabia, but it was licensed to do business in Texas. ASC was a 
wholly owned subsidiary of Aramco; its principal place of 
business was Houston, Texas. J.A. 21, 24, 41; see Br. in Opp. 
App. la.

In 1979, Boureslan was hired by ASC to work as an engineer 
in Houston. A year later, Boureslan’s request for a transfer to 
Aramco was granted, and he relocated to Saudi Arabia. In that 
country, Boureslan alleges, his supervisor systematically mis­
treated him because of his national origin, religion, and race, 
and respondents sought to create a record that would justify his 
termination. On June 16, 1984, Boureslan was discharged. His 
complaint alleges that the stated grounds for the termination 
were pretextual and that he was actually discharged because of 
his national origin, race, and religion. J.A. 7-10, 31-36.

2. After filing a charge of discrimination against Aramco 
with the EEOC and receiving a right to sue letter, Boureslan 
commenced this action against Aramco and ASC. His amended



3

complaint seeks relief under Title VII and also asserts pendent 
state law claims. J.A. 9-10. Aramco moved to dismiss the com­
plaint for lack of subject matter jurisdiction, arguing that Title 
VII does not apply to discrimination outside the United States. 
J.A. 11-12. The district court agreed with that contention and 
dismissed the Title VII claims against both defendants. Pet. 
App. 77a-82a. The court also dismissed Boureslan’s state law 
claims for lack of pendent jurisdiction and entered final judg­
ment in favor of both Aramco and ASC. See id. at 82a; J.A. 44.

3. A divided panel of the court of appeals affirmed. Pet. 
App. 28a-82a. The court then granted rehearing en banc; upon 
rehearing, the court affirmed the district court’s judgment by a 
9-5 vote. Id. at la-27a.2

a. The en banc majority held that Title VII does not apply 
to discrimination outside the United States. In reaching that 
conclusion, it relied on the “canon of construction * * * that 
legislation of Congress, unless a contrary intent appears, is 
meant to apply only within the territorial jurisdiction of the 
United States.” Pet. App. 3a (quoting Foley Bros. Inc. v. 
Filardo, 336 U.S. 281, 285 (1949)). Title VII, the majority con­
cluded, “does not reflect the necessary clear expression of con­
gressional intent to extend its reach beyond our borders.” Pet. 
App. 7a.

The majority dismissed the contention that the statute’s “alien 
exemption” —which provides that Title VII “shall not apply to 
an employer with respect to employment of aliens outside any 
State,” 42 U.S.C. 2000e-l —demonstrates that Title VII was de­
signed to apply to discrimination against American citizens out­
side the United States. Citing Espinoza v. Farah Mfg. Co., 414 
U.S. 86, 95 (1973), the majority ruled that the alien exemption 
reflects “a congressional intent to provide Title VII coverage to

; In the court of appeals, the EEOC participated as an amicus curiae before 
the panel. After entry of the panel’s decision, the Commission was granted 
leave to intervene for the purpose of seeking further review and participated as 
a party in the rehearing en banc. Pet. App. 85a. See 42 U.S.C. 2000e-5(f)(l) 
(authorizing court, in its discretion, to permit the Commission to intervene in 
a civ il action upon the Commission’s certification that the case is of general 
public importance).



4

aliens employed within the United States.” Pet. App. 4a. Thus, 
it reasoned, the provision would remain a “meaningful and 
useful part of the Act” even if Title VII were interpreted not to 
apply to discriminatory conduct abroad. Ibid.

The majority found additional support for its interpretation 
in what it characterized as the “domestic focus” of the Act and 
in Title VII’s “repeated references” to the “United States”, 
“states” and “state proceedings.” Pet. App. 5a. Because Title 
VII “accommodate^] state employment discrimination pro­
ceedings,” the majority continued, “[i]f Congress had intended 
the Act to apply in foreign countries,” it would “have been even 
more careful to address conflicts with foreign discrimination 
laws.” Ibid. The majority also found the Act to be “curiously 
silent” on issues raised by extraterritorial application of Title 
VII, saying that Title VII “fails to address venue problems that 
arise with foreign violations” and that the EEOC’s “in­
vestigatory powers are limited to evidence obtained in the 
United States and its territories.” Ibid.

If the Act were applied extraterritorially, the majority con­
tinued, its plain language would reach foreign employers of 
American citizens. The majority expressed doubt “that Con­
gress ever intended to impose Title VII on a foreign employer 
who had the grace to employ an American citizen in its own 
country.” Pet. App. 6a. Finally, the court contrasted Title VII 
with other statutes having undoubted extraterritorial effect— in 
particular, the Age Discrimination in Employment Act, 29 
U.S.C. 630(f). In those other statutes, the majority observed, 
“Congress demonstrated * * * its awareness of the need to make 
a clear statement of extraterritorial application, address the con­
cerns of conflicting foreign law, and provide the usual nuts-and- 
bolts provisions for enforcing those rights.” Ibid.

b. Five members of the court dissented. The dissenting 
opinion concluded that “a fair and reasonable reading” of Title 
VII “compels the conclusion that Congress did, in fact, intend 
Title VIPs broad remedial goals to encompass, and eradicate, an 
American employer’s discriminatory employment practices 
against a United States citizen, even if the acts constituting such 
discrimination were carried out on foreign soil.” Pet. App. 7a.



5

The alien exemption, the dissent explained, provides a clear ex­
pression of Congress’s intent to apply the statute extrater- 
ritorially; “[i]f Congress had not envisioned an extraterritorial 
application of Title VII, a specific provision exempting only 
aliens from such coverage would not have been needed.” Id. at 
9a. The dissent found further support for its interpretation of 
Title VII in the alien exemption’s legislative history and in the 
EEOC’s interpretation of the statute. Id. at 12a-16a & nn.3-7.

SUMMARY OF ARGUMENT

Like Ali Boureslan, many Americans spend a portion of their 
careers working outside the United States for American 
employers. Foreign assignments provide employees with 
valuable experience and are essential for advancement in many 
firms. The question presented by this case is whether Title VII 
provides Americans with protection from discrimination on the 
basis of race, sex, national origin, and religion while they are 
employed by American employers abroad.

1. There is no doubt that Congress has constitutional 
authority to prohibit such discrimination. In determining 
whether Congress has exercised that authority here, it is ap­
propriate to refer to the canon of construction that, unless a 
contrary intent appears, legislation is interpreted to apply only 
within the territorial limits of the United States. Title VII 
satisfies the requirement imposed by this presumption; the 
language of the statute clearly manifests Congress’s intention to 
prohibit employment discrimination abroad by American 
employers against American citizens.

A. By its terms, Title VII reaches discrimination against 
Americans employed abroad. The Act prohibits discriminatory 
employment practices by “an employer” —a defined term in­
cluding all firms that employ a specified number of employees 
and are engaged in an industry affecting commerce. The 
statutory definition provides no exclusion for employers con­
ducting operations abroad, and the term “commerce” is defined 
to include foreign commerce. Accordingly, American corpora­



6

tions that employ American citizens abroad are among the 
employers subject to the Act.

B. Section 702 of the Act, 42 U.S.C. 20QQe-l, provides that 
Title VII does not apply to “the employment of aliens outside 
any State.” This exemption demonstrates that Congress in­
tended to protect American citizens from employment 
discrimination abroad. Congress could not rationally have 
enacted an exemption for aliens (but not citizens) with respect to 
employment abroad while at the same time believing that Title 
Vll could not apply extraterritorially in the first place. The 
court of appeals’ surmise that Congress enacted the alien exemp­
tion in order to confer coverage on aliens employed within the 
United States is untenable. Indeed, the legislative history of the 
alien exemption confirms that its purpose was to limit the poten­
tial for conflicts with foreign law by withdrawing coverage from 
aliens abroad.

C. No provision of Title VII is inconsistent with its applica­
tion to the employment of American citizens by American 
employers abroad. Contrary to the court of appeals’ suggestion, 
Title VII does not create a venue gap for cases arising from 
discrimination abroad. And even if such a gap existed, it would 
reflect at most a decision to limit plaintiffs’ choice of forum, not 
an intention to withdraw all protection from Americans 
employed abroad. Similarly, the statute’s limitation on the 
scope of the EEOC’s subpoena power does not suggest a limit 
on the statute’s substantive provisions. The remainder of the 
EEOC’s authority and the rights conferred on private plaintiffs 
embody no geographical limitation. As other statutes contain­
ing virtually identical subpoena provisions reflect, there is no 
necessary relationship between an agency’s subpoena power and 
the scope of the statute it administers.

D. The EEOC, the agency charged with principal respon­
sibility for administering Title VII, has interpreted the statute to 
apply extraterritorially. The Justice Department, which also has 
responsibilities in this area, has reached the same conclusion. 
These consistent constructions of the statute by the responsible



7

agencies confirm that Congress’s intent was to apply Title VII to 
Americans employed by American employers abroad,

II. Concern for potential conflicts between Title VII and the 
laws of foreign states, on which the court of appeals placed 
great emphasis, does not justify restricting the statute to 
discrimination within the United States.

A. Congress has spoken to the possibility that Title VII may 
conflict with foreign law. The exemption for the employment of 
aliens outside the United States embodies the balance that Con­
gress struck between the goals of eradicating employment 
discrimination and avoiding conflicts with foreign laws. The 
courts are not at liberty to restrike that balance.

B. Applied to discrimination by American corporations 
against American citizens, Title VII does not raise a serious 
prospect of irreconcilable conflicts with foreign laws. Interna­
tional law recognizes a state’s right generally to prescribe legal 
rules for its nationals outside the state’s boundaries. Title VII 
provides potential defenses to employers that are compelled by 
the law of the territorial sovereign to engage in conduct that 
would otherwise be prohibited by Title VII. Application of Title 
VII to cases such as this does not infringe upon the sovereignty 
of foreign states.

C. In providing for limited deference to state fair employ­
ment proceedings but not to foreign procedures, Title VII does 
not suggest that Congress intended to limit Title VII to 
discrimination within the United States. Congress’s decision not 
to require reference of charges of discrimination to unfamiliar 
foreign proceedings scarcely suggests that it turned a blind eye 
to employment discrimination by American employers against 
American citizens abroad. Indeed, because Title VII supersedes 
all inconsistent state law, it is even less tolerant of conflicts with 
state law than it is of conflicts with foreign Jaw. The statutory 
provisions accommodating state fair employment laws provide 
no basis for doubt as to Congress’s intention to prohibit 
discrimination abroad.

D. In 1984, Congress amended the Age Discrimination in 
Employment Act to make clear its intention to prohibit age 
discrimination against Americans employed abroad. Contrary



to the court of appeals’ suggestion, those amendments do not 
reflect an intention to distinguish between age discrimination 
and discrimination based on race, sex, national origin, or 
religion. Indeed, it would be anomalous to construe Title VII to 
provide Americans abroad with less protection from discrimina­
tion based on race, sex, national origin, or religion than from 
discrimination based on age. In fact, the legislative history of 
the ADEA amendments reflects that Congress believed that it 
was bringing the ADEA into line with Title VII and providing 
Americans working abroad with substantially the same protec­
tion from all forms of discrimination. Construing Title VII to 
be inapplicable abroad would resurrect (in reverse) the anomaly 
that the 1984 Congress acted to eliminate.

ARGUMENT

I. TITLE VII MANIFESTS A CLEAR CONGRESSIONAL IN­
TENTION TO PROHIBIT DISCRIMINATION OUTSIDE 
THE UNITED STATES BY AMERICAN EMPLOYERS 
AGAINST AMERICAN CITIZENS

The issue in this case —whether Title VII protects American 
citizens against invidious employment discrimination by 
American corporations outside of the United States3 —is ex­
clusively one of statutory interpretation. Congress’s power to 
legislate under the Commerce Clause, the primary source of 
constitutional authority for Title VII, is not confined to the ter­
ritorial limits of the United States. As long as it acts within its 
enumerated powers, Congress can “regulate the actions of our 
citizens outside the territorial jurisdiction of the United States

3 For purposes of Title VII, “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 [43 U.S.C. 1331 el 
seq.].” This briefs references to the “United States” encompass all territory 
within the confines of these "States.”



9

whether or not the act punished occurred within the territory of 
a' foreign nation.” Vermilya-Brown Co. v. Connell, 335 U.S. 
377, 381 (1948).4

In determining w-hether Congress has exercised its authority 
to regulate extraterritorially, this Court has employed a canon 
of construction “that legislation of Congress, unless a contrary 
intent appears, is meant to apply only within the territorial 
jurisdiction of the United States.” Foley Bros., Inc. v. Filardo, 
336 U.S. 281,285 (1949).5 That canon “is based on the assump­
tion that Congress is primarily concerned with domestic condi­
tions” (ibid.); it also serves to protect against needless conflicts 
between our laws and those of other states, cf. McCulloch v. 
Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 
21-22 (1963). The ultimate issue, however, remains one of 
legislative intent.

4 Accord Blackmer v. United States, 284 U.S. 421, 437 (1932); Patterson v. 
Bark Ettdora, 190 U.S. 169, 178-179 (1903); Skiriotes v. Florida, 313 U:S. 69, 
73 (1941); Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-285 (1949); Steele v. 
Balova Hatch Co., 344 U.S. 280, 282, 285-286 (1952); McCulloch v. Sociedad 
Nacional de Marineros de Honduras, 372 U.S. 10, 17 (1963).

5 See also American Banana Co. v. United Fruit Co., 213 U.S. 347, 357 
(1909); Sandberg v. McDonald, 248 U.S. 185, 195 (1918); United Stales v. 
Bowman, 260 U.S. 94, 98 (1922); New York Central R.R. v. Chisholm, 268 
U.S. 29, 31-32 (1925); Blackmer v. United Stales, 284 U.S. 421, 437 (1932); 
United States v. Flores, 289 U.S. 137, 155 (1933); Steele v. Balova WatchCo., 
344 U.S. 280, 285 (1952); Argentine Republic v. Amerada Hess Shipping Co., 
109 S. Ct. 683, 691 (1989). The Court has retreated somewhat from the strict 
concept of territoriality advanced in American Banana. See Steele v. Balova 
Watch Co., 344 U.S. at 288; Continental Ore Co. v. Union Carbide 4  Carbon 
Corp., 370 U.S. 690, 704 (1962).

In other contexts, the Court has indicated that a different form of analysis 
may apply. See United States v. Bowman, 260 U.S. at 98 (presumption against 
extraterritoriality is not applicable to statutes designed to protect the United 
States government from fraud, because those statutes “are not logically de­
pendent on their locality for the Government’s jurisdiction”). See also Tamari 
v. Bache 4 Co. (Lebanon) S.A.L., 730 F.2d 1103, 1107 n. 11 (7th Cir.), cert, 
denied, 469 U.S. 871 (1984); Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (2d 
Cir.), modified on other grounds, 405 F.2d 215 (1968), cert, denied, 395 U.S. 
906 (1969). In this case, the Court need not determine the outer perimeter of 
the presumption against extraterritoriality or the scope of any exceptions to 
the presumption that may exist.



10

To rebut the presumption against extraterritoriality, Congress 
need not express its intent to regulate outside the United States 
in any particular way. At the most obvious level, a statute may 
explicitly be made applicable to foreign parties. See Patterson v. 
Bark Eudora, 190 U.S. 169, 173 (1903). So too, broad jurisdic­
tional language suffices to sustain extraterritorial applications 
of federal statutes that prevent evasion of “the thrust of the laws 
of the United States in a privileged sanctuary beyond our 
borders.” Steele v. Bulova Watch Co., 344 U.S. 280, 287 (1952). 
Other possibilities exist as well. In determining whether a statute 
reaches conduct abroad, courts may appropriately consult all 
materials customarily employed in statutory interpretation. See 
Foley Bros., 336 U.S. at 285-291 (referring to the language of 
the statute at issue, its legislative history and “scheme”, and ad­
ministrative interpretations).

Interpreted in accordance with these principles, Title VII ap­
plies to discrimination outside the United States by an American 
employer against an American citizen. On its face, the statute 
prohibits discrimination by an employer engaged in an industry 
affecting interstate or foreign commerce, without regard to 
where the discrimination occurs. Understanding that the statute 
would apply to discrimination beyond the Nation’s borders, 
Congress added an exemption withdrawing protection from 
aliens with respect to employment outside the United States. 
Congress must have understood that — were it not for the ex­
press exemption —Title VII would apply to aliens employed by 
American employers outside the United States. The exemption 
powerfully demonstrates that Congress intended Title VII to ap­
ply to the employment of American citizens outside this coun­
try. Nothing in Title VII supports a different interpretation. 
Finally, both the EEOC and the Justice Department, the agen­
cies charged by Congress with enforcing Title VII, have con­
sistently construed Title VII to apply to discrimination against 
American citizens abroad.



11

A. By Its Terms, Title VII Prohibits Invidious Employment 
Discrimination Against American Citizens Outside the United 
States

Title VII prohibits various discriminatory employment prac­
tices. 42 U.S.C. 2000e-2, 2Q00e-3. It is an “unlawful employ­
ment practice” for “an employer” (42 U.S.C. 2000e-2(a))

(1) to fail or refuse to hire or to discharge any in­
dividual, or otherwise to discriminate against any in­
dividual with respect to his compensation, terms, condi­
tions, or privileges of employment, because of such in­
dividual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or ap­
plicants for employment in any way which would deprive 
or tend to deprive any individual of employment oppor­
tunities or otherwise adversely affect his status as an 
employee, because of such individual’s race, color, 
religion, sex, or national origin.

In general, the applicability of this provision to alleged 
employment discrimination is dependent upon whether the 
employer satisfies the statutory definition of “an employer,” 42 
U.S.C. 2000e(b). An employer is subject to Title VII if it has 
employed 15 or more employees for a specified period and is 
“engaged in an industry affecting commerce.” Ibid. An industry 
affecting commerce is “any activity, business, or industry in 
commerce or in which a labor dispute would hinder or obstruct 
commerce and includes any activity or industry ‘affecting com­
merce’ within the meaning of the Labor-Management Reporting 
and Disclosure Act of 1959 [29 U.S.C. 401 et seq.].” 42 U.S.C. 
2000e(h). Commerce, in turn, is defined as “trade, traffic, com­
merce, transportation, transmission, or communication 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.” 42 U.S.C. 2000e(g).6

6 Respondents have not contended that they lack the requisite number of 
employees or are not engaged in “an industry affecting commerce”.



12

By their terms, these provisions reach employment 
discrimination occurring outside the United States, The statute’s 
prohibition on “unlawful employment practices” is not limited 
to discriminatory practices occurring at any particular place, 
and the definition of employer includes both interstate and 
foreign commerce. Nothing in the statute makes the protection 
available to American citizens who are “individual[s],” 
“employees,” or “applicants for employment” dependent on 
where they may be located when they are victimized by 
discrimination. In this respect, Title VII’s jurisdictional provi­
sions are similar to the “broad jurisdictional grant in the 
Lanham Act” upon which this Court relied in holding the 
trademark statute applicable to conduct outside this country. 
Steele v. Bulova Watch Co., 344 U.S. at 286. See also Branch v. 
FTC, 141 F.2d 31, 34-35 (7th Cir. 1944).

B. Title VII’s Exemption lor Aliens With Respect to Employment 
Outside the United States Clearly Manifests An Intention to 
Protect American Citizens With Respect to Employment Out­
side the United States

1. In determining whether Title VII applies to discrimina­
tion by U.S. employers outside the United States, it is un­
necessary to rely exclusively on the statute’s broad jurisdictional 
provisions, for the “alien exemption” provision powerfully 
demonstrates Congress’s intent to apply Title VII extrater- 
ritorially. That exemption is found in Section 702 of Title VII, 
42 U.S.C. 2000e-l, which provides that the statute “shall not ap­
ply to an employer with respect to the employment of aliens out­
side any State.” Against the background of Title VII’s jurisdic­
tional provisions, the thrust of this exemption is unmistakable. 
Congress understood that Title VII would apply to discrimina­
tion outside the United States, but chose not to confer protec­
tion on aliens outside this country. Accordingly, it fashioned an 
exemption for that group, limiting the statute’s extraterritorial 
application to the employment of American citizens outside any 
State.

No other plausible explanation of the alien exemption exists. 
If Congress believed that the statute did not apply extra­



13

territorially, it would have had no reason to include an exemp­
tion for a certain category of individuals employed outside the 
United States. Alternatively, if Congress believed that the 
statute would (or might) be interpreted to apply overseas but 
wished to withhold protection from both Americans and aliens 
employed abroad, the only sensible way to express that inten­
tion would have been to include an exemption encompassing the 
employment of all individuals abroad. The statute’s jurisdic­
tional provisions cannot possibly be read to confer coverage 
only upon aliens employed outside the United States. Thus, 
Congress could not rationally have enacted an exemption for 
the employment of aliens abroad if it intended to foreclose all 
potential extraterritorial applications of the statute.

In this respect, this case is similar to Pennsylvania v. Union 
Gas Co., 109 S. Ct. 2273 (1990). In Union Gas, the Court noted 
that a provision exempting States from certain liability for 
hazardous waste cleanup manifested Congress’s intention that 
States would be liable for cleanup costs beyond the scope of the 
exemption. The Court explained that the exemption “is, 
needless to say, an explicit recognition of the potential liability 
of States under this statute; Congress need not exempt States 
from liability unless they would otherwise be liable.” Id. at 
2278. The same inference should be drawn from the alien ex­
emption in this case.7

7 The Eleventh Amendment imposes a more stringent clear statement re­
quirement than the presumption against extraterritoriality; Congress may 
abrogate the States’ Eleventh Amendment immunity “only by making its in­
tention unmistakably clear in the language ol' the statute.” Atascadero State 
Hosp. v. Scanlon. 473 U.S. 234, 242 (1985). Compare Foley Bros., 336 U.S. at 
285 (presumption against extraterritoriality is “a valid approach whereby unex­
pressed congressional intent may be ascertained”). Thus, the reasoning of 
Union Gas applies a fortiori to this case. See also Andrus v. Glover Constr. 
Co., 446 U.S. 608, 616-617 (1980) (“Where Congress explicitly enumerates cer­
tain exceptions to a general prohibition, additional exceptions are not to be 
implied, in the absence of evidence of a contrary legislative intent.”).

Title VI1 also contains an exemption for religious institutions “with respect 
to the employment of individuals of a particular religion to perform work con­
nected with” the institutions’ “religious activities.” This exemption —like the 
alien exemption as we construe it —clearly withdraws coverage that would



14

2. With the exception of this case, al! judicial decisions ad­
dressing the territorial scope of Title VII have concluded that 
the alien exemption reflects an intention to provide American 
citizens with protection from employment discrimination 
abroad.8 The court of appeals, however, ruled that the exemp­
tion could plausibly be read as a means of “providfingj Title VII 
coverage to aliens employed within the United States,” and sug­
gested that the “negative inference” arising from the exemption 
was too insubstantial to sustain an extraterritorial application of 
the statute. Pet. App. 4a, 7a. This line of reasoning is strained 
and untenable. It requires an exemption to be read as a 
backhanded grant of coverage; what is more, the court’s inter­
pretive gymnastics embody a fundamental misconception of the 
principles of statutory interpretation that govern the extrater­
ritorial application of statutes.

a. Whatever its implications may be, the alien exemption’s 
office is not to confer statutory protection on aliens inside the 
United States. The plain language of another provision does 
that. As this Court noted in Espinoza, 414 U.S. at 95, aliens in 
this country are entitled to protection because they are among 
the “individuals” referred to in Section 703 of Title VII, 42 
U.S.C. 2000e-2. If Congress had entertained any doubt as to 
whether Section 703 was sufficient to protect resident aliens, the 
only rational way to erase that uncertainty would have been to 
include a provision specifically conferring coverage on those in­
dividuals. The roundabout tactic of carving out an exemption

otherwise exist. Further, courts have rejected claims, comparable to 
respondents’ here, that Title Vi( should be construed to allow discrimination 
by religious institutions that is outside the scope of the exemption. See Mc­
Clure v. Salvation Army, 460 F.2d 553, 558 (5th Cir.), cert, denied, 409 U.S. 
896 (1972); EEOC v. Pacific Press Publishing A ss’n, 676 F.2d 1272, 1276-1277 
(9th Cir. 1982).

4 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); Bryant v. Interna­
tional Schools Services, Inc., 502 F, Supp. 472 (D.N.J. 1980), rev’d on other 
grounds, 675 F.2d 562 (3d Cir. 1982); Love v. Pullman Co., 13 Fair Empl. 
Prac. Cas. (BNA) 423, 426 n.4 (D. Colo. July 21, 1976), al'Fd on other 
grounds, 569 F.2d 1074 (10th Cir. 1978).



15

from coverage for a different class would not have had the 
strangely generative effect of creating coverage that did not 
otherwise exist.

As this Court noted in Espinoza v. Farah Mfg. Co., supra, 
the alien exemption does confirm Congress’s intention to pro­
vide protection to aliens within the United States. If the statute 
could never apply to discrimination against aliens, it would have 
been unnecessary to exempt aliens with respect to their employ­
ment outside this country. It does not follow, however, that the 
exemption can plausibly be viewed as “meaningful and useful” 
(Pet. App. 4a) only to the extent it bears on aliens in this coun­
try.

To the contrary, the inferences that the exemption supports 
with respect to the employment of aliens within the United 
States and the employment of citizens abroad are inseparable 
and equally compelling. By withdrawing protection from aliens 
with respect to their employment outside the United States, the 
exemption establishes that two groups falling outside the ex­
emption—in Espinoza, aliens employed inside the United States 
and, here, citizens employed abroad —are covered. Those in­
ferences are in no sense alternatives to one another. Both flow 
equally from the alien exemption.

b. The court of appeals’ suggestion that a “negative in­
ference” is insufficient to support a statute’s extraterritorial ap­
plication misconceives the nature of the presumption against ex­
traterritoriality. The presumption is an “approach whereby 
unexpressed congressional intent may be ascertained,” Foley 
Bros., 336 U.S. at 285, not a requirement of form. Title VII 
combines a broad grant of protection from discrimination with 
an exemption for the employment of aliens abroad. That com­
bination is an entirely natural way to express an intention to 
confer coverage on Americans employed abroad. The presump­
tion against extraterritoriality demands nothing more.

3. The legislative history of the alien exemption confirms 
that its function was to withdraw coverage from aliens abroad



16

(not, as the court of appeals suggested, to extend coverage to 
aliens in this country). In the 88th Congress, the alien exemption 
was initially included in H.R. 405, 88th Cong., 1st Sess. (1963). 
The committee report on this bill stated that the purpose of the 
exemption was “to remove conflicts of law which might other­
wise 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).9 
This explanation demonstrates that the exemption’s function 
was what its form suggests —to withdraw coverage from aliens 
with respect to their employment abroad. The potential “con­
flicts of law” to which the report referred could only arise out­
side the United States; in stating that the exemption was design­
ed to “remove” those potential conflicts, the report manifested 
the committee’s understanding that Title VII would otherwise 
apply outside the United States.

The committee report on the Senate’s employment discrimi­
nation bill, S. 1937, 88th Cong., 1st Sess. (1964), included a very 
similar explanation of the alien exemption: “Exempted from the 
bill are * * * U.S. employers employing citizens of foreign 
countries in foreign lands.” S. Rep. No. 867, 88th Cong., 2d 
Sess. 11 (1964). Like its House counterpart, the Senate report 
made clear that the exemption’s purpose was to limit the ex­
traterritorial application of the statute in “foreign lands,” not to 
extend coverage to aliens in this country. If there were any

9 After H.R. 405 was reported to the floor of the House, the House Com­
mittee on the Judiciary held hearings on a number of civil rights bills, in­
cluding H.R. 405. The committee report on H.R. 405 was incorporated in the 
record of those hearings. See Civil Rights: Hearings Before Subcomm. No. 5 
o f the House Comm, on the Judiciary on Miscellaneous Proposals Regarding 
the Civil Rights o f  Persons Within the Jurisdiction o f  the United States, 88th 
Cong., 1st Sess. 2303 (1963). The upshot of the hearings was an omnibus civil 
rights bill, H.R. 7152, 88th Cong., 1st Sess. (1963). H.R. 405 was incorporated 
(with amendments not touching the alien exemption) into H.R. 7152, which in 
turn was subsequently enacted as the Civil Rights Act of 1964. See H.R. Rep. 
No. 914, 88th Cong., 1st Sess. 57 (1963) (additional views of Rep. Meader).



17

doubt as to the untenability of the court of appeals’ understand­
ing, the provision’s legislative history would lay it to rest.

4. The alien exemption distinguishes Title VII from other 
statutes that this Court has held do not apply outside the United 
States. For instance, in Foley Bros. v. Filardo, supra, the Court 
relied very heavily on the fact that the Eight Hour Law— a 
statute obligating government contractors to pay overtime to 
employees who worked more than eight hours in a given 
day —drew “no distinction * * * between Americans and foreign 
laborers.” 336 U.S. at 286. The Court continued (ibid, (em­
phasis added)):

Unless we are to read such a distinction into the statute we 
should be forced to conclude, under respondents’ reason­
ing, that Congress intended to regulate the working hours 
of a citizen of Iran who chanced to be employed on a 
public work of the United States in that foreign land. Such 
a conclusion would be logically inescapable although labor 
conditions in Iran were known to be wholly dissimilar to 
those in the United States and wholly beyond the control 
of this nation. An intention so to regulate labor conditions 
which are the primary concern of a foreign country should 
not be attributed to Congress in the absence of a clearly ex­
pressed purpose. * * * The absence o f any distinction be­
tween citizen and alien labor indicates to us that the statute 
was intended to apply only to those places where the labor 
conditions of both citizen and alien employees are a prob­
able concern of Congress.

By its terms, Title VII draws the very distinction whose absence 
this Court stressed in Foley Bros. In so doing, Title VII 
manifests Congress’s intention to prohibit discrimination by 
American employers against American citizens abroad.

Indeed, the alien exemption first appeared in proposed fair 
employment legislation shortly after the decision in Foley Bros., 
suggesting that it was conceived as a response to that decision. 
The decision in Foley Bros, was issued on March 7, 1949. Six 
weeks later, on April 29, 1949, Rep. Adam Clayton Powell in­
troduced a fair employment bill, H.R. 4453, 81st Cong., 1st



18

Sess. (1949), that was apparently the first to include an alien ex­
emption. Evidently, this bill was designed to avoid the problem 
created by the Eight Hour Law’s failure to distinguish between 
Americans and aliens abroad.

Benz v. Compania Naviera Hidalgo, S./L, 353 U.S. 138 
(1957), and McCulloch v. Sociedad National de Marineros de 
Honduras, supra, involved attempts to apply American labor 
statutes to aliens employed aboard foreign flag vessels, which 
are analogous to foreign territory10 —a point that was stressed in 
both cases. In Benz, the Court concluded that “Congress did not 
fashion [the LMRDA] to resolve labor disputes between na­
tionals of other countries operating ships under foreign laws.” 
353 U.S. at 143. Similarly, in McCulloch, the Court framed the 
“basic” question as “whether [the NLRA] as written was in­
tended to have any application to foreign registered vessels 
employing alien seamen.” 372 U.S. at 19. The alien exemption 
precludes comparable applications of Title VII.

By virtue of the alien exemption, applying Title VII to 
employment discrimination abroad against American citizens 
by American corporations is entirely consistent with the reason­
ing of Foley Bros., Benz, and McCulloch.

C. Other Provisions of Title VII Are Consistent With Its Applica­
tion to Discrimination by American Employers Against 
American Citizens Abroad

The court of appeals identified two features of Title VII that 
it believed were inconsistent with extraterritorial application of 
the statute —the statute’s venue provision and its limitation on 
the reach of the EEOC’s subpoena power. Pet. App. 5a-6a. 
Upon analysis, neither provision weighs against applying Title 
VII to discrimination abroad against American citizens by 
American corporations.

1. Section 706(f)(3) of Title VII, 42 U.S.C. 2000e-5(f)(3), 
allows an action to be brought “in any judicial district in the 
State in which the unlawful employment practice is alleged to

10 See, e.g., Canard S.S. Co. v. Mellon, 262 U.S. 100, 123-124 (1923); 
United Stales v. Rodgers, 150 U.S. 249, 264 (1893).



19

have been committed, in the judicial district in which the em­
ployment records relevant to such practice are maintained and 
administered, or in the judicial district in which the aggrieved 
person would have worked but for the alleged unlawful employ­
ment practice”— or, “if the respondent is not found within any 
such district, * * * within the judicial district in which the re­
spondent has his principal office.” Contrary to the court of ap­
peals’ suggestion, this provision does not create any significant 
venue gap for cases arising from discrimination abroad.

Only the first of the alternatives recognized by the 
statute-venue in a district in a State in which the unlawful 
employment practice has occurred-is necessarily unavailable in 
a case arising from discrimination outside the United States. An 
American corporation that has engaged in discrimination 
against an American employee may maintain employment 
records in the United States; the employee may be able to 
demonstrate that he or she would have been employed in this 
country but for the alleged discrimination; and, if venue is 
unavailable under either of those alternatives, the employer is 
subject to suit in the district in which its “principal office” is 
located. Identical language in the Jones Act, 46 U.S.C. 688, has 
been construed to refer to a defendant’s principal office in the 
United States. 11 Thus, federal venue will be available in any case 
in which the defendant has an office in the United States.

"  Stewan v. Pacific Steam Navigation Co., 3 F.2d 329, 330 (S.D.N.Y. 
1924) (L. Hand, J.) (“The phrase ‘in which its principal office is located’ dear­
ly means in which the principal office of the foreign steamship company is 
located within the United States.”). See Arrocha v. Panama Canal Comm’n, 
609 F. Supp. 231, 235 (E.D.N.Y. 1985) (reaching same result under Title VII). 
This interpretation is consistent with the language of Title VIFs venue provi­
sion. It gains further support from the principle that because “Congress does 
not in general intend to create venue gaps,” “in construing venue statutes it is 
reasonable to prefer the construction that avoids leaving such a gap.” Brunette 
Machine Works Ltd. \. Kockum Indus., Inc., 406 U.S. 706, 710 n.8 (1972).

In Yellow Freight System, Inc. v. Donnelly, 110 S. Ct. 1566 (1990). this 
Court held that state courts have concurrent jurisdiction over Title VII ac­
tions. In our view, Title VII should not be construed to limit the venue of state 
courts hearing Title VII suits. See Bainbridge v. Merchants <£ Miners Transp. 
Co. 287 U.S. 278 (1932).



20

Even if Title VII were construed to create a venue gap for 
some cases arising out of discrimination abroad, it would not 
follow that Title VII should be interpreted to exempt all 
discrimination outside the United States. At most, the existence 
of such a gap would suggest that Congress was unwilling to 
allow Americans employed abroad a wider choice of venue than 
that available to victims of discrimination in this country. There 
is no indication that the venue provision was tied to Congress’s 
understanding of the scope of the statute— and no other reason 
to assume that Congress intended Title VII’s venue tail to wag 
the statutory dog.

2. For similar reasons, Title VII’s limitation on the Commis­
sion’s subpoena power does not justify restricting the Act to 
discrimination within the United States. At present, the Com­
mission is empowered to issue subpoenas requiring attendance 
of witnesses and production of evidence “from any place in the 
United States or any Territory or possession thereof.” 42 U.S.C. 
200Qe-9 (incorporating 29 U.S.C. 161(1)).12 This limita­
tion-which operates solely on Commission subpoenas, not (as 
the majority below suggested) on the EEOC’s “investigatory 
powers”-fa lls  far short of suggesting that the Commission 
lacks any authority to remedy discrimination against Americans 
abroad, let alone that the statute fails to reach such discrimina­
tion.

In all respects save its subpoena authority, the Commission’s 
investigatory powers are subject to no geographical restriction.

12 This provision was enacted in 1972. Before that-time, the Commission 
secured evidence by means of demands that were enforceable by court order, 
but “the attendance of a witness [could] not be required outside the State 
where he is found, resides, or transacts business and the production of 
evidence [could] not be required outside the State where such evidence is 
kept.” Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII, § 710(a), 78 
Slat. 264. In our view, the difference between this provision and the provision 
substituted in 1972 is not material to the question presented in this case. In one 
respect, however, the 1972 amendment has apparently enhanced the Commis­
sion’s ability to investigate discrimination abroad. Comparable statutes have 
been held to permit service of a subpoena in this country for documents 
located elsewhere. See, e.g., CFTC v. Nahas, 738 F.2d 487, 492 & n .ll , 
495-496 (D.C. Cir. 1984).



21

Section 706(a) of the Act, 42 U.S.C. 2000e-5(a), empowers the 
Commission to conduct an investigation “[wjhenever a charge is 
filed” alleging an unlawful employment practice. For purposes 
of those investigations, the Commission enjoys “access to, for 
the purposes of examination, and the right to copy any evidence 
ol any person being investigated or proceeded against that 
relates to unlawful employment practices covered by [Title VII] 
and is relevant to the charge under investigation.” 42 U.S.C. 
2000e-8. Although the Commission’s right of access may not be 
fully enforceable by subpoena, there is no suggestion that its in­
vestigatory authority is limited to discrimination occurring in 
the United States.

Nor is there any territorial limitation on the Commission’s 
other functions under the Act. Nothing in the provisions confer­
ring authority on the Commission to conciliate charges of 
discrimination, to initiate lawsuits, and to seek interim relief 
restricts the Commission to discrimination in the United States, 
42 U.S.C. 2000e-5(b) and (f). The limit on the EEOC’s ad­
ministrative subpoena authority does not foreclose the Commis­
sion’s performance of those functions —or impose any restraint 
on the pursuit of private actions under Title VII. Upon the filing 
of a lawsuit, the Commission or a private plaintiff may obtain 
evidence required for a judicial action by means of judicial sub­
poenas served in this country (Fed. R. Civ. P, 45), subpoenas to 
American citizens abroad (28 U.S.C. 1783), discovery under the 
Federal Rules of Civil Procedure, and procedures available 
under international agreements. See Societe Nationale In­
dust riel le Aerospatiale v. United States District Court, 482 U.S. 
522 (1987) (discussing the principles regulating the choice 
among these alternatives).

Finally, there is no necessary relationship between an agency’s 
subpoena power and the scope of the statute it is empowered to 
enforce.13 The statute authorizing the EEOC to issue sub­

13 See FTC  v. Compagnie de Saim-Gobain-Pont-a-Mousson, 636 F.2d 
1300, 1322 (D.C. Cir. 1980) (noting the distinction between the FTC’s authori­
ty to serve subpoenas outside the United States and “the larger question of the 
FTC’s authority to investigate both domestic and foreign corporations whose 
actions have harmful effects on U.S. commerce”).



22

poenas compelling the attendance of witnesses “from any place 
in the United States or any Territory or possession thereof’ (42 
U.S.C. 2000e-9 (incorporating 29 U.S.C. 161(1)) is virtually 
identical to provisions conferring subpoena authority on many 
other federal agencies, some of which administer statutes 
reaching conduct outside the United States.14 A limitation on 
Title VII’s substantive provisions may not properly be inferred 
from the scope of the Commission’s subpoena authority.

D. The EEOC, the Agency Charged With Administrative Enforce­
ment of Title VII, Has Interpreted the Statute to Apply to 
Discrimination Against Americans Abroad

The EEOC has consistently construed Title VII to apply to 
discrimination against American citizens outside the United 
States. In 1975, the EEOC’s General Counsel, in a letter to 
Senator Frank Church, stated that u[t]he language of Title VII 
indicates a Congressional intent to make the Title applicable to 
American citizens employed by American companies operating 
overseas.” J.A. 48. If the alien exemption “is to have any mean­
ing at all,” the letter explained, “it is necessary to construe it as 
expressing a Congressional intent to extend the coverage of Title 
VII to include employment conditions of citizens in overseas 
operations of domestic corporations at the same time it excludes 
aliens of the domestic corporation from the operation of the 
statute.” J.A. 49. The letter added that this construction was 
consistent with the purposes of the statute, noting that 
“[ojverseas employment practices of covered employers can 
have a very substantial impact on the employment opportunities 
in domestic corporations.” Ibid.

In 1984, the Chairman of the EEOC testified before a 
subcommittee of the Senate that the alien exemption was in­
dicative of an intention to prohibit discrimination against

,J For instance, the subpoena authority that the Commission enjoys under 
the ADEA, a statute applying abroad, is limited to compelling the attendance 
of witnesses and the production of evidence "from any place in the United 
States.” 15 U.S.C. 49 (incorporated in 29 U.S.C. 209, 626(a)). The SEC’s 
authority under the Securities Exchange Act of 1934 embodies the same limita­
tion. 15 U.S.C. 78s(b).



23

Americans abroad.15 The Commission adhered to that inter­
pretation of the statute in a decision issued in 1985. EEOC Dec. 
No. 85-16, Empl. Prac. Dec. (CCH) 1 6856 (Sept. 16, 1985). 
Citing the alien exemption and district court decisions sustain­
ing Title VII’s extraterritorial application, the Commission con­
cluded that “the Act does apply to covered employers with 
respect to their employment of IJ.S. citizens outside the United 
States.” Id. at 7072.16 The EEOC is one of two federal agencies 
with primary responsibility for enforcing Title VIE Its inter­
pretation, which is consistent with the language and legislative 
history of the relevant provisions, reinforces the conclusion that 
Congress intended the statute to apply to Americans employed 
by American employers abroad. See, e.g., EEOC v. Commer­
cial Office Products Co., 486 U.S. 107, 115 (1988).

The Justice Department —the other federal agency with Title 
VII responsibility —has also interpreted the statute to reach 
discrimination abroad against American citizens. In 1975, an 
Assistant Attorney General testified before committees of both 
Houses of Congress that the alien exemptions in Sections 702 
and 717 of Title VII imply that the statute applies outside the 
United States. He stated:

It should be noted that both Executive Order 11478 and 
§ 717 of Title VII specify that they are not applicable to 
“aliens employed outside the limits of the United States.” 
The implication of this is that they do apply to United 
States citizens employed throughout the world.

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

16 Recently, the Commission has issued a statement clarifying its policy with 
respect to the handling of charges of discrimination against corporations 
operating abroad. Policy Statement No. N-915.033, EEOC Comp!. Man. 
(BNA), at 605:0055 (Sept. 2, 1988). The Commission has also applied Title VII 
to claims of federal employees employed by the federal government abroad. See 
Cole v. Secretary o f the Army, EEOC Dec. No. 05890142 (Aug. 23, 1989); 
Hedges v. Secretary o f Defense, EEOC Dec. No. 05900454 (June 1, 1990). Sec­
tion 717 of Title VII, 42 U.S.C. 2000e-16, prohibits invidious discrimination in 
“[a]ll personnel actions affecting employees or applicants for employment (ex­
cept with regard to aliens employed outside the limits of the United States).”



24

With respect to discrimination in employment by private 
companies and individuals, Title VII of the 1964 Civil 
Rights Act, as amended, prohibits a broad range of 
“unlawful employment practices” by any private employer 
“engaged in an industry affecting commerce who has fif­
teen or more employees.” * * * Once again the [statute] 
contains an exemption “with respect to the employment of 
aliens outside any State,” which implies that it is applicable 
to the employment of United States citizens by covered 
employers anywhere in the world.[17]

These administrative interpretations of Title VII provide fur­
ther support for the statute’s application to this case. See Foley 
Bros., 336 U.S. at 288-290.

II. CONCERN FOR POTENTIAL CONFLICTS WITH THE 
LAWS OF OTHER NATIONS DOES NOT WARRANT  
LIMITING TITLE VII TO DISCRIMINATION WITHIN THE 
UNITED STATES

In determining the scope of federal statutes, this Court has 
been sensitive to potential conflicts between our laws and those 
of foreign states.18 In this case, the court of appeals placed great 
weight on what it perceived as Title VlI’s lack of attention to 
such conflicts. The court drew a contrast between Title VII’s 
references to state fair employment laws and its treatment of 
foreign law. “If Congress had intended the Act to apply in 
foreign countries,” the court stated, “we would expect Congress

17 Foreign Investment and Arab Boycott Legislation: Hearings Before the 
Subcomm. on International Finance o f  the Senate Comm, on Bunking, Hous­
ing and Urban Affairs, 94th Cong., 1st Sess. 165 (1975) (testimony of Assis­
tant Att’y Gen. Scalia). Accord Discriminatory Arab Pressure on U.S. 
Business: Hearings Before the Subcomm. on International Trade and Com­
merce o f the House Comm, on International Relations, 94th Cong., 1st Sess. 
87-88 (1975); Discriminatory Overseas Assignment Policies o f  Federal Agen­
cies: Hearings Before a Subcomm. o f the House Comm, on Government 
Operations, 94th Cong., 1st & 2d Sess. 87-89 (1975-1976).

18 McCulloch v. SociedacI National de Marineros de Honduras, 372 U.S. at 
21; Benz v. Compania Naviera Hidalgo, S.,4., 353 U.S. at 145-146. See also 
Steele v. Balova Watch Co., 344 U.S. at 289.



25

to have been even more careful to address conflicts with foreign 
discrimination laws. Yet the statute says nothing about potential 
conflicts with foreign discrimination laws.” Pet. App. 5a. In the 
same vein, the court contrasted Title VII with statutes in which 
Congress had “demonstrated * * * its awareness of the need to 
* * * address the concerns of conflicting foreign law” (id. at 6a). 
This reasoning mischaracterizes Title VII and overstates the 
statute’s potential to generate conflicts with foreign law.

A. The Alien Exemption Represents Congress’s Solution to 
Potential Conflicts of Laws

Contrary to the court of appeals’ suggestion, Title VII does 
speak to potential conflicts between Title VII and foreign law. 
The stated purpose of the alien exemption is to mitigate poten­
tial conflicts with foreign law —in the words of the relevant 
committee report, “to remove conflicts 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, supra, at 4. The alien 
exemption thus embodies Congress’s accommodation of the 
goals of eradicating employment discrimination and avoiding 
conflicts with foreign law. Congress “alone has the facilities 
necessary to make fairly such an important policy decision.” 
Benz, 353 U.S. at 147; see McCulloch, 372 U.S. at 22. Congress 
addressed the problem and struck a balance it considered appro­
priate; the courts are not at liberty to restrike the balance.

B. Properly Applied, Title VII Does Not Create a Serious Poten­
tial for Conflicts with International Norms dr the Laws of 
Foreign States

1. Applied to discrimination by American corporations 
against American employees, Title VII does not give rise to 
significant conflicts with international norms or the law of 
foreign states. Both Boureslan and respondents are American



26

nationals.19 As this Court has recognized, “the United States is 
not debarred by any rule of law from governing the conduct of 
its own citizens upon the high seas or even in foreign countries 
when the rights of other nations or their nationals are not in­
fringed.” Skiriotes v. Florida, 313 U.S. 69 , 73 (1941).20 That is 
so even when the result is dual regulation; international law ac­
cepts the possibility that more than one state’s law may apply 
simultaneously to a given course of conduct. Restatement 
(Third) of the Foreign Relations Law of the United States 
§ 403(3) & comment d (1986).

In cases of dual regulation, application of Title VI1 is unlikely 
to generate serious conflicts with the laws of individual foreign 
states. In view of the emerging international consensus on 
employment discrimination, cases in which foreign law requires 
American corporations to discriminate on the basis of race, sex, 
national origin, or religion are likely to be rare.21 In this case, 
for instance, respondents have not suggested that any Saudi law 
mandated discrimination against Boureslan. The possibility that 
the United States and another nation may both prohibit a par­
ticular form of discrimination —or that the other nation’s laws 
neither compel nor prohibit discrimination that is unlawful 
under Title VII —does not give rise to a conflict of the type that

19 See Restatement (Third) of the Foreign Relations Law of the United 
States § 213 (1986) (“For purposes of international law, a corporation has the 
nationality of the state under the laws of which the corporation is 
organized.”). Cf. Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 
(1982) (under treaty between Japan and the United States, U.S.-incorporated 
subsidiaries of Japanese corporations are deemed corporations of the United 
States).

20 Accord Vennilya-Brown Co. v. Connell, 335 U.S. 377 (1948); Biackmer 
v. United States, 284 U.S. 421, 436-437 (1932); Restatement (Third) of the 
Foreign Relations Law of the United States § 402(2) (1986) (except when it 
would be unreasonable, "a state has jurisdiction to prescribe law with respect 
to * * * the activities, interests, status, or.relations of its nationals outside as 
well as within its territory”).

21 See Note, Equal Employment Opportunity for Americans Abroad, 62 
N.Y.U. L. Rev. 1288, 1297-1299 (1987) (and authorities cited therein).



27

could justify overriding the legislative judgment reflected in the 
alien exemption.22

Even when foreign law compels discrimination that Title VII 
would otherwise prohibit, defenses available under Title VII 
serve to mitigate the resulting conflicts. If foreign law requires 
positions to be filled with persons of a particular sex, nationality, 
or religion, then that particular characteristic can be considered 
a bona fide occupational qualification within the meaning of 42 
U.S.C. 2000e-2(e).23 In certain cases, compliance with foreign 
law may also furnish a non-discriminatory justification for 
employment decisions that would otherwise be unlawful.24 The

22 By contrast, in McCulloch, 372 U.S. at 21, application of the NLRA to 
the foreign crews of foreign flag vessels would have given rise to a “head-on 
collision” with Honduran law. Under that law, a Honduran union was the ex­
clusive bargaining agent of the ships’ crews, and unions of other nationalities 
were prohibited from acting in that capacity. Recognition of an American 
union as the bargaining representative would have squarely violated Hon­
duran law.

23 That Section provides, in pertinent part:
Notwithstanding any other provision of this subchapter, (1) it shall not 

be an unlawful employment practice for an employer to hire and employ 
employees * * * on the basis of [their] religion, sex or national origin in 
those instances where religion, sex, or national origin is a bona fide oc­
cupational qualification reasonably necessary to the normal operation of 
that particular business or enterprise * * *.

In Kern v. Dynaelectron Corp., 577 F. Supp. 1196 (N.D. Tex. 1983), affd , 746 
F.2d 810 (5th Cir. 1984), the court held that membership in the Islamic faith 
was a bona fide occupational qualification for a position that involved flying 
helicopters to Mecca, since under Saudi Arabian law non-Moslems are barred 
from Mecca under penalty of death.

24 In EEOC Dec. No. 85-10, Empl. Prac. Dec. (CCH) 1 6851 (July 16, 1985), 
a contract in which an American employer agreed to provide air traffic control 
services to a foreign country authorized the host country to review and approve 
the hiring of the air traffic controllers who were to perform the contract. The 
country withheld a work permit from a female air traffic controller, explaining 
that its customs and laws prohibited the employment of women in most jobs. 
Finding that there was a “current, authoritative, and factual basis” for the 
employer’s belief that the host country would not admit the particular con­
troller, the Commission held that there was “a legitimate, nondiscriminatory 
reason for not hiring [her].” Id. at 7053. See Restatement (Third) of the Foreign 
Relations Law of the United States § 441 & comment b (1986).



28

availability of these defenses reduces the likelihood that em­
ployers will be placed in a position in which it is impossible to 
comply with both Title VII and the law of a foreign state. 
Courts may also take foreign law into account in fashioning 
equitable relief,25

2. As the court of appeals noted, more difficult issues 
would be presented by Title VII’s application to foreign em­
ployers with respect to the employment of Americans abroad. 
Pet. App. 5a-6a. The court erred, however, in embracing the 
all-or-nothing proposition that Title VII must be interpreted to 
apply either to all Americans employed abroad or to none of 
them. In United States v. Aluminum Co. o f  America, 148 F.2d 
416, 443 (2d Cir. 1945), the Second Circuit noted that the excep­
tionally broad language in the Sherman Act could be interpreted 
to embody accepted international limits on prescriptive juris­
diction. The court explained that courts are “not to read general 
words, such as those in [the Sherman Act], without regard to 
the limitations customarily observed by nations upon the exer­
cise of their powers.” Ibid. This Court has employed a similar 
approach in interpreting federal maritime statutes. Lauritzen v. 
Larsen, 345 U.S. 571, 577 (1953).26

25 The Commission’s policy statement on the extraterritorial enforcement of 
Title VII requires field offices to contact the Commission’s Title VII Division 
if an issue arises concerning a potential conflict with a foreign state’s law; the 
Division then coordinates with the Department of State. EEOC Policy State­
ment No. N-915.033, supra, at 605:0057.

26 See Romero v. International Terminal Operating Co., 358 U.S. 354, 382 
(1959); United Stales v. Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818). In 
Lauritzen, this Court held that the Jones A ct-which creates a damages 
remedy in favor of “(ajny seaman who shall suffer personal injury in the 
course of his employment” —does not apply to an injury suffered by a foreign 
seaman injured aboard a foreign flag vessel in a foreign port. The Court ex­
plained that “[b]y usage as old as the Nation, [American shipping] statutes 
have been construed to apply only to areas and transactions in which 
American law would be considered operative under prevalent doctrines of in­
ternational law.” 345 U.S. at 576-577. That approach, the Court continued, 
was in “accord with the long-heeded admonition of Mr. Chief Justice Marshall 
that ‘an act of congress ought never to be construed to violate the law of nations 
if any other possible construction remains.’ ” Id. at 578 (quoting Murray v.



29

International law recognizes a state’s jurisdiction to prescribe 
rules governing its nationals’ relations with one another, and the 
depth of the United States’ interest in eliminating discrimination 
from those relationships cannot be gainsaid. Thus, application 
of American law to discrimination by an American corporation 
against an American citizen is entirely consistent with interna­
tional law. Limiting principles applied in Alcoa and Lauritzen 
are available to avoid extreme applications of Title VII that 
would be violative of international law. Thus, Title VII does not 
present the stark choice that the court of appeals perceived, and 
concern about the consequences of applying Title VII to foreign 
employers cannot justify withholding its protections from 
Boureslan in this case.27

C. Title VII’s Treatment of Conflicts with State Law Provides No 
Basis for Questioning the Extraterritorial Application of the 
Statute

Citing Title VII’s references to state fair employment laws, 
the court of appeals suggested that Congress could not have in­

The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)). See also 
Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (noting this principle’s force as ap­
plied “to the construction of statutes couched in general language which are 
sought to be applied in an extraterritorial way”); McCulloch v. Sociedad Na- 

cional cle Marineros de Honduras, 372 U.S. at 21-22; Steinhardt, The Role o f  
International Law Ax a Canon o f  Domestic Statutory Construction, 43 Vand. 
L. Rev. 1103, 1142-1143 (1990).

27 In its policy statement on the application of Title VII to discrimination 
outside the United States, the EEOC has recognized that “[w]here the 
discrimination takes place overseas, the status of the employer as an American 
or foreign company is significant.” EEOC Policy Statement No. N-915.033, 
supra, at 605:0061.

The legislative history of the alien exemption suggests that Congress’s focus 
was on prohibiting discrimination by “American enterprise^].” H.R. Rep. No. 
570, supra, at 4. See S. Rep. No. 867, supra, at 11 (referring to “U.S. 
employers” in “foreign lands”). This case, of course, presents only the question 
of Title VII’s application to alleged discrimination by an American corpora­
tion against an American citizen.



30

tended to apply Title VII to discrimination outside the United 
States without including equivalent provisions addressing 
foreign laws. Pet. App. 5a. This reasoning rests on a misappre­
hension of Title VII. Title VII provides for limited deference to 
state fair employment procedures that are consistent with Title 
VII, but does not subordinate its substantive provisions to any 
conflicting requirements of state law. In this light, the fact that 
the statute also provides no express exception for potentially 
conflicting foreign laws creates no anomaly that undercuts Title 
VII’s application abroad.

When a State has a law prohibiting the unlawful employment 
practice alleged in a particular case, the charging party is obli­
gated to file a charge with the State prior to filing a charge with 
the Commission; the EEOC is obligated to afford the State an 
opportunity to remedy the practice before seeking its own relief; 
and, in making its determination as to whether there is reasonable 
cause to believe that a charge is true, the Commission must “ac­
cord substantial weight to final findings and orders made by State 
or local authorities” in proceedings triggered by those re­
quirements. 42 U.S.C. 2000e-5(b) to 2000e-5(d).28 The fact that 
Congress chose not to extend these procedures to foreign govern­
ments administering unfamiliar employment laws does not even 
remotely suggest that it intended to withdraw all protection from 
Americans employed abroad.

Title VII does not accommodate conflicting state fair employ­
ment laws. To the contrary, Title VII supersedes any state law 
that “purports to require or permit the doing of any act which 
would be an unlawful employment practice under Title VII.” 42 
U.S.C. 2000e-7. Thus, Title VII is, if anything, less tolerant of 
conflicts with state law than it is of conflicts with foreign 
substantive law. Even assuming for the moment that Congress 
can be expected to view' foreign law as equivalent to state law, 
Title VII does not distinguish between them in a manner casting 
doubt on its application to Americans abroad.

28 Section 709(b), 42 U.S.C. 2000e-8(b), also authorizes the Commission to 
engage in various forms of cooperation with state and local fair employment 
agencies.



31

D. The 1984 Amendments to the ADEA Do Not Justify A 
Distinction Between Age Discrimination and Discrimination 
Based Upon Race, Sex, National Origin, or Religion

The court of appeals’ emphasis on the distinction between Ti­
tle VII and the 1984 amendments to the Age Discrimination in 
Employment Act was also misplaced. The ADEA amendments 
were enacted after several courts of appeals had held that that 
statute did not apply abroad.29 The legislation’s express purpose 
was to confer on American citizens employed abroad the same 
protection against age discrimination that, Congress was ad­
vised, Americans already enjoyed from other forms of invidious 
employment discrimination. Senator Grassley, sponsor of the 
ADEA amendments, explained that the amendments would 
“clearf ] up an anomaly” between the ADEA and Title VII as 
applied to discrimination abroad. 129 Cong. Rec. 34,499 
(1983).30 The ADEA amendments thus provide no support for 
the view that the 1964 Congress that enacted Title VII was less 
concerned with eradicating discrimination against Americans 
abroad based on race, sex, national origin, and religion than the 
1984 Congress was with age discrimination.31

29 Zahourek v. Arthur Young & Co., 750 F.2d 827 (10th Cir. 1984); Cleary 
v. United States Lines, Inc., 728 F.2d 607 (3d Cir. 1984). After the ADEA was 
amended, other courts reached the same conclusion regarding the original ver­
sion of the statute. Lopez v. Pan Am World Services, Inc., 813 F.2d 1118 
(11th Cir. 1987); DeYoreo v. Bell Helicopter Textron, Inc., 785 F.2d 1282 (5th 
Cir. 1986); Ralisv. RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir. 1985); Pfeiffer v. 
William Wrigley Jr. Co., 755 F.2d 554 (7th Cir. 1985); Thomas v. Brown & 
Root, Inc., 745 F.2d 279 (4th Cir, 1984). These decisions often noted that the 
alien exemption distinguished Title Vli from the ADEA. E.g., Cleary v. 
United States Lines, Inc., 728 F.2d at 609.

30 During hearings on the proposed legislation, the EEOC’s Chairman 
testitied that Title VII had been construed to apply to discrimination outside 
the United States. See Age Discrimination and Overseas Americans, 1983: 
Hearing Before the Subcomm. on Aging o f the Senate Comm, on Labor and 
Human Resources, 98th Cong., 1st Sess. 2-4 (1983) (testimony of Clarence 
Thomas).

31 The provisions of Title VII at issue in this case and the ADEA are not the 
only prohibitions on employment discrimination outside the United States. 
See Act of Sept. 28, 1971, Pub. L. No. 92-129, Tit. I, § 106, 85 Stat. 355 (pro-



32

Title VII, no less than the ADEA, manifests a clear intention 
to provide American citizens with protection from invidious 
employment discrimination abroad. The language ol Title VII 
demonstrates that Congress foresaw the statute’s application to 
discrimination outside the United States and tailored its 
coverage by exempting aliens with respect to employment out­
side the United States. Nothing in the statute is inconsistent with 
its application to employment discrimination by American cor­
porations against Americans abroad. The courts below erred in 
failing to enforce Title VII according to its terms.

CONCLUSION

The judgment of the court of appeals should be reversed. 
Respectfully submitted.

• Ken neth  W. Starr
Solicitor Genera/

J ohn  R. Dunne 
Assistant Attorney General

J ohn  G. Roberts , J r .
Deputy Solicitor General

Donald  R. L ivingston  Steph en  L. N ightingale
Acting General Counsel Assistant to the Solicitor General

G w endolyn  Young  Reams 
Associate General Counsel

Vincent  J. Blackw ood  
Assistant General Counsel

Sam uel A. M arcosson  
A ttorney
Equal Employment Opportunity Commission 

November 1990

hibiting discrimination against American citizens and their dependents on 
American military bases abroad); 50 U.S.C. App. 2407 (authorizing regula­
tions prohibiting discrimination on basis of race, religion, sex or national 
origin to comply with foreign boycotts).

■ U.S. GOVERNMENT PRINTING OFFICE: 1990-282-061/20193