Equal Opportunity Commission v. Arabian American Oil Company Brief Amicus Curiae in Support of the Respondents

    Nos. 89-1838 and 89-1845

In T he

Bnpnmv (Emtrt of tty? United #tatw
October T e r m , 1990

E q u a l  E m p l o y m e n t  Oppo r tu n it y  Co m m is s io n ,
Petitioner,v.

A r a b ia n  A m erican  O il  Co., et at.,
Respondents.

A li B o u reslan ,
Petitioner,v.

A ra b ia n  A m erican  O il  Co ., et ah,
Respondents.

On Writs of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENTS

Robert E. W illiams 
Douglas S. McDowell * 
Edward E. Potter, P.C. 

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for
the Amicus Curiae,
Equal Employment Advisory 
Council

* Counsel of Record

W il s o n  -  Epes  Pr in tin 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



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ............ ........... ..................  iii

INTEREST OF THE AMICUS CURIAE_____ __ _ 1

ISSUE PRESENTED________ _____ _____ ______ ____  3

STATEMENT OF THE CASE______________ __ ____ 3

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

ARGUMENT .......... .............................. ............. ........... . 9
I. TITLE YII CANNOT PROPERLY BE INTER­

PRETED TO COVER EMPLOYERS OF 
AMERICAN CITIZENS WORKING OUTSIDE 
THE UNITED STATES, BECAUSE THE 
LANGUAGE OF TITLE VII AND ITS LEGIS­
LATIVE HISTORY EVIDENCE NO AFFIRM­
ATIVE CONGRESSIONAL INTENT TO AP­
PLY TITLE VII EXTRATERRITORIALLY. .. 9
A. Employment Statutes Are Presumed To Ap­

ply Within the Boundaries of the United 
States Unless Congress Clearly Expresses 
Its Intent That Such a Statute Is To Have 
Extraterritorial Application ____ ______ ____  9

B. When Congress Has Intended That an Em­
ployment Statute Should Apply Outside the 
United States, It Has Shown That Intent
Clearly and Unambiguously_______________ 12

II. EXTRATERRITORIAL APPLICATION OF 
TITLE VII WTOULD CONFLICT WITH 
PROPER CONSTRUCTION OF INTERNA­
TIONAL LAW PRINCIPLES.................. .......  14
A. The Dissent and the Amici Incorrectly Rely 

On Restatement (Third) Section 403 With­
out First Having Established a Basis of
Jurisdiction Under Restatement (Third)
Section 402 .......... ....... ...... ............. ...... ....... . 14

B. Extraterritorial Application of Title VII
Would Be Impractical and Unreasonable.......  18



11

III. CONGRESS’ FAILURE TO ESTABLISH 
OVERSEAS PROCEDURES FOR ENFORCE­
MENT, DEFERRAL OF CASES, INDIVID­
UAL RELIEF AND CONFLICTS OF LAWS 
IS FURTHER COMPELLING EVIDENCE 
THAT IT DID NOT ENVISION EXTRATER­

TABLE OF CONTENTS— Continued
Page

RITORIAL APPLICATION OF TITLE VII.....  20
A. Overseas Application of Title VII’s Remedial 

Provisions Would Impact Directly on the 
Nationals of the Host Country „...... ......... -....  20

B. Overseas Application of Title VII’s Proce­
dural Mechanism Would Be Impractical and 
Should Not Be Imposed in Other Countries 
Given the Lack of a Congressional Mandate 
To Do So................................ - .......... - ..... -....  22

IV. AMICI NAACP, LEGAL DEFENSE FUND,
ET AL., MISCONSTRUE CONGRESSIONAL 
INTENT AND IMPROPERLY URGE THIS 
COURT TO MAKE FOREIGN POLICY DECI­
SIONS CONCERNING EMPLOYMENT PRAC­
TICES OVERSEAS_________ ___ ______ _____  25

CONCLUSION............................ ......... -.............. -----......  29



Ill
TABLE OF AUTHORITIES

Cases: Page
Abrams v. Baylor College of Medicine, 805 F.2d

528 (5th Cir. 1986) .......... ................- ......- - - - - -  28
Air Line Dispatchers Ass’n v. National Mediation 

Board, 189 F.2d 685 (D.C. Cir. 1951), cert, de­
nied, 342 U.S. 849 (1951)....... - . . . . --------- ---- ----- 10

Argentine Republic v. Amerada Hess Shipping
Corp., 109 S.Ct. 683 (1989)------------5,9,10,11,14,23

Benz v. Compania Naviera Hidalgo, S.A., 353 U.S.
138 (1957) _______________ ------- ---------------------  9> 10

Bryant v. International School Servs., Inc., 502 
F. Supp. 472 (D.N.J. 1980), rev’d on other
grounds, 675 F.2d 562 (2d Cir. 1982) ............... . 14

Cleary v. United States Lines, Inc., 728 F.2d 607
(3d Cir. 1984) ............ -............ ........ - .......-..... -3,12, 23

Connecticut v. Teal, 457 U.S. 440 (1982)    —  2
EEOC Dec. No. 77-1, Empl. Prac. Dec. (CCH)

"|T 6557 (October 31, 1976) .......... - .............. ........  29
EEOC Dec. No. 84-2, Empl. Prac. Dec. (CCH)

6840 (December 2, 1983)    ---------------— 29
Franks v. Bowman Transportation Co., 424 U.S.

747 (1976) .... ........ .................. -....... -...............  - 21
Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) ..5, 9,10,

14, 19, 22
Hodgson v. Union de Permisionarios Circulo Rojo,

331 F. Supp. 1119 (S.D. Tex. 1971)............ -..... - 8
Int’l Bhd. of Teamsters v. United States, 431 U.S.

324 (1977) _______________ __________________  2
Kern v. Dynalectron Corp., 577 F. Supp. 1196 

(N.D. Tex. 1983), aff’d, 746 F.2d 810 (5th Cir.
1984)___ _____ ___ -......... -----............. - .............. -  28

Laker Airways v. Sabena, Belgian World Airlines,
731 F.2d 909 (D.C. Cir. 1984) ........... -...... .........  16

Love v. Pullman Co., 13 Fair Emp. Prac. Cases 
(SNA) 424 (D. Colo. 1976), aff’d, 569 F.2d
1074 (10th Cir. 1978)------------------------------- -..... 14

Martin v. Wilks, 109 S.Ct. 2180 (1989) — ............  8, 21
McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1963)..—...... -  -  —- 9
Pfeiffer v. Wm. Wrigley Jr. Co., 755 F .2d 554 (7th

Cir. 1985) ..... -___________ __ -............. - .....3, 12,16, 28



IV

Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir.
1985).... ........ ...... .............................. .....................  12

S.F. DeYoreo v. Bell Helicopter Textron, Inc., 785
F.2d 1282 (5th Cir. 1986) ____________________  12, 13

Steele v. Bulova Watch Co., 344 U.S. 280 (1952).... 22
Texas Dept, of Community Affairs v. Burdine, 450

U.S. 248 (1981) .....................................................  2
Thomas v. Brown and Root, Inc., 745 F.2d 279

(4th Cir. 1984) ................................. ....................  12
United States v. Davis, 767 F.2d 1025 (2d Cir.

1985)__________________       16
United States v. Mitchell, 553 F.2d 996 (5th Cir.

1977)...........         9
United States v. Wright-Barker, 784 F.2d 161 (3d

Cir. 1986)__________ _____ ___________ ________ 16
Wards Cove Packing, Inc. v. Atonio, 109 S.Ct. 2115

(1989).............      2
Watson v. Fort Worth Bank and Trust Co., 108

S.Ct. 2777 (1988) ............................. ......... „ ........  2
Zahourek v. Arthur Young & Co., 750 F.2d 827

(10th Cir. 1985)............ ...... .... ......... .................  8,12

Statutes:
Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. § 621 et seq........... ........ 2
Section 4 (f) (1), 29 U.S.C. § 623 (f) (1 )______  8,25
Section 4 (g) (1), 29 U.S.C. § 623 (g) (1) ........  13
Section 11(f), 29 U.S.C. § 630 (f)____________  12

Foreign Sovereign Immunities Act, 28 U.S.C.
§ 1330 et seq......................... ............ ............... .....  10, 23

Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq............... .....  2

Section 702, 42 U.S.C. § 2000e-l...... .......... ....... 6,11
Section 706, 42 U.S.C. § 2000e-5 ( c ) ........    24
Section 706, 42 U.S.C. § 200Qe-5 (d) ..................  24
Section 706, 42 U.S.C. § 2000e-5 (e )..............   24
Section 706, 42 U.S.C. § 2000e-5 ( f ) ( 3 )___  23
Section 708, 42 U.S.C. § 2000e-7......   24

TABLE OF AUTHORITIES— Continued
Page



V

Section 710, 42 U.S.C. § 200Qe-9.......... ......... . 23
Section 1104, 42 U.S.C. § 2Q00h-4--------- --------- 24

14 U.S.C. §89 (a) ...................... - ..... ......... -...... -......  11
18 U.S.C. § 1........... ........... ..... -----...... - .......... -...... -  11
19 U.S.C. § 1701........... - - - ..... - - .... -----...... - .... - -  11
28 U.S.C. § 1404 - . - ......... ...................-------------------  7,23

Legislative History:
S. Rep. No. 98-467, 98th Cong., 2d Sess. 2 (1984).. 13
S. Res. 323, 84th Cong., 2d Sess. (1956), quoted in

102 Cong. Rec. 14330 (July 25, 1956)..... ....... . 25, 26
129 Cong. Rec. 34,499 (1983)----------------- ----------  13

Miscellaneous:
Country Reports on Human Rights Practices for 

1989, Report by the U.S. Department of State 
to the House Comm, on Foreign Affairs and the 
Senate Comm, on Foreign Relations, 101st Cong.,
2nd Sess. at 1557-60 (February, 1990) ...-.....~~ 25

Equality in Employment and Occupation, General 
Survey by the Committee of Experts on the 
Application of Conventions and Recommenda­
tions, International Labor Organization (1988).. 18

EEOC Policy Statement on Remedies and Relief 
for Individual Victims of Discrimination, 8 Fair
Emp. Prac. Man. (BNA) at 405:3001............... 20,21

International Labor Convention No. I l l ,  Concern­
ing Discrimination in Respect of Employment
and Occupation .......... -------------------- -.... —-------- 24

Kirschner, The Extraterritorial Application of 
Title VII of the Civil Rights Act, 34 Lab. Law
J. 394 (July 1983)-----------------------------------------  12

Labor and Workmen Law    ..... ................ —- 1®
Articles 48-50 (Employment of Foreigners).... 19
Article 80 (Labor Contract)................... -..........  19
Article 91 (Obligations of Employer)......... . 19
Articles 160-62, 164-70 (Employment of

Women).......... ..—..... ...... .......................... —  19

TABLE OF AUTHORITIES'— Continued
Page



VI

Page
Note, Yankees Out of North America: Foreign 

Employer Job Discrimination Against American
Citizens, 83 Mich. L. Rev. 237 (1984) ................ . 28

Restatement (Third) Foreign Relations Law
of the United States (1987) ............. ...................  5, 6

Section 401........................................................  6, 16
Section 402 ............ ....... ..... ......... ..... ........ 6, 15, 16, 17
Section 403............... ........ ........ ............. 5, 6, 15, 16, 17

TABLE OF AUTHORITIES— Continued



In T he

Suprem? Gkwrt ni tiff Mnxttb Slate
October Term, 1990 

No. 89-1838

Equal E mployment Opportunity Commission,
Petitioner, v. ’

A rabian A merican Oil Co., et al.,
Respondents.

No. 89-1845 

A li Boureslan,
Petitioner,v.

A rabian A merican Oil Co., et al,
Respondents.

On Writs of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF AMICUS CIJRIAE OF THE. 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENTS

The Equal Employment Advisory Council (EEAC) re­
spectfully submits this brief amicus curiae which sup­
ports the respondents’ position and seeks the affirmance 
of the en banc majority opinion of the court below.

INTEREST OF THE AMICUS CURIAE
EEAC is a nationwide association of employers or­

ganized in 1976 to promote sound approaches to the elim­
ination of employment discrimination. Its membership 
comprises a broad segment of the employer community



2

in the United States, including over 220 major corpora­
tions and several trade associations which themselves 
have hundreds of corporate members. Its Board of Di­
rectors is composed of experts in labor and equal employ­
ment opportunity. Their combined experience gives 
EEAC a unique depth of understanding of the practical, 
as well as legal aspects of EEO policies and require­
ments.

As employers, EEAC’s members are subject to the pro­
visions of Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 20G0e et seq., and the other various 
federal orders and regulations pertaining to nondiscrim- 
inatory employment practices. Also, many of EEAC’s 
members are multinational corporations with overseas 
facilities employing both United States citizens and na­
tionals of other countries. As such, EEAC members have 
a direct interest in the Issue presented for the Court’s 
consideration in this case; that is, whether the provisions 
of Title VII of the Civil Rights Act of 1964 apply to 
American citizens working overseas for American com­
panies. Indeed, EEAC filed briefs amicus curiae before 
the initial court of appeals panel and the en banc court 
in the instant case on the precise issue now before this 
Court.

As a significant part of its activities, EEAC has par­
ticipated as amicus curiae in a number of cases involving 
the interpretation and enforcement of Title VII.1 In ad­
dition, EEAC has filed several amicus curiae briefs in 
cases involving the extraterritorial application of the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. 
§ 621 et seq. These briefs were filed before Congress 
amended the ADEA in 1984 to extend its coverage ex­

1 E.g., Wards Cove Packing, Inc. V. Atonio, 109 S.Ct. 2115 (1989) ; 
Watson v. Forth Worth Bank and Trust Co., 108 S.Ct. 2777 (1988) ; 
Connecticut v. Teal, 457 U.S. 440 (1982) ; Texas Dept, of Com­
munity Affairs v. Burdine, 450 U.S. 248 (1981) ; Int’l Bhd. of Team­
sters v. United States, 431 U.S. 324 (1977).



3

pressly to United States citizens abroad.2 Accordingly, 
because of the potentially enormous impact upon the em­
ployment practices and policies of corporations who em­
ploy individuals abroad and must comply with the con­
flicting laws of their host countries, this brief is sub­
mitted on behalf of EEAC’s nationwide constituency.

ISSUE PRESENTED
Did Congress intend in 1964 to extend the employment 

discrimination provisions of the Civil Rights Act of 1964 
overseas to regulate the practices of U.S. employers of 
U.S. citizens in workplaces outside the United States?

STATEMENT OF THE CASE
The facts are fully set forth in the Respondents’ brief 

and adopted by reference herein. The facts most perti­
nent to EEAC’s brief are set forth below.

The plaintiff, a Moslem United States citizen, was 
born in Lebanon and worked for the ARAMCO Service 
Company (ASC) in Texas until 1980, when he requested 
a transfer to Saudi Arabia to work for the Arabian 
American Oil Company (ARAMCO). The plaintiff sub­
sequently instituted this action alleging that his British 
supervisor in Saudi Arabia began harassing him about 
his national origin, race and religion in September 1982. 
He subsequently was laid off in June 1984, and initiated 
these proceedings.

The district court granted ARAMCO’s motion to dis­
miss for lack of subject matter jurisdiction, and held that 
Title VII could not be applied extraterritorially. Boures- 
lan v. ARAMCO, Pet. App. 77a-82a.3 Specifically, the

2 See Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d 554 (7th Cir. 
1985) ; Zahourek v. Arthur Young & Co., 750 F.2d 827 (10th Cir. 
1985) ; and Cleary v. United States Lines, Inc., 728 F.2d 607 (3d 
Cir. 1984).

3 Pet. App. references are to the appendix to the United States’ 
petition for a writ of certiorari.



4

court found that “ Congress enacted Title VII to remedy 
domestic discrimination” and “ [tjhere is no indication 
that Congress was concerned about discrimination 
abroad.” Id. at 79a. The court concluded that the im­
position of Title VII abroad would invade the sovereignty 
of other nations, noting in this case that Saudi Arabian 
employment law conflicted with Title VII.

A Fifth Circuit panel affirmed the district court’s de­
cision by a 2-1 vote, and the full court later reaffirmed 
that decision. The court noted in its en banc decision 
that it could find no indication in the law or in Title 
VII’s legislative history that Congress intended to extend 
civil rights protection to American citizens employed 
abroad. The court rejected Boureslan’s and the Equal 
Employment Opportunity Commission’s (EEOC) argu­
ments that Title VII’s protections should be extended to 
Americans working abroad. Instead, the Fifth Circuit 
found strong countervailing policy arguments against the 
extraterritorial application of Title VII. The court below 
further noted that religious and social customs practiced 
in many countries are at odds with those of this country. 
Yet Title VII says nothing about potential conflicts with 
foreign discrimination laws. Indeed, the panel majority 
noted that “ [r] equiring American employers to comply 
with Title VII in such a country could well leave Amer­
ican corporations the difficult choice of either refusing to 
employ United States citizens in the country or discon­
tinuing business.” Pet. App. at 41a.

The en banc decision further pointed out that Title VII 
is silent in a number of areas where Congress ordi­
narily provides guidance if it wishes to apply a statute 
extraterritorially. For example, the Act has no provi­
sions for venue problems that arise with foreign viola­
tions. Also, the statute seems to limit EEOC’s investiga­
tory powers to the United States and its territories. Pet. 
App. at 5a.



5

In lengthy dissents, Judge King argued that Congress 
intended that Title VII apply to the overseas operations 
of American corporations. The dissent reasoned that the 
Act’s exemption for aliens employed outside the United 
States implies that United States citizens working out­
side the United States are covered by Title VII. In addi­
tion, Judge King argued that Title VII could be enforced 
with existing venue, investigatory and other provisions.

Judge King’s panel dissent, which was adopted in the en 
banc dissent (Pet. App. at 8a n. 1), set forth additional 
reasons for applying Title VII overseas. This analysis 
rested in large part upon Section 403, Restatement 
(Third) of the Foreign Relations Law of the United 
States, which Judge King interpreted to mean that “ a 
statute will not be applied extraterritorially where it 
would be unreasonable to do so, unless Congress has af­
firmatively required that it be so applied.” Pet. App. at 
51a. In Judge King’s view, extraterritorial application 
of Title VII would not be unreasonable, and therefore the 
statute should be applied abroad without any “ affirma­
tive” statement of congressional intent. Pet. App. at 74a.

SUMMARY OF ARGUMENT
When Congress enacts an employment statute, the 

courts presume that Congress is concerned with domestic 
employment conditions and not those outside the United 
States. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 
(1949). Accordingly, the courts have adopted a canon of 
construction that a statute enacted by Congress is pre­
sumed to apply within the territorial United States. Id.; 
Argentine Republic v. Amerada Hess Shipping Corp., 109 
S.Ct. 683 (1989). This presumption can be overcome 
only by a clear expression by Congress that it intends 
that the statute be applied extraterritorially. Foley 
Bros., 336 U.S. at 286.

Neither the Supreme Court nor any federal appeals 
court has ever applied an employment statute extraterri­



6

torially unless Congress has affirmatively expressed its 
intent by statutory language stating that the statute is 
applicable “ outside the continental United States,”  “ in a 
foreign country” or by equivalent language. Here, there 
is no direct statutory language or legislative history 
clearly expressing that Title VII applies overseas.

The presumption against extraterritoriality cannot be 
overcome by reliance upon Section 403 of Restatement 
(Third), Foreign Relations Law of the United States 
( “ Restatement” ). Indeed, the Restatement reinforces, 
rather than rebuts, the presumption. Section 401 estab­
lishes the principle that a state has a legitimate right to 
exercise its jurisdiction in certain ways, but may not reg­
ulate individuals or conduct overseas without limitation. 
Section 402, in turn, provides the foundation for an af­
firmative exercise of such jurisdiction by the state, and 
provides in pertinent part that: “ [s]ubject to § 403, a 
state has jurisdiction to prescribe with respect to . . . 
(2) the activities, interests, status, or relations of its 
nationals outside as well as within its territory . . . .”  
Section 403 then follows and provides the limitations on 
states’ jurisdiction to prescribe laws and sets forth the 
“ reasonableness” limitation of international law when a 
state affirmatively attempts to apply a domestic law out­
side its own territory.

To the extent the dissent’s and the EEOC’s analyses 
focus on the principles set forth in Section 403 (1), they 
bypass the initial inquiry set forth in Section 402— that 
is, whether Congress did, in fact, prescribe in Title VII 
to regulate the activities or conduct of individuals out­
side of its territory. For if there is no such law, logic­
ally, there can be no such determination of its reasonable­
ness. In this ease, Congress has never Indicated that 
Title VII would apply to United States citizens working 
abroad. Moreover, Section 702 of Title VII cannot be 
used to draw the negative inference that Title VII must 
cover United States citizens extraterritorially because it 
exempts only “ aliens outside any state.”



7

Amici NAACP, Legal Defense and Educational Fund, 
Inc., et al. offer policy arguments based on an unsup­
ported assumption that American employers affirmatively 
will engage in discrimination abroad. From, a practical 
standpoint, however, employers often must specially train 
workers for overseas assignments and provide them with 
special compensation, terms and other conditions of em­
ployment. The costs of such efforts are higher than those 
associated with domestic employment. Thus, the economic 
costs of discrimination abroad are prohibitive, and serve 
as effective deterrents to discourage rather than encour­
age employers to engage in such practices. Nor is extra­
territorial application of Title VII necessary to prevent 
domestic corporations from making decisions to exclude 
minorities, women and other protected individuals from 
overseas assignments. In such cases, there generally will 
be sufficient nexus to the United States to allow the as­
sertion of Title VII jurisdiction, thus allowing an exam­
ination. of whether the practice violates the Title VII 
rights of U.S. citizens.

Other arguments of the petitioners and their support­
ing amici are fraught with pitfalls. As a practical mat­
ter, a comprehensive employment discrimination law such 
as Title VII cannot be applied overseas without any ap­
propriate procedural mechanisms. Yet, when Congress 
enacted Title VII in 1964, it limited venue and the 
EEOC’s investigatory powers to testimony or evidence 
obtained within the states of the United States. When 
it amended the law in 1972, it failed to broaden these 
powers to matters overseas. And although venue might 
be possible where a corporation has its U.S. headquarters, 
documents and witnesses may be thousands of miles away 
with no possibility of a change of venue for the conveni­
ence of the parties or in the interests of justice. 28 
U.S.C. § 1404. In addition, Title VII makes no provision 
for exempting coverage where it would conflict with the 
laws of another sovereign power.



8

In addition, when an American employer’s overseas 
work force has citizens of various countries, application 
of standard Title VII remedies could directly harm non- 
Americans. For example, the EEOC’s remedial guide­
lines call for reinstatement, “bumping” of incumbents, 
discipline or discharge of offending supervisors, and pref­
erential treatment remedies for identified victims of dis­
crimination. Employers could protect against attacks 
upon case settlements by joining non-U.S. citizens to a 
suit in federal court in order to protect their interests. 
See Martin v. Wilks, 109 S.Ct. 2180 (1989). But this 
not only would draw noncitizens directly into the Amer­
ican legal system; it would require them to travel to the 
United States in order to protect their job status. If 
Congress intended such a result, it hardly comes clear 
from a reading of Title VII.

In contrast to Title VII’s silence, when Congress 
amended the ADEA in 1984 to extend jurisdiction of its 
provisions extraterritorially, it expressly exempted em­
ployer practices involving U.S. citizens that would cause 
the company to violate the laws of the host country. 29 
U.S.C. § 623 (f) (1). Thus, when Congress has intended 
that a United States employment statute be applied to 
American companies overseas, it has exercised great care 
to ensure that such application will not conflict with 
foreign statutes,

Were this Court to accept the economic and interna­
tional policy arguments set forth by the petitioners and 
their amici, it effectively would be making foreign policy 
and legislative decisions in a matter where Congress has 
chosen not to act. “ It is [outside] the province of this 
Court to delve into matters international on such a ten­
uous basis.” Hodgson v. Union de Permisionarios Circulo 
Rojo, 331 F. Supp. 1119, 1122 (S.D. Tex. 1971).



9

ARGUMENT

I. TITLE' YII CANNOT PROPERLY BE INTER­
PRETED TO COYER EMPLOYERS OE AMERICAN 
CITIZENS WORKING OUTSIDE THE UNITED 
STATES, BECAUSE, THE LANGUAGE OF TITLE 
VII AND ITS LEGISLATIVE HISTORY EVIDENCE 
NO AFFIRMATIVE CONGRESSIONAL INTENT1 TO 
APPLY TITLE YII EXTRATERRITORIALLY.

A. Employment Statutes Are Presumed To Apply 
Within the Boundaries of the United States Unless 
Congress Clearly Expresses Its Intent That Such 
a Statute Is To Have Extraterritorial Application.

The question before the Court is whether Title VII of 
the Civil Rights Act of 1964, which generally prohibits 
employment discrimination on the basis of race, color, 
religion, sex or national origin, covers United States 
citizens employed by U.S. companies in foreign coun­
tries. It is a well-established canon of construction that 
a statute enacted by Congress is presumed to apply only 
within the territorial jurisdiction of the United States 
unless a contrary intent is expressed. Argentine Repub­
lic v. Amerada Hess Shipping Corp., 109 S.Ct. 683 (1989) ; 
Foley Bros., Inc. v. Filar do, 336 U.S. 281, 285 (1949) ; 
United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir. 
1977). In the “ delicate field of international relations 
there must be present the affirmative intention of the 
Congress clearly expressed. It alone has the facilities 
necessary to make fairly such an important policy deci­
sion. . . Benz v. Compania Naviera Hidalgo, S.A., 353 
U.S. 138,147 (1957) (emphasis added).

The courts, including the appellate and district courts 
below, have uniformly construed United States employ­
ment laws as being limited to the territorial boundaries 
of the United States absent an affirmative expression of 
congressional intent that the statute have an extraterri­
torial effect. See, e.g., McCulloch v. Sociedad Nacional de



10

Marineros de Honduras, 372 U.S. 10, 19 (1963) (Na­
tional Labor Relations Act held not to apply to maritime 
operations of foreign flagships absent “ specific language 
in the act itself or in its extensive legislative history 
that reflects such a congressional intent” )-4 In sum, 
absent a clear expression of congressional intent to apply 
an employment statute outside the United States, the 
courts assume “ that Congress is primarily concerned 
with domestic conditions.” Foley, 336 U.S. at 285.

This Court in Argentine Republic v. Amerada Hess 
Shipping Corp., 109 S.Ct. 683 (1989), recently applied 
these principles and restated the necessity of affirmative 
congressional intent to extend a statute extraterritorially. 
Argentine Republic involved the issue of whether the fed­
eral courts have jurisdiction over noncommercial tort 
claims against a foreign country under the Foreign 
Sovereign Immunities Act (FSIA) 28 U.S.C. § 1330 
et seq. Specifically, the Court focused on whether the 
FSIA conferred jurisdiction over tortious acts committed 
on the high seas outside of United States territorial 
waters.5 The Court observed that “when it desires to do

4 See also, Benz, 353 U.S. at 142 (Labor Management Relations 
Act of 1947 held not to extend to disputes resulting from picketing 
of foreign ships in United States ports because parties could “point 
to nothing in the Act itself or its legislative history” indicating con­
gressional intent to cover such disputes, as “ there must be present 
the affirmative intention of Congress clearly expressed.” Id. at 147) ; 
Foley Bros., 336 U.S. at 286 (Eight Hour Law held not to apply to 
contracts between the United States and private contractors for 
construction work in a foreign country “ in the absence of a clearly 
expressed purpose” by Congress) ; Air Line Dispatchers Ass’n. v. 
National Mediation Board, 189 F.2d 685 (D.C. Cir. 1951), cert, 
denied, 342 U.S. 849 (1951) (amendment to Railway Labor Act 
which extended coverage to air carriers “engaged in interstate or 
foreign commerce” held not to apply outside the United States in 
the absence of explicitly congressional intent).

5 Respondents brought these claims against the Argentine govern­
ment for damages its ship sustained when it was attacked in inter­
national waters by Argentine military aircraft during the Falkland 
Islands war. 109 S.Ct. at 686-87.



11

so, Congress knows how to place the high seas within the 
jurisdictional reach of a statute.”  109 S.Ct. 691.6 Since 
Congress made no affirmative statements to apply the 
FSIA extraterritorially, the Court applied Foley and 
held that the FSIA does not extend to tortious conduct 
outside the United States territorial waters. Id.

The Argentine Republic principles are no less applicable 
in this case. In enacting Title VII, Congress was con­
cerned solely with the domestic aspects of employment 
discrimination. Indeed, after examining the statutory 
language and legislative history of Title VII, the court 
below correctly concluded that, “ [the] references to Title 
VII’s legislative history fall far short of the clear expres­
sion of congressional intent required to overcome the pre­
sumption against extraterritorial application.” (Pet. App. 
at 38a) ; and see (Pet. App. at 81a) C“ [i]t is much more 
likely that Congress never considered the issue.” ). And 
as the majority below observed:

The statements, carefully taken from a voluminous 
legislative history, are no more specific than the stat­
utory language itself. To rely on such general policy 
statements would effectively adopt a presumption in 
favor of extraterritorial application. This is par­
ticularly true when the legislative history contains 
numerous statements that arguably favor geographic 
limits for Title VII.

Pet. App. at 38a. And see Pet. App. at 81a. (“ It is 
doubtful that Congress reserved the question of Title 
VII’s application for the courts to decide.” ) .7

6 The Court cited three statutes as examples where Congress spe­
cifically referred to the high seas in order to extend extraterritorial 
jurisdiction. See, e.g., 14 U.S.C. § 89(a) (Coast Guard searches and 
seizures upon the high seas) ; 18 U.S.C. § 7 (Criminal code extends 
to high seas) ; 19 U.S.C. § 1701 (Customs enforcement on the high 
seas). 109 S.Ct. at 691 n.7.

7 Amicus EEAC further urges the Court to adopt the panel hold­
ing that the alien exemption found in Section 702 of Title VII does 
not imply that U.S. citizens working overseas are covered by Title 
VII. This issue has been fully briefed in the respondents’ briefs to



12

B. When Congress Has Intended That an Employment 
Statute Should Apply Outside the United States, 
It Has Shown That Intent Clearly and Unambig­
uously.

Congress has demonstrated on many occasions that it is 
well aware that it must specifically and directly provide 
for the extraterritorial application of an employment 
statute when it intends the statute have such effect. For 
example, several courts had ruled that the Age Discrimi­
nation in Employment Act (ADEA) did not apply ex- 
traterritorially.8 In response, Congress in 1984 amended 
Section 11(f) of the ADEA by adding a new sentence to 
the definition of “ employee” to provide that: “ The term 
‘employee’ includes any individual who is a citizen of the 
United States employed by an employer in a workplace 
in a foreign c o u n t r y 29 U.S.C. § 630(f) (emphasis

this Court. EEAC agrees with those arguments. As further brief­
ing would be repetitious, we adopt those arguments by reference.

We point out, however, that one commentator on the exemption 
provision, noting the absence of legislative history regarding its 
purpose, has stated that “ the exemption language . . . was simply 
adopted from early civil rights legislation that was introduced at a 
time [1949] when aliens were excluded from certain domestic pro­
tective labor legislation and restricted in their employment oppor­
tunities within the United States. . . . ,[A]t the time, the original 
drafters did not want to call attention to the fact that such legisla­
tion would apply to citizens as well as aliens in the United States.” 
Kirschner, 34 Lab. Law J. at 399-400 (July 1983) (footnote omit­
ted) . Under these circumstances, the alien exemption provision 
alone, which does not directly address the application of Title VII 
to U.S. citizens, can hardly be said to be a clear expression of con­
gressional intent to apply Title VII to U.S. citizens extraterritorially.

8 Six circuits held that the ADEA prior to 1984 did not cover 
American citizens employed in foreign countries. E.g., S.F. DeYoreo 
v. Bell Helicopter Textron, Inc., 785 F.2d 1282 (5th Cir. 1986) ; 
Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir. 1985) ; Pfeiffer v. 
Wm. Wrigley, Jr. Co., 755 F.2d 554 (7th Cir. 1985); Zahourek v. 
Arthur Young and Co., 750 F.2d 827 (10th Cir. 1984) ; Thomas v. 
Brown and Root, Inc., 745 F.2d 279 (4th Cir. 1984) ; and Cleary 
v. United States Lines, Inc., 728 F.2d 607 (3d Cir. 1984).



13

added). Furthermore, it added a new Section 4 (g )(1 ) 
that states: “ If an employer controls a corporation whose 
place of incorporation is in a foreign country, any prac­
tice by such, corporation prohibited under this section 
shall be presumed to be such practice by such employer.” 
29 U.S.C. § 623(g)(1 ) (1984) (emphasis added). These 
statutory provisions are also supported by unequivocal 
legislative history that these amendments “make[] provi­
sions of the Act apply to citizens of the United States 
employed in foreign countries by United States corpora­
tions or their subsidiaries.” S. Rep. No. 98-467, 98th 
Cong., 2d Sess. 2 (1984). In contrast, neither Title VII 
nor its legislative history contains any such direct expres­
sion that it applies extraterritorially.

Congress obviously considered the 1984 amendment 
to the ADEA necessary to provide an affirmative expres­
sion of its intent. In S.F. DeYoreco v. Bell Helicopter 
Textron, Inc., 785 F.2d 1282 (5th Cir. 1986), the Court 
concluded that the amendment must have added some­
thing that was not already there. “ If Congress found it 
necessary to extend the coverage of the ADEA to foreign- 
employed United States citizens, the statute’s, reach must 
not originally have gone that far.” Id. at 1283. Thus., 
the 1984 amendment effectively changed the law rather 
than just clarified it.9

® Senator Grassley’s statement when introducing the ADEA 
amendment in 1983 does not establish that Congress intended to 
make Title VII applicable overseas. See 129 Cong. Eec. 34,499 
(1983). The Senator stated that the substantive provisions of the 
ADEA and Title VII are “worded nearly exactly” the same and 
that “at least two district courts have held [that Title VII] does 
apply abroad. Thus, the legislation I am introducing today clears 
up an anomaly I believe Congress never Intended.” Id.

The real anomaly, however, is that, having made this statement, 
Senator Grassley proceeded to not use Title VIFs language on em­
ployee coverage to amend the ADEA. Instead, he used more specific 
language to make sure that the ADEA would apply outside the 
United States. Indeed, since he felt Title VII and the ADEA’s 
substantive language were nearly identical, the fact that he used



14

Accordingly, when Title VII is compared with employ­
ment and other statutes in which Congress has directly 
and unambiguously made clear its intention that the 
statute have extraterritorial effect, it is evident that In 
enacting Title VII, Congress manifested no such intent.

II. EXTRATERRITORIAL APPLICATION OF TITLE 
VII WOULD CONFLICT WITH PROPER CON­
STRUCTION OF INTERNATIONAL LAW PRINCI­
PLES,

A. The Dissent and the Amici Incorrectly Rely On 
Restatement (Third) Section 403 Without First Hav­
ing Established a Basis of Jurisdiction Under Re­
statement (Third) Section 402.

As shown, the well-established principles found in 
Foley, Argentine Republic and other decisions create the 
presumption against extraterritorial application of a fed­
eral statute. Indeed, as Judge King’s initial dissent in 
this case recognized, ordinarily there is “ a presumption 
that Congress intends legislation to apply only within the 
territorial jurisdiction of the United States, unless & con­
trary intent appears.” Pet, App. 43a-44a.

The dissent (Pet. App. 50a-60a), and amici curiae Law­
yers’ Committee for Civil Rights Under Law and Inter­
national Human Rights Law Group argue, however, that 
because, in their view, it would be “ reasonable” under 
principles of international law to apply Title VII outside

different jurisdictional language would indicate he felt he had to go 
beyond Title VII to assure overseas coverage of the ADEA. More­
over, the two district court cases hardly are persuasive as to Title 
VII’s coverage. One merely addresses the issue in dicta (Love v. 
Pullman Co., 13 Fair Empl. Prac. Cases (BNA) 423 (D. Colo. 
1876), aff’d, 569 F.2d 1074 (10th Cir. 1978)), and the other was 
reversed on appeal. See Bryant v. International Schools Servs., Inc., 
502 F. Supp. 472 (D.N.J. 1980), rev’d on other grounds, 675 F.2d 
562 (3d Cir. 1984). Thus, the meager legal weight of these authori­
ties is hardly sufficient to overcome the presumption against statu­
tory extraterritory.



15

the United States, the presumption is thereby overcome. 
Their primary authority is Section 403 of Restatement 
(Third), Foreign Relations Law of the United States 
(“ Restatement” ). As discussed below, however, the Re­
statement reinforces, rather than rebuts, the presumption 
against extraterritoriality.

Under international law, a state- may not regulate in­
dividuals or conduct overseas without limitation. Section 
401 of the Restatement provides in part:

Under international law, a state is subject to lim­
itations o n [:]

(a) jurisdiction to prescribe, i.e., to make its law 
applicable to the activities, relations, or status of per­
sons, or the interests of person in things, whether by 
legislation, by executive act or order, by administra­
tive rule or regulation, or by determination of a 
court; . . . .

Section 402, in turn, provides the foundation for an 
affirmative exercise of such jurisdiction by the state-. It 
is clear from the Introductory Note to Section 402, how­
ever, that the jurisdictional chapter of the Restatement 
was intended to provide limitations on the overseas exer­
cise of the state’s, authority. Thus-:

Attempts by some states—notably the United States 
— to apply their law on the basis of very broad con­
ceptions of territoriality or nationality bred resent­
ment and brought forth conflicting assertions of the 
rules of international law.

Restatement at 236. When the United States attempted 
to exercise its authority overseas in a whole range of 
areas (e.g., economic sanctions, maritime., aeronautics, 
antitrust, securities), it generated resentment, blocking 
legislation, and conflicting assertions of jurisdiction. Id. 
at 236.

Accordingly, the United States courts, and courts in 
other countries, have interpreted the “known or presumed



16

intent of Congress, in light of changing understandings.” 
Id. at 236-37. Because of these concerns about overly 
aggressive application of United States laws in foreign 
lands, the Restatement indeed may erect a stronger pre­
sumption against extraterritoriality than the presump­
tion made by our federal courts. In no way can the Re­
statement be interpreted to provide affirmative support 
for application of Title VII overseas even without an 
“ affirmative statement of congressional intent,”  as ar­
gued in Judge King’s dissent (Pet. App. at 75a, empha­
sis in the original).

Furthermore, while Section 401 of the Restatement 
establishes the principle that a state has a legitimate right 
to exercise its jurisdiction in certain ways, Section 402 
provides that the requisite foundation for the exercise of 
such authority must be found. Section 402 states in 
pertinent part, “ [sjubject to § 403, a state has jurisdic­
tion to prescribe with respect to . . . (2) the activities!, 
interests, status, or relations of its nationals outside as 
well as within its territory. . . .”  Section 403 then fol­
lows and provides the limitations on a state’s jurisdiction 
to prescribe laws. Specifically, Section 403 (1) sets forth 
the “ reasonableness” limitation of international la w :10

Even when one of the bases for jurisdiction under 
§ h02 is present, a state may not exercise jurisdic­
tion to prescribe law with respect to a person or ac­
tivity having connections with another state when

10 Many courts have applied and interpreted the “ reasonableness” 
test. See, e.g., Laker Airways v. Sabena, Belgian World Airlines, 
731 F.2d 909, 923 (D.C. Cir. 1984) (Eelying on Section 403(1), the 
court concluded that jurisdiction may not “exceed the bounds of 
reasonableness imposed by international law.” ) ; United States v. 
Wright-Barker, 784 F.2d 161, 168 (3d Cir. 1986) ; United States 
v. Davis, 767 F.2d 1025 (2d Cir. 1985). Indeed, the 1987-88 pocket 
part to the Eestatement at 157 cites Pfeiffer v. Wm. Wrigley, Jr. 
Co., 755 F.2d 554 (7th Cir. 1985) (ADEA does not apply overseas), 
as a case where assertion of jurisdiction apparently would not be 
reasonable under Section 403.



17

the exercise of such jurisdiction is unreasonable. 
(Emphasis added).

The accompanying comment states that:
The principle that an exercise of jurisdiction on one 

of the bases indicated in § 402 is nonetheless un­
lawful if it is unreasonable is established in United 
States law, and has emerged as a principle of inter­
national law as well. There is wide international 
consensus that the links of territoriality or nation­
ality, § 402, while generally necessary, are not in all 
instances sufficient conditions for the exercise of such 
jurisdiction.

To the extent various briefs focus on the principles set 
forth in Section 403(1), they fail to address the initial 
issue posed in Section 402: whether Congress has in fact 
prescribed a law to regulate the activities or conduct of 
individuals outside of its territory under Title VII. For 
if there is no such law and Congress did not apply a 
law outside the United States, then Section 403 would 
not come into play, regardless of whether overseas ap­
plication of the law wTould be reasonable.

Thus, the requirement of “ reasonableness” in Restate­
ment Section 403 (1) is an additional limitation a statute 
must overcome in order to have extraterritorial effect, but 
only where Congress clearly intended that the law have 
such an effect. Section 403 is not an independent test for 
determining whether Congress, in fact, had such intent.

In the instant case, Congress has not seen fit to extend 
its jurisdiction to “prescribe law with respect to . . . 
[employment discrimination] . . . the activities, interests, 
status, or relations of its nationals outside as well as 
within its territory . . . .” Restatement Section 402. Be­
cause Congress has never expressed intent to do so, this 
Court is without authority to construct such intent judi­
cially in order to satisfy policy considerations.



18

B. Extraterritorial Application of Title VII Would Be 
Impractical and Unreasonable.

The unreasonableness of applying Title VII overseas 
provides an additional reason why the courts should re­
frain from doing so absent a clearer expression of Con­
gressional intent than presently can be found in. Title 
VII. Thus, even if arguendo, the requisite expression of 
clear congressional intent to apply Title VII extraterri­
torial ly could be claimed to have been made in this case, 
so as to make the “ reasonableness” of such jurisdiction 
a relevant inquiry, this factor ultimately would not avail 
the appellants and their amici, because the extraterri­
torial application of Title VII would be unreasonable 
from a practical standpoint.

Congress and the courts have been justifiably reluctant 
to extend the scope of employment statutes involving the 
personnel policies and practices of multinational com­
panies outside the United States for two primary reasons. 
First, extraterritorial application of United States em­
ployment laws would invade the sovereignty of the host 
country to establish employment standards for workers 
within its territories and its own citizens. Second, it 
would subject companies attempting to comply with 
United States laws to potentially conflicting standards. 
These policy considerations further support the conclu­
sion that Title VII should not be applied outside the terri­
torial boundaries of the United States.

According to the International Labor Organization, a 
specialized agency of the United Nations, nearly 140 
countries have enacted some form of employment dis­
crimination statute covering both citizens and aliens,11 
These laws are not uniform and provide a wide variety

11 International Labor Organization, Equality in Employment and 
Occupation, General Survey by the Committee of Experts on the 
Application of Conventions and Recommendations (1988).



19

of legal requirements.12 In the instant case, Saudi 
Arabian law applies to religious preferences, favoritism 
towards nationals and protection of women, and its sub­
stantive and procedural provisions differ from those of 
Title VII.13 14

Enforcement of Title VII in Saudi Arabia based on 
the appellant’s allegations of racial, national origin and 
religious discrimination would clearly invade the sover­
eignty of Saudi Arabia, whose own discrimination stat­
ute applies to employees of foreign corporations operating 
within its borders. Id. This conflict is particularly sig­
nificant here because, although ARAMCO is incorporated 
in the United States, its assets are owned by the Kingdom 
of Saudi Arabia and are almost totally located there, the 
great majority of its employees are nationals of Saudi 
Arabia or other non-United States countries, and its prod­
ucts are almost exclusively sold only in Saudi Arabia. 
The employment conditions sought to be regulated by 
Title VII, therefore, are the “primary concern of a for­
eign country.”  Foley, 336 U.S. at 286V

12 Id.

13 See, e.g., Labor and Workmen Law, Articles 48-50 (Employ­
ment of Foreigners), Article 80 (Labor Contract), Article 91 (Obli­
gations of Employer), Articles 160-62, 164-70 (Employment of 
Women).

14 The dissent below inadvertently provides an additional argu­
ment against applying Title VII overseas. The dissent argues that 
“ [w]e do not know, for example, to what extent a foreign state 
would enforce its own laws to regulate the employment relationship 
between a U.S. corporation and employees who are U.S. citizens, or 
whether it would make its administrative and judicial procedures 
available to a United States employee seeking to bring a grievance 
against a U.S. employer.” Pet. App. at 61a. See also the amicus 
brief of the International Human Rights Law Group at 56. Thus, 
clearly, the dissent would apply Title VII in foreign nations when 
it had no idea of the potential conflict it would create between Title 
VII and the law of other host countries.



20

III. CONGRESS’ FAILURE TO ESTABLISH OVERSEAS 
PROCEDURES FOR ENFORCEMENT, DEFERRAL 
OF CASES, INDIVIDUAL RELIEF AND CON­
FLICTS OF LAWS IS FURTHER COMPELLING 
EVIDENCE THAT IT DID NOT ENVISION EXTRA­
TERRITORIAL APPLICATION OF TITLE: VII.

The arguments that Title VII should be applied over­
seas are being made in a legal vacuum, for they appear 
to contemplate situations where a federal law may be ap­
plied without any appropriate procedural or remedial 
mechanisms. Realistically, it is difficult to conclude that 
Congress intended that a federal law have extraterritorial 
application when it did not concurrently provide any ap­
propriate substantive and procedural mechanisms for 
such unique applications. Yet in enacting Title VII, Con­
gress failed to provide any mechanisms for overseas en­
forcement. The legislature’s failure to make any provi­
sion dealing with the practical consequences of extending 
Title VII overseas is a further compelling reason the 
Courts should refrain from applying Title VII overseas 
without a clearer mandate from Congress.

A. Overseas Application of Title VII’s Remedial Pro­
visions Would Impact Directly on the Nationals of 
the Host Country.

Neither the EEOC nor any of its supporting amici 
recognize the impact that overseas enforcement of Title 
VII would have on the non-U.S. citizens working side- 
by-side with American citizens, as occurs to a large de­
gree in Arameo’s workforce. For example1, in 1985, EEOC 
adopted a policy that “full relief” should be sought in 
each case that the EEOC’s District Director concludes has 
merit. See EEOC Policy Statement on Remedies and 
Relief for Individual Victims of Discrimination, 8 Fair 
Empl. Prac. Man. (BNA) at 405:3001.

Such relief could include immediate and unconditional 
reinstatement to the position the individual would have



21

occupied absent discrimination. The discriminatee must 
be offered some job in the employer’s operation for which 
he or she is qualified. Non-U.S. citizens could lose jobs as 
a result.

The EEOC’s policy also states that “ [i]n  certain cir­
cumstances., the Nondiscriminatory Placement of a victim 
of discrimination may require the job displacement of 
another of the respondent’s employees”— a potentially di­
rect impact on individuals who are not U.S. citizens. Id. 
at 405:3003. The individual discriminatee also may be 
given retroactive seniority, thus affecting the relative 
seniority rights of non-American employees. See Franks 
v. Bowman Transportation Go., 424 U.S. 747 (1976).

Further, should an employer wish to settle a Title VII 
case and protect a settlement or consent decree from later 
collateral attack by non-Americans, it would have to! join 
those non-Americans as parties to the lawsuit so that the 
non-Americans could protect their individual rights from 
encroachment by a Title VII remedy benefiting others. 
See, Martin v. Wilks, 109 S.Ct. 2130 (1989). This proce­
dure would be incredibly clumsy, particularly in light of 
the government’s argument that these cases should be 
tried in the United States in jurisdictions where employ­
ers have their principal places of business.

The employer also may be required to educate a non- 
U.S. citizen supervisor in how to comply with Title VII. 
The employer also may be required by the EEOC “to dis­
cipline or remove the offending individual from personnel 
authority.” To afford U.S. citizens greater protections 
than other employees could have a serious adverse effect 
on the morale of foreign nationals in the plant workforce. 
Thus, as a practical matter, extraterritorial application 
of Title VII would put U.S. companies under strong pres­
sure to treat all employees as though they were covered 
by Title VII, even if, as in the case of Saudi Arabia, that 
might mean violating the laws or religious, practices of 
the host country.



22

Thus, like the Court’s refusal to apply the U.S. Eight 
Hour Law to Iran and Iraq in Foley Bros. v. Filardo, “ it 
would be anomalous . . . for an act of Congress to regu­
late” the relative work status of both U.S. and non-U.S. 
citizens working for a U.S. employer overseas. 336 U.S. 
at 289.15 As in Foley, the federal statute in question here 
should not be applied outside U.S. territory.

B. Overseas Application of Title VIPs Procedural 
Mechanism Would Be Impractical and Should Not 
Be Imposed in Other Countries Given the Lack of a 
Congressional Mandate To Do So.

The overseas application of Title VII procedural mech­
anisms would cause severe practical problems. Without a 
clearer indication that Congress intended that these prob­
lems be tolerated, Title VII should be applied only in the 
territory of the United States. Several examples are 
illustrative. For one, Title VII’s provisions relating to 
the EEOC’s investigatory powers and venue demonstrate 
that Congress never intended Title VII to apply overseas.

15 The petitioners and their various supporting amici make too 
much of the extraterritorial application of the Lanham Act per­
mitted by Steele v. Bulova Watch Co., 344 U.S. 280 (1952). There1, 
a U.S. citizen committed a trademark infringement in violation of 
federal law. Bulova Watch Company, the offended company, was a 
U.S. citizen, and there was no concern expressed in that case that 
application of the Lanham Act would improperly infringe on any 
foreign laws that dealt with trademark infringements. Neither 
were the legitimate rights of non-U.S. citizens affected by applica­
tion of U.S. law overseas.

Instead, the Court stressed the nexus between the foreign acts 
and the U.S. market for Bulova’s watches and concluded that:

[Steele’s] operations and their effects were not confined within 
the territorial limits of a foreign nation. He brought com­
ponent parts of his wares in the United States, and spurious 
“Bulovas” filtered through the Mexican border into this coun­
try; his competing goods could well reflect adversely on Bulova 
Watch Company’s trade reputation in markets cultivated by 
advertising here as well as abroad.

344 U.S. at 286.



23

As enacted in 1964, the EEOC’s investigatory powers 
were limited to testimony or evidence obtained within 
the states of the United States, 42 U.S.C. § 2000e-9. The 
amendment of this investigatory authority in 1972 did 
not broaden these powers to matters overseas. Thus, “ [ i]f  
plaintiff were correct in arguing that [the statute] ap­
plies extra,territorially, it would be anomalous for Con­
gress not to have authorized power of investigation that 
were co-extensive with the reach of the Act.” Cleary v. 
United States Lines, Inc., 555 F. Supp. 1251, 1260 
(D.N.J. 1983), aff’d, 728 F.2d 607 (2d Cir. 1984).16

Again, when Congress intends a statute to have effect 
overseas', it knows how to provide appropriate enforce­
ment mechanisms. For example, in Argentine Republic 
v. Amerada Hess Shipping Corp., 109 S.Ct. 683 (1989), 
the Supreme Court analyzed the legislative history of the 
Foreign Sovereign Immunities Act (FSIA), and con­
cluded that “ Congress’ intention to enact a comprehensive 
statutory scheme is also supported by the inclusion in the 
FSIA of provisions for venue-. . . removal . . . and attach­
ment and execution. . . .” Id. at 688 n.3.

In contrast, in enacting Title VII, Congress was 
greatly concerned that it not unduly interfere with the 
sovereignty or override the laws of even the various states 
of the United States, Sections 708 and 1104, 42 U.S.C.

18 Had Congress intended that Title VII was to have an extrater­
ritorial reach, it would have provided for venue over the operations 
of American companies employing United States citizens overseas, 
instead of limiting venue to the employment decisions of companies 
within the United States. 42 U.S.C. § 2000e-5(f) (3). Further, even 
if “principal office” venue might be a technical possibility, there 
would be no chance for the parties to move for a change of venue 
“ [f]or the convenience of the parties and witnesses, [or] in the 
interest of justice.” 28 U.S.C. § 1404. Thus, Title VII cases would 
have to be tried in courts which, if a more favorable U.S. forum 
were available, would not hear such cases in most instances because 
the documents, witnesses and place of violation were thousands of 
miles away.



24

§ § 2000e-7, 2000h-4. Accordingly, Congress made specific 
provision in Section 706 of Title VII for deferral to state 
employment discrimination proceedings, 42 U.S.C. 
§ 2000d-5(c), (d), and (e). Invasion of another coun­
try’s sovereignty with respect to that nation’s own dis­
crimination laws- would clearly be- a matter of great in­
ternational significance. Yet Title VII does not contain 
any similar provisions for deferral to the laws of another 
country. If would be wholly anomalous to conclude that 
Title VII recognizes and respects the laws of the various 
American states, but ignores and overrides the laws of 
foreign nations.

The amicus International Human Rights Law Group 
argues that the likelihood of conflict with Saudi Arabian 
policies would be minimal because Saudi Arabia has rati­
fied International Labor Organization Convention (No. 
I l l )  Concerning Discrimination in Respect of Employ­
ment and Occupation. (Br. 57-60) This argument ignores 
the fact- that the United States Senate has not ratified 
this convention, thus making implausible the conclusion 
that there is no potential for conflict. Further, Conven­
tion 111 is not self-enforcing. Article 2 of the Convention 
allows each individual ratifying country to “ undertake to 
declare and pursue a national policy designed to promote 
by methods appropriate to national conditions and prac­
tice,”  the elimination of discrimination. (Emphasis 
added).

Even in the United States-, the EEOC will not defer a 
charge to a state or locality unless EEOC determines that 
the other agency has a nondiscrimination law comparable 
to Title VII. See Section 706(c) of Title VII (42 U.S.C. 
Sec. 2Q00e-5(c)). EEOC does not suggest to- this- Court 
any method by which EEOC or the courts could determine 
whether any particular application of Title VII would 
conflict with the law of another country. It is ludicrous, 
however, to suggest that application of Title VII in Saudi 
Arabia wo-uld not conflict with Saudi Arabian practices,



25

See Country Reports on Human Rights Practices for 1989, 
Report by the U.S. Department of State to the Committee 
on Foreign Affairs, House of Representatives:, and the 
Committee on Foreign Relations, U.S. Senate, February 
1990, at 1557-60.

Further, the ADEA again provides another contrast 
with Title VII. For, unlike the ADEA, which was specifi­
cally expressed to apply abroad, Title VII makes no provi­
sion for exempting coverage where it would conflict with 
the laws of another sovereign power. In the amendment to 
the ADEA, Congress was particularly concerned that the 
overseas application of that employment law not conflict 
with the existing laws of other countries. Thus, unlike 
Title VII, when Congress clearly extended jurisdiction 
of the ADEA’s provisions extraterritorially, it expressly 
provided in Section 4(f )  (1), 29 U.S.C. § 623(f) (1), that 
it is not unlawful for an employer to take any action 
prohibited by the ADEA “where such practices involve 
[a United States citizen] in a foreign country, and com­
pliance . . . would cause such employer . . . to violate the 
laws of the country in which such workplace is located.” 
Thus, when Congress has intended that a United States 
employment statute should be applied to American com­
panies and citizens overseas, it has exercised great care 
to ensure that such application would not conflict with 
foreign statutes.

IV. AMICI NAACP, LEGAL DEFENSE FUND, ET AL„ 
MISCONSTRUE CONGRESSIONAL INTENT AND 
IMPROPERLY URGE THIS COURT TO MAKE 
FOREIGN POLICY DECISIONS CONCERNING EM­
PLOYMENT PRACTICES OVERSEAS.

The arguments made by amici NAACP Legal Defense 
and Education Fund, et al., offer no further support for 
the petitioners. Indeed, those arguments highlight the 
weakness of Petitioner’s reliance on Title VII’s own his­
tory. The Amici are forced to juxtapose the adoption of 
Senate Resolution 323, 84th Cong., 2d Sess. in 1956, with



26

the enactment of Title VII in 1964.1T Amici NAACP 
Legal Defense Fund et al., draw the inference that since 
Congress adopted the resolution in 1956, it also intended 
in 1964 to extend Title VII’s coverage abroad. They 
claim this resolution “ further illustrates Congress’ desire 
to assure that American citizens abroad enjoy to the 
maximum extent possible, the same employment oppor­
tunity they enjoyed within the United States.” Brief of 
Amici Curiae NAACP Legal Defense Fund, et al. at 15. 
But in so doing, amici proverbially “put the cart before 
the horse.”

First, Senate; Resolution 323 simply is not relevant to 
Title VII. The resolution has no force or effect of law, 
since it was a resolution, rather than a bill, and it was 
not passed by both Houses. Second, the resolution was 
passed nearly ten years before the passage of Title VII. 
Third, it has little, if anything, to do with employment 
discrimination and deals only with religious affiliation. 
Finally, nowhere in the legislative history of Title VII 17

17 Senate Resolution 323 states:
Whereas the protection of the integrity of United States 

citizenship and of the proper rights of United States citizens 
in their pursuit of lawful trade, travel, and other activities 
abroad is a principle of United States sovereignty; and

Whereas it is a primary principle of our Nation that there 
shall be no distinction among United States citizens based on 
their individual religious affiliations and since any attempt by 
foreign nations to create such distinctions among our citizens 
in the granting of personal or commercial access or other rights 
otherwise available to the United States citizens generally is 
inconsistent with our principles; Now therefore, be it

Resolved, That it is the sense of the Senate that it regards 
any such distinctions directed against the United States citizens 
as incompatible with the relations that should exist among 
friendly nations, and that in all negotiations between the United 
States and any foreign state every reasonable effort should be 
made to maintain this principle.

S. Res. 323, 84th Cong., 2d Sess. (1956) (quoted in 102 Cong. Rec.
14330 (July 25, 1956)).



27

or in the congressional debates is there any reference to 
this resolution.

In essence, the NAACP, et al., characterize !S. Res. 
323 as a comprehensive piece of legislation which pro­
hibited. employment discrimination. But if the resolu­
tion was Intended to have that effect, Congress would 
have had no need to enact Title VII. It is therefore 
illogical to assume that Congress in 1956, a priori, in­
tended to apply Title VII extraterritorially in 1964, or 
vice versa, particularly where Congress adopted no such 
specific language in Title VII. If anything, the absence 
of any discussion concerning the resolution in the 1964 
debates and legislative history of Title VII affirms, rather 
than negates, the view that Congress did not intend Title 
VII to be extraterritorially applied.

The other policy arguments of petitioner Boureslan 
and the NAACP Legal Defense Fund, et al., center 
around the notion that it is necessary to press for non­
discrimination abroad in order to assure nondiscrimina­
tion at home. Br. at 16-24. In their view, the majority 
opinion below allows employers to transfer their domestic 
employees overseas so they can “ launder”  their discrim­
ination. NAACP Brief at 21. In support of this idea, 
amici specifically discuss testimony presented in support 
of the public accommodations laws in 1963, and generally 
allude to the United States’ foreign policy concerns in 
international markets. See NAACP Legal Defense Fund 
Brief at 18-22, 25-30.

Their inference is flawed for several reasons. First, 
the NAACP Legal Defense Fund et al., assume that Am­
erican employers affirmatively will engage in discrimina­
tion abroad, yet cite no support for this broad assertion. 
From a practical standpoint, it is very costly to send 
workers overseas and then pay for their return.' Also, 
employers often must specially train workers for over­
seas assignments and provide them with special language 
training, compensation, terms and other conditions of



28

employment. See generally Note, Yankees Out of North 
America: Foreign Employer Job Discrimination Against 
American Citizens, 83 Mich. L. Rev. 237 (1984) (dis­
cussing whether business and cultural familiarity require­
ments may be necessary to insure that managers can 
successfully integrate the Japanese management style 
with American practices). The costs of such efforts are 
higher than those associated with domestic employment. 
At a minimum, the economic costs of discrimination 
abroad are prohibitive, and serve as effective deterrents 
to discourage rather than encourage employers to engage 
in such practices. Thus, it would make little sense for 
an employer to send a person of a certain race, sex, or 
religion overseas just to be able to discriminate once 
the person was outside U.S. territory.18

The more plausible scenario posed by petitioner Boures- 
lan and various amici involves the United States employer 
who makes the decision to deny overseas opportunities to 
U.S. workers. Indeed, the NAACP Legal Defense Fund’s 
brief acknowledges that “many decisions regarding posi­
tions abroad are in fact made in the United States.” Br. 
at 18. In that situation, however, the individual’s relevant 
work station would be this country, thus making the em­
ployer subject to Title VII. Cf., Pfeiffer v. Wm. Wrigley 
Jr. Co., 755 F.2d at 559 (Judge Posner) ,19

1* The amici NAACP L.D.F., et al, argue that protected individ­
uals who' know they will be discriminated against overseas will 
refuse such assignments, thus employers would have “to pay a 
premium to induce potential employees to work abroad. Br. at 20. 
We know of no situation where that has occurred, nor do any of 
the amici cite to any employer that has been willing to tolerate such 
costs. No employer, moreover, is likely to escape Title YII if it 
pursues such a policy, for, as shown below, discrimination occurring 
within the U.S. will be covered by Title VII.

i® See also, Abrams v. Baylor College of Medicine, 805 F.2d 528 
(5th Cir. 1986) (Title VII violated by exclusion of Jewish doctors 
from rotations to Saudi Arabia) ; Kern v. Dynalectron Corp., 577 
F. Supp. 1196 (N.D. Tex. 1983), aff’d, 746 F.2d 810 (5th Cir. 
1984) (employer did not violate Title VII by requiring membership



29

CONCLUSION

For the foregoing reasons, EEAC respectfully urges the 
Court to affirm the decision of the en banc court below.

Respectfully submitted,

R obert E. W illiams 
D ouglas S. McD owell * 
E dward E. Potter, P.C. 

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for
the Amicus Curiae,
Equal Employment Advisory 
Council

December 17,1990 * Counsel of Record

in Islamic faith for pilots flying into Mecca) ; EEOC Decision 
No. 84-2, Empl. Prac. Dec. (CCH) ([ 6840 (December 2, 1983) (For­
eign company that recruits in the U.S. for employment outside the 
country is covered by Title VII) : EEOC Decision No. 77-1, Empl. 
Prac. Dec. (CCH) jf 6557 (October 13, 1976) (Title VII applies to 
religious discrimination against a Canadian employee of the Cana­
dian operations of a U.S. employer where the employee makes round 
trips between the U.S. and Canada).