Brown v Board of Education of Topeka Arguments and Rebuttals

    Nos. 89-1838 and 89-1845

In  %  l̂ itprnn? Qkmxt ssf %
October Term, 1990

Equal E mployment Opportunity Commission, 
petitioner

V.

Arabian A merican Oil Company, et al.

A li Boureslan, petitioner

V.

Arabian A merican Oil Company, et al.

ON WRITS OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

K enneth  W. Starr 
Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 5U-2217



Cases:
TABLE OF AUTHORITIES

Page
Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989)............... ......................
Atascadero State Hosp. v. Scanlon, 473 U.S. 234

(1985) ......................................................... ................
Benz V. Compania Naviera Hidalgo, S.A., 353 U.S.

138 (1957) ...... ............. ............................. ............. 5,13-
Bowles V. Seminole Rock & Sand Co., 325 U.S. 410

(1945) ............................................ .............................
Continental Ore Co. V. Union Carbide & Carbon

Corp., 370 U.S. 690 (1962)....................................
Cunard S.S. Co. V. Mellon, 262 U.S. 100 (1928).... 
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)., 
Fernandez V. Wynn Oil Co., 653 F.2d 1273 (9th

Cir. 1981) ..................................................................
Foley Bros. v. Filardo, 336 U.S. 281 (1949) ..2, 8, 11, 
Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

(1980) ................................... ........................................
FTC  V. Compagnie de Saint-Gobain-Pont-a-

Mousson, 636 F.2d 1300 (D.C. Cir. 1980)____
INS V. Stanisic, 395 U.S. 62 (1969).......................
Lauritzen V. Larsen, 345 U.S. 571 (1953)_______
Matsushita Elec. Indus. Co. V. Zenith Radio Corp.,

475 U.S. 574 (1986) ....... .......................................
McCulloch V. Sociedad Nacional, 372 U.S. 10

(1963) ..................... .......... ............................... ..........  13,
Pittston Coal Group v. Sebben, 488 U.S. 105

(1988).............................................................. .............
Robertson V. Methow Valley Citizens Council, 109

S. Ct. 1835 (1989) ................ .................................
SEC v. International Swiss Investments Corp.,

895 F.2d 1272 (9th Cir. 1990)............ ................
Sandberg V. McDonald, 248 U.S. 185 (1918) ........
Schoenbaum V. Firstbrook, 405 F.2d 200, modified,

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

Skiriotes V. Florida, 313 U.S. 69 (1941) ................
Steele V. Bulova Watch Co., 344 U.S. 280 (1952).. 
Udall V. Tollman, 380 U.S. 1 (1965) ......................

11

12

-14

20

12
13

9

18
13

20

10
20
15

12

14

12

20

10
13

12
16
16
20

(i)



United States V. Baker, 609 F.2d 134 (5th Cir.
1980) ......... ................... .................. .......................... 13

United States V. Wright-Barker, 784 F.2d 161
(3d Cir. 1986) ........................................................... 13

Vermilya-Brown Co. v. Connell, 335 U.S. 377
(1948) ................................ ............ .............................6, 8,16

Weinberger V. Rossi, 456 U.S. 28 (1982) ...............  15
Wirtz V. Malthor, Inc., 391 F.2d 1 (9th Cir. 1968).. 7

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

Art. I, § 8, Cl. 3 (Commerce Clause) .............. 7
Amend. XI .........................   12

Act of Aug. 30, 1957, Pub. L. No. 85-231, § 1, 71
Stat. 514 ................... ............... ................................... . 6

Age Discrimination in Employment Act, 29 U.S.C.
621 et seq .:

29 U.S.C. 623 ( a ) ............................ ............. ............  16
29 U.S.C. 623 ( f ) ................... .................... ............  10
29 U.S.C. 623 (h) .............................. ...................... 16
29 U.S.C. 626(a) .................. ............ ................. . 10
29 U.S.C. 630 (f )  .................... .................. .......... 16
29 U.S.C. 633.....     10

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.
2000e et seq.:

42 U.S.C. 2000e(b) .......................    2
42 U.S.C. 2000e(g).......     2 ,3
42 U.S.C. 2000e(h )................................................. 2
42 U.S.C. 2000e(i) .......       3
42 U.S.C. 2000e-l................................................... 1, 3
42 U.S.C. 2000e-2 (a) .................... ......................... 2
42 U.S.C. 2000e-9 ............. ...... ..............................  10
42 U.S.C. 2000e-16 (a) ........................................... 16

Fair Labor Standards Act of 1938, 29 U.S.C. 201 
et seq.:

29 U.S.C. 209 ........  10
29 U.S.C. 213(f) ..........      2

Labor-Management Relations Act, 1947, 29 U.S.C.
141 et seq.......... ..................................   5

29 U.S.C. 1 6 1 (1 )....................................................  10

II
Cases— Continued: Page



Ill

Labor-Management Reporting and Disclosure Act 
of 1959, 29 U.S.C. 401 et seq. :

29 U.S.C. 402 ( c ) .......................................... ..........  5
5 U.S.C. 7201 n ote ..... .......... ,.........................................  16
15 U.S.C. 49 ...................................................................... 10
22 U.S.C. 5001 (5 )...........................................................  16
22 U.S.C. 5034-5035 (a) ........... ................................~~ 16
50 U.S.C. App. 2407 (a) (1) (B) ............. ............ ........ 16
50 U.S.C. App. 2415 (2) ....................................... ......... 16
Exec. Order No. 11,246, §204, 3 C.F.R. 342

(1964-1965 com p.)........... ...........................................  17
29 C.F.R. 1606.1(c) (1971) ............ ............ ........ .... 19
41 C.F.R. 60-1.5 (a) (3 ).................................................. 17

Miscellaneous:
110 Cong. Rec. (1964) :

p. 1528 ...................     3
p. 2737....................       3
p. 7212............     3
p. 12,721....,........................... ..................................  4
p. 12,811........................ .............     4
p. 12,818.... ........... ,............... .... ............................. 4

H.R. 4453, 81st Cong., 1st Sess. (1949)-------------- - 6, 7
H.R. 405, 88th Cong., 1st Sess, (1963).......................  4
H.R. 7152,88th Cong., 1st Sess. (1963).....................  4
1 Restatement (Third) of the Foreign Relations 

Law of the United States (1986).........................  17

Regulations— Continued: Page



33fn tlj? j&upraiu? Olmtrt itf tin' Ittitefc €>tatni
October Term, 1990

No. 89-1838
Equal Employment Opportunity Commission, 

petitioner

v.
A rabian A merican Oil Company, et al.

No. 89-1845
A li Boureslan, petitioner

V.

Arabian A merican Oil Company, et al.

ON WRITS OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

1. As respondents recognize (Resp. Br. 10), this case 
presents an issue of statutory construction: whether
Title VII prohibits discrimination by an American em­
ployer against an American citizen outside of the United 
States. The text of the statute, given its plain and ordi­
nary meaning, prohibits such discrimination. Title VIPs 
broad jurisdictional provisions reach discrimination 
abroad by American employers; the exemption with re­
spect to aliens employed “ outside any State,”  42 U.S.C. 
2000e-l, establishes that the statute was intended to ap­
ply to American citizens outside any State; and the re-

l l )



mainder of Title VII is consistent with that interpreta­
tion.

Respondents’ answers to each part of this showing are 
unconvincing. Further, there is no merit to the unifying 
theme of respondents’ brief— an attempt to recast the pre­
sumption against extraterritoriality from “ a valid ap­
proach whereby unexpressed congressional intent may be 
ascertained,” Foley Bros. v. Filardo, 336 U.S. 281, 285 
(1949), into a “ strong presumption” (Resp. Br. 6, 12) 
abrogating customary principles of statutory interpreta­
tion.

a. Respondents contend (Resp. Br. 17-25) that Title 
VII’s definition of “ commerce” does not reach workplaces 
outside the United States. They are wrong. The stat­
ute’s jurisdictional provisions draw no distinction between 
workplaces inside and outside this country. To the con­
trary, Title VII prohibits “unlawful employment prac­
tice [s]”  by “ an employer engaged in an industry affect­
ing commerce,”  and “commerce” includes “ trade, traffic, 
commerce, transportation, transmission, or communica­
tion among the several States; or between a State and 
any place outside thereof.”  42 U.S.C. 2000e(b), (g ), (h), 
2000e-2(a). These broad provisions make the statute’s 
applicability to discrimination dependent on whether an 
employer is engaged in an industry affecting commerce— 
not on where the discrimination occurs.1

The jurisdictional provisions of Title VII were care­
fully framed; when Congress intended to limit Title VII’s 
application to employment at a particular place, it ex­
pressed that intention in precise language tailored to the 
statute’s scheme of coverage. That explains why the alien 
exemption is framed as it is. On the heels of the broad 
definition of “ employer,” that exemption provides that

1 There is nothing in Title VII that is comparable, for instance, 
to Section 13(f) of the Fair Labor Standards Act, 29 U.S.C. 213(f), 
which provides that the Act “ shall not apply with respect to any 
employee whose services during the workweek are performed in a 
workplace within a foreign country * * It was the ADEA’s in­
corporation of this provision that led courts to conclude that it did 
not apply extraterritorially. See EEOC Br. 31 n.29.

2



3
the Act shall not apply to “ an employer” with respect to 
the employment of aliens outside any State, 42 U.S.C. 
2000e-l.

The fact that Title VIPs jurisdictional provisions do 
not use the term “ foreign commerce” or “ foreign na­
tions”  does not suggest, as respondents contend (Resp. 
Br. 17-18), that the statute reaches only commerce within 
the limits of the United States, its territories, and pos­
sessions. For one thing, respondents themselves say that 
the inclusion of those would-be magic words would not 
alter their interpretation of the statute. Id. at 19. But 
more fundamentally, commerce between “ a State and 
any place outside thereof,”  42 U.S.C. 2000e(g) (emphasis 
added), plainly includes commerce with foreign nations; 
indeed, since Title VII defines “States” to include States, 
the District of Columbia, and specified territories (42 
U.S.C. 2000©( i ) ), the statute must be referring to areas 
beyond the territorial limits of the United States.2 Re­
spondents’ assertion that this clause “provide [s] the 
jurisdictional nexus required to regulate commerce that 
is not wholly within a single state, presumably as it 
affects both interstate and foreign commerce” but not 
to “ regulate conduct exclusively within a foreign coun­
try” (Resp. Br. 21 n.14) finds no support in the lan­
guage of the statute.

2 In the House, Representative Celler introduced a memorandum 
stating that “ Title VII covers employers engaged in industries 
affecting commerce, that is to say, interstate and foreign commerce 
and commerce within the District of Columbia and the possessions.”  
110 Cong. Rec. 1528 (1964). Accord id. at 2737 (remarks of Rep. 
Libonati). Respondents rely (Resp. Br. 19-20) on an ambiguous 
memorandum introduced into the Congressional Record during de* 
bate in the Senate. That memorandum, stated both that commerce 
for purpose^ of Title VII “ is, generally speaking, interstate com­
merce, but includes commerce within U.S. possessions and the Dis­
trict of Columbia”  and that such commerce “ is, in short, that com­
merce to which the regulatory power of Congress extends under 
the Constitution * * 110 Cong. Rec. 7212 (1964). Nothing in
the Senate memorandum warrants a departure from the unam­
biguous statutory text. Respondents concede that Congress “has 
the power to legislate extraterritorially” (Resp. Br. 10).



4
Nor does the deletion in the Senate of legislative dec­

larations referring to (among other things) “ com­
merce * * * with foreign nations” manifest any intention 
to restrict Title VIPs scope. Compare Resp. Br. 18-19.3 
The substitute amendment that deleted the declarations 
made no material change in Title VIPs operative provi­
sions— the definitions of “ employer,” “ commerce,” and 
“ industry affecting commerce” and provisions prohibiting 
“ unlawful employment practices”— that determine the 
discrimination to which the statute applies. Indeed, in 
explaining the amendment, Senator Humphrey stated that 
“ [t]he basic coverage and the substantive prohibitions of 
the title remain almost unchanged” and that “ [t]he title 
continues to apply to employers * * * in industries affect­
ing commerce.”  110 Cong. Rec. 12,721 (1964). Signifi­
cantly, the deletion was not restricted to the declarations’ 
reference to “ foreign nations.” That reference, a parallel 
reference to “ commerce among the States” (110 Cong. 
Rec. 12,811 (1964)), a statement that “ it is the national 
policy to protect the right of the individual to be free 
from * * * discrimination” {ibid.), and other declarations 
were jettisoned en masse. At all events, the motivation 
behind the deletion was plainly directed only at the dec­
larations as such, not at the operative provisions of the 
statute; whatever that motivation was, the deletion was 
no more an attempt to alter the statute’s application to 
foreign commerce than it was an indication that Congress 
had somehow abandoned the goal of prohibiting discrimi­
nation affecting “ commerce among the States.”

3 The declarations were initially included in Section 2 of H.R. 405, 
88th Cong., 1st Sess. (1963). They were amended when H.R. 405 
was incorporated into H.R. 7152, 88th Cong., 1st Sess. (1963), the 
bill ultimately enacted, as amended, as Title VII. As part of the 
compromise amendment (No. 656) that was substituted in the Sen­
ate for the version of H.R. 7152 passed by the House, the declara­
tions were deleted. See 110 Cong. Rec. 12,811, 12,818 (1964). The 
only mention of the deletion was a terse statement in a memorandum 
introduced by Senate Dirksen into the Congressional Record,-. “ Sec­
tion 701: This section consisting o f findings and declaration of 
policy is deleted in its entirety.”  110 Cong. Rec. 12,818 (1964).



o

Finally, Title VIPs reference to the Labor-Management 
Reporting and Disclosure Act of 1959, 29 U.S.C. 402(c), 
which in turn incorporates the Labor-Management Rela­
tions Act of 1947, 29 U.S.C. 141 et seq., does not speak 
to Title VII’s application to discrimination by American 
employers against American citizens abroad. See Resp. 
Br. 22-23. In Benz V. Compania Naviera Hidalgo, S.A., 
353 U.S. 138, 143 (1957), on which respondents heavily 
rely, this Court held that the LMRA does not cover 
“ labor disputes between nationals of other countries op­
erating ships under foreign laws.” This is not a case, 
like Benz, involving foreign nationals and foreign em­
ployers. See pp. 13-15, infra. In fact, because Benz 
involved a labor dispute aboard a ship present in Ameri­
can territorial waters, it underscores the force that the 
participants’ nationality— the basis for Title VII’s appli­
cation to this case—had in determining the applicability 
of American law.

b. Respondents’ efforts to limit the significance of the 
alien exemption are equally implausible. In their view, 
the provision serves the “dual purposes” of “ exempt [ing] 
employers of aliens from coverage in U.S. ‘possessions’ 
and * * * confirm [ing] the coverage of aliens in the 
United States” (Resp. Br. 26; see id. at 7). Neither al­
ternative withstands analysis, and no reasonable drafts­
man could have conceived of the alien exemption as a 
means of accomplishing both at once.

i. Respondents’ first explanation of the exemption in­
volves a labyrinthine expedition into the far recesses of 
legislative history in order to attribute to Congress an 
intention to divide the world into three parts: (1)
“ States” (as defined by the Act), in which both aliens 
and American citizens are entitled to Title VII’s protec­
tion; (2) “possessions,” consisting of military bases and 
leased areas on foreign soil, in which American citizens, 
but not aliens, are protected; and (3) all other areas, in 
which Title VII does not apply at all. Resp. Br. 27. At 
the outset, it bears emphasis that this tripartite division 
finds no support in the statutory text. To the contrary, 
the alien exemption draws a line between employment



6

within a “ State” and employment “ outside any State.” 
Confronted with that express division, respondents none­
theless offer no evidence whatever (1) that any member 
of the Congress that enacted Title VII viewed Americans 
employed abroad but outside possessions to be less deserv­
ing of protection than those employed inside possessions, 
or (2) that the alien exemption was conceived as a means 
of communicating that policy choice.

The historical record provides not a shred of support for 
respondents speculation that the alien exemption was 
initially drafted— and later understood by the 1964 Con­
gress— to limit Title VIPs protection of Americans abroad 
to possessions of the type at issue in Vermilya-Brown 
Co. v. Connell, 335 U.S. 377 (1948). In Vermilya-Brown, 
this Court held that the Fair Labor Standards Act was 
applicable to both aliens and American citizens employed 
on a Lend Lease base in Bermuda. Coverage for that type 
of possession continued until 1957, when Congress nar­
rowed the FLSA’s coverage to the States and specified 
other jurisdictions. See Act of Aug. 30, 1957, Pub. L. 
No. 85-231, § 1, 71 Stat. 514. In those locations, as before, 
aliens and citizens were both entitled to the benefits of 
the Act; elsewhere, including American possessions, 
neither category of persons was protected.

_ F air employment bills introduced before and after 1957
did not follow the FLSA model. The alien exemption__
which appeared in H.R. 4453, 81st Cong., 1st Sess. (1949), 
a^few weeks after this Court’s decision in Foley B r o s ~  
distinguished between American citizens and aliens with 
respect to employment anywhere outside a specified list of 
jurisdictions. Possessions of the type at issue in Vermilya- 
Brown were excluded from the list of jurisdictions in 
which aliens would be covered, but that does not suggest 
that those possessions were to be the only sanctuaries 
abroad in which Americans would be protected from dis­
crimination. After 1957, when Congress overturned 
Vermilya-Brown by withdrawing FLSA coverage from 
Americans and aliens working in American possessions, 
there was no corresponding change in fair employment



7
bills up to the passage of Title VII. Respondents offer 
no evidence whatever that any member of the Congresses 
that considered these bills perceived a connection between 
the FLSA and employment discrimination legislation; to 
the contrary, fair employment bills, including Title VII, 
did not include a provision limiting coverage for Amer­
icans comparable to the FLSA amendment that Congress 
fashioned, after some delay, in response to Vermilya- 
Brown.4

In an effort to buttress their assertion that the alien 
exemption focused on American possessions, respondents 
also suggest that the fair employment bills in which the 
exemption first appeared were focused upon federal em­
ployment. We are told, for instance, that the first bill 
to contain the alien exemption (H.R. 4453, supra) was 
a bill that would have “govern [ed] the United States as 
employer and contractor” and “ covered government em­
ployers and government contractors as well as certain 
private employers.”  Resp. Br. 27, 28; see also id. at 28- 
29, 32 n.25. Respondents’ emphasis on the proposed leg­
islation’s applicability to federal employment— which is 
calculated to supply a motive for special treatment of 
U.S. government possessions— is both misleading and ir­
relevant.

As reported by the House Committee on Education and 
Labor, H.R. 4453 would have been applicable to any em­
ployer “ engaged in commerce having in his employ fifty

4 The absence of such a parallel should come as no surprise. The 
FLSA is designed to raise standards for workers generally by deny­
ing employers the competitive advantage that they might otherwise 
derive from paying low wages or requiring long hours. Indeed, em­
ployers who violate the FLSA are required to remit to the govern­
ment any damages corresponding to employees who cannot be 
located. See, e.g., Wirtz v. Malthor, Inc., 391 F.2d 1, 3 (9th Cir. 
1968). This statutory policy is dependent upon the statute’s apply­
ing to all employees of a covered employer. Title VII, by contrast, 
is designed to protect potential victims of discrimination from its 
invidious effects— in terms of the Commerce Clause, to protect com­
merce from the losses flowing from underuse of qualified personnel 
because of invidious discrimination. That goal does not suggest a 
coverage scheme identical to the FLSA’s.



8

or more individuals” (excluding state and local govern­
ments and certain nonprofit institutions), as well as the 
federal government. Thus, from the time in 1949 when 
the alien exemption first made its appearance in pro­
posed legislation, fair employment bills were drafted to 
provide broad protection to American citizens employed 
by private employers—whether or not that employment 
had any relationship to the federal government. Indeed, 
in 1964, Congress chose not to extend Title VII to fed­
eral employment, thus confirming that the alien exemp­
tion was not meant to be a remarkably indirect way of 
targeting federal facilities abroad.5

In the final analysis, the first of respondents' two ex­
planations of the alien exemption treats that provision as 
a very odd historical remnant— a provision drafted with 
a view to a 1948 decision construing the FLSA, for in­
clusion in a bill focused on federal employment, which 
was unthinkingly carried forward into civil rights legis­
lation that neither paralleled the FLSA nor covered fed­
eral employees. This tortuous use of unconnected mate­
rials should not obscure one clear, salient point— the 1964 
Congress was not indifferent to the meaning of one of 
the very few exceptions to Title VII. The exemption 
played a logical and important role1—which was clear 
from its language and confirmed by committee reports, 
see EEOC Br. 16— in the scheme that Congress actually 
enacted. The exemption does precisely what it says; it 
limits Title VII’s application as to aliens (and thus es­

5 Significantly, respondents’ interpretation of the exemption is 
inconsistent with their own view Oif the principles of statutory inter­
pretation applicable to this case. The United States does not exercise 
territorial sovereignty over the “possessions” on which respondents’ 
interpretation focuses. Thus, under respondents’ theory, the pre­
sumption against extraterritoriality should bei as potent a bar to 
Title VII within those possessions as it is in other foreign territory. 
See Vermilya-Brown Co. V. Connell, 335 U.S. at 381 (noting that 
application of FLSA to Lend Lease base involved regulation “ out­
side the territorial jurisdiction of the United States” ) ; Foley Bros. 
v. Filardo, 336 U.S. at 285 (explaining Vermilya-Brown as a case 
in which the presumption was satisfied).



9

tablishes the statute’s application to American citizens) 
in all territory “ outside any State.”

ii. We explain in our opening brief why the alien ex­
emption could not have been conceived as a backhanded 
means of extending protection to aliens employed in the 
United States. EEOC Br. 14-15. Respondents neverthe­
less persist in their view that the alien exemption could 
have been included in Title VII as a “meaningful and. use­
ful way to confirm” that coverage. Resp. Br. 8; see id at 
30-31. But this would have been odd draftsmanship in 
the extreme; Congress does not include exemptions in 
legislation for the purpose of providing courts indirectly 
with material to guide the interpretation of other provi­
sions. The function of the alien exemption is simple and 
straightforward: to withdraw statutory coverage from 
aliens employed “ outside any State.”  In so doing, the 
exemption demonstrates—as a matter of statutory con­
struction-—both that the statute covers aliens within the 
United States (see Espinoza v. Farah Mfg. Co., 414 U.S. 
86, 95 (1973)) and, with equal force, that Americans 
employed abroad are protected.

c. Respondents identify various issues that they believe 
Congress “ would have”  addressed differently if it had 
intended to apply Title VII to discrimination abroad by 
American employers against American citizens. Resp-. 
Br. 34-39. But the features of Title VII that respondents 
portray as statutory holes are not at all incompatible 
with its application to Americans employed by American 
employers abroad. As we demonstrate in our opening 
brief (EEOC Br. 18-22, 29-30), Title VII’s basic enforce^ 
ment framework is available to an American citizen who, 
like Ali Boureslan, alleges that he was the victim of dis­
crimination by an American employer outside of the 
United States. Such an individual may file a charge with 
the EEOC; the Commission is authorized to conduct an 
investigation, issue or withhold a reasonable cause deter­
mination, attempt conciliation, and issue a right to sue 
letter; and, when either the individual or the Commission 
has commenced an action, judicial processes are available 
to obtain evidence, fashion a remedy, and enforce it.



10
Beyond this, the matters respondents raise present 

questions of policy. It is up to Congress to determine 
whether procedural deference afforded to state fair em­
ployment proceedings should be accompanied by “parallel 
provisions” addressing foreign: laws (Resp. Br. 35) ; 
whether the alien exemption or the BFOQ defense is “ an 
inadequate tool for minimizing conflicts of law” {id. at 
36 n.30; see id. at 35-36 n .29); whether a broader choice 
of venue should be available to plaintiffs {id. at 38) ; and 
whether it would be wise to provide the Commission with 
broader subpoena power {id. at 39 & n.33).6 For the 
reasons stated in our opening brief, we see nothing 
anomalous in the answers Title YII supplies to these 
questions. In fact, many of those answers are the same 
as those provided by the ADEA, a statute respondents 
now trumpet as reflecting “ careful consideration” (Resp. 
Br. 36) of extraterritorial application of law.7 But in 
any event, respondents’ assertions regarding what Con­
gress “would have” done do not undercut the conclusion 
that flows, from the statute’s jurisdictional provisions and 
the alien exemption.

6 Respondents are mistaken in their contention that the scope of 
an agency’s subpoena power is indicative of a limitation, on the 
extraterritorial application of the statute. The assertion of claims 
arising from foreign conduct is entirely distinct from the service of 
compulsory process on foreign territory. Unlike the service of a 
complaint on foreign soil (which merely gives notice of a claim), 
other nations may regard the service of compulsory process as a 
violation of their sovereignty. See SEC V. International Swiss In­
vestments C o r p 895 F.2d 1272, 1276 (9th Cir. 1990); see FTC 
V. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1313 
(D.C. Cir. 1980).

7 The ADEA, like Title YII, provides for procedural deference to 
state proceedings (29 U.S.C. 633), but it provides no comparable 
deference to foreign age discrimination proceedings. So too, the 
EEOC’s subpoena power is substantially identical under both stat­
utes. Compare 29 U.S.C. 161(1) (incorporated in 42 U.S.C. 2Q00e- 
9) with 15 U.S.C. 49 (incorporated in 29 U.S.C. 209, 626 (a ) ). In 
addition, Title VII has been construed to provide defenses similar 
to that conferred by 29 U.S.C. 623(f). See EEOC Br. 27-28 & 
nn.23-24.



11

d. The principal refrain of respondents’ brief is that 
the presumption against extraterritoriality establishes a 
very demanding dear-statement test. In respondents’ 
view, that canon of construction is a “ strong presump­
tion” (Resp. Br. 6, 12) requiring a “ clear and affirmative 
expression” (e.g., id. at 7, 13, 14, 17, 21) of intention to 
reach conduct outside the United States. A “negative in­
ference,”  respondents argue (id. at 7, 11, 32), is insuffi­
cient. Not content with arguing for their understanding 
of that canon, respondents suggest that we share it. Id, 
at 9-10. They err in both respects. We believe that the 
language of Title VII would satisfy a stringent formula­
tion of the presumption; nevertheless, respondents sub­
stantially overstate the force of that canon.

i. In Foley Bros., this Court described the presump­
tion against extraterritoriality as follows (336 U S at 
285) :

The canon of construction which teaches that legisla­
tion of Congress, unless a contrary intent appears, is 
meant to apply only within the territorial jurisdic­
tion of the United States * * * is a valid approach 
whereby unexpressed congressional intent may be as­
certained.

That same formulation was repeated in the most recent 
decision in which this Court referred to the1 presumption. 
Argentine Republic v. Amerada Hess Shipping Corp., 488 
U.S. 428, 440-441 (1989). By its terms, this canon 
serves only to clarify “unexpressed congressional intent,” 
and places no limitations on the form that the showing 
of “ contrary intent”  may take.

The canon described in Foley Bros, is not, therefore, 
a “ strong presumption” (Resp. Br. 6, 12) suspending 
customary principles of statutory interpretation. As this 
Court’s decisions reflect, the requisite intention to apply 
a statute abroad may be found in the language of the 
statute1—informed by due consideration of the statute’s 
purposes, legislative history, administrative interpreta­



12
tions, and other pertinent materials.8 The presumption 
does not impose drafting requirements on Congress, com­
pelling it to use a particular form in order to assure that 
a statute will apply abroad. Nor does it mandate a 
search within a statute for a single discrete provision 
that respondents might characterize as “ affirmative” 
rather than “ negative.”  The combination of broad juris­
dictional provisions and an exemption for aliens abroad 
(meeting the precise concern expressed in Foley Bros.) 
is an entirely natural and sufficient means of expressing 
an intention to cover Americans employed abroad.

Finally, in the face of the language of Title VII, the 
presumption does not require a demonstration that mem­
bers of Congress engaged in some measure of debate over 
extraterritorial applications (see Resp. Br. 11, 20 n.12) 
showing members of the legislature “actually thought 
about” the question (id. at 5-6; see id. at 8, 10, 11). The 
scope of a statute is not limited to applications mentioned 
in its legislative history, Pittston Coal Group v. Sebben, 
488 U.S. 105, 115 (1988). The Foley Bros, canon does 
not justify respondents’ departures from basic principles 
of statutory interpretation.9

8 This Court has never suggested, for instance, that the Foley 
Bros, canon is comparable to the dear-statement principle by which 
the Court determines whether Congress has intended to impose 
liability on the States, notwithstanding the Eleventh Amendment. 
In light of “ [t]he fundamental nature of the interests implicated 
by the Eleventh Amendment,” “ Congress may abrogate the States’ 
constitutionally secured immunity from suit in federal court; only 
by making its intention unmistakably clear in the language of the 
statute.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 
(1985).

9 We do share common ground with the respondents as to the 
reach of the antitrust and securities laws. We agree that Congress 
intended these statutes, which provide for both civil and criminal 
enforcement, to extend extraterritorially (Resp, Br. 25). See, e.g., 
Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 582 
n.6 (1986) ; Continental Ore Co. V. Union Carbide & Carbon Corp., 
370 U.S. 690, 704-705 (1962) ; Schoenbaum V. Firstbrook, 405 F.2d 
200, 206, modified on other grounds, 405 F.2d 215 (2d Cir. 1968), 
cert, denied, 395 U.S. 906 (1969). Various other criminal statutes



13

ii. Respondents derive their more demanding version 
of the Foley Bros, canon from heavily edited quotations 
from cases in which this Court discussed the application 
of American law to aliens on foreign soil or foreign flag 
vessels. For instance, in Foley Bros., this Court insisted 
on “ a clearly expressed purpose” to apply the Eight 
Hour Law to Iranian nationals in Iran (336 U.S. at 286 
(emphasis added)) :

No distinction is drawn [in the Eight-Hour Law] 
between laborers who are aliens and those who are 
citizens of the United States. Unless we are to read 
such a distinction into the statute we should be 
forced to conclude, under respondent’s reasoning, that 
Congress intended to regulate the working hours of a 
citizen of Iran who chanced to be employed on a, pub­
lic work of the United States in that foreign land. 
Such a conclusion would be logically inescapable al­
though 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 expressed pur­
pose. 1101

Title VII does not seek “ so to regulate” labor conditions 
of aliens employed in a foreign land.

Similarly, Benz, McCulloch v. Sociedad Nacional, 372
U. S. 10 (1963), and Sandberg v. McDonald, 248 U.S. 
185, 195 (1918), all involved attempts to apply Amer­
ican law to aliens employed on foreign flag vessels 
(which the law views as analogous to foreign soil, see,
e.g., Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123-124 
(1923)). In Benz, the Court concluded, “ [o]ur study of 10

have also been given extraterritorial effect. See, e.g., United, States
V. Wright-Barker, 784 F.2d 161 (3d Cir. 1986) ; United States V. 
Baker, 609 F.2d 134 (5th Cir. 1980).

10 Respondents’ quotation from Foley Bros, omits the word “ so” 
and the material to which it refers, and also presents the last 
sentence quoted above as an elaboration on the canon of construction 
appearing a page earlier in the Court's opinion. See Resp. Br. 14-15.



14

[the LMRA] leaves us convinced that Congress did not 
fashion it to resolve labor disputes between nationals of 
other countries operating ships under foreign laws.” 353 
U.S. at 143. As in Foley Bros., the Court’s reference to 
a clear and affirmative statement of Congress’s intention 
was specifically linked to that type of application (353 
U.S. at 146-147) :

The seamen agreed in Germany to work on the for­
eign ship under British articles. We cannot read into 
the Labor Management Relations Act an intent to 
change the contractual provisions made by these par­
ties. For us to run interference in such a delicate 
field of international relations there must be present 
the affirmative intention of the Congress clearly ex­
pressed.

Likewise, in McCulloch, the Court framed the “basic” 
question as “whether Lthe NLRA] as written was in­
tended to have any application to foreign registered ves­
sels employing alien seamen.” 372 U.S. at 19. Adhering 
to the holding in Benz, the Court in McCulloch found that 
the NLRA failed to describe “ the boundaries of the Act 
as including foreign-flag vessels manned by alien crews.” 
Id. at 20. The Court quoted from Benz after describing 
how application of the NLRA would result in a “head-on” 
collision with Honduran law governing Honduran crews 
aboard Honduran flag vessels.11

This case involves no comparable attempt to extend 
American law to alien employees abroad; to the contrary, 
the alien exemption precludes any such applications of 
Title VII. Thus, the skepticism the Court expressed in 
Foley Bros., Benz, and McCulloch regarding the reach of 
American law has no applicability here. There is no rea-

11 In Benz and McCulloch, the application of American law to labor 
disputes involving aliens employed aboard foreign-flag vessels might 
well have violated international law. See McCulloch, 372 U.S. at 21 
(referring to “ the admonition of Mr. Chief Justice Marshall in The 
Charming Betsy, 2 Cranch 64, 118 (1804), that ‘an act of congress 
ought never to be construed to violate the law of nations if any 
other possible construction remains . . . . That interpretive
principle has no application in this case.



15

son to question the conclusion flowing from Title VIPs 
express provisions that Congress intended to protect Amer­
icans employed outside the United States from discrim­
ination by American employers.12

2. Respondents and their amici advance a varied as­
sortment of claims regarding the role that international 
law should play in this case. Our fundamental point in 
response is this: international law does not foreclose the 
extraterritorial application of Title VII in the context of 
U.S. employers which discriminate against U.S. citizens.

a. In the first place, international law is relevant to 
this case only as an aid to the interpretation of Title VII. 
As a general rule, statutes are construed, when fairly pos­
sible, to conform with established principles of interna­
tional law. See, e.g., Weinberger v. Rossi, 456 U.S. 28, 
32 (1982); Lauritzen v. Larsen, 345 U.S. 571, 577 
(1953). There is, however, no difficulty in construing 
Title VII to conform to well-established international 
norms.

The only issue of international law presented by this 
case is whether the United States has jurisdiction to pre­
scribe a rule prohibiting discrimination abroad by Amer­
ican employers against American citizens. Respondents’ 
position is that Title VII may never be applied to such 
discrimination. Yet, they admit that the ADEA— the 
validity of which they do not contest under international 
law— does precisely that. And rightly so. As this Court 
has noted, “ the United States is not debarred by any rule 
of law from governing the conduct of its own citizens 
* * * in foreign countries when the rights of other nations

12 Respondents argue that there is no meaningful distinction be­
tween the individual right to freedom from discrimination protected 
by Title VII and the rights protected by federal labor legislation. 
Resp. Br. 25-26 n.20. Employee rights under the NLRA, however, 
are designed to facilitate collective action by employees. The indi­
vidual rights needed to facilitate those activities obviously cannot 
be conferred selectively on Americans abroad; it would make little 
sense to confer the rights to join a union, organize, elect repre­
sentatives, and strike on less than all members of a bargaining 
unit.



16
or their nationals are not infringed.”  Steele V. Bulova 
W atch Co., 344 U.S. 280, 285-286 (1952) ; see Skiriotes 
V. Florida, 313 U.S. 69, 73 (1941) ; Verm ilya-Brown Co. 
V. Connell, 335 U.S. 377, 381 (1948). Recognition of 
authority to prescribe law for nationals does not violate 
any “ fundamental concept of sovereignty” (Resp. Br. 12) 
and is not “ inconsistent with the international principle 
of national sovereignty” (Rule of Law Comm. Br. 5). 
The international community does not adhere to any 
ironclad rule “ that nations have the right to regulate 
conduct within their own borders and not within the 
borders of another sovereign” (Resp. Br. 12). Likewise, 
the exercise of prescriptive jurisdiction to prohibit dis­
crimination by American employers against American 
citizens cannot be regarded as “ imposing Title VII on 
other countries” (id. at 40; see id. at 8).

The fact that the authors of the Restatement charac­
terize nationality as an “ exceptional basis” for prescrip­
tive jurisdiction does not suggest that it is in any way 
disfavored. Compare Resp. Br. 4, 13, 24 n.18; Rule of 
Law Comm. Br. 8, 9. In fact, in the area of anti- 
discrimination legislation, nationality has come to be the 
customary basis for the extraterritorial application of 
American law.13 Although respondents and their amici

13 See 5 U.S.C. 7201 note (prohibiting discrimination, unless re­
quired by treaty, by Department of Defense against American citi­
zens at foreign military bases); 22 U.S.C. 5001(5), 5034-5035(a) 
(^requiring4 nationals] of the United States” employing more than 
25 persons to conform to a “ Code of Conduct” regulating employ­
ment practices in South Africa) ; 29 U.S.C. 623(a) and (h), 630(f) 
(prohibiting age discrimination against American citizens employed 
abroad by American corporations or foreign corporations controlled 
by American employers); 42 U.S.C. 2000e-16(a) (extending pro­
tection from discrimination by the federal government to “ [a] 11 
personnel actions affecting employees or applicants for employment 
(except with regard to aliens employed outside the limits of the 
United States” ) $ ; 50 U.S.C. App. 2407(a) (1) (B ), 2415(2) (direct­
ing the President to promulgate regulations prohibiting any “United 
States person” from engaging in employment discrimination, in 
compliance with foreign boycotts, against “United States per- 
son[s,]” ) . Respondents and their amici downplay or ignore these 
statutes in their discussion of the nationality principle. Resp. Br.



17
call attention to some countries’ resistance to applications 
of American antitrust law and other economic regulation 
(Resp. Br. 25 n.19; Rule of Law Comm. Br. 18 n.16), 
they cite not a single instance in which the ADEA or 
other anti-discrimination statutes that apply abroad (see 
note 13, supra) have been regarded as a violation of in­
ternational law.

b. Respondents and certain amici suggest that in the 
area of employment discrimination, jurisdiction to pre­
scribe law for a state’s nationals has been circumscribed 
by a practice of restricting anti-discrimination laws to the 
territorial limits of the prescribing state or by interna­
tional agreements. The fact that some nations have chosen 
not to prohibit their nationals from discriminating against 
one another beyond their borders falls far short of what 
is required to establish a rule of international law: “ a 
general and consistent practice of states followed by them 
from a sense of legal obligation.”  Third Restatement 
§ 102 (2) & comment c (emphasis added) .u

On their face, the international agreements on which 
respondents and their amici rely do not purport to with­
draw prescriptive jurisdiction that the signatories enjoy 
under the nationality principle. Compare Resp. Br. 40; 14

13; Rule of Law Comm. Br. 6 n.6. As these examples reflect, anti- 
discrimination statutes are not regarded as laws addressing “pre­
dominantly local activities, such as industrial and labor relations” 
(Rule of Law Comm. Br. 10 (quoting Restatement (Third) of the 
Foreign Relations Law of the United States § 414, comment c, at 
271 (1986) [hereinafter Third Restatement] ) ;  Resp. Br. 25.

The Department of Labor has exercised authority conferred by 
Exec. Order No, 11,246, § 204, 3 C.F.R. 342 (1964-1965 comp.) to 
exempt “work performed outside the United States” from anti- 
discrimination regulations applicable to government contracts, but 
only when “no recruitment of workers within the limits of the 
United States is involved.” 41 C.F.R. 60-1.5 (a) (3). Compare Soc. 
Hum. Res. Mgt. Br. 21 (omitting all mention of the limitation.).

14 Indeed, by indicating dissent while a rule remains in the process 
of formulation, a state avoids being bound even after the rule! 
matures. Third Restatement § 102, comment d. In view of the 
ADEA and other American laws, there can be no claim that the 
United States has recognized such a rule of international law.



18
Rule of Law Comm. Br. 15. Nor does the agreements’ 
purpose permit such a strained construction; agreements 
committing nations to the goal of eliminating employ­
ment discrimination throughout the world should not be 
read to withdraw authority those states otherwise enjoy 
to prescribe law for their own nationals advancing that 
very goal.

c. The diplomatic notes appended to respondents’ brief 
do not suggest that it would violate international law to 
apply Title VII to discrimination abroad by American 
employers against American citizens. See Resp. Br. App. 
6a-10a. Rather, the notes urge that, if this Court con­
strues Title VII to extend to discrimination by American 
employers against American citizens, a question on which 
the notes express no opinion, the statute should be ap­
plied in a manner consistent with international law, with 
due regard for principles of comity and sovereignty. 
Those understandable concerns lend no support to fore­
closing Title VII’s extraterritorial application to U.S. 
citizens.

d. Respondents and their amici suggest that “ sensitive 
and sometimes vast cultural differences between this na­
tion and other sovereign states” (Resp. Br. 40), “ poten­
tially conflicting standards” (EEAC Br. 18), and dis­
crimination statutes of other nations (Resp. Br. 40) 
should be held to foreclose Title VII’s application abroad. 
In view of the emerging international consensus against 
discrimination, it would be wrong to assume that Title 
VII is so fundamentally out of step with employment 
practices around the world that Congress could not have 
intended it to apply at all outside the United States. 
Moreover, Title VII represents a determined effort to 
protect Americans from employment discrimination based 
upon cultural biases and stereotypes, even those that in­
trude upon international business operations. See 
Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 
1981). Title VII is fairly construed to prohibit Ameri­
can employers from incorporating those biases into their 
dealings with American employees.



19
Similarly, the fact that foreign states have enacted 

legislation directed to employment does not, in and of 
itself, weigh against application of Title VII to American 
nationals abroad. International law acknowledges that 
more than one nation may exercise prescriptive jurisdic­
tion over a given subject matter. Here again, since most 
nations share a common view of employment discrimina­
tion, conflicts between such laws will likely be rare.

There is no apparent conflict, for instance, between 
Title VIPs application to this case and the Labor and 
Workmen Law of Saudi Arabia. Respondents stop well 
short of asserting such a conflict. They say only that 
this statute regulates all employment in Saudi Arabia; 
that it “ contains numerous substantive provisions” ; that 
it establishes a “ a procedural framework consisting of 
two judicial commissions” ; and that these commissions 
draw no distinction between citizens of Saudi Arabia and 
foreign nationals. Resp. Br. 41; see also id. at 3. Even 
assuming the accuracy of these characterizations, there 
could hardly be any contention that Saudi law compelled 
the discrimination alleged by petitioner Boureslan, or that 
application of Title VII to this case would contradict any 
aspect of the Kingdom’s law. There is no indication that 
this case presents anything beyond the exercise of con­
current jurisdiction. The mere possibility of some con­
flicts between Title VII and foreign law is no reason to 
preclude any application of Title VII abroad; rather, any 
conflicts that do arise may be resolved within the frame­
work of Title VII. See EEOC Br. 27 & nn.23-24.

3. Respondents argue that the EEOC has not been con­
sistent in its interpretation of Title VII with respect to 
the question presented. They contend that an interpreta­
tive regulation promulgated by the Commission in 1970 
limited Title VII to employment within the United States 
(Resp. Br. 44) and that the interpretation conveyed by 
the EEOC’s General Counsel to the Senate Foreign Rela­
tions Committee in 1975 “was in conflict with the 
agency’s regulation then in force” (Resp. Br. 44).

Respondents have misread the EEOC’s prior regula­
tion. The quoted provision was part of a regulation ad-



20
dressing national origin discrimination— which focused 
on discrimination in this country against persons born 
abroad. To make clear that aliens in this country were 
entitled to protection against that form of discrimina­
tion, the regulation stated that the statute protects “ all 
individuals, both citizens and noncitizens, domiciled or 
residing in the United States.” J.A. 46. By underscoring 
that all individuals were protected in the United States, 
the regulation did not suggest that Americans were pro­
tected only when they are present in this country. There 
is no reason to suppose that the Commission’s General 
Counsel responded to Congress’s inquiries regarding Ti­
tle YII’s scope with an unauthorized interpretation of the 
statute.15

* * * * *
For the foregoing reasons and those set forth in our 

initial brief, the judgment of the court of appeals should 
be reversed.

Respectfully submitted.

January 1991

Kenneth W. Starr
Solicitor General

16 See Robertson V. Methow Valley Citizens Council, 109 S. Ct. 
1835, 1850 (1989); Bowles V. Seminole Rock & Sand Co., 325 U.S. 
410, 414 (1945); Vdall V. Tallman, 380 U.S. 1, 16-17 (1965) ; INS 
V. Stanisic, 395 U.S. 62, 72 (1969) ; Ford Motor Credit Co., V. 
Milhollin, 444 U.S. 555, 556 (1980).

U. S . GOVERNMENT PRINTING OFFICE; 1 9 9 1 2 8 2 0 6 1  2 0 2 9 0