Republic Natural Gas Co. v. Oklahoma Court Opinion

    No. 89-1838 
No. 89-1845

In T he

Supreme Court of tfje Hmtetr States!
October  Te r m , 1990

E qual E mployment Opportunity Commission,
Petitioner,

v.
Arabian American Oil Co,,

Ali Boureslan, 

v.
Arabian American Oil Co.,

Respondent.

Petitioner,

Respondent.

On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

THE AMERICAN JEWISH COMMITTEE,
THE AMERICAN JEWISH CONGRESS,

THE ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, 
AND THE WOMEN’S LEGAL DEFENSE FUND 

IN SUPPORT OF PETITIONERS

Pamela S. Karlan 
University of Virginia 
School of Law 

Charlottesville, VA 22901 
(804) 924-7810

J ulius LeVonne Chambers 
*Charles Stephen Ralston 

The NAACP Legal Defense 
and Educational Fund, Inc. 

99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

[Additional Counsel Listed on Inside Front Cover]

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Amy Adelson 
Lois Waldman 
Marc D. Stern 

American Jewish Congress 
15 East 84th Street 
New York, N.Y. 10028 
(212) 879-4000

Ruth L. Lansner 
Steven M. Freeman 
J ill L. Kahn

The Anti-Defamation League 
of B’nai B’rith 

823 United Nations Plaza 
New York, N.Y. 10017 
(212) 490-2525

*Counsel of Record

Samuel Rabinove 
The American Jewish 
Committee 

165 E. 56th Street 
New York, N.Y. 10022 
(212) 751-4000

Donna R. Lenhoff 
Women’s Legal Defense 
Fund

2000 P Street, N.w.
Suite 400
Washington, D.C. 20036 
(202) 887-0364

Attorneys for Amici Curiae



TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .  ii

Interest o f  Amici Curiae . . . . . . . . . . . . . . . . . .  2

SUM M ARY OF ARGUM ENT . . . . . . . . . . . . . . . .  7

ARGUM ENT ..............................................  9

Introduction .....................................   9

I. T itle VH Was Enacted Against the Backdrop of
Congress’ Long-Standing Concern With Ensuring 
Equal Employment Opportunities in International 
Commerce for American Citizens . . . . . . .  12

II. One of the Purposes of the Civil Rights Act of 
1964 Was To Promote Nondiscrimination Abroad 25

III. Section 702 Should Be Construed To Give Title VII
Extraterritorial Application in Light of Congress’ 
Clearly Expressed Concern With Fair Employment 
Overseas .......................................................   31

IV. Subsequent Legislation Also Demonstrates
Congress’ Intention To Provide Equal Employment 
Opportunity for American Citizens in the 
International Workplace ................................... 36

Conclusion ...............................    41



TABLE OF AUTHORITIES

Cases: Pages:

Abrams v. Baylor College of Medicine, 805 F.2d 528 (5th 
Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . .  18, 39

Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 
682 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . .  11

American Jewish Congress v. Arabian American Oil Co., 
No. C-4296-56 (N.Y. State Comm’n Against Discrimina­
tion Jan. 26, 1959) . . . . . . . . . . . . . . . . . . . . .  22

American Jewish Congress v. Carter, 190 N.Y.S.2d 218, 
221 (Sup. Ct. 1959), modified, 10 A.D.2d 833, 199 
N.Y.S.2d 157 (App. Div. 1960), aff’d, 9 N.Y.2d 227, 213 
N.Y.S.2d 60 (1961) . . . . . . . . . . . . . .  4, 10, 23, 24

Boureslan v. American Arabian Oil Co, 653 F. Supp. 629, 
629 (S.D. Tex. 1987), aff’d 857 F.2d 1014, 1016 (5th Cir. 
1988), vacated for rehearing en banc and aff’d, 892 F.2d 
1271 (5th Cir. 1990) (en banc) . . . . . . . . . . .  18, 31

Diaz v. Pan American World Airways, 454 F.2d 234 (5th 
Cir.), cert, denied, 404 U.S. 950 (1971) . . . . . . . .  39

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 
(1973) .................... .. ................................. ..  33

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) 11

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . .  2



Pages:

Hardin v. City Title & Escrow Co., 797 F.2d 1037 (D.C. 
Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . .  32

House v. Commissioner, 453 F.2d 982 (5th Cir. 1972) 32

International Ass’n of Machinists v. OPEC, 649 F.2d 1354, 
1358-61 (9th Cir. 1981) (same), cert, denied, 454 U.S. 1163 
(1982) ........................................ .. ................... ..  11

NAACP v. Button, 371 U.S. 415 (1963) ........... ..  2

Newman v. Piggie Park Enterprises, 390 U.S. 400 (19681)1

Regents v. Bakke, 438 U.S. 265 (1978) . . . . . . . . .  25

United Steelworkers v. Weber, 443 U.S. 103 (1979) . 13

Statutes and Resolutions:

29 U.S.C. § 213(f) .................................. ..  19

42 U.S.C. § 1981 ................................................  34

50 U.S.C. App. § 2402(5)(A) . ..................................... 36

50 U.S.C. App. § 2407(a) . . . . . . . . . . . . . .  37, 38

Civil Rights Act of 1964, § 701, 42 U.S.C. § 2000e . 33

Civil Rights Act of 1964, § 702, 42 U.S.C.
§ 2000e-l . . . . . . . . . . . . . . . . . . . . . .  31, 32, 34

Civil Rights Act of 1964, § 703, 42 U.S.C. § 2000e-2. 33



IV

S. Res. 323, 84th Cong., 2d Sess. (1956) . . . .  14-16, 22

Pages:

Legislative History:

102 Cong . Re c . 14330 (My 25, 1956) . . . . . . . . .  15

102 Cong . Rec . 14732 (My 26, 1956) . . . . . . . . .  16

102 Cong . Rec . 14733 (My 26, 1956) . . . . . . . . .  17

Civil Rights-Public Accommodations: Hearings on S. 1732 
Before the Sen. Comm, on Commerce, 88th Cong., 1st 
Sess. (1963) . . . . . . . . . . . . . . . . . . . . . . . .  26-30

H.R. Rep. No. 190, 95th Cong., 1st Sess. (1977) 37, 40

S. Rep. No. 872, 88th Cong. 2d Sess. (1964) . . . . .  22

S. Rep. No. 2790, 84th Cong., 2d Sess. (1956) . . . .  15

Other Materials:

M. Borden, Jews, Turks, and Infidels (1984). . . .  14

Dudziak, Desegregation as a Cold War Imperative, 41 Stan. 
L. Rev. 61 (1988). . . . . . . . . . . . . . . . . . . . . . .  26

Gold, Griggs’ Folly: An Essay on the Theory, Problems, and 
Origins of the Adverse Impact Definition o f Employment 
Discrimination and a Recommendation for Reform, 7 Indust. 
Re l . L.J. 429 (1985). . . . . . . . . . . . . . . .  10



V

Letter from Secretary of State John Foster Dulles to Philip

Pages:

Klutznick, President of B’nai B’rith (Aug. 14, 1956) . . 23

Letter from Assistant Secretary of State William B. 
Macomber, Jr. to Sen. E.L. Bartlett (July 29, 1959) . . 24

Note, Title VII and the Arab Boycott, 12 Harv. C.R.-C.L. 
L. R e v . 181 (1977). . . . . . . . . . . . . . . . . . . . . .  36

Street, Application o f U.S. Fair Employment Laws to 
Transnational Employers in the United States and Abroad, 
19 N.Y.U.J. In t ’l L. & Po l . 357 (1987). . . . . . . . .  18



No. 89-1838 
No. 89-1845

In The

Supreme Court of the United States
October Term, 1990

Equal Employment Opportunity Commission,
Petitioner,

v.

Arabian American Oil Co .,
Respondent.

Ali Boureslan,
Petitioner,

v.

Arabian American Oil Co .,
Respondent.

On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

BRIEF AMICI CURIAE OF THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

THE AMERICAN JEWISH COMMITTEE,
THE AMERICAN JEWISH CONGRESS,

THE ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, 
AND THE WOMEN’S LEGAL DEFENSE FUND 

IN SUPPORT OF PETITIONERS



2

Interest o f  Am ic i Cu ria e1 

The NAACP Legal Defense and Educational Fund, Inc., 

is a non-profit corporation that was established for the 

purpose of assisting black citizens in securing their 

constitutional and civil rights. This Court has noted the 

Fund’s "reputation for expertness in presenting and arguing 

the difficult questions of law that frequently arise in civil 

rights litigation." NAACP v. Button, 371 U.S. 415, 422 

(1963).

A significant portion of the Fund’s litigation has 

concerned Title VII of the Civil Rights Act of 1964 and the 

proper scope of constitutional and statutory rights to equal 

employment opportunity. See, e.g., Griggs v. Duke Power 

Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 

422 U.S. 405 (1975). The Fund has long been committed 

to the proposition that full equality of economic opportunity 

requires applying prohibitions on discrimination in employ­

‘Letters of consent to the filing of this Bnef have been filed with the 
Clerk of Court.



3

ment to American corporations regardless of where such 

discrimination occurs.

The American Jewish Committee ("AJC") is a national 

membership organization, founded in 1906 to protect the 

civil and religious rights of Jews. AJC has always believed 

that these rights can be secure for Jews only if they are 

equally secure for Americans of all faiths, races, and ethnic 

backgrounds. AJC, therefore, has been actively involved in 

the civil rights cause since its inception in the 1930s, and 

strongly supported enactment of the Civil Rights Act of 

1964. This organization has always urged that civil rights 

laws be interpreted broadly to effectuate their purposes. 

That is why AJC believes that Title VII should be 

interpreted to apply to discrimination outside the United 

States by an American corporation against an American 

citizen employee.

The American Jewish Congress is a national 

membership organization founded in 1918 for the



4

preservation of the security and the constitutional and civil 

rights of Jews in America through guaranteeing the rights of 

all Americans. Since 1959 when as a plaintiff in American 

Jewish Congress v. Carter, 190 N.Y.S.2d 218, 221 (Sup. 

Ct. 1959), modified, 10 A.D.2d 833, 199 N.Y,S.2d 157 

(App. Div. 1960), aff’d, 9 N.Y.2d 227, 213 N.Y.S.2d 60 

(1961), it successfully litigated under New York anti- 

discrimination law to ban Aramco’s discriminatory 

employment practices from New York State, the American 

Jewish Congress has fought to assure equality of 

employment opportunity for Americans both at home and 

abroad. It has brought and successfully settled cases 

involving fact patterns identical to those in the instant case. 

It believes reversal of the decision below is necessary to 

preserve the continued vitality of Title VII as a means to 

prevent and remedy discrimination in employment against 

Americans in the international work place.



5

The Anti-Defamation League of B’nai B’rith (ADL) was 

organized in 1913 to advance good will and mutual 

understanding among Americans of all races a creeds, and 

specifically to combat racial and religious discrimination 

both in the United States and abroad. Among the many 

activities directed towards these goals, in 1977 ADL fought 

successfully for the passage of the antiboycott provisions of 

the Export Administration Act (EAA), which prohibit U.S. 

companies from discriminating against U.S. citizens in order 

to comply with the Arab boycott of Israel and Israeli 

interests. Subsequently, ADL filed amicus briefs in cases 

involving a private right of action under the EAA, including 

Abrams v. Baylor College of Medicine, 805 F.2d 528 (5th 

Cir. 1986), and Bulk Oil (Zug) A.G. v. Sun Company, Inc., 

583 F. Supp. 1134 (S.D.N.Y. 1983), aff’d. 742 F.2d 1431 

(2d Cir.), cert, denied, 469 U.S. 835 (1984). Moreover, 

ADL has a consistent record of fighting employment 

discrimination in a variety of domestic contexts, and has



6

filed amicus briefs in cases such as Hobbie v. Unemployment 

Appeals Commission, 480 U.S. 136 (1987) (holiday 

observance); Hishon v. King & Spaulding, 467 U.S. 69 

(1984)(sex discrimination); and McDonald v. Santa Fe Trail 

Transportation Co., 427 U.S. 273 (1976) (racial

discrimination).

ADL submits the accompanying brief because we 

believe this Court will decide the important issue of whether 

an American who is the target of employment discrimination 

by a U.S. company doing business abroad should be 

afforded the same legal protection as one who is subject to 

employment discrimination by a U.S. company doing 

business in this country. ADL has a vital interest in 

ensuring that Americans are protected from employment 

discrimination both at home and abroad, and we therefore 

support the extraterritorial application of Title VII of the 

Civil Rights Act of 1964 with regard to Americans employed 

by American companies.



7

The Women’s Legal Defense Fund is a non-profit, tax- 

exempt membership organization, founded in 1971 to 

provide pro bono legal assistance to victims of 

discrimination based on sex. The Fund devotes a major 

portion of its resources to combatting sex discrimination in 

employment, through litigation of significant employment 

discrimination cases, operation of an employment 

discrimination counseling program, public education, and 

advocacy before the EEOC and other federal agencies that 

are charged with enforcement of equal employment laws.

SUMMARY OF ARGUMENT

I.

As early as 1956, Congress made clear its concern with 

ensuring equal employment opportunities for American 

citizens working abroad for American corporations. In 

particular, the Senate passed a resolution stating that it was 

against national policy for there to be distinctions based on



8

religion in the negotiations of trade agreements between the 

United States and foreign nations. This historical 

background must be considered in interpreting Title VII of 

the Civil Rights Act of 1964.

II.

A specific purpose of the Civil Rights Act of 1964 was 

to promote nondiscrimination abroad. The ending of racial 

discrimination within the United States was considered key 

to enhancing America’s image and to affect discrimination in 

other countries by setting a standard for the world.

III.

The language of Title VII supports the conclusion that 

it applies to the employment practices of American 

companies operating abroad. The Fifth Circuit’s 

construction of the statute is artificially narrow and 

inconsistent with the terms of the statute.



9

In subsequent legislation, Congress has demonstrated 

its intention to provide equal employment opportunity for 

American citizens working abroad. The Export 

Administration Act expressly covers discrimination against 

Americans by American corporations operating abroad. It 

would be wholly inconsistent with Congress’ intent to give 

Title VII a more limited scope.

IV.

ARGUMENT

Introduction

This is not the first time that respondent Arabian 

American Oil Co. ("Aramco”) has sought to insulate its 

treatment of American citizens from scrutiny under equal 

employment opportunity laws by pointing to the international 

nature of its business. Thirty years ago, Aramco argued that 

its refusal to hire Jews should be immune from the reach of

a state antidiscrimination statute that served as one of the



10

models for Title VII2 because Jews were not permitted entry 

into Saudi Arabia and because the Saudi government, on 

whose good will Aramco was economically dependent, 

disapproved of Aramco’s employing Jews anywhere. See 

American Jewish Congress v. Carter, 190 N.Y.S.2d 218, 

221 (Sup. Ct. 1959), modified, 10 A.D.2d 833, 199 

N.Y.S.2d 157 (App. Div. 1960), aff’d, 9 N.Y.2d 227, 213 

N.Y,S.2d 60 (1961) (rejecting Aramco’s position).

The argument accepted by the Fifth Circuit in this case 

represents a significant expansion of this already-discredited 

position, for the Fifth Circuit’s opinion gives American 

companies a blanket license to discriminate in their overseas 

operations as they see fit, regardless of the laws or customs 

of other counties. The Fifth Circuit did not find that 

Aramco’s discriminatory conduct is somehow required by a 

foreign government. Thus, this case does not raise

2 See generally Gold, Griggs’ Folly: An Essay on the Theory, 
Problems, and Origins o f the Adverse Impact Definition o f Employment 
Discrimination and a Recommendation for Reform, 7 INDUST. REL. L J . 
429, 568-73 (1985).



11

potentially troublesome issues concerning the act of state and 

foreign compulsion doctrines. C f, e.g., Alfred Dunhill o f 

London v. Republic o f Cuba, 425 U.S. 682, 705 n. 18 

(1976) (plurality opinion) (discussing doctrines); 

International Ass’n o f Machinists v. OPEC, 649 F.2d 1354, 

1358-61 (9th Cir. 1981) (same), cert, denied, 454 U.S. 1163 

(1982). Rather, the Fifth Circuit excused an American 

corporation from complying with a statute expressing our 

Nation’s "highestpriority," Franks v. Bowman Transp. Co., 

424 U.S. 747, 763 (1976) (quoting Newman v. Piggie Park 

Enterprises, 390 U.S. 400, 402 (1968)), because it assumed 

that Congress failed to express an intention that Title VII 

apply extraterritorially. See Boureslan v. Aramco, 892 F.2d 

1271, 1273-74 (5th Cir. 1990) (en banc).

That assumption is critically flawed. It reflects an 

improperly cramped view of the available evidence regarding 

Congress’ concern with the overseas employment 

opportunities of American citizens and the overseas em­



12

ployment practices of American corporations. That evidence 

clearly shows that Congress has long been concerned with 

ensuring equal employment, opportunities for American 

citizens in international commerce. In light of that evidence 

and relevant principles of statutory construction, § 702 

provides additional evidence that Title VII should be given 

extraterritorial effect with regard to American citizens 

employed by American companies.3

I. Title  VII W as Enacted Against the  Backdrop 
o f  Congress5 L ong-Standing C oncern  W it h  
Ensuring E qual Em ploym ent  Opportunities in  
International C om m erce  fo r  Am erican  
Citizens

The Civil Rights Act of 1964 was not passed in a 

vacuum. To understand the scope Congress intended the Act 

to have, one must examine Congress’ prior treatment of the

3 Judge King’s persuasive dissent and the arguments advanced by the 
Equal Employment Opportunity Commission and the private petitioner 
address in detail the general principles of statutory construction that 
should govern this case and much of the relevant evidence in the 
legislative history of Title VII. We do not repeat their analyses in this 
brief.



13

question of discrimination abroad by American companies 

against American citizens. Cf. United Steelworkers v. 

Weber, 443 U.S. 103, 201 (1979) (Title VII must be 

construed in "the historical context from which the Act 

arose"). Examination of this issue strongly supports 

extraterritorial application of Title VII, for, prior to the 

passage of Title VII, Congress had expressed a forceful 

commitment to eliminating employment discrimination 

abroad against American citizens.

There are two distinct contexts in which employment 

discrimination against Americans overseas might occur: (1) 

the discrimination might be required by the laws of a foreign 

government or (2) the foreign government might be neutral 

as to the permissibility of such discrimination. Obviously, 

the former situation presents a stronger argument for 

confining American fair employment laws within United 

States borders, since it involves a square conflict of laws and 

sovereignty. Even in this more potentially troublesome



14

context, however, Congress has repeatedly manifest its 

desire to extend principles of nondiscrimination in 

employment as far as possible. Senate Resolution 323, 84th 

Cong., 2d Sess. (1956), represents an express statement of 

this congressional commitment to extraterritorial equal 

employment opportunity.

During the 19505s, Congress became increasingly 

concerned with the refusal of American corporations doing 

business with the Arab world to hire American Jews.4 In 

1956, the Senate unanimously passed a resolution 

condemning discrimination in overseas employment on the 

basis of religion:

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

4 This was not, however, the first time Congress had expressed this 
concern. As early as the 1850’s, Congress had passed resolutions urging 
other nations not to discriminate among American citizens on the basis 
of religion, and had refused to accept foreign commerce treaties that did 
not provide for nondiscrimination among American citizens. See M. 
Borden, Jews, Turks, and Infidels 82-88, 94-96 (1984).



15

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 any other rights otherwise 
available to 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 
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

Co n g . Re c . 14330 (July 25, 1956)).

The discussion on the floor of Senate Resolution 323

further illustrates Congress’ desire to assure that American

citizens abroad enjoy, to the maximum extent possible, the

same equal employment opportunity they enjoy within the

United States.5 Senator Lehman (D.-N.Y.), the primary

5 The Committee on Foreign Relations recommended passage of the 
resolution without objection. The committee report that accompanied the 
resolution, S. Rep . No. 2790, 84th Cong., 2d Sess. (1956), stated 
succinctly that "[t]he resolution speaks for itself."



16

sponsor of S. Res. 323,6 stated that the purpose of the

resolution was to prevent foreign employment practices, even

those compelled by foreign governments, from making

"second-class citizens of some . . . Americans . . . 102

C o n g . R e c . 14732 (July 26, 1956).7 He explained that the

resolution should govern the negotiation of trade agreements

to make sure that such agreements

expressly provide that no United States citizen 
shall, solely because of religious affiliation or 
derivation, be denied the advantages o f . .  . 
employment. . .  or any other benefit made possible 
by such treaty, convention or agreement.

Id. (Emphasis added.)

Two of Senator Lehman’s remarks are particularly 

salient to the issue now before this Court. First, Senator

6 Sen. Lehman received unanimous consent to put his testimony in 
the record "to supplement the language of the resolution itself.” 102 
Cong. Rec . 14732 (M y 26, 1956).

7 Several senators who spoke in favor of the resolution stated that 
the integrity of United States sovereignty and citizenship would be 
compromised if Americans overseas were subject to discrimination in 
employment on the basis of religion. See, e.g., id. at 14731 (M y 26, 
1956) (statement of Sen. Morse); id. at 14733 (statement of Sen. Neu- 
berger); id. (statement of Sen. Humphrey).



17

Lehman expressly linked the application of principles of non­

discrimination to foreigners within the United States to the 

United States’ right to insist that American citizens be 

treated fairly abroad. Id. at 14733; see also id. (statement 

of Sen. Morse) (resolution "will demonstrate once again — 

and it is time we made it clear — that a basic idea of 

America, not only in foreign relations, but in domestic 

policy, is that there can be no question raised as to the rights 

of our citizens based upon religious faith.").

Second, Senator Lehman recognized the potential 

domestic effect of sanctioning discrimination abroad. Id. In 

order to assure nondiscrimination at home by transnational 

employers it would be necessary to press for

nondiscrimination abroad.

The phenomenon identified by Senator Lehman—the 

interdependence of the domestic and international 

employment markets—is especially important in

understanding how the Fifth Circuit’s interpretation threatens-



18

to undermine Congress’ intentions in enacting Title VII. 

Title VII was intended to expand the employment 

opportunities available to racial, ethnic, and religious 

minorities and to women. In today’s multinational 

economy,8 an individual’s advancement within a corporation 

may often be dependent on training, experience, and contacts 

that occur abroad. See, e.g., Abrams v. Baylor College of 

Medicine, 805 F.2d 528, 530 (5th Cir. 1986) (higher 

incidence of certain heart diseases in Saudi Arabia meant 

that cardiologists who spent time in program run by Baylor 

there received "a greater opportunity for clinical experience 

. . . than is generally available in America"). Moreover, 

many decisions regarding positions abroad are in fact made 

in the United States. See, e.g., Boureslan v. American 

Arabian Oil Co, 653 F. Supp. 629, 629 (S.D. Tex. 1987), 

aff’d 857 F.2d 1014, 1016 (5th Cir. 1988), vacated for

8 See, e.g., Street, Application of U.S. Fair Employment Laws to 
Transnational Employers in the United States and Abroad, 19 N.Y.U.J. 
Int’l L. & Pol. 357, 358 (1987) (2000 U.S. firms operate 21,000 
foreign subsidiaries in 121 countries).



19

rehearing en banc and aff’d, 892 F.2d 1271 (5th Cir. 1990) 

(en banc) (Boureslan requested and was given a transfer to 

Aramco and its Saudi operations while he was working at 

ASC in Houston, Texas). If racial, religious, and ethnic 

minorities or women lose their right to fair treatment 

whenever they spend time working for their American 

employer’s overseas operations, they face a Hobson’s 

choice. If they choose not to take jobs that require working 

abroad9 in order to remain under Title VIPs protection, they 

will be less competitive in seeking jobs within the United 

States because they will lack the experience and contacts that 

persons who have taken such jobs obtain. If, on the other 

hand, they take overseas positions, they may be discriminat­

9 This may even preclude accepting assignments that require 
protracted overseas travel. The stringent territorial restriction of Title 
VII required by the panel’s interpretation might mean, for example, that 
sexual harassment of a female employee on a two-week business trip to 
Asia would be beyond the reach of Title VII even though both the super­
visor and the victimized subordinate are American citizens employed by 
an American corporation in an American office. Cf. 29 U.S.C. § 213(f) 
(Fair Labor Standards Act does not apply to "any employee whose 
services during the work week are performed in a workplace within a 
foreign country").



20

ed against as soon as they arrive on foreign soil. If they are 

fired, or harassed into quitting, by discrimination that would 

be forbidden if it occurred within the United States, the 

termination of their relationship with the American-based 

employer will preclude their later moving up the corporate 

ladder into domestic positions.

Moreover, if a substantial number of potential 

employees refuse to work overseas because to do so would 

strip them of fundamental protections, employers may have 

to pay a premium to induce potential employees to work 

abroad. White Anglo-Saxon male workers will benefit 

disproportionately from such a premium, since they will be 

less likely to be at risk of discrimination. Ultimately they 

will receive both a direct premium -  from accepting 

overseas assignments — and an indirect competitive 

advantage against their minority or female competitors who 

have not received the training or experience acquired from 

overseas employment.



21

Finally, the Fifth Circuit’s approach creates a massive 

loophole for companies that wish to circumvent Title VII. 

In essence, it permits employers to "launder" their 

discrimination just as offshore banks permit criminals to 

"launder" illegally acquired funds. For example, a company 

that wants to fire a female employee need only transfer her 

to an overseas office. It can then terminate her without 

facing Title VII liability. Even the threat of being sent 

overseas, when coupled with the likely prospect of 

harassment or discharge without redress under Title VII may 

cause an employee’s resignation or acquiescence in 

discriminatory treatment. For example, a company that 

wishes to exclude women from certain positions in its United 

States operations may be able to induce female employees to 

refrain from seeking the positions by requiring all employees 

seeking the position to serve overseas and by doing nothing



22

to discourage sexual harassment in its operations abroad.10

S. Res. 323 reflected a broad consensus within the 

legislative and executive branches regarding equal 

employment opportunities in international commerce.11

10 The Fifth Circuit’s opinion poses another potential threat to 
employment opportunities within the United States. To the extent that 
American companies believe they can reduce costs by exporting 
American jobs overseas, they will do so. The effect will be to diminish 
the number of available domestic jobs. To the extent that a corporation 
views compliance with principles of fair employment as a cost, releasing 
the company from compliance with those principles creates an incentive 
for the company to move those jobs offshore even when it continues to 
fill the jobs with American citizens. The net result is either that it will 
then not hire protected groups to fill the jobs or that it will not give those 
groups the protection they would enjoy in domestic employment 
situations. In either event, those groups’ employment opportunities will 
be diminished. In short, the Fifth Circuit has created an incentive for 
American companies to export American jobs.

11 The 1956 platforms of both political parties expressed similar 
sentiments. The Democratic platform stated that "We oppose, as 
contrary to American principles, the practice of any government which 
discriminates against American citizens on grounds of race and religion. 
We will not countenance any arrangement or treaty with any government 
which by its terms or in its practical application would sanction such 
practices." The Republican platform stated that "We approve appropri­
ate action to oppose the imposition by foreign government of discrimina­
tion against United States citizens based on their religion or race." 
Quoted in American Jewish Congress v. Arabian American Oil Co. , No. 
C-4296-56 (N.Y. State Comm’n Against Discrimination Jan. 26, 1959). 
Cf. S. REP. No. 872, 88th Cong. 2d Sess. (1964), reprinted in 1964 
U.S. Cong. Code & Ad . News 2355, 2362-63 (Senate report 
accompanying Civil Rights Act of 1964 quotes 1960 platforms of 
Democratic and Republican parties to show national commitment to 
"equal opportunity and elimination of racial discrimination").



23

Secretary of State John Foster Dulles responded to questions 

about the opportunities of American Jews to work abroad by 

writing that " [i]t is the policy of the Department of State not 

to acquiesce in any discriminatory practices, but to point out 

to the leaders of the Arab states the equality of all 

Americans irrespective of race or creed under the 

Constitution and laws." Letter from Secretary of State John 

Foster Dulles to Philip Klutznick, President of B’nai B’rith 

(Aug. 14, 1956), quoted in American Jewish Congress v. 

Arabian American Oil Co., No. C-4296-56 at 6-7 (N.Y. 

State Comm’n Against Discrimination Jan. 26, 1959).12 The 

Department reiterated this position in a 1959 letter written to 

Senator E.L. Bartlett regarding the then-pending American 

Jewish Congress v. Carter litigation:

12 The letter continues: "We in the Department of State are
particularly anxious to do what we can to insure that United States 
citizens in pursuit of legitimate trade, travel and other activities abroad 
will not face distinctions of the kind of which you write. Our posts in 
countries where discriminatory practices are followed have also been 
instructed to point out the strong feelings of the American public and of 
the Congress in this matter." Id. at 7.



24

[T]he proper policy of our Government must be to 
work for the elimination of any procedures adopted 
by foreign states which tend to discriminate against 
our citizens in any way, including discrimination 
on the basis of race or religion.

Letter from Assistant Secretary of State William B.

Macomber, Jr. to Sen. E.L. Bartlett (July 29, 1959), quoted

in Brief of Petitioner-Respondent at 64, American Jewish

Congress v. Carter, 199 N.Y.S.2d 158 (App. Div. 1960).

In sum, the enactment of Title VII must be viewed

against the backdrop of the Senate’s desire that Americans

abroad be protected by the right to equal treatment they

enjoyed at home. The discussion surrounding the unanimous

passage of Resolution 323 and widespread concern with

overseas employment opportunities for American religious

minorities in the decade preceding the passage of Title VII

strongly suggest that when Congress expanded federal

protection of employment rights in 1964, it intended that the

new protections, like their predecessors, extend to

Americans overseas.



25

II. One of  the  P urposes o f  the  Civil  R ig h ts  Act of  
1964 W as T o P rom ote  Nondiscrimination  
Abroad

The Civil Rights Act of 1964 represented a 

comprehensive attack on the problems of prejudice in public 

accommodations, employment, access to governmental 

services, and voting. Thus, the legislative, history of the 

various titles can contribute to an understanding of the 

proper scope to be afforded particular provisions. Cf. e.g., 

Regents v. Bakke, 438 U.S. 265, 353 (1978) (opinion of 

Brennan, White, Marshall, & Blackmun, JJ.) (interpreting 

Titles VI and VII in tandem).

The testimony presented in support of the public 

accommodations provisions of the Act by Secretary of State 

Dean Rusk demonstrates the Administration’s intention that 

the enactment of antidiscrimination legislation in the United 

States serve to expand protections against discrimination

abroad.



26

The fact that racial discrimination within the United 

States had injured America’s image and impaired the conduct 

of its foreign relations had long been recognized. See 

generally Dudziak, Desegregation as a Cold War Imperative, 

41 Stan . L. Re v . 61 (1988) (discussing foreign reactions to 

racial discrimination in employment, education, and public 

accommodations, and federal government’s response to these 

reactions). But Secretary Rusk went beyond seeking a 

public accommodations law to eliminate damaging episodes 

of racial discrimination against foreign diplomats traveling in 

America. See, e.g., id, at 90-92; Civil Rights-Public 

Accommodations: Hearings on S. 1732 Before the Sen. 

Comm, on Commerce, 88th Cong., 1st Sess. 283-87 (1963) 

(statement of Secretary Rusk). He argued instead that the 

foreign affairs implications of such a law extended to its 

potential effect on discrimination in other countries. For 

example, he suggested that the United States’ treatment of 

foreigners should "se[t] a standard for all the world." Id. at



27

283. In addition, he echoed the theme of interdependence 

identified above:

For example, the Department of State has a duty to 
assist and protect American citizens traveling 
abroad-and without regard to race, religion, or 
national origin of the particular American citizen.

Now, against a background of, shall I say, 
disability in our own country on some of these 
same issues, our voice abroad, in seeking to protect 
American citizens abroad, is somewhat muted and 
uncertain. And I think this affects the elements of 
reciprocity under the conduct of our foreign 
relations as well as the broader issues in what 
might be called the propaganda and political field.

Id. at 290. Thus, Secretary Rusk both identified the United

State’s pre-existing commitment to assuring equal protection

for American citizens overseas and recognized the effect

domestic treatment might have on the conduct of foreign

affairs. The latter point further highlights the propriety of

giving Title VII extraterritorial effect: foreigners’ closest

exposure to American principles of nondiscrimination is

likely to come when those principles are demonstrated to



28

them in their own country.13

In addition, Secretary Rusk explicitly made the point 

that American laws might affect laws overseas. Senator 

Thurmond referred to Secretary Rusk’s statement that racial 

discrimination was not unique to the United States but 

occurred in many countries, and asked the Secretary in light 

of that fact and the proposed Title VI (which denies federal 

funds to institutions that discriminate) whether foreign aid 

should be denied to other nations that discriminated. The 

Secretary recognized that "[w]hen we are dealing with the 

rest of the world we are dealing with a world which we can 

influence, but cannot control," and thus that cutting off aid 

might be a counterproductive strategy for influencing other 

nations. But he went on to state that:

In the rest of the world we are waging a 
struggle for freedom. . . . We must stay with that 
struggle, use our influence to the best of our ability 
to sustain and strengthen the cause of freedom; and

13 Thus, for example, American principles of racial equality were 
powerfully demonstrated by the appointment of a black ambassador to 
South Africa.



29

that would mean we would work at it, use our 
influence, even though we can’t necessarily control 
the result.

Our influence in these situations can be very 
strong. I think there are differences between 
situations where governmental laws and
constitutional practices are responsible for the 
discrimination, and where you run into
discriminatory situations simply because of the 
existence of religious and racial groups next to each 
other, with the social problems that have 
historically been associated with those situations.

Our influence has been in the direction offJ 
removing these discriminations abroad as well as at 
home.

I think our advice in this respect would be 
more powerful if we could move forward at home 
more rapidly.

. . .  I do not think we should abandon the 
great struggle for freedom throughout the world .

Id. at 299. (Emphasis added.)

In light of Secretary Rusk’s testimony, the committee 

chairman, Senator Warren Magnuson stated that 

discrimination abroad should not lead the United States to 

"abandon our purpose to show the world the kind of 

leadership that would erase discrimination in the world." Id.

at 306. He concluded:



30

Our positive action toward a firm national 
policy on this is going to be very helpful to 
the people in other countries who want to 
abolish this sort of thing in their countries.

Id. (emphasis added).

Congress chose to give extraterritorial effect to Title 

VII because to do so clearly would serve the central foreign 

policy goals connected with the Civil Rights Act of 1964. 

By providing an illustration of the scope of American fair 

employment law within foreign territories, it would 

graphically demonstrate the level of American commitment 

to ideals of nondiscrimination. Moreover, it would also 

provide an incentive for foreign citizens to press their 

governments to institute similar guarantees.



31

m .  Section  702 Should  Be  Construed To G ive 
Titl e  VII E xtraterritorial Applicatio n  in  
Lig h t  of  Congress’ Clearly  E xpressed 
C oncern W it h  F air Em ploym ent O verseas

The Fifth Circuit rejected the argument that section 

702, 42 U.S.C. § 2000e-l, indicates Congress’ intention to 

give Title VII extraterritorial effect. It held instead that 

section 702 was intended to ensure the extension of Title 

VIPs protection to aliens working within the United States. 

See Boureslan, 892 F.2d at 1274. This artificially narrow 

interpretation substantially distorts the statutory framework. 

The section provides:

§ 702. Exemptions

This Title shall not apply to an employer with 
respect to the employment of aliens outside any 
State, or to a religious corporation, association, 
educational institution, or society with respect to 
the employment of individuals of a particular 
religion to perform work connected with the 
carrying on by such corporation, association, 
educational institution, or society of its activities.

The first thing to note about section 702 is its

descriptive subheading: "Exemptions." See Hardin v. City



32

Title & Escrow Co., 797 F.2d 1037, 1039 (D.C. Cir. 1986) 

(description of statutory provision contained in subheading 

that appears in enactment itself "constitutes an indication of 

congressional intent"); House v. Commissioner, 453 F.2d 

982, 987 (5th Cir. 1972) (subheadings may aid courts in 

”com[ing] up with the statute’s clear and total meaning"). 

Had Congress intended the interpretation given by the court 

below, it would have made far more sense to place the 

discussion of the rights of aliens in a section entitled 

"Inclusion of Aliens."

The fact that Title VII’s applicability to religious entities 

appears in the same section further strengthens this 

conclusion. The meaning of section 702 with respect to 

religious institutions employing more than a specified 

number of workers is clear: absent the section, Title VII 

would cover them.14 A similar interpretation should be

14 Surely, the court of appeals would not have interpreted the latter 
part of section 702 as indicating the kind of employers (i. e. , groups that 
are not "religious corporation[s], association^], educational institutions], 
or societies]") to which Title VII was intended to apply.



33

given to the part of section 702 dealing with aliens: absent 

section 702, any employer falling within the definitional 

provisions of sections 701(a), (b), (g), and (h) -- that is, a 

sufficiently large employer engaged in specified types of 

commerce — would be subject to Title VII with respect to all 

its employees, including all aliens.

Section 703 gives additional support to this view. 

Section 703 protects "individuals]." It does not limit its 

protection to citizens. Thus, had there been no mention of 

aliens in section 702, Title VII would still have protected 

aliens to the same extent it protected citizens.15 Congress 

clearly understands the difference between providing 

protection to individuals and to citizens. See, e.g., 42

15 Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 95 (1973), 
is not to the contrary. There, this Court drew a "negative inference" 
from section 702 that aliens employed within the United States were 
covered. In other words, this Court held that a decision to exempt aliens 
in certain circumstances necessarily implied that they were not exempted 
in other circumstances.

The court of appeals’ statement regarding Boureslan’s attempt to 
draw a "negative inference" misperceives the nature of such an inference. 
The argument in favor of extraterritorial application does not depend on 
a negative inference. Rather, the fact that an exemption is created 
suggests that there is something from which exemption is necessary.



34

U.S.C. § 1981 {"[a]llpersons within the jurisdiction of the 

United States shall have the same right" with regard to 

certain activities "as is enjoyed by white citizens") (emphasis 

added). Indeed, the heightened scrutiny to which 

distinctions based on alienage are subject, see, e.g., Graham 

v. Richardson, 403 U.S. 365, 372 (1971), suggests that 

courts should be loath to adopt an interpretation of a statute 

that makes such a distinction in the absence of a clear 

congressional intention to do so. In short, the purpose of 

section 702 cannot have been to include domestic aliens 

within Title VII’s protections.

Finally, the congressional and executive concerns with 

ensuring equality for all Americans in the international 

workplace and fostering nondiscrimination throughout the 

world strongly counsel interpreting section 702 as a narrow 

exemption from Title VII’s commands rather than as a broad 

exemption. The justification for any alien exemption must 

lie in the potential conflict of laws that applying American



35

antidiscrimination law might create. Applying American 

laws abroad only when both parties to the employment 

relationship are American citizens -  that is, adopting the 

position advanced in this brief — represents the most 

reasonable accommodation of these competing concerns. In 

cases involving two American entities, there is a far greater 

federal interest in applying United States statutes. 

Moreover, traditional principles of international law 

regarding acts of state and foreign compulsion remain 

available to alleviate particular conflicts. Thus, this Court 

should conclude that, in including section 702 within Title 

VII, Congress intended only to reduce the potential for 

statutory conflict by exempting a class of workers from Title 

VII’s ambit as to whom the United States had a less 

significant relationship. Congress intended, however, to 

provide the maximum possible equal employment 

opportunity to each American citizen.



36

IV. Subsequent Legislation  Also  Demonstrates 
Congress5 Intention  T o P rovide E qual 
Em ploym ent  Opportunity  fo r  Am erican  
Citizens in  the  International W orkplace

On several occasions subsequent to the original passage

of Title VII, Congress has addressed the issue of equal

economic access to the international marketplace for all

Americans regardless of their ethnic or religious background.

In particular, Congress’ treatment of the Arab boycott

buttresses the conclusion that Title VII was intended to have

extraterritorial effect. See generally, Note, The Arab

Boycott and Title VII, 12 H a r v . C.R.-C.L. L. Re v . 181

(1977).

The Congressional declaration of policy accompanying 

the Export Administration Act states, among other things, 

that "[i]t is the policy of the United States . . .  to oppose 

restrictive trade practices or boycotts fostered or imposed by 

foreign countries against . . . any United States person . . .

50 U.S.C. App. § 2402(5)(A). The Act requires the 

president to issue regulations prohibiting any United States



37

"person" (which includes any American corporation) from

Refusing, or requiring any other person to refuse, 
to employ or otherwise discriminating against any 
United States person on the basis of race, religion, 
sex, or national origin of that person or of any 
owner, officer, director, or employee of such 
person.

Id. § 2407(a)(1)(B).

The legislative history of the Export Administration 

Amendments of 1977 expressly states that boycotts of U.S. 

companies "because of race, religion, or national origin . . 

. . [are] clearly against the spirit and intent of U.S. law, 

including the civil rights and equal opportunity laws," and 

that the prohibition against discrimination in the Export 

Administration Act is intended to apply to "U.S.-controlled 

subsidiaries and affiliates abroad" except when there would 

be an "intractable conflict . . . with specific laws of foreign 

countries . . . H.R. Rep. No. 190, 95th Cong., 1st Sess. 

51 (1977).

The exemption contained in the Act provides an ap­

propriate model for construing Title VII’s extraterritorial



38

effect. The Export Administration Act does provide an 

exemption for "compliance by a United States person 

resident in a foreign country or agreement by such person 

to comply with the laws of that country with respect to his 

activities exclusively therein." Id. § 2407(a)(2)(F). But that 

exemption is far narrower than the exemption judicially 

granted by the Fifth Circuit in this case. Note that the 

Export Administration Act exemption does not protect 

American employers when they choose to discriminate in a 

foreign country which does not affirmatively require such 

discrimination. In short, it merely codifies the defense of 

foreign compulsion. In this case, by contrast, there is no 

claim that Saudi Arabia required the harassment of 

Lebanese-American employees. And the Export 

Administration Act expressly provides that " [njothing in this 

subsection may be construed to supersede or limit the 

operation of the antitrust or civil rights laws of the United 

States." Id. § 2407(a)(4).



39

Moreover, such a model would also be consistent with 

this Court’s longstanding approach to another limitation on 

the scope of Title VII, the bona fide occupational 

qualification (BFOQ). See Dothard v. Rawlinson, 433 U.S. 

321, 334 (1977) (the BFOQ "is an extremely narrow 

exception"); see also Abrams, 805 F.2d at 533 n. 7 

(interpreting BFOQ to avoid collision with Export 

Administration Act); Diaz v. Pan American World Airways, 

454 F.2d 234 (5th Cir.), cert, denied, 404 U.S. 950 

(1971)(Title VIPs broad remedial purposes are best served 

by reading any restrictions on the extent of its protections as 

narrowly as possible). In this case, this principle is best 

served by holding that Title VII does have an extraterritorial 

effect.

Thus, the Export Control Act and Congress’ treatment 

of the Arab boycott in the legislative history show a 

profound congressional desire that American companies, 

including American companies operating abroad adhere to



40

the maximum extent possible to American principles of 

nondiscrimination. They represent the latest expression of 

a principle that has consistently been expressed since the 

1950’s. This pervasive concern with "’the right of 

Americans to engage in international commerce without 

being subjected to discrimination,’" H.R. Rep. 190 at 47 

(additional views of Rep. Benjamin S. Rosenthal) (quoting 

President Jimmy Carter), militates strongly in favor of 

construing Title VII to have an extraterritorial effect.

The Export Control Act shows that Congress does not 

believe that American foreign policy objectives will be 

compromised by a general insistence that American 

corporations comply with principles of nondiscrimination. 

Indeed, it shows Congress’ intention that these principles be 

limited only when they cause an irreconcilable conflict. This 

Court should interpret Title VII’s extraterritorial effect in a 

parallel manner and deny American companies a blanket 

license to discriminate against American citizens overseas.



41

Conclusion

For the foregoing reasons, this Court should reverse the 

decision of the Fifth Circuit and hold that petitioners have 

stated a cause of action under Title VII.

Pamela S. Karlan 
University of Virginia 

School of Law 
Charlottesville, VA 22901 
(804) 924-7810

AMY ADELSON 
Lois Waldman 
Marc D. Stern 

American Jewish 
Congress

15 East 84th Street 
New York, N.Y. 10028 
(212) 879-4000

Ruth L. Lansner 
Steven M. Freeman 
Jill L. Kahn

The Anti-Defamation League 
of B’nai B’rith 

823 United Nations Plaza 
New York, N.Y. 10017 
(212) 490-2525

* Counsel of Record

Respectfully submitted,

Julius LeVonne Chambers 
^Charles Stephen Ralston 

The NAACP Legal Defense 
and Educational Fund, Inc. 

99 Hudson Street, 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

Samuel Rabinove 
The American Jewish 

Committee 
165 E. 56th Street 
New York, N.Y. 10022 
(212) 751-4000

Donna R. Lenhoff 
Women’s Legal Defense 

Fund
2000 P Street, N.W. 
Suite 400
Washington, D.C. 20036 
(202) 887-0364

Attorneys for Amici Curiae