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Equal Employment Opportunity Commission v. Arabian American Oil Co. (89-1838), 499 U.S. 244 (1991)
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EEOC v. ARABIAN AMERICAN OIL CO.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

EEOC v. ARABIAN AMERICAN OIL CO.

BOURESLAN, PETITIONER v. ARABIAN AMERICAN OIL COMPANY and ARAMCO SERVICES COMPANY

Nos. 89-1838 and 89-1845

on writs of certiorari to the united states court of appeals for the fifth circuit

[March 26, 1991]

Chief Justice Rehnquist delivered the opinion of the Court.

These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad. The United States Court of Appeals for the Fifth Circuit held that it does not, and we agree with that conclusion.

Petitioner Boureslan is a naturalized United States citizen who was born in Lebanon. The respondents are two Delaware corporations, Arabian American Oil Company (Aramco), and its subsidiary, Aramco Service Company (ASC). Aramco's principal place of business is Dhahran, Saudi Arabia, and it is licensed to do business in Texas. ASC's principal place of business is Houston, Texas.

In 1979, Boureslan was hired by ASC as a cost engineer in Houston. A year later he was transferred, at his request, to work for Aramco in Saudi Arabia. Boureslan remained with Aramco in Saudi Arabia until he was discharged in 1984. After filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), he instituted this suit in the United Stated District Court for the Southern District of Texas against Aramco and ASC. He sought relief under both state law and Title VII of the Civil Rights Act of 1964, 78 Stat. 243, as amended, 42 U.S.C. 2000a-2000h6, on the ground that he was harassed and ultimately discharged by respondents on account of his race, religion, and national origin.

Respondents filed a motion for summary judgment on the ground that the District Court lacked subject matter jurisdiction over Boureslan's claim because the protections of Title VII do not extend to United States citizens employed abroad by American employers. The District Court agreed, and dismissed Boureslan's Title VII claim; it also dismissed his state-law claims for lack of pendent jurisdiction, and entered final judgment in favor of respondents. A panel for the Fifth Circuit affirmed. After vacating the panel's decision and rehearing the case en banc, the court affirmed the District Court's dismissal of Boureslan's complaint. Both Boureslan and the EEOC petitioned for certiorari. We granted both petitions for certiorari to resolve this important issue of statutory interpretation.

Both parties concede, as they must, that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States. Cf. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-285 (1949); Benz v. Compania Naviera Hidalgo, S. A., 353 U.S. 138, 147 (1957). Whether Congress has in fact exercised that authority in this case is a matter of statutory construction. It is our task to determine whether Congress intended the protections of Title VII to apply to United States citizens employed by American employers outside of the United States.

It is a long-standing principle of American law "that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Foley Bros., 336 U. S., at 285. This "canon of construction . . . is a valid approach whereby unexpressed congressional intent may be ascertained." Ibid. It serves to protect against unintended clashes between our laws and those of other nations which could result in international discord. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963).

In applying this rule of construction, we look to see whether "language in the [relevant act] gives any indication of a congressional purpose to extend its coverage beyond places over which the United States has sovereignty or has some measure of legislative control." Foley Bros., supra, at 285. We assume that Congress legislates against the backdrop of the presumption against extraterritoriality. Therefore, unless there is "the affirmative intention of the Congress clearly expressed," Benz, supra, at 147, we must presume it "is primarily concerned with domestic conditions." Foley Bros., supra, at 285.

Boureslan and the EEOC contend that the language of Title VII evinces a clearly expressed intent on behalf of Congress to legislate extraterritorially. They rely principally on two provisions of the statute. First, petitioners argue that the statute's definitions of the jurisdictional terms "employer" and "commerce" are sufficiently broad to include U. S. firms that employ American citizens overseas. Second, they maintain that the statute's "alien exemption" clause, 42 U.S.C. 2000e-1, necessarily implies that Congress intended to protect American citizens from employment discrimination abroad. Petitioners also contend that we should defer to the EEOC's consistently held position that Title VII applies abroad. We conclude that petitioners' evidence, while not totally lacking in probative value, falls short of demonstrating the affirmative congressional intent required to extend the protections of the Title VII beyond our territorial borders.

Title VII prohibits various discriminatory employment practices based on an individual's race, color, religion, sex, or national origin. See 2000e-2, 2000e-3. An employer is subject to Title VII if it has employed 15 or more employees for a specified period and is "engaged in an industry affecting commerce." An industry affecting commerce is "any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry `affecting commerce' within the meaning of the Labor-Management Reporting and Disclosure Act of 1959 [(LMRDA)] [29 U.S.C. 401 et seq.]." 2000e(h). "Commerce," in turn, is defined as "trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof." 2000e(g).

Petitioners argue that by its plain language, Title VII's "broad jurisdictional language" reveals Congress's intent to extend the statute's protections to employment discrimination anywhere in the world by a U. S. employer who affects trade "between a State and any place outside thereof." More precisely, they assert that since Title VII defines "States" to include States, the District of Columbia, and specified territories, the clause "between a State and any place outside thereof" must be referring to areas beyond the territorial limit of the United States. Reply Brief for Petitioner 3.

Respondents offer several alternative explanations for the statute's expansive language. They contend that the "or between a State and any place outside thereof" 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 country." Brief for Respondents 21, n. 14. They also argue that since the definitions of the terms "employer," "commerce," and "industry affecting commerce," make no mention of "commerce with foreign nations," Congress cannot be said to have intended that the statute apply overseas. In support of this argument, petitioners point to Title II of the Civil Rights Act of 1964, governing public accommodation, which specifically defines commerce as it applies to foreign nations. Finally, respondents argue that while language present in the first bill considered by the House of Representatives contained the terms "foreign commerce" and "foreign nations," those terms were deleted by the Senate before the Civil Rights Act of 1964 was passed. They conclude that these deletions "[are] inconsistent with the notion of a clearly expressed congressional intent to apply Title VII extraterritorially." Brief for Respondents 7.

We need not choose between these competing interpretations as we would be required to do in the absence of the presumption against extraterritorial application discussed above. Each is plausible, but no more persuasive than that. The language relied upon by petitioners — and it is they who must make the affirmative showing — is ambiguous, and does not speak directly to the question presented here. The intent of Congress as to the extraterritorial application of this statute must be deduced by inference from boilerplate language which can be found in any number of congressional acts, none of which have ever been held to apply overseas. See, e. g., Consumer Product Safety Act, 15 U.S.C. 2052 (a)(12); Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321(b); Transportation Safety Act of 1974, 49 U. S. C. App. 1802(1); Labor-Management Reporting and Disclosure Act, of 1959, 29 U.S.C. 401 et. seq.; Americans with Disabilities Act of 1990, 29 U.S.C. 1201 et. seq.

Petitioners' reliance on Title VII's jurisdictional provisions also finds no support in our case law; we have repeatedly held that even statutes that contain broad language in their definitions of "commerce" that expressly refer to "foreign commerce," do not apply abroad. For example, in New York Central R. Co. v. Chisholm, 268 U.S. 29 (1925), we addressed the extraterritorial application of the Federal Employers Liability Act (FELA), 45 U.S.C. 51 et. seq. FELA provides that common carriers by railroad while engaging in "interstate or foreign commerce" or commerce between "any of the States or territories and any foreign nation or nations" shall be liable in damages to its employees who suffer injuries resulting from their employment. 45 U.S.C. 51. Despite this broad jurisdictional language, we found that the Act "contains no words which definitely disclose an intention to give it extraterritorial effect," Chisholm, supra, at 31, and therefore there was no jurisdiction under FELA for a damages action by a U. S. citizen employed on a U. S. railroad who suffered fatal injuries at a point 30 miles north of the U. S. border into Canada.

Similarly, in McCulloch v. Sociedad Nacional de Marine ros de Honduras, 372 U.S. 10 (1963), we addressed whether Congress intended the National Labor Relations Act (NLRA), 29 U.S.C. 151-168, to apply overseas. Even though the NLRA contained broad language that referred by its terms to foreign commerce, 29 U.S.C. 152(6), this Court refused to find a congressional intent to apply the statute abroad because there was not "any specific language" in the Act reflecting congressional intent to do so. McCulloch, supra, at 19.

The EEOC places great weight on an assertedly similar "broad jurisdictional grant in the Lanham Act" that this Court held applied extraterritorially in Steele v. Bulova Watch Co., 344 U.S. 280, 286 (1952). Brief for Petitioner in No. 89-1838, p. 12. In Steele, we addressed whether the Lanham Act, designed to prevent deceptive and misleading use of trademarks, applied to acts of a U. S. citizen consummated in Mexico. The Act defined commerce as "all commerce which may lawfully be regulated by Congress." 15 U.S.C. 1127. The stated intent of the statute was "to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce." Ibid. While recognizing that "the legislation of Congress will not extend beyond the boundaries of the United States unless a contrary legislative intent appears," the Court concluded that in light of the fact that the allegedly unlawful conduct had some effects within the United States, coupled with the Act's "broad jurisdictional grant" and its "sweeping reach into `all commerce which may lawfully be regulated by Congress,' " the statute was properly interpreted as applying abroad. Steele, supra, at 285. 287.

The EEOC's attempt to analogize this case to Steele is unpersuasive. The Lanham Act by terms applies to "all commerce which may lawfully be regulated by Congress." The Constitution gives Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U. S. Const., Art. I, 8, cl. 3. Since the Act expressly stated that it applied to the extent of Congress's power over commerce, the Court in Steele concluded that Congress intended that the statute apply abroad. By contrast, Title VII's more limited, boilerplate "commerce" language does not support such an expansive construction of congressional intent. Moreover, unlike the language in the Lanham Act, Title VII's definition of "commerce" was derived expressly from the LMRDA, a statute that this Court had held, prior to the enactment of Title VII, did not apply abroad. McCulloch, supra, at 15.

Thus petitioner's argument based on the jurisdictional language of Title VII fails both as a matter of statutory language and of our previous case law. Many acts of Congress are based on the authority of that body to regulate commerce among the several States, and the parts of these acts setting forth the basis for legislative jurisdiction will obviously refer to such commerce in one way or another. If we were to permit possible, or even plausible interpretations of language such as that involved here to override the presumption against extraterritorial application, there would be little left of the presumption.

Petitioners argue that Title VII's "alien exemption provision," 42 U.S.C. 2000e-1, "clearly manifests an intention" by Congress to protect U. S. citizens with respect to their employment outside of the United States. The alien exemption provision says that the statute "shall not apply to an employer with respect to the employment of aliens outside any State." 2000e-1. Petitioners contend that from this language a negative inference should be drawn that Congress intended Title VII to cover United States citizens working abroad for United States employers. There is "[no] other plausible explanation [that] the alien exemption exists," they argue, because "[i]f Congress believed that the statute did not apply extraterritorially, it would have had no reason to include an exemption for a certain category of individuals employed outside the United States." Brief for Petitioner in No. 89-1838, pp. 12-13. Since "[t]he statute's jurisdictional provisions cannot possibly be read to confer coverage only upon aliens employed outside the United States," petitioners conclude that "Congress could not rationally have enacted an exemption for the employment of aliens abroad if it intended to foreclose all potential extraterritorial applications of the statute." Id., at 13.

Respondents resist petitioners' interpretation of the alienexemption provision and assert two alternative raisons d'etre for that language. First, they contend that since aliens are included in the statute's definition of employee, [n.1] and the definition of commerce includes possessions as well as "States," the purpose of the exemption is to provide that employers of aliens in the possessions of the United States are not covered by the statute. Thus, the "outside any State" clause means outside any State, but within the control of the United States. Respondents argue that "[t]his reading of the alien exemption provision is consistent with and supported by the historical development of the provision" because Congress's inclusion of the provision was a direct response to this Court's interpretation of the term "possessions" in the Fair Labor Standards Act in Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948), to include leased bases in foreign nations that were within the control of the United States. Brief for Respondents 27. They conclude that the alien exemption provision was included "to limit the impact of Vermilya-Brown by excluding from coverage employers of aliens in areas under U. S. control that" were not encompassed within Title VII's definition of the term "State." Id., at 29.

Second, respondents assert that by negative implication, the exemption "confirm[s] the coverage of aliens in the United States." Id., at 26. They contend that this interpretation is consistent with our conclusion in Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973), that aliens within the United States are protected from discrimination both because Title VII uses the term "individual" rather than "citizen," and because of the alien-exemption provision.

If petitioners are correct that the alien-exemption clause means that the statute applies to employers overseas, we see no way of distinguishing in its application between United States employers and foreign employers. Thus, a French employer of a United States citizen in France would be subject to Title VII — a result at which even petitioners balk. The EEOC assures us that in its view the term "employer" means only "American employer," but there is no such distinction in this statute, and no indication that EEOC in the normal course of its administration had produced a reasoned basis for such a distinction. Without clearer evidence of congressional intent to do so than is contained in the alienexemption clause, we are unwilling to ascribe to that body a policy which would raise difficult issues of international law by imposing this country's employment-discrimination regime upon foreign corporations operating in foreign commerce.

This conclusion is fortified by the other elements in the statute suggesting a purely domestic focus. The statute as a whole indicates a concern that it not unduly interfere with the sovereignty and laws of the States. See, e. g., 42 U.S.C. 2000h-4 (stating that Title VII should not be construed to exclude the operation of state law or invalidate any state law unless inconsistent with the purposes of the act); 2000e-5 (requiring the EEOC to accord substantial weight to findings of state or local authorities in proceedings under state or local law); 2000e-7 (providing that nothing in Title VII shall affect the application of state or local law unless such law requires or permits practices that would be unlawful under Title VII); 2000d-5(c), (d), and (e) (provisions addressing deferral to state discrimination proceedings). While Title VII consistently speaks in terms of "States" and state proceedings, it fails even to mention foreign nations or foreign proceedings.

Similarly, Congress failed to provide any mechanisms for overseas enforcement of Title VII. For instance, the statute's venue provisions, 2000e-5(f)(3), are ill-suited for extraterritorial application as they provide for venue only in a judicial district in the state where certain matters related to the employer occurred or were located. And the limited investigative authority provided for the EEOC, permitting the Commission only to issue subpoenas for witnesses and documents from "anyplace in the United States or any Territory or possession thereof," 2000e-9, suggests that Congress did not intend for the statute to apply abroad.

It is also reasonable to conclude that had Congress intended Title VII to apply overseas, it would have addressed the subject of conflicts with foreign laws and procedures. In amending the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S.C. 621 et. seq. (ADEA), to apply abroad, Congress specifically addressed potential conflicts with foreign law by providing that it is not unlawful for an employer to take any action prohibited by the ADEA "where such practices involve an employee in a workplace in a foreign country, and compliance with [the ADEA] would cause such employer . . . to violate the laws of the country in which such workplace is located." 29 U.S.C. 623(f)(1). Title VII, by contrast, fails to address conflicts with the laws of other nations.

Finally, the EEOC, as one of the two federal agencies with primary responsibility for enforcing Title VII, argues that we should defer to its "consistent" construction of Title VII, first formally expressed in a statement issued after oral argument but before the Fifth Circuit's initial decision in this case, Policy Statement No. N-915.033, EEOC Compl. Man. (BNA) 605:0055 (Apr. 1989), "to apply to discrimination against American citizens outside the United States." Brief for Petitioner in No. 89-1838, p. 22. Citing a 1975 letter from the EEOC's General Counsel, 1983 testimony by its Chairman, and a 1985 decision by the Commission, it argues that its consistent administrative interpretations "reinforce" the conclusion that Congress intended Title VII to apply abroad.

In General Electric Co. v. Gilbert, 429 U.S. 125, 140-146 (1976), we addressed the proper deference to be afforded the EEOC's guidelines. Recognizing that "Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations," we held that the level of deference afforded " `will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.' " Id., at 141, 142 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

The EEOC's interpretation does not fare well under these standards. As an initial matter, the position taken by the Commission "contradicts the position which [it] had enunciated at an earlier date, closer to the enactment of the governing statute." General Electric Co. supra, at 142. The Commission's early pronouncements on the issue supported the conclusion that the statute was limited to domestic application. See 29 CFR 1606.1(c) (1971) ("Title VII . . . protects all individuals, both citizen and noncitizens, domiciled or residing in the United States, against discrimination on the basis of race, color, religion, sex, or national origin.") While the Commission later intimated that the statute applied abroad, this position was not expressly reflected in its policy guidelines until some 24 years after the passage of the statute. The EEOC offers no basis in its experience for the change. The EEOC's interpretation of the statute here thus has been neither contemporaneous with its enactment nor consistent since the statute came into law. As discussed above, it also lacks support in the plain language of the statute. While we do not wholly discount the weight to be given to the 1988 guideline, its persuasive value is limited when judged by the standards set forth in Skidmore. Accord: Southeastern Community College v. Davis, 442 U.S. 397, 411-412 (1979); SEC v. Sloan, 436 U.S. 103, 117-118 (1978); Espinoza v. Farah Mfg. Co., 414 U. S., 93-94. We are of the view that, even when considered in combination with petitioners' other arguments, the EEOC's interpretation is insufficiently weighty to overcome the presumption against extraterritorial application.

Our conclusion today is buttressed by the fact that "[w]hen it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989). Congress's awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has expressly legislated the extraterritorial application of a statute. See, e. g., the Export Administration Act of 1979, 50 U. S. C. App. 2401-2420 (1982, and Supp. III ed.) (defining "United States person" to include "any domestic concern (including any permanent domestic establishment of any foreign concern) and any foreign subsidiary or affiliate (including any permanent foreign establishment) of any domestic concern which is controlled in fact by such domestic concern") 2415(2); Coast Guard Act, 14 U.S.C. 89(a) (Coast Guard searches and seizures upon the high seas); 18 U.S.C. 7 (Criminal code extends to high seas); 19 U.S.C. 1701 (Customs enforcement on the high seas); Comprehensive anti-Apartheid Act of 1986, 22 U.S.C. 5001-5116 (1982 ed. Supp. V) (definition of "national of the United States" as "a natural person who is a citizen of the United States . . .") 5001(5)(A); the Logan Act, 18 U.S.C. 953 (applying act to "[a]ny citizen . . . wherever he may be . . ."). Indeed, after several courts had held that the ADEA did not apply overseas, Congress amended 11(f) to provide, "[t]he term `employee' includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country." 29 U.S.C. 630(f). Congress also amended 4(g)(1), which states, "[i]f an employer controls a corporation whose place of incorporation is in a foreign country, any practice by such corporation prohibited under this section shall be presumed to be such practice by such employer." 29 U.S.C. 623(h)(1). The expressed purpose of these changes was to "mak[e] provisions of the Act apply to citizens of the United States employed in foreign countries by United States corporations or their subsidiaries." S. Rep. No. 98-467, p. 2 (1984). Congress, should it wish to do so, may similarly amend Title VII and in doing so will be able to calibrate its provisions in a way that we cannot.

Petitioners have failed to present sufficient affirmative evidence that Congress intended Title VII to apply abroad. Accordingly, the judgment of the Court of Appeals is

Affirmed.


Notes

1 Title VII defines "employee" as:

"an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, government agency or political subdivision." 42 U.S.C. 2000e(f).