Boureslan v. Aramco, Arabian American Oil Co.

• Decision Date: 02 February 1990
• Docket Number: No. 87-2206,87-2206
• Citation: 892 F.2d 1271
• Parties: 51 Fair Empl.Prac.Cas. (BNA) 1668, 52 Empl. Prac. Dec. P 39,605, 58 USLW 2468 Ali BOURESLAN, Plaintiff-Appellant, v. ARAMCO, ARABIAN AMERICAN OIL CO. and Aramco Service Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1271

892 F.2d 1271

51 Fair Empl.Prac.Cas. (BNA) 1668,

52 Empl. Prac. Dec. P 39,605, 58 USLW 2468

Ali BOURESLAN, Plaintiff-Appellant, v. ARAMCO, ARABIAN AMERICAN OIL CO. and Aramco Service Company,

Defendants-Appellees.

No. 87-2206.

United States Court of Appeals, Fifth Circuit.

Feb. 2, 1990.

James Field Tyson, Neal H. Paster, Houston, Tex., for plaintiff-appellant.

Charles A. Shanor, Vincent J. Blackwood, Karen MacRae Smith, E.E.O.C., Washington, D.C., for intervenor E.E.O.C.

Edward E. Potter, Samuel A. Marcosson, Washington, D.C., amicus curiae, for E.E.O.C.

John D. Roady, Linda Ottinger Headley, Hutcheson & Grundy, Houston, Tex., for Aramco.

Lawrence Z. Lorber, John E. Parauda, Breed, Abbott & Morgan, Washington, D.C., for amicus curiae ASPA.

Cecil J. Olmstead, Steptoe & Johnson, Washington, D.C., for amicus curiae Rule of Law Committee.

Pamela S. Karlan, Univ. of Va., School of Law, Charlottesville, Va., for amicus curiae NAACP.

Michael M. Mulder, Thomas R. Meites Bartley F. Goldberg, Chicago, Ill., for amicus curiae Wm. Ozolin, et al.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, GEE, REAVLEY, POLITZ, KING, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH and DUHE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

We sit en banc in this case to consider a single question: whether Title VII regulates the employment practices of U.S. employers which employ U.S. citizens outside the United States. We affirm the district court's order dismissing this suit.

I.

In his Title VII suit, Boureslan charged that while he was working in Saudi Arabia his employer, Arabian American Oil Co. (Aramco), discriminated against him because of his race, religion and national origin. Aramco's motion to dismiss for lack of jurisdiction squarely raised the question whether Title VII's protection extends to U.S. citizens employed abroad by U.S. employers.

We answer this question in the negative as did the district court and the panel majority. See Boureslan v. Aramco, 857 F.2d 1014 (5th Cir.1988). In reaching this conclusion we adopt the reasoning of the panel majority. We write briefly to summarize the reasons for our conclusion and to include two points that were more fully developed during en banc briefing and argument.

II.

A.

The respect for the right of nations to regulate conduct within their own borders is a fundamental concept of sovereignty that is not lightly tossed aside. See American Banana Co. v. United Fruit Co., 213 U.S. 347, 356, 29 S.Ct. 511, 512, 53 L.Ed. 826 (1909); Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 254, 76 L.Ed. 375 (1932). From this concept the established presumption against extraterritorial application of a statute developed. Id. The critical question that governs this appeal is whether Congress included language in Title VII that reflects a clear Congressional intent to overcome the presumption against extraterritorial application of the act.

The Supreme Court described this presumption in Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949), a case closely analogous to the case at hand. In that case, Filardo, a U.S. citizen, argued that the Federal Eight Hour Law entitled him to overtime pay for work he had performed while in the employ of Foley Brothers, a U.S. government contractor operating in Iran and Iraq. The Court, in rejecting Filardo's claim, explained the nature of the presumption against extraterritorial application of a statute:

The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States ... is a valid approach whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions. We find nothing in the Act itself ... nor in the legislative history, which would lead to the belief that Congress entertained any intention other than the normal one in this case.

Id. The Court's scrutiny of the Eight Hour Law's statutory language and structure revealed no congressional intent to cover workers such as Filardo--a conclusion bolstered by the legislative history's focus on domestic wage and unemployment problems. Id. at 285-87, 69 S.Ct. at 577-78. In examining this statute, the Supreme Court set out the standard by which we must measure Boureslan's arguments: "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 purpose." Id. at 286, 69 S.Ct. at 578 (emphasis added).

B.

Boureslan's argument that Title VII reflects a clear congressional intent to extend its reach outside this country chiefly rests on Title VII's alien exemption provision, 42 U.S.C. § 2000e-1. This provision which expressly establishes an exemption from coverage under the Act provides: "This title shall not apply to an employer with respect to employment of aliens outside of any state." Boureslan finds the necessary clear expression of congressional intent to apply Title VII abroad by drawing a negative inference from that provision and concluding that Congress meant to include citizens working abroad when it excluded aliens abroad. We disagree, and for the reasons that follow conclude that this single negative inference falls short of the required clear expression of congressional intent necessary to extend the reach of the Act outside this country.

1.

Boureslan argues first that if we do not attach his negative inference to the alien exemption provision, we strip the provision of all purpose. This is simply not accurate. As we noted in the panel opinion, "no one disputes that the provision excludes coverage to aliens employed outside the states." Boureslan, 857 F.2d at 1018. Also the Supreme Court in Espinoza v. Farrah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 340, 38 L.Ed.2d 287 (1973), determined that this provision reflects a congressional intent to provide Title VII coverage to aliens employed within the United States. Thus, we remain persuaded that we need not choose to either attach Boureslan's negative inference to this provision or strip the provision of all meaning. Even if we decline to give the alien exemption provision the interpretation appellant seeks, the provision is still a meaningful and useful part of the Act.

2.

The domestic focus of the Act is also inconsistent with an intent to give extraterritorial reach to it. As noted in the panel opinion, Boureslan's effort to read an international reach into Title VII's general policy statements and alien exemption provision fails in light of repeated references in the Civil Rights Act of 1964 to "United States", "states" and "state proceedings." See Boureslan, 857 F.2d at 1019.

In Title VII itself, Congress specifically accommodated state employment discrimination proceedings in an effort to avoid conflicts with state law and recognized state interests. See 42 U.S.C. §§ 2000e-5(c), (d), (e). If Congress had intended the Act to apply in foreign countries, we would expect Congress to have been even more careful to address conflicts with foreign discrimination laws. Yet the statute says nothing about potential conflicts with foreign discrimination laws.

3.

The Act is also curiously silent in a number of areas where Congress ordinarily speaks if it wants to extend its legislation beyond our borders. First, the Act fails to address venue problems that arise with foreign violations. Cf. 42 U.S.C. § 2000e-5(f)(3) (establishing venue "in any judicial district in the State in which the unlawful employment practice is alleged to have been committed...."). Next, the Equal Employment Opportunity Council's investigatory powers are limited to evidence obtained in the United States and its territories. 42 U.S.C. § 2000e-9.

Finally, if we give extraterritorial reach to Title VII, the plain language of the Act would necessarily extend that title to govern the employment relationship between foreign employers, and their American employees anywhere in the world. See § 2000e(b). We say this because nothing in the Act exempts foreign employers and our courts have held that foreign employers engaged in commerce in the United States are employers under Title VII. See, e.g., Spiess v. C. Itoh & Co. (America), Inc., 643 F.2d 353 (5th Cir.1981). We doubt that Congress ever intended to impose Title VII on a foreign employer who had the grace to employ an American citizen in its own country.

4.

As the Court stated as recently as January 1989, when it desires to do so, Congress knows how to give extraterritorial effect to one of its statutes. Argentine Republic v. Amerada Hess Shipping Co., --- U.S. ----, 109 S.Ct. 683, 691, 102 L.Ed.2d 818, 832 (1989). A good example is the Age Discrimination and Employment Act which was amended in 1984 to give the Act extraterritorial application. 29 U.S.C. § 630(f) ("The term 'employee' includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country."). See also The Comprehensive Anti-Apartheid Act of 1986, 22 U.S.C. §§ 5001-5116 (1979, Supp.1989); The Export Administration Act, 50 U.S.C. app. §§ 2401-2420 (Supp.1989). Congress demonstrated in the above acts its awareness of the need to make a clear statement of extraterritorial application, address the concerns of conflicting foreign law, and provide the usual nuts-and-bolts provisions for enforcing those rights.

C.

In essence, Boureslan asks this court to conclude that Congress balanced Title VII's important goals against the foreign sovereignty concerns that underlie the presumption against extraterritoriality, considered the implications of application abroad and then addressed these concerns by inviting courts to read between the lines. For the reasons stated...