EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. ARABIAN
AMERICAN OIL COMPANY, ET AL.

   ALI BOURESLAN, PETITIONER V. ARABIAN AMERICAN OIL COMPANY, ET AL.

   Nos. 89-1838, 89-1845

   In The Supreme Court Of The United States

   October Term, 1990

   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 employer against an American citizen
outside of the United States.  The text of the statute, given its
plain and ordinary meaning, prohibits such discrimination.  Title
VII's broad jurisdictional provisions reach discrimination abroad by
American employers;  the exemption with respect to aliens employed
"outside any State," 42 U.S.C. 2000e-1, establishes that the statute
was intended to apply to American citizens outside any State;  and the
remainder of Title VII is consistent with that interpretation.

   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 presumption against
extraterritoriality from "a valid approach 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 interpretation.

   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 statute's jurisdictional provisions draw
no distinction between workplaces inside and outside this country.  To
the contrary, Title VII prohibits "unlawful employment practice(s)" by
"an employer engaged in an industry affecting commerce," and
"commerce" includes "trade, traffic, commerce, transportation,
transmission, or communication 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 carefully framed;
when Congress intended to limit Title VII's application to employment
at a particular place, it expressed 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 the Act shall
not apply to "an employer" with respect to the employment of aliens
outside any State, 42 U.S.C. 2000e-1.

   The fact that Title VII's jurisdictional provisions do not use the
term "foreign commerce" or "foreign nations" 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
possessions.  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.
2000e(i)), the statute must be referring to areas beyond the
territorial limits of the United States.  /2/ Respondents' 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 country" (Resp. Br. 21
n.14) finds no support in the language of the statute.

   Nor does the deletion in the Senate of legislative declarations
referring to (among other things) "commerce * * * with foreign
nations" manifest any intention to restrict Title VII's scope.
Compare Resp. Br. 18-19.  /3/ The substitute amendment that deleted
the declarations made no material change in Title VII's operative
provisions -- 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 affecting commerce." 110 Cong.
Rec. 12,721 (1964).  Significantly, the deletion was not restricted to
the declarations' reference to "foreign nations." That reference, a
parallel 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
declarations 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
discrimination affecting "commerce among the States."

   Finally, Title VII's reference to the Labor-Management Reporting
and Disclosure Act of 1959, 29 U.S.C. 402(c), which in turn
incorporates the Labor-Management Relations 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 operating ships under foreign laws." This is not a case,
like Benz, involving foreign nationals and foreign employers.  See pp.
13-15, infra.  In fact, because Benz involved a labor dispute aboard a
ship present in American territorial waters, it underscores the force
that the participants' nationality -- the basis for Title VII's
application 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
alternative withstands analysis, and no reasonable draftsman could
have conceived of the alien exemption as a means of accomplishing both
at once.

   i. Respondents' first explanation of the exemption involves 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 protection;
(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 within a
"State" and employment "outside any State." Confronted with that
express division, respondents nonetheless 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 deserving
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 Congress -- to limit Title
VII's 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 narrowed the FLSA's coverage to the States
and specified other jurisdictions.  See Act of Aug. 30, 1957, Pub. L.
No. 85-231, Section 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.

   Fair 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 Bros. -- 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
discrimination.  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 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
Americans 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 employment.  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 employers 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
legislation's applicability to federal employment -- which is
calculated to supply a motive for special treatment of U.S. government
possessions -- is both misleading and irrelevant.

   As reported by the House Committee on Education and Labor, H.R.
4453 would have been applicable to any employer "engaged in commerce
having in his employ fifty or more individuals" (excluding state and
local governments 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 proposed 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 federal employment,
thus confirming that the alien exemption was not meant to be a
remarkably indirect way of targeting federal facilities abroad.  /5/

   In the final analysis, the first of respondents' two explanations
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 inclusion in a bill focused on federal
employment, which was unthinkingly carried forward into civil rights
legislation that neither paralleled the FLSA nor covered federal
employees.  This tortuous use of unconnected materials 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 role -- 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 establishes the statute's application to American
citizens) in all territory "outside any State."

   ii. We explain in our opening brief why the alien exemption could
not have been conceived as a backhanded means of extending protection
to aliens employed in the United States.  EEOC Br. 14-15.  Respondents
nevertheless persist in their view that the alien exemption could have
been included in Title VII as a "meaningful and useful 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
provisions.  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 construction -- 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 enforcement framework is available to an
American citizen who, like Ali Boureslan, alleges that he was the
victim of discrimination 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 determination, 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.

   Beyond this, the matters respondents raise present questions of
policy.  It is up to Congress to determine whether procedural
deference afforded to state fair employment 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 VII 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 Congress
"would have" done do not undercut the conclusion that flows from the
statute's jurisdictional provisions and the alien exemption.

   d. The principal refrain of respondents' brief is that the
presumption against extraterritoriality establishes a very demanding
clear-statement test.  In respondents' view, that canon of
construction is a "strong presumption" (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
inference," respondents argue (id. at 7, 11, 32), is insufficient.
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 formulation of the presumption;  nevertheless, respondents
substantially overstate the force of that canon.

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

      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.

That same formulation was repeated in the most recent decision in
which this Court referred to the 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 statute -- informed by due consideration of the
statute's purposes, legislative history, administrative
interpretations, and other pertinent materials.  /8/ The presumption
does not impose drafting requirements on Congress, compelling 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
jurisdictional 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 members 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/

   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 public work of the United
      States in that foreign land.  Such a conclusion would be
      logically inescapable although 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 purpose.  /10/

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 American 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 (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 foreign ship under
      British articles.  We cannot read into the Labor Management
      Relations Act an intent to change the contractual provisions
      made by these parties.  For us to run interference in such a
      delicate field of international relations there must be present
      the affirmative intention of the Congress clearly expressed.

Likewise, in McCulloch, the Court framed the "basic" question as
"whether (the NLRA) as written was intended to have any application to
foreign registered vessels 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 reason
to question the conclusion flowing from Title VII's express provisions
that Congress intended to protect Americans employed outside the
United States from discrimination by American employers.  /12/

   2. Respondents and their amici advance a varied assortment 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 possible, to conform with
established principles of international 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 prescribe a rule
prohibiting discrimination abroad by American 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 or their nationals are not infringed." Steele v.
Bulova Watch Co., 344 U.S. 280, 285-286 (1952);  see Skiriotes v.
Florida, 313 U.S. 69, 73 (1941);  Vermilya-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
discrimination 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 characterize
nationality as an "exceptional basis" for prescriptive 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 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 international law.

   b. Respondents and certain amici suggest that in the area of
employment discrimination, jurisdiction to prescribe 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 international 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 Section 102(2) & comment c (emphasis added).  /14/

   On their face, the international agreements on which respondents
and their amici rely do not purport to withdraw prescriptive
jurisdiction that the signatories enjoy under the nationality
principle.  Compare Resp. Br. 40;  Rule of Law Comm. Br. 15.  Nor does
the agreements' purpose permit such a strained construction;
agreements committing nations to the goal of eliminating employment
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 construes 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 applied in a manner
consistent with international law, with due regard for principles of
comity and sovereignty.  Those understandable concerns lend no support
to foreclosing Title VII's extraterritorial application to U.S.
citizens.

   d. Respondents and their amici suggest that "sensitive and
sometimes vast cultural differences between this nation and other
sovereign states" (Resp. Br. 40), "potentially conflicting standards"
(EEAC Br. 18), and discrimination 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 intrude upon international business
operations.  See Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir.
1981).  Title VII is fairly construed to prohibit American employers
from incorporating those biases into their dealings with American
employees.

   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
jurisdiction over a given subject matter.  Here again, since most
nations share a common view of employment discrimination, conflicts
between such laws will likely be rare.

   There is no apparent conflict, for instance, between Title VII's
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 concurrent jurisdiction.  The mere possibility of some
conflicts 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 framework of Title VII.  See EEOC Br.
27 & nn.23-24.

   3. Respondents argue that the EEOC has not been consistent in its
interpretation of Title VII with respect to the question presented.
They contend that an interpretative 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 Relations Committee in
1975 "was in conflict with the agency's regulation then in force"
(Resp. Br. 44).

   Respondents have misread the EEOC's prior regulation.  The quoted
provision was part of a regulation addressing 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
discrimination, 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 protected 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 Title VII'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.

   KENNETH W. STARR

      Solicitor General

   JANUARY 1991

   /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
incorporation of this provision that led courts to conclude that it
did not apply extraterritorially.  See EEOC Br. 31 n.29.

   /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 debate in
the Senate.  That memorandum stated both that commerce for purposes of
Title VII "is, generally speaking, interstate commerce, but includes
commerce within U.S. possessions and the District of Columbia" and
that such commerce "is, in short, that commerce 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 unambiguous statutory text.  Respondents concede
that Congress "has the power to legislate extraterritorially" (Resp.
Br. 10).

   /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 Senate for
the version of H.R. 7152 passed by the House, the declarations 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
Senator Dirksen into the Congressional Record:  "Section 701:  This
section consisting of findings and declaration of policy is deleted in
its entirety." 110 Cong. Rec. 12,818 (1964).

   /4/ The absence of such a parallel should come as no surprise.  The
FLSA is designed to raise standards for workers generally by denying
employers the competitive advantage that they might otherwise derive
from paying low wages or requiring long hours.  Indeed, employers who
violate the FLSA are required to remit to the government 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 applying 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 commerce 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.

   /5/ Significantly, respondents' interpretation of the exemption is
inconsistent with their own view of the principles of statutory
interpretation 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 presumption against extraterritoriality should be 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
"outside 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).

   /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
Investments Corp., 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 VII, 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 statutes.
Compare 29 U.S.C. 161(1) (incorporated in 42 U.S.C. 2000e-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.

   /8/ This Court has never suggested, for instance, that the Foley
Bros. canon is comparable to the clear-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 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.

   /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.

   /12/ Respondents argue that there is no meaningful distinction
between 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 individual
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 representatives,
and strike on less than all members of a bargaining unit.

   /13/ See 5 U.S.C. 7201 note (prohibiting discrimination, unless
required by treaty, by Department of Defense against American citizens
at foreign military bases);  22 U.S.C. 5001(5), 5034-5035(a)
(requiring "national(s) of the United States" employing more than 25
persons to conform to a "Code of Conduct" regulating employment
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 protection from
discrimination by the federal government to "(a)ll 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) (directing the President to
promulgate regulations prohibiting any "United States person" from
engaging in employment discrimination, in compliance with foreign
boycotts, against "United States person(s)").  Respondents and their
amici downplay or ignore these statutes in their discussion of the
nationality principle.  Resp. Br. 13;  Rule of Law Comm. Br. 6 n.6.
As these examples reflect, anti-discrimination statutues are not
regarded as laws addressing "predominantly 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
Section 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, Section 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 Section 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.

   /15/ 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);  Udall 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).