Lead Opinion
delivered the opinion of the Court.
Thеse 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
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 or Commission), he instituted this suit in the United States 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. 253, as amended, 42 U. S. C. §§2000e — 2000e-17, 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.
It is a longstanding 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.,
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 domеstic 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 “em
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 hаs 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.J.” §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’ intent to extend the statute’s protections to employment discrimination anywhere in the world by a United States-employer who affects trade “between a State and any place outside thereof.” More precisely, they assert that since Title VII
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^] 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, respondents 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 extraterri-torially.” Id., at 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
Petitioners’ reliance on Title VIPs 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,
Similarly, in McCulloch v. Sociedad Nacional de Marineros de Honduras,
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.,
The EEOC’s attempt to analogize these cases to Steele is unpersuasive. The Lanham Act by its 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’ 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
Thus petitioners’ argument basеd 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-l, “clearly manifests an intention” by Congress to protect United States 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.” 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 emрloyers. There is “[n]o 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 fore
Respondents resist petitioners’ interpretation of the alien-exemption provision and assert two alternative raisons d’étre for that language. First, they contend that since aliens are included in the statute’s definition of employee,
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 inter
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 the 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 alien-exemption 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 the Act 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); §§2000e-5(c), (d), and (e) (provisions addressing deferral to state discrimination pro
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 “any place in the United States or аny Territory or possession thereof,” 29 U. S. C. § 161, incorporated by reference into 42 U. S. C. § 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 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., 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.” § 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, BNA EEOC Compliance Manual §605:0055 (Apr. 1989), “to apply to discrimination against
In General Electric Co. v. Gilbert,
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 оn 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 stat
Our conclusion today is buttressed by the fact thаt “[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.,
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
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, governmental agency or political subdivision.” 42 U. S. C. §2000e(f).
Concurrence Opinion
concurring in part and concurring in the judgment.
I join the judgment of the Court and its opinion except that portion, ante, at 256-258, asserting that the views of the Equal Employment Opportunity Commission — not only with respect to the particular point at issue here but apparently as a general matter — are not entitled to the deference normally accorded administrative agencies under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
In an era when our treatment of agency positions is governed by Chevron, the “legislative rules vs. other action” dichotomy of Gilbert is an anachronism; and it is not even a correct description of that anachronism to say that Gilbert held that the EEOC (as opposed to all agency action other than legislative rules) is not entitled to deference. We recognized that only three years ago in EEOC v. Commercial Office Products Co.,
I would resolve these cases by assuming, without deciding, that the EEOC was entitled to defеrence on the particular point in question. But deference is not abdication, and it requires us to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ. Given the presumption against extraterritoriality that the Court accurately describes, and the requirement that the intent to overcome it be “clearly expressed,” it is in my view not reasonable to give effect to mere implications from the statutory language as the EEOC has done. Cf. Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2114 (1990).
On all other points, I join the opinion of the Court.
Dissenting Opinion
with whom Justice Blackmun and Justice Stevens join, dissenting.
Like any issue of statutory construction, the question whether Title VII protects United States citizens from discrimination by United States employers abroad turns solely on congressional intent. As the majority recognizes, our in
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Because it supplies the driving force of the majority’s analysis, I start with “[t]he canon . . . that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Ibid. The majority recasts this principle as “the need to make a clear statement that a statute applies overseas.” Ante, at 258 (emphasis added). So conceived, the presumption against extraterritoriality allows the majority to derive meaning from various instances of statutory silence — from Congress’ failure, for instance, “to mention foreign nations or foreign proceedings,” ante, at 256, “to prоvide any mechanisms for overseas enforcement,” ibid., or to “addres[s] the subject of conflicts with foreign laws and procedures,” ante, at 256. At other points, the majority relies on its reformulation of the presumption to avoid the “need [to] choose between . . . competing interpretations” of affirmative statu
Our most extensive discussion of the presumption against extraterritoriality can be found in Foley Brothers, supra. The issue in that case was whether the Eight Hour Law — a statute regulating the length of the workday of employees hired to perform contractual work for the United States — applied to construction projects in foreign nations. After noting “the assumption that Congress is primarily concerned with domestic conditions,” the Court concluded that there was “nothing in the Act itself, as amended, nor in the legislative history, which would lead to the belief that Congress entertained any intention other than the normal one in this case.”
The range of factors that the Court considered in Foley Brothers demonstrates that the presumption against extraterritoriality is not a “clear statement” rule. Clear-statement rules operate less to reveal actual congressional intent than to shield important values from an insufficiently strong legislative intent to displace them. See, e. g., Webster v. Doe,
The majority converts the presumption against extraterritoriality into a clear-statement rule in part through selective quotation. Thus, the majority reports that the Court in New York Central R. Co. v. Chisholm,
The majority also overstates the strength of the presumption by drawing on language from cases involving a wholly independent rule of construction: “that ‘an act of congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .’” McCulloch v. Sociedad Nacional, supra, at 21, quoting The Charming Betsy,
Far from equating Benz and McCulloch's, clear-statement rule with Foley’s presumption against extraterritoriality, the Court has until now recognized that Benz and McCulloch are reserved for settings in which the extraterritorial application of a statute would “implicat[e] sensitive issues of the authority of the Executive over relations with foreign nations.” NLRB v. Catholic Bishop of Chicago,
Because petitioners advance a construction of Title VII that would extend its extraterritorial reach only to United Stаtes nationals, it is the weak presumption of Foley Brothers, not the strict clear-statement rule of Benz and Mc-
II
A
Title VII states:
“It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2(a)(l).
Under the statute, “[t]he term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees,” §2000e(b); “[t]he term ‘commerce’ means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof. ...” §2000e(g).
These terms are broad enough to encompass discrimination by United States employers abroad. Nothing in the text of the statute indicates that the protection of an “individual” from employment discrimination depends on the location of that individual’s workplace; nor does anything in the statute indicate that employers whose businesses affect commerce between “a State and any other place outside thereof” are exempted when their discriminatory conduct occurs beyond the Nation’s borders. While conceding that it is “plausible” to infer from the breadth of the statute’s central prohibition that Congress intended Title VII to apply extraterritorially,
Confirmation that Congress did in fact expеct Title VII’s central prohibition to have an extraterritorial reach is supplied by the so-called “alien exemption” provision. The alien-exemption provision states that Title VII “shall not apply to an employer with respect to the employment of aliens outside any State.” 42 U. S. C. §2000e-1 (emphasis added).
The inference arising from the alien-exemption provision is more than sufficient to rebut the presumption against extraterritoriality. Compare Pennsylvania v. Union Gas Co.,
The history of the alien-exemption provision confirms the inference that Congress expected Title VII to have extraterritorial application. As I have explained, the Court in Foley Brothers declined to construe the Eight Hour Law to apply extraterritorially in large part because of “[t]he absence of any distinction between citizen and alien labor” under the Law:
“Unless we were to read such a distinction into the statute we should be forced to conclude . . . 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. . . . 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.”336 U. S., at 286 .
The language comprising the alien-exemptiоn provision first appeared in an employment-discrimination bill introduced only seven weeks after the Court decided Foley Brothers, see H. R. 4453, 81st Cong., 1st Sess. (1949), and was clearly aimed at insulating that legislation from the concern that prevented the Court from adopting an extraterritorial construction of the Eight Hour Law. The legislative history surrounding Title VII leaves no doubt that Congress had extraterritorial application in mind when it revived the alien-exemption provision from the earlier antidiscrimination bill:
“In section 4 of the Act, a limited exception is provided for employers with respect to employment of aliens outside of any State .... The intent of [this] exemption is to remove conflicts of law which might otherwise exist between the United States and a foreign nation in the employment of aliens outside the United States by an American enterprise.” H. R. Rep. No. 570, 88th Cong., 1st Sess. 4 (1963) (emphasis added), reprinted in Civil Rights, Hearings on H. R. 7152, as amended, before Subcommittee No. 5 of the Committee on the Judiciary, 88th Cong., 1st Sess., 2303 (Civil Rights Hearings). 4
See also S. Rep. No. 867, 88th Cong., 2d Sess., 11 (1964) (“Exempted from the bill are . . . U. S. employers employing citizens of foreign countries in foreign lands” (emphasis added)).
Notwithstanding the basic rule of construction requiring сourts to give effect to all of the statutory language, see Reiter v. Sonotone Corp.,
Respondents’ second explanation is that Congress included the alien-exemption provision in anticipation that courts would otherwise construe Title VII to apply to companies employing aliens in United States “possessions,” an outcome supposedly dictated by this Court’s decision in Vermilya-Brown Co. v. Connell,
B
Rather than attempting to reconcile its interpretation of Title VII with the language and legislative history of the alien-exemption provision, the majority contents itself with pointing out various legislative silences that, in the majority’s view, communicate a congressional intent to limit Title VII to instances of domestic employment discrimination. In particular, the majority claims that, had Congress intended to give Title VII an extraterritorial reach, it “would have addressed the subject of conflicts with foreign laws and procedurеs,” ante, at 256, and would have “provide[d]. . . mechanisms for overseas enforcement,” including special venue provisions and extraterritorial investigatory powers for the Equal Employment Opportunity Commission (EEOC), see ibid. The majority also emphasizes Congress’ failure to draw an express distinction between extraterritorial application of Title VII to United States employers and extraterritorial application of Title VII to foreign employers. See ante, at 255. In my view, none of these supposed omissions detracts from the conclusion that Congress intended Title VII to apply extraterritorially.
The majority also misrepresents the character of Title VII’s venue provisions. Title VII provides that venue is proper in various districts related to the underlying charge of discrimination, but also states that
“if the [employer] is not found within any such district, such an action may be brought within the judicial district in which the [employer] has his principal office.” 42 U. S. C. § 2000e-5(f)(3).
“Principal office” venue would extend to any United States employer doing business abroad. Identical language is found in the venue provision of the Jones Act, 46 U. S. C. App. § 688(a), which under appropriate circumstances applies to injuries occurring outside the territorial jurisdiction of the United States, see generally Hellenic Lines Ltd. v. Rhoditis,
Title VII does limit the reach of the subpoena power of the EEOC, see § 2000e-9; 29 U. S. C. § 161(1), but this limitation does not detract from the potential extraterritorial reach of the agency’s investigatory powers. See FTC v. Compagnie De Saint-Gobain-Pont-A-Mousson, 205 U. S. App. D. C. 172, 194,
Finally, the majority overstates the importance of Congress’ failure expressly to disclaim extraterritorial application of Title VII to foreign employers. As I have discussed, our cases recognize that application of United States law to United States nationals abroad ordinarily raises considerably less serious questions of international comity than does the application of United States law to foreign nationals abroad. See Steele v. Bulova Watch Co.,
The legislаtive history of Title VII, moreover, furnishes direct support for such a construction. See H. R. Rep. No. 570, at 4 (explaining that alien-exemption provision applies to “employment of aliens outside the United States by an
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The extraterritorial application of Title VII is supported not only by its language and legislative history but also by pertinent administrative interpretations. See Foley Bros.,
“Section [2000e-2(a)(l)] provides that it is unlawful to discriminate against ‘any individual’ with respect to his employment. . . . The only exception to ‘any individual’ appears to be that contained in Section [2000e-l], i. e., aliens working outside the U. S. and to employees of certain religious and educational institutions.
“Giving Section [2000e-l] its normal meaning would indicate a Congressional intent to exclude from the coverage of the statute aliens employed by covered employers working in the employers’ operations outside of the United States.
“The reason for such exclusions is obvious; employment conditions in foreign countries are beyond the control of Congress. The section does not similarly exempt from the provisions of the Act, U. S. Citizens employed abroad by U. S. employers. If Section [2000e-l] is tohave any meaning at all, therefore, it is necessary to construe it as expressing a Congressional intent to extend the coverage of Title VII to include employment conditions of citizens in overseas operations of domestic corporations at the same time it excludes aliens of the domestic corporation from the operation of the statute.” Letter from W. Carey, EEOC Gеneral Counsel, to Senator Frank Church (Mar. 14, 1975), reprinted in App. 48-49.
The agency has reiterated this interpretation in various decisions and policy pronouncements since then. See, e. g., EEOC Dec. No. 85-16 (Sept. 16, 1985), 38 FEP Cases 1889, 1891-1892; EEOC Policy Statement No. 125, supra, at 605:005 to 605:0057. “[I]t is axiomatic that the ÉEOC’s interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC’s interpretation of ambiguous language need only be reasonable to be entitled to deference.” EEOC v. Commercial Office Products Co.,
In this case, moreover, the EEOC’s interpretation is reinforced by the long-standing interpretation of the Department of Justice, the agency with secondary enforcement responsibility under Title VII. See Sheet Metal Workers v. EEOC,
“With respect to discrimination in employment by private companies and individuals, Title VII of the 1964 Civil Rights Act, as amended, prohibits a broad range of ‘unlawful employment practices’ by any private employer ‘engaged in any industry affecting commerce who has fifteen or more employees.’ . . . Once again the [statute] contains an exemption ‘with respect to the employment of aliens outside any State,’ which implies that it isapplicable to the employment of United States citizens by covered employers anywhere in the world.” Foreign Investment and Arab Boycott Legislation, Hearings before the Subcommittee on International Finance of the Senate Committee on Banking, Housing and Urban Affairs, 94th Cong., 1st Sess., 165 (1975).
The majority offers no response to the view of the Department of Justice. It discounts the force of the EEOC’s views on the ground that the EEOC has been inconsistent. The majority points to a 1970 EEOC regulation in which the agency declared that “Title VII of the Civil Rights Act of 1964 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.” 29 CFR § 1606.1(c) (1971). According to the majority, the inconsistency between § 1606.1(c) and the EEOC’s 1975 pronouncement deprives the latter of persuasive force. See ante, at 257.
This conclusion is based on a misreading of §1606.1(c). Obviously, it does not follow from the EEOC’s rеcognition that Title VII applies to “both citizens and noncitizens, domiciled or residing in the United States” that the agency understood Title VII to apply to no one outside the United States. The context of the regulation confirms that the EEOC meant no such thing. The agency promulgated §1606.1 in order to announce its interpretation of Title VII’s ban on national-origin discrimination. See §§ 1606.1(a)-(b), (d). The agency emphasized that Title VII “protects all individuals, both citizens and noncitizens, domiciled or residing in the United States” only to underscore that neither the citizenship nor the residency status of an individual affects this statutory prohibition. Indeed, the EEOC could not have stated that Title VII protects “both citizens and noncitizens” from national-origin discrimination outside the United States because such an interpretation would have been inconsistent with the alien-exemption provision. At the very time that
In sum, there is no reason not to give effect to the considered and consistently expressed views of the two agencies assigned to enforce Title VII.
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In the hands of the majority, the presumption against extraterritoriality is transformed from a “valid approach whereby unexpressed congressional intent may be ascertained,” Foley Bros.,
The majority quotes this language, see ante, at 248, but then proceeds to disregard it completely in the course of its analysis.
It is also worth noting that although we have construed McCulloch and Benz as embodying a clear-statement rule, see NLRB v. Catholic Bishop of Chicago,
For purposes of Title VII, “[t]he term ‘State’ includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U. S. C. 1331 et seq.].” 42 U. S. C. §2000e(i).
The alien-exemption provisiоn was originally part of H. R. 405, 88th Cong., 1st Sess. (1963), reprinted in Civil Rights Hearings, at 2330. This bill, along with others, was incorporated (with amendments immaterial to the alien-exemption provision) into H. R. 7152, the bill that became the Civil Rights Act of 1964. See H. R. Rep. No. 914, 88th Cong. 1st Sess., 57 (1963) (additional views of Rep. Meader). The Committee Report accompanying H. R. 405 was likewise incorporated into the record of committee hearings held on the various bills from which H. R. 7152 derived. See Civil Rights Hearings, at 2300.
The presumption was overcome in Vermilya-Brown because the legislation at issue in that case expressly applied to United States “possessions.” See
In addition, a United States citizen who suffers employment discrimination abroad may bring a Title VII action against the United States employer in state court, see Yellow Freight System, Inc. v. Donnelly,
Congress’ amendment of the ADEA to give it extraterritorial application does not reflect a congressional intent that Title VII be confined to domestic application. Congress amended the ADEA in response to lower-court decisions construing the ADEA to apply only domestically. These decisions distinguished the ADEA from Title VII in this respect, noting that the former did not contain a provision analogous to the alien-exemption provision. See Cleary v. United States Lines, Inc.,