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Published online by Cambridge University Press: 27 February 2017
Plaintiff, a United States citizen employed in Saudi Arabia, brought an employment discrimination suit against defendant, a U.S. corporation, alleging violations of title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e (1982)). The U.S. Court of Appeals for the Fifth Circuit affirmed (per Davis, J.) the district court’s dismissal of the suit for lack of subject matter jurisdiction and held (two to one): (1) that neither the language nor the legislative history of title VII evinces a clearly expressed congressional intent to apply title VII outside U.S. borders; (2) that in the absence of clearly expressed congressional intent to the contrary, the presumption against extraterritoriality controls; and (3) that no “negative inference” extending the reach of title VII should be drawn from its “alien exemption” provision. Judge King’s dissent discussed international law principles not addressed by the majority. The Fifth Circuit subsequently granted on December 23, 1988, the petition for rehearing en banc submitted by plaintiff and various amici, including the Equal Employment Opportunity Commission (EEOC).
1 Boureslan v. Aramco, 653 F.Supp. 629 (S.D. Tex. 1987).
2 Boureslan was first employed by Aramco Services Company (ASC), a subsidiary of Aramco that has its principal place of business in Houston, Texas. He requested a transfer to Aramco, which has its principal place of business in Dhahran, Saudi Arabia, and which “explores, produces, and refines oil and gas exclusively within the Kingdom of Saudi Arabia.” 857 F.2d 1014, 1016. Thus, Boureslan's transfer from ASC to Aramco also meant a transfer from the United States to Saudi Arabia. Id.
3 ASC was also named as a defendant in the action in the district court but did not raise the extraterritoriality question in its separate motion to dismiss. However, the court's resolution of the extraterritoriality issue necessitated the dismissal of the suit against both Aramco and ASC. Id.
4 Id. at 1017 (relying on Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949)).
5 That provision states: “All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) … shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. §2000e–16(a) (1982) (emphasis added).
6 Bryant v. International Schools Servs., Inc., 502 F.Supp. 472 (D.N.J. 1980), rev'd on other grounds, 675 F.2d 562 (3d Cir. 1982).
7 857 F.2d at 1018 (citing United States v. Smith, 795 F.2d 841 (9th Cir. 1986)).
8 Id. at 1019–20.
9 The EEOC joined Boureslan as an amicus on the appeal, but the court concluded that the EEOC's interpretation of the statute was entitled to “less deference than usual” because “this is a jurisdictional issue with little or no statutory language or legislative history, and one in which the EEOC has developed no particular expertise.” Id. at 1019 n.2.
10 Id. at 1020.
11 Id.
12 Id. at 1024 (quoting Restatement (Third) of Foreign Relations Law of the United States §403(1) (1987)). According to Judge King, Aramco had argued that extraterritorial application of title VII would be “unreasonable” under section 403. The majority opinion, however, does not address this question.
13 W. at 1034.
14 Kern v. Dynalectron Corp., 577 F.Supp. 1196 (N.D. Tex. 1983), aff'd mem., 746 F.2d 810 (5th Cir. 1984).
15 Dynalectron's pilots were U.S. citizens who converted to Islam if their employment re quired them to fly to Mecca.
16 Neither court suggested that title VII did not apply to Dynalectron's employees in Saudi Arabia.
17 857 F.2d at 1032.
18 Id. at 1027. The effects predicted by the dissent are apparent in the case itself. Boureslan was allegedly subjected to discriminatory practices that violated title VII and that do not appear to have resulted from Aramco's need to respect or conform to the religious or social customs of Saudi Arabia. As Kern illustrates, necessary concessions to local law or custom can be accomplished by the “bona fide occupational qualification” exception contained in title VII.
19 Id. at 1021 n.1.
20 As the district court observed, this was the case with the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§621–634:
When enacted, ADEA was silent on the question of extraterritorial application. Courts struggled with the issue but concluded that Congress did not intend ADEA to apply extraterritorially. See, e.g., Clear) v. United States Lines, Inc., 728 F.2d 607 (3d Cir. 1984); Thomas v. Brown & Root, Inc., 745 F.2d 279 (4th Cir. 1981). In 1984, Congress amended the ADEA. Congress included in the definition of employee “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). Thus, Congress added a clear statement, obviating the need for judicial guesswork.
653 F.Supp. at 631.