Equal Employment Opportunity Commission v. Arabian American Oil Company/Concurrence Scalia
|←Equal Employment Opportunity Commission v. Arabian American Oil Company||Equal Employment Opportunity Commission v. Arabian American Oil Company by
Opinion of the Court
Justice SCALIA, 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., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The case relied upon for the proposition that the EEOC's interpretations have only the force derived from their "power to persuade" was decided in an era when we were disposed to give deference (as opposed to "persuasive force") only to so-called "legislative regulations." The reasoning of General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) was not that the EEOC (singled out from other agencies) was not entitled to deference, but that the EEOC's guidelines, like the guidelines of all agencies without explicit rulemaking power, could not be considered legislative rules and therefore could not be accorded deference. See id., at 141, 97 S.Ct., at 410.
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., 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988)-which case, rather than Gilbert, was our last word on deference to the EEOC. We said, in language quite familiar from our cases following Chevron, that "the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference." Id., 486 U.S., at 115, 108 S.Ct., at 1671. Commercial Office Products has not been overruled (or even mentioned) in today's opinion, so that the state of the law regarding deference to the EEOC is left unsettled.
I would resolve these cases by assuming, without deciding, that the EEOC was entitled to deference 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.
Justice MARSHALL, 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 inquiry into congressional intent in this setting is informed by the traditional "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." Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949). But contrary to what one would conclude from the majority's analysis, this canon is not a "clear statement" rule, the application of which relieves a court of the duty to give effect to all available indicia of the legislative will. Rather, as our case law applying the presumption against extraterritoriality well illustrates, a court may properly rely on this presumption only after exhausting all of the traditional tools "whereby unexpressed congressional intent may be ascertained." Ibid. When these tools are brought to bear on the issue in this case, the conclusion is inescapable that Congress did intend Title VII to protect United States citizens from discrimination by United States employers operating overseas. Consequently, I dissent.
* 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 provide any mechanisms for overseas enforcement," ibid., or to "addres[s] the subject of conflicts with foreign laws and procedures," ante, at 1234. At other points, the majority relies on its reformulation of the presumption to avoid the "need [to] choose between . . . competing interpretations" of affirmative statutory language that the majority concludes "does not speak directly to the question" of extraterritoriality. Ante, at 250 (emphasis added). In my view, the majority grossly distorts the effect of this rule of construction upon conventional techniques of statutory interpretation.
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." 336 U.S., at 285, 69 S.Ct., at 577. The Court put particular emphasis on "[t]he scheme of the Act," including Congress' failure to draw a "distinction . . . therein between laborers who are aliens and those who are citizens of the United States." Id., at 286, 69 S.Ct., at 578. "The absence of any [such] distinction," the Court explained, "indicates . . . that the statute was intended to apply only to those places where the labor conditions of both citizen and alien employees are a probable concern of Congress." Ibid. The Court also engaged in extended analyses of the legislative history of the statute, see id., at 286-288, 69 S.Ct., at 578-579, and of pertinent administrative interpretations, see id., at 288-290, 69 S.Ct., at 579-580.
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, 486 U.S. 592, 601, 603, 108 S.Ct. 2047, 2052, 2053, 100 L.Ed.2d 632 (1988); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-243, 105 S.Ct. 3142, 3147-3148, 87 L.Ed.2d 171 (1985); Kent v. Dulles, 357 U.S. 116, 130, 78 S.Ct. 1113, 1120, 2 L.Ed.2d 1204 (1958). When they apply, such rules foreclose inquiry into extrinsic guides to interpretation, see, e.g., Dellmuth v. Muth, 491 U.S. 223, 230, 109 S.Ct. 2397, ----, 105 L.Ed.2d 181 (1989), and even compel courts to select less plausible candidates from within the range of permissible constructions, see, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988). The Court's analysis in Foley Brothers was by no means so narrowly constrained. Indeed, the Court considered the entire range of conventional sources "whereby unexpressed congressional intent may be ascertained," 336 U.S., at 285, 69 S.Ct., at 577 (emphasis added),  including legislative history, statutory structure, and administrative interpretations. Subsequent applications of the presumption against extraterritoriality confirm that we have not imposed the drastic clear-statement burden upon Congress before giving effect to its intention that a particular enactment apply beyond the national boundaries. See, e.g., Steele v. Bulova Watch Co., 344 U.S. 280, 286-287, 73 S.Ct. 252, 255-256, 97 L.Ed. 319 (1952) (relying on "broad jurisdictional grant" to find intention that Lanham Act applies abroad).
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, 268 U.S. 29, 45 S.Ct. 402, 69 L.Ed. 828 (1925), declined to construe the Federal Employers Liability Act to apply extraterritorially because it concluded that the statute " 'contains no words which definitely disclose an intention to give it extraterritorial effect,' " ante, at 251, quoting 268 U.S., at 31, 45 S.Ct., at 402. The majority omits the remainder of the quoted sentence, which states, "nor do the circumstances require an inference of such purpose." 268 U.S., at 31, 45 S.Ct., at 402 (emphasis added). Similarly, the majority notes that the Court in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), did not find " 'any specific language' " in the National Labor Relations Act indicating that Congress expected the statute to apply to foreign-flag ships. Ante, at 252, quoting 372 U.S., at 19, 83 S.Ct., at 676. The full sentence states: "But, as in Benz [v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957) ], [petitioners] have been unable to point to any specific language in the Act itself or in its extensive legislative history that reflects such a congressional intent." 372 U.S., at 19, 83 S.Ct., at 676 (emphasis added).
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, 372 U.S., at 21, 83 S.Ct., at 678, quoting The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804) (Marshall, C.J.); see Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 146-147, 77 S.Ct. 699, 703-704, 1 L.Ed.2d 709 (1957). At issue in Benz was whether the Labor Management Relations Act of 1947 "applie[d] to a controversy involving damages resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel is temporarily in an American port." Id., at 138-139, 77 S.Ct., at 700. Construing the statute to apply under such circumstances would have displaced labor regulations that were founded on the law of another nation and that were applicable solely to foreign nationals. Id., at 139, 142, 146, 77 S.Ct., at 700, 701-703. In language quoted in the majority's opinion, see ante, at 248, the Court stated that there must be "present the affirmative intention of the Congress clearly expressed" before it would infer that Congress intended courts to enter "such a delicate field of international relations." Benz, supra, at 147, 77 S.Ct., at 704. Similarly, in McCulloch, the Court focused on the absence of " 'the affirmative intention of the Congress clearly expressed,' " in declining to apply the National Labor Relations Act to foreign-flag vessels with foreign crews. 372 U.S., at 22, 83 S.Ct., at 678, quoting Benz, supra, 353 U.S., at 147, 77 S.Ct., at 704. Extraterritorial application in McCulloch would have violated not only "the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship," 372 U.S., at 21, 83 S.Ct., at 677, but also regulations issued by the State Department, see id., at 20, and n. 11, 83 S.Ct., at 677 and n. 11.
Far from equating Benz and McCulloch § 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, 440 U.S. 490, 500, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979); see Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1516, 71 L.Ed.2d 715 (1982) (McCulloch rule designed to avoid constructions that raise "foreign policy implications"); Longshoremen v. Ariadne Shipping Co., 397 U.S. 195, 198-199, 90 S.Ct. 872, 873-874, 25 L.Ed.2d 218 (1970) (declining to follow Benz and McCulloch in setting in which United States citizens were employed by foreign vessels). The strictness of the McCulloch and Benz presumption permits the Court to avoid, if possible, the separation-of-powers and international-comity questions associated with construing a statute to displace the domestic law of another nation. See NLRB v. Catholic Bishop of Chicago, supra, 440 U.S., at 500, 99 S.Ct., at 1319. Nothing nearly so dramatic is at stake when Congress merely seeks to regulate the conduct of United States nationals abroad. See Steele v. Bulova Watch Co., supra, 344 U.S., at 285-286, 73 S.Ct., at 255-256; Skiriotes v. Florida, 313 U.S. 69, 73-74, 61 S.Ct. 924, 927-928, 85 L.Ed. 1193 (1941). 
Because petitioners advance a construction of Title VII that would extend its extraterritorial reach only to United States nationals, it is the weak presumption of Foley Brothers, not the strict clear-statement rule of Benz and Mc Culloch, Y that should govern our inquiry here. Under Foley Brothers, a court is not free to invoke the presumption against extraterritoriality until it has exhausted all available indicia of Congress' intent on this subject. Once these indicia are consulted and given effect in this case, I believe there can be no question that Congress intended Title VII to protect United States citizens from discrimination by United States employers abroad.
"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)(1).
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, ante, at 250, the majority goes to considerable lengths to show that this language is not sufficient to overcome the majority's clear-statement conception of the presumption against extraterritoriality. However, petitioners claim no more-and need claim no more, given additional textual evidence of Congress' intent-than that this language is consistent with a legislative expectation that Title VII apply extraterritorially, a proposition that the majority does not dispute.
Confirmation that Congress did in fact expect 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).  Absent an intention that Title VII apply "outside any State," Congress would have had no reason to craft this extraterritorial exemption. And because only discrimination against aliens is exempted, employers remain accountable for discrimination against United States citizens abroad.
The inference arising from the alien-exemption provision is more than sufficient to rebut the presumption against extraterritoriality. Compare Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). In Union Gas, we considered the question whether Congress had stated with sufficient clarity its intention to abrogate the States' Eleventh Amendment immunity under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Based on a limited exemption provision directed at the States, we concluded that Congress had spoken with sufficient clarity; absent "a background understanding" that the general terms of the statute had made the States amenable to suit, we explained, the limited exemption "would [have] be[en] unnecessary." Id., at 8, 109 S.Ct., at 2278. If this logic is sufficiently sharp to pierce the dense armor afforded the States by the clear-statement abrogation rule of Atascadero State Hospital v. Scanlon, 473 U.S., at 242-243, 105 S.Ct., at 3147; accord, Dellmuth v. Muth, 491 U.S., at 230, 109 S.Ct., at ----, then the same logic necessarily overcomes the much weaker presumption against extraterritoriality recognized in Foley Brothers.
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, 69 S.Ct., at 578.
The language comprising the alien-exemption 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). 
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 courts to give effect to all of the statutory language, see Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979), the majority never advances an alternative explanation of the alien-exemption provision that is consistent with the majority's own conclusion that Congress intended Title VII to have a purely domestic focus. The closest that the majority comes to attempting to give meaning to the alien-exemption provision is to identify without endorsement "two alternative raisons d'etre for that language" offered by respondents. Ante, at 254. Neither of these explanations is even minimally persuasive.
The first is the suggestion that the alien-exemption provision indicates, by negative implication, merely that aliens are covered by Title VII if they are employed in the United States. This construction hardly makes sense of the statutory language as a whole; indeed, it hardly makes sense. Under respondents' construction of the statute, no one-neither citizen nor alien-is protected from discrimination abroad. Thus, in order to credit respondents' interpretation of the alien-exemption provision, we must attribute to Congress a decision to enact a completely superfluous exemption solely as a means of signaling its intent that aliens be protected from employment discrimination in this Nation. In addition to being extremely improbable, such a legislative subterfuge would have been completely unnecessary, for as we indicated in Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), Congress clearly communicated its intent to cover aliens working in this country by prohibiting discrimination against "any individual." See id., at 95, 94 S.Ct., at 340.
Respondent's 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, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76 (1948). This explanation may very well be true, but it only corroborates the conclusion that Congress expected Title VII to apply extraterritorially. Although there is no fixed legal meaning for the term "possession," see id., at 386, 69 S.Ct. at 145, it is clear that possessions, like foreign nations, are extraterritorial jurisdictions to which the presumption against extraterritorial application of a statute attaches. See Foley Bros., supra, 336 U.S., at 285, 69 S.Ct., at 577.  Because only one rule of construction applies to both types of jurisdiction, a court following Vermilya-Brown and Foley Brothers would have reached the same conclusion about the applicability of Title VII to companies employing aliens in possessions and to companies employing aliens in foreign nations. Consequently, if Congress believed that the alien-exemption provision was necessary to protect employers in the former class, it would have had just as much reason to believe that the provision was necessary to protect employers in the latter. In any case, the specific history surrounding the alien-exemption provision makes clear that Congress had the situation of "U.S. employers employing citizens of foreign countries in foreign lands" firmly in mind when it enacted that provision. S.Rep. No. 867, supra, at 11 (emphasis added).
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 procedures," 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 is simply incorrect in its claim that Congress disregarded the subject of conflicts with foreign law. Congress addressed this concern by enacting the alien-exemption provision, the announced purpose of which was "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, at 4, reprinted in Civil Rights Hearings, at 2303 (emphasis added). As I have explained, the alien-exemption provision is tailored to avert the very type of potential conflict that prevented the Court from construing the Eight Hour Law to apply extraterritorially in Foley Brothers. Congress could have gone further in addressing the topic of conflicts, but it is not our position to second-guess the balance struck by Congress in this respect.
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, 398 U.S. 306, 308-309, 90 S.Ct. 1731, 1733-1734, 26 L.Ed.2d 252 (1970). 
Nor can any inference be drawn from the scope of the EEOC's investigatory powers under the statute. Title VII directs the EEOC to conduct an investigation "[w]henever a charge is filed" under the statute, 42 U.S.C. § 2000e-5(b); it also states that the EEOC is to "have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated," § 2000e-8(a). Far from imposing a geographic limitation on either of these powers, Title VII states that the EEOC may "exercise any or all its powers" in the District of Columbia (the site of the EEOC's principal office) or "at any other place." § 2000e-4(f) (emphasis added).
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, 636 F.2d 1300, 1322 (1980) (territorial limitation on subpoena power does not prevent extraterritorial investigations). Moreover, Congress has also declined to give extraterritorial-subpoena power to either the EEOC under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(a); 29 U.S.C. § 209, 15 U.S.C. § 49, or to the Securities and Exchange Commission under the Securities Exchange Act of 1934, 15 U.S.C. § 78u(b), even though the former statute expressly applies abroad, 29 U.S.C. §§ 623(h)(1), 630(f),  and the latter is widely recognized as doing so, see Turley, "When in Rome": Multinational Misconduct and the Presumption against Extraterritoriality, 84 Nw.U.L.Rev. 598, 613-617 (1990). In short, there simply is no correlation between the scope of an agency's subpoena power and the extraterritorial reach of the statute that the agency is charged with enforcing.
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., 344 U.S., at 285-286, 73 S.Ct., at 255-256; Skiriotes v. Florida, 313 U.S., at 73-74, 61 S.Ct., at 927-928. It is the latter situation that typically presents the foreign-policy and conflicts-of-law concerns that underlie the clear-statement rule of McCulloch and Benz. Because two different rules of construction apply depending on the national identity of the regulated parties, the same statute might be construed to apply extraterritorially to United States nationals but not to foreign nationals. Compare Steele v. Bulova Watch Co., supra, 344 U.S., at 285-287, 73 S.Ct., at 255-256 (applying Lanham Act to United States national for conduct abroad) with Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 642-643 (CA2) (declining to apply Lanham Act to foreign national for conduct abroad), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). Cf. Webster v. Doe, 486 U.S., at 599-601, 603, 108 S.Ct., at 2051-2052, 2053-2054 (finding language in judicial-review statute to have different meanings depending on applicability of different rules of construction).
The legislative 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 American enterprise " (emphasis added)), reprinted in Civil Rights Hearings, at 2303; S.Rep. No. 867, at 11 (alien-exemption provision directed at "U.S. employers employing citizens of foreign countries in foreign lands" (emphasis added)); see also EEOC Policy Statement No. 125, BNA EEOC Compliance Manual 605:0061 (April 1989) (construing nationality of employer abroad to be "significant" under Title VII). Thus, although the issue is not before us in this case, we would not be at a loss for interpretive resources for narrowing Title VII's extraterritorial reach to United States employers should such a construction be necessary in order to avoid conflicts with foreign law.
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., 336 U.S., at 288, 69 S.Ct., at 579. Since 1975, the EEOC has been on record as construing Title VII to apply to United States companies employing United States citizens abroad:
"Section [2000e-2(a)(1) ] 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-1], i.e., aliens working outside the U.S. and to employees of certain religious and educational institutions.
"Giving Section [2000e-1] 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.C.itizens employed abroad by U.S. employers. If Section [2000e-1] is to have 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 General 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 EEOC'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., 486 U.S. 107, 115, 108 S.Ct. 1666, 1671, 100 L.Ed.2d 96 (1988).
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, 478 U.S. 421, 465-466, 106 S.Ct. 3019, 3044-3045, 92 L.Ed.2d 344 (1986) (plurality opinion) (deference owed Department of Justice interpretation of Title VII). Stating the position of the Department, then-Assistant Attorney General Scalia testified before Congress:
"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 is applicable 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 recognition 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 § 1606.1 was in effect, the EEOC was representing to Congress that Title VII did protect United States citizens from discrimination by United States employers abroad. See Letter from William A. Carey, EEOC General Counsel, supra, at 16. The majority's insistence that the EEOC was contradicting itself fails to give the agency the deference that it is due on the interpretation of its own regulations. See Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965).
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.
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., 336 U.S., at 285, 69 S.Ct., at 577, into a barrier to any genuine inquiry into the sources that reveal Congress' actual intentions. Because the language, history, and administrative interpretations of the statute all support application of Title VII to United States companies employing United States citizens abroad, I dissent.
^1 The majority quotes this language, see ante, at 248, but then proceeds to disregard it completely in the course of its analysis.
^2 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, 440 U.S. 490, 500, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979), the Court in both Benz, see 353 U.S., at 142-146, 77 S.Ct., at 701-704, and McCulloch, see 372 U.S., at 19, 83 S.Ct., at 676, consulted the legislative history of the statutes at issue in those cases before concluding that neither applied to the facts before the Court.
^3 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).
^4 The alien-exemption provision 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), U.S.Code Cong. & Admin.News 1964, p. 2355 (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.
^5 The presumption was overcome in Vermilya-Brown because the legislation at issue in that case expressly applied to United States "possessions." See 335 U.S., at 379, 386, 69 S.Ct., at 141, 145; see also Foley Bros., 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949).
^6 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, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), to which the venue provisions of Title VII clearly would not apply, see Bainbridge v. Merchants & Miners Transp. Co., 287 U.S. 278, 280-281, 53 S.Ct. 159, 159-160, 77 L.Ed. 302 (1932).
^7 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., 728 F.2d 607, 609 (CA3 1984); see also Pfeiffer v. Wm. Wrigley Jr. Co., 755 F.2d 554, 559 (CA7 1985). Sponsors of the ADEA amendment explained that it would make the ADEA and Title VII coextensive in their extraterritorial reach. See 129 Cong.Rec. 34499 (1983) (statement of Sen. Grassley).
|This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).|