[33] KING, Circuit Judge, dissenting:

Today, in the first circuit court opinion to consider expressly the extraterritorial application of Title VII, the majority holds that Title VII affords no protection from employment discrimination to U.S. citizens who are employed abroad by U.S. corporations. Because an examination of the language and legislative history of Title VII reveals that Congress did not intend the protections of Title VII to be so restricted, and because the extraterritorial application of Title VII to U.S. nationals would not violate principles of international law, I must respectfully dissent from the majority's holding.

I. The Presumption Against Extraterritoriality

It is undisputed that Congress had the power to extend Title VII's protections extraterritorially. See Steele v. Bulova Watch Co., 344 U.S. 280, 282-83, 73 S.Ct. 252, 253-54, 97 L.Ed. 319 (1952); Foley Bros. v. Filardo, 336 U.S. 281, 284, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949); United States v. Mitchell, 553 F.2d 996, 1001 (5th Cir. 1977). Nationality is an accepted basis for the exercise of jurisdiction. Thus, a state may prescribe law relating to the conduct of its nationals, even when that conduct occurs outside of the state's territory. See Steele, 344 U.S. at 285-86, 73 S.Ct. at 255-56; Blackmer v. United States, 284 U.S. 421, 436-37, 52 S.Ct. 252, 254-55, 76 L.Ed. 375 (1932); Mitchell, 553 F.2d at 1001; Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909, 922 (D.C. Cir. 1984); Restatement (Third) of the Foreign Relations Law of the United States § 402 (1987) [hereinafter Restatement]. The only question in this case is whether Congress exercised that power.

The majority correctly notes that because jurisdiction to prescribe is ordinarily exercised on the basis of territory rather than nationality, there is a presumption that Congress intends legislation to apply only within the territorial jurisdiction of the United States, unless a contrary intent appears. Steele, 344 U.S. at 285, 73 S.Ct. at 255; Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577-78; Blackmer, 284 U.S. at 437, 52 S.Ct. at 254-55; Mitchell, 553 F.2d at 1002. The majority goes astray, however, in its determination of what constitutes an expression of "contrary intent" sufficient to overcome the presumption.

As will be demonstrated more fully below, this is not a case in which the claim of extraterritorial jurisdiction is based solely on the broad jurisdictional language of the statute. Rather, the conclusion that Title VII was intended to apply to U.S. citizens employed abroad by U.S. corporations is compelled by canons of statutory construction and is further supported by legislative history. In rejecting these traditional methods of statutory interpretation as inadequate, the majority implies that nothing short of an explicit statement by Congress will overcome the presumption.

The classic formulation of the presumption, however, does not impose such a stringent standard: "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." Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577 (emphasis added) (citation omitted); Natural Resources Defense Council v. Nuclear Regulatory Comm'n, 647 F.2d 1345, 1357 n. 54 (D.C. Cir. 1981). The most established method of ascertaining unexpressed congressional intent is to apply principles of statutory construction, and to refer to the legislative history of the act. See N. Singer, 2A Sutherland Statutory Construction §§ 45.12, 48.06 (1984). Nothing in this formulation indicates that a "contrary intent" sufficient to overcome the presumption against extraterritoriality may not be determined according to these ordinary methods.

Even if we add the adjective "clear" to our formulation of the presumption, Mitchell, 553 F.2d at 1002, "clear" does not mean "express," and there is no reason why a "clear" intent to apply a statute extraterritorially may not be determined with reference to the rules of statutory construction, informed by legislative history. At most, requiring a "clear" expression of congressional intent may mean that the broad jurisdictional language of a statute is not sufficient in itself to support the exercise of extraterritorial jurisdiction. See Mitchell, 553 F.2d at 1003-04. It should be noted, however, that the Supreme Court has found such language sufficient to overcome the presumption.

The extremely strong showing of congressional intent which the majority requires is clearly not compelled by the presumption itself. Rather, it appears that the majority has distorted the presumption in an effort to transform it into something it is not: a mechanism for evaluating potential conflicts of jurisdiction. The majority concludes in effect that the policy implications of applying Title VII extraterritorially are so serious that we must require a more explicit statement by Congress that it intended Title VII to apply so broadly.

The majority's conclusion might be appropriate if Congress was, as the majority claims, silent on this subject. But Congress was not silent on the subject. Rather, we have evidence that Congress did consider the implications of applying Title VII extraterritorially: Congress included in the statute a provision explicitly exempting aliens employed abroad by U.S. corporations in order to avoid conflicts of law. It follows logically that Congress believed that application of Title VII to U.S. citizens employed abroad by U.S. corporations would not present similar barriers to the exercise of extraterritorial jurisdiction. In concluding that the statute should not apply to U.S. citizens employed abroad, the majority has therefore done precisely what it cautions against: It has substituted its own policy judgment for that of Congress.

The majority's intuition is correct that the implications of applying a statute extraterritorially may be such that the type of evidence presented in this case would not be sufficient to support the exercise of extraterritorial jurisdiction. For example, a greater showing of congressional intent would be required to support an exercise of extraterritorial jurisdiction that would violate international law. A statute may not be construed to violate international law unless Congress has, by an affirmative expression of its intent, required that construction. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S.Ct. 671, 677-78, 9 L.Ed.2d 547 (1963); Weinberger v. Rossi, 456 U.S. 25, 32, 102 S.Ct. 1510, 1515-16, 71 L.Ed.2d 715 (1982); see also Restatement § 114.

This principle is a facet of the separate presumption that Congress does not intend to violate international law. See Restatement § 115 comment a ("It is generally assumed that Congress does not intend to repudiate an international obligation of the United States by nullifying a rule of international law or an international agreement as domestic law.").

The showing of congressional intent required to overcome the presumption that Congress does not intend to violate international law is much greater than that required to overcome the presumption against extraterritoriality. While the two presumptions are in some respects parallel, they should not be conflated because not every exercise of extraterritorial jurisdiction violates international law. A separate, more stringent standard is properly reserved for cases in which the exercise of jurisdiction, extraterritorial or otherwise, would violate international law.

By requiring a more explicit showing of congressional intent to apply Title VII extraterritorially — without discussing whether extraterritorial application of Title VII would violate international law — the majority has implicitly conflated the two standards and has therefore defeated congressional intent without sufficient justification.

While I agree with the majority that we must consider the foreign policy implications of construing a statute to apply extraterritorially, I do not believe that its approach to these issues is satisfactory. We should not defeat congressional intent to exercise extraterritorial jurisdiction without engaging in a more principled analysis of the implications of applying the statute extraterritorially.

In order to evaluate the complex issues raised in this case, we need a finer set of analytic tools than those employed in the majority opinion. I therefore propose an alternative framework that will, I believe, provide a more satisfactory treatment of the issues in this case.

The starting point for our analysis in this case should be section 403 of the Restatement which provides that as a matter of international law "a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." § 403(1). The factors enumerated in the Restatement provide a framework within which we can evaluate in a principled fashion the implications of applying Title VII extraterritorially. See American Rice, Inc. v. Arkansas Rice Growers Cooperative Ass'n, 701 F.2d 408 (5th Cir. 1983) (applying elements similar to reasonableness test to determine whether exercise of extraterritorial jurisdiction under Lanham Act was appropriate).

Moreover, because section 403 is a principle of international law, a statute may not be construed to violate the principle absent an explicit, affirmative expression of congressional intent compelling that construction. See McCulloch, 372 U.S. at 21-22, 83 S.Ct. at 677-78; Rossi, 456 U.S. at 32, 102 S.Ct. at 1515-16; Restatement § 403 comment g. Thus, a statute will not be applied extraterritorially where it would be unreasonable to do so, unless Congress has affirmatively required that it be so applied. If extraterritorial application of Title VII would be unreasonable, the majority's conclusion would be correct — because Congress has not affirmatively required that the statute be applied extraterritorially.

If, however, extraterritorial application of the statute would not be unreasonable, and therefore would not violate international law, the threshold level of congressional intent required to overcome the presumption against extraterritoriality will be sufficient to support the exercise of extraterritorial jurisdiction. As explained above, no express statement of Congress is required to overcome the presumption. See Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577-78. Rather, we may employ traditional methods of statutory interpretation to determine whether the language and legislative history of Title VII evidence a clear intent that the statute be applied extraterritorially.

This analysis will insure that we accord proper respect both to the sovereignty of other nations and to Congress' intent.

II. The "Jurisdictional Rule of Reason."

The showing of congressional intent necessary to support an exercise of extraterritorial jurisdiction depends in the first instance on whether that exercise of jurisdiction will violate international law. Before examining the language and legislative history of Title VII, I will therefore consider whether extraterritorial application of Title VII would violate the principle of international law set forth in section 403 of the Restatement: "[A] state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." Restatement § 403(1). Although the majority does not address this issue in its opinion, ARAMCO and Amicus Curiae assert that extraterritorial application of Title VII would violate the "reasonableness" principle. ARAMCO's arguments are addressed in the discussion below.

It should be noted at the outset of this discussion that section 403 is couched in general terms; it does not purport to eliminate all conflicts in the exercise of jurisdiction. See Restatement § 403 comment d ("Exercise of jurisdiction by more than one state may be reasonable — for example, when one state exercises jurisdiction on the basis of territory and the other on the basis of nationality."). Therefore, the possibility that a conflict with foreign law may arise in some case does not render Congress' initial exercise of extraterritorial jurisdiction unreasonable. "Because Congress . . . can neither anticipate nor resolve all conflicts with foreign prescriptive jurisdiction," it necessarily relies on the Judiciary to minimize conflicts of jurisdiction by exercising a jurisdictional rule of reason in individual cases. Laker Airways, 731 F.2d at 952 n. 169 (citing Extraterritoriality and Conflicts of Jurisdiction, U.S. Department of State Current Policy Bulletin No. 481 at 4 (15 April 1983)). Our inquiry here is therefore whether it would in general be reasonable to apply Title VII extraterritorially, not whether it would in all cases be reasonable.

Section 403(2) provides:

Whether exercise of jurisdiction over a person or activity is unreasonable is determined by evaluating all relevant factors, including, where appropriate:

(a) the link of the activity to the territory of the regulating state, i.e., the extent to which the activity takes place within the territory, or has substantial, direct, and foreseeable effect upon or in the territory;

(b) the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect;

(c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted;

(d) the existence of justified expectations that might be protected or hurt by the regulation;

(e) the importance of the regulation to the international political, legal, or economic system;

(f) the extent to which the regulation is consistent with the traditions of the international system;

(g) the extent to which another state may have an interest in regulating the activity; and

(h) the likelihood of conflict with regulation by another state.

The arguments that extraterritorial application of Title VII would be unreasonable fall into two categories encompassing the factors listed above: First, since discrimination against U.S. citizens that occurs abroad has no domestic effects, U.S. interests are not sufficient to justify the exercise of extraterritorial jurisdiction. Second, because labor relations are a peculiarly domestic matter, it would be an affront to the sovereignty of other nations to apply Title VII extraterritorially.

The first contention mischaracterizes the purpose of Title VII and trivializes the special nature of civil rights laws. The "effects" factor included in the Restatement is well-suited for economic regulation, but not for individual rights of the sort guaranteed by Title VII. It is true that the purposes of Title VII were framed in part in economic terms, but the 1964 Civil Rights Act, of which Title VII is a part, was also an effort to fulfill the long-postponed promise of equal rights embodied in the fourteenth amendment: It was intended not only to remedy domestic economic ills, but to protect individuals from "the injustices and humiliations" of discrimination. H.R. Rep. No. 914, 88th Cong., 1st Sess. 2018 (1963).

In calling for passage of the civil rights legislation that became the Civil Rights Act of 1964, President Kennedy stated: "In this year of the emancipation centennial, justice requires us to insure the blessings of liberty for all Americans and their posterity — not merely for reasons of economic efficiency, world diplomacy, and domestic tranquility — but, above all, because it is right." Special Message to Congress by the President June 19, 1963 in 109 Cong. Rec. 1055, 1063 (emphasis added).

Because they create individual rights, civil rights laws, unlike economic regulations, fall within the category of "protection of persons." See 2 Restatement introductory note to part VII at 150-51. The personal injuries caused by employment discrimination cannot readily be characterized in terms of their "effects" on the forum state. Civil rights are in this respect similar to constitutional guarantees of individual rights which control the exercise of governmental authority over U.S. citizens outside the territory of the United States — without reference to the domestic "effects" of violating the Constitution. Id. § 721 reporters' note 2. While regulation of the conduct of private employers under Title VII is obviously different from the regulation of state actors under the Constitution, my point here is simply that the rights protected by Title VII are, like constitutional rights, personal. See id. comment b. It may therefore be inappropriate to evaluate the violation of civil rights in terms of "effects" on the regulating state, even though the extraterritorial application of civil rights laws may be limited by other considerations not applicable to constitutional rights.

If we were to apply the "effects" standard, however, Congress and the courts have long recognized that apart from the personal injuries of discrimination, the cumulative effects of discrimination are pervasive.

Depriving U.S. citizens of a remedy for discrimination experienced while employed abroad by U.S. companies will almost certainly have some effect in the United States. Title VII provides employees with an avenue to vindicate themselves in the event of an unjust firing, a poor reference, or sudden resignation that is in reality the result of discrimination. Today's decision means that one U.S. citizen assigned to the Saudi office of a U.S. corporation, and another U.S. citizen working for the same company in Texas could experience identical acts of discrimination, but only the latter will have a remedy. This situation creates a dilemma for minorities and women: foreign assignments will be less attractive, while refusal of such an assignment could limit an individual's opportunity for advancement. As the EEOC notes, assignment to a foreign office is frequently a required step on the corporate ladder. Extraterritorial application of Title VII may therefore be necessary to ensure that members of protected groups have equal opportunities with respect to foreign assignments that would affect their employment opportunities in the United States. Extraterritorial application of Title VII would also protect the "justified expectations" of U.S. citizens that they will not lose all protection from discrimination by their employers simply because they have been assigned to a foreign office. Restatement § 403(2)(d).

The territorial connections to the regulating state are in any event buttressed by the fact that both "the person principally responsible for the activity to be regulated" and "those whom the regulation is designed to protect" are in this case U.S. nationals — U.S. corporations and their employees who are U.S. citizens. Restatement § 403(2)(b).

It is also incorrect to characterize Title VII's purposes as purely domestic. The legislative history of Title VII reveals that one purpose of the statute was to improve the image of the United States in the international community at a time when this nation's failure to address discrimination — particularly racial discrimination — had become a source of international criticism and domestic embarrassment. H.R. Rep. No. 1370, 87th Cong., 2d Sess. 2156 (1962) (report on Equal Employment Opportunity Act — a forerunner of H.R. 405 which was incorporated into Title VII of H.R. 7152; H.R. 7152 became the Civil Rights Act of 1964) ("continued employment discrimination in the United States casts doubt upon our sincerity in furthering the cause of individual liberty and human dignity"); See also Special Message to Congress by the President supra at 1055 (legislative inaction on civil rights would result in "weakening the respect with which the rest of the world regards us"). In light of these concerns, the majority's holding today is particularly ironic: U.S. corporations will be allowed to discriminate against U.S. citizens in their foreign offices where their actions will be more immediately visible to other states.

Finally, the international community has adopted a number of conventions calling for an end to discrimination — against many of the groups protected by Title VII. The international consensus condemning discrimination extends to discrimination in employment. Note, Equal Employment Opportunity for Americans Abroad, 62 N.Y.U.L. Rev. 1288, 1298 nn. 66-69 (1987) (international treaties and agreements as well as the proposed Draft Code of Conduct on Transnational Corporations prohibit discrimination in hiring, pay, and promotions). Since Title VII expands on anti-discrimination principles that have been the subject of international concern, there can be no doubt that the desirability of the regulation is generally accepted, and that the regulation is important to the international community and consistent with the traditions of the international system. Restatement § 403(2)(c), (e) (f).

The United States' interest in enforcing the civil rights of its citizens against violations by U.S. corporations is therefore not only sufficiently strong to support the exercise of extraterritorial jurisdiction, but also is consistent with the interests of the international community in eradicating discrimination. Congressional intent to apply Title VII extraterritorially should therefore be defeated only if such application would be an affront to the sovereignty of other nations.

ARAMCO and Amicus Curiae argue that labor laws are of particularly local concern, and that most states apply their own labor laws on a territorial basis. They therefore conclude that extraterritorial application of Title VII would offend other nations and produce inevitable conflicts of law — a contention echoed in the majority opinion.

As noted above, section 403 does not purport to eliminate concurrent jurisdiction. There is no principle of international law which "separates jurisdiction to prescribe into neatly adjoining compartments of national jurisdiction." Laker Airways, 731 F.2d at 952.

ARAMCO essentially urges that the untidiness of concurrent jurisdiction may be avoided by applying the reasonableness inquiry to preclude the extraterritorial application of a statute wherever it is possible that another state would exercise jurisdiction over the same activity. This reading, however, also fails to produce a perfectly coherent jurisdictional scheme. Because the reasonableness constraint applies to both the territorial and nationality bases of jurisdiction, the extreme deference to other nations urged by ARAMCO could create a jurisdictional vacuum. We do not know, for example, to what extent a foreign state would enforce its own laws to regulate the employment relationship between a U.S. corporation and employees who are U.S. citizens, or whether it would make its administrative and judicial procedures available to a U.S. employee seeking to bring a grievance against a U.S. employer. A foreign state, applying the principles of section 403, could well conclude that exercise of its territorial jurisdiction would be unreasonable in such a case. Indeed, the cases relied upon by the majority include those in which the courts of the United States have declined to apply the protections of U.S. law in precisely that situation. See, e.g., Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957) (declining to apply the Labor Management Relations Act to wage dispute between foreign employer and foreign crew although within the territorial jurisdiction of the United States).

International discord does not arise from the existence of concurrent jurisdiction alone as much as it arises from an attempt to regulate the conduct of foreign nationals.

Cases involving extraterritorial application of the Lanham Act divide along precisely this line. Although other nations have concurrent jurisdiction to regulate the use of trademarks in their territory, the United States may, in the absence of an actual conflict of law, apply the Act to the conduct of U.S. nationals abroad. Steele, 344 U.S. 280, 73 S.Ct. 252; American Rice, Inc. v. Arkansas Rice Growers Cooperative Ass'n, 701 F.2d 408 (5th Cir. 1983); Ramirez Feraud Chili Co. v. Las Palmas Food Co., 146 F. Supp. 594 (S.D.Cal. 1956), aff'd, 245 F.2d 874 (9th Cir. 1957), cert. denied, 355 U.S. 927, 78 S.Ct. 384, 2 L.Ed.2d 357 (1958). The Act does not, however, apply extraterritorially to foreign nationals. Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633 (2d Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956).

The cases involving extraterritorial application of labor laws similarly demonstrate that an attempt to regulate the conduct of foreign nationals presents the most serious affront to the sovereignty of other nations. In Foley Bros., the Supreme Court refused to construe the Eight Hour Law to apply extraterritorially to a U.S. national employed by an American contractor in Iran. 336 U.S. 281, 69 S.Ct. 575 (1949). However, the Court emphasized that the Act did not distinguish "between laborers who are aliens and those who are citizens of the United States." Id. at 286, 69 S.Ct. at 578. The Court reasoned that if the law was applied extraterritorially to U.S. citizens, it "would be logically inescapable" that the law would apply to aliens employed abroad as well. Id. The Court was thus most troubled by the possibility that the law would by logical extension require an intrusion into the realm of "labor conditions which are the primary concern of a foreign country" — the labor conditions of its own citizens. Id.

The Court discounted an opinion of the Attorney General construing the Act to apply extraterritorially on the same grounds:

The opinion . . . proves too much. Although Attorney General Moody denied that incongruous results would flow from his interpretation, it would be anomalous, as we have said, for an act of Congress to regulate the hours of a citizen of Iran at work on a government project there. . . . Since the statute contains no distinction between laborers based on citizenship, Attorney General Stone's reasoning that aliens are not covered points to the conclusion that the statute does not apply to contracts which are to be performed in foreign countries.

Id., 336 U.S. at 289, 69 S.Ct. at 579. The Court thus concludes that absent a distinction between aliens and U.S. citizens employed abroad, the Act must apply to both aliens and citizens employed abroad, or to neither. Therefore, because it would infringe upon the sovereignty of other nations to apply the Law to foreign nationals employed abroad, the Act could not be construed to apply to citizens employed abroad.

Similarly, the Supreme Court in both Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147, 77 S.Ct. 699, 704, 1 L.Ed.2d 709 (1956) (LMRA) and McCulloch, 372 U.S. at 21, 83 S.Ct. at 677-78 (NLRA), refused to "run interference in . . . a delicate field of international relations" by construing U.S. labor laws to apply to foreign seamen employed on vessels registered under a foreign flag. While these cases involved principles unique to the law of the sea, the nationality of the parties was clearly a source of concern for the Court.

The alien exemption provision of Title VII, which provides the strongest evidence of congressional intent to apply Title VII extraterritorially, eliminates the very factor which has barred the extraterritorial application of U.S. labor laws. Because this provision insures that the statute will not intrude on the area of labor relations which is the "primary concern" of foreign nations, extraterritorial application of Title VII is unlikely to offend the sovereignty of other states. See id. Furthermore, there is no attempt in this case to impose the requirements of Title VII on foreign corporations employing U.S. citizens abroad — another area likely to be of "primary concern" to foreign states. I would conclude that "the rights of other nations or their nationals are not infringed" by extraterritorial application of Title VII, and therefore "the United States is not debarred by any rule of international law from governing the conduct of its own citizens . . . in foreign countries." Steele, 344 U.S. at 285-86, 73 S.Ct. at 255-56. This is not to say that extraterritorial application of Title VII would always be appropriate: it may not be, particularly in the case of an actual conflict of law. The possibility of such conflict is not, however, sufficiently great to render extraterritorial application of Title VII unreasonable.

In fact, Title VII contains provisions that allow conflicts with foreign law to be minimized. For example, this court has allowed an employer to use the bona fide occupational qualification (BFOQ) exception, 42 U.S.C. § 2000e-2(e), to assert the requirements of foreign law as a defense to a Title VII claim. Kern v. Dynaelectron, 577 F. Supp. 1196 (N.D.Tex. 1983), aff'd mem., 746 F.2d 810 (5th Cir. 1984) (affirmed on basis of reasons stated by the district court). In Kern, the district court held that in extraordinary circumstances, a prohibited classification could itself be a BFOQ. Id. at 1201. The plaintiff had alleged discrimination on the basis of religion because Dynaelectron, a U.S. corporation which operated a helicopter pilot service in Saudi Arabia, employed only Moslem pilots to conduct flights from Jeddah to the holy city of Mecca. The employer asserted as his defense a Saudi law prohibiting non-Moslems from entering the holy area of Mecca. The penalty for violation of the law was severe — death by beheading. Id. at 1200. The court concluded that under the circumstances, religion was a BFOQ for the job of piloting flights from Jeddah to Mecca. Id. at 1201.

Although the availability of the BFOQ defense in cases of less extreme conflicts with foreign law has not been tested, Kern indicates that the defense could provide a basis for reconciling legitimate conflicts.

The argument that extraterritorial application of Title VII is unreasonable because it would offend the sovereignty of other nations is not persuasive. The fact that another nation may exercise jurisdiction over employment relations on the basis of territory does not render the exercise of U.S. jurisdiction on the basis of nationality unreasonable. The likelihood that concurrent jurisdiction would produce international discord is minimized by the fact that the United States seeks to regulate only the conduct of its own nationals and by the fact that Title VII may be reconciled with foreign law in the event of a conflict.

The fact that one could hypothesize particular situations in which the extraterritorial application of Title VII to U.S. citizens employed by U.S. corporations would conflict with foreign law does not compel a holding that Title VII may never extend its protections beyond U.S. borders. This construction of section 403 would place an untenable restriction on U.S. sovereignty. We would be required to defeat congressional intent to apply a statute extraterritorially unless Congress was able to anticipate and resolve every potential conflict of jurisdiction, or unless Congress met the McCulloch standard by expressing an affirmative intent to apply a statute extraterritorially whether reasonable or not. This would make extraterritorial jurisdiction an all or nothing proposition, eliminating a middle ground on which Congress could exercise extraterritorial jurisdiction in a more limited fashion. This result is neither compelled by the Restatement nor desirable.

For the purposes of this case, the Restatement requires only that we conclude that extraterritorial application of Title VII would in general be reasonable. Because Congress cannot anticipate every conflict of law, it must necessarily rely on the courts to make a more individualized determination of the propriety of exercising extraterritorial jurisdiction in a particular case. The constraints of section 403 apply to exercises of prescriptive jurisdiction not only by Congress, but by all government entities. The courts will therefore be guided in individual cases by the same principles of reasonableness that apply to our evaluation of Congress' initial exercise of extraterritorial jurisdiction.

Thus, while I would hold that extraterritorial application of Title VII would in general be reasonable, I would also recognize that it may be appropriate in some circumstances for a U.S. court to decline to apply Title VII extraterritorially. In the instant case, the factors that might influence a more individualized decision whether to apply Title VII extraterritorially have not been fully briefed and are therefore not considered here.

III. The Language and Legislative History of Title VII

Since extraterritorial application of Title VII would not be unreasonable and therefore does not violate principles of international law, we do not need to search for an affirmative expression of congressional intent to apply Title VII extraterritorially. Rather, we may employ the traditional methods of statutory interpretation to determine whether the presumption against extraterritoriality is overcome by the "contrary intent" of Congress. See Foley Bros., 336 U.S. at 285, 69 S.Ct. at 577-78; Natural Resources Defense Council v. Nuclear Regulatory Comm'n, 647 F.2d 1345, 1357 n. 54 (D.C. Cir. 1981).

In asserting that Congress intended Title VII to apply extraterritorially, Boureslan and Amicus EEOC rely primarily on the "alien exemption provision," 42 U.S.C. § 2000e-1, which provides in relevant part: "This subchapter shall not apply to an employer with respect to the employment of aliens outside any State." The stated purpose of this provision 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." Civil Rights: Hearings on H.R. 7152 Before the House Committee on the Judiciary, 88th Cong., 1st Sess. 2303 (1963) (testimony of James Roosevelt, Member of Congress from the State of California) (explaining provisions of H.R. 405 which was incorporated into Title VII of H.R. 7152).

Since Title VII expressly exempts from coverage aliens employed abroad by U.S. corporations, the logical negative inference is that Title VII was intended to cover U.S. citizens employed abroad. Indeed, the alien exemption provision would be meaningless if Title VII did not apply extraterritorially: there is no need to exempt aliens employed abroad from coverage if no one is covered abroad. Construction of a statute to render a provision meaningless violates the established rule of statutory construction which obliges a court "to give effect, if possible, to every word Congress used." Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); accord United States v. Reeves, 752 F.2d 995, 998 (5th Cir. 1985) ("A statute should be read to avoid rendering its language redundant if reasonably possible."); Goff v. Taylor, 706 F.2d 574, 587 n. 34 (5th Cir. 1983) ("It is well established that a statute should be construed so that each of its provisions is is given full effect; interpretations which render parts of a statute inoperative or superfluous are to be avoided."); Quarles v. St. Clair, 711 F.2d 691, 701 n. 32 (5th Cir. 1983) (same); Duke v. University of Texas at El Paso, 663 F.2d 522, 526 (5th Cir. 1981) (same); Beisler v. Commissioner, 814 F.2d 1304, 1307 (9th Cir. 1987) ("We should avoid an interpretation of the statute that renders any part of it superfluous and does not give effect to all of the words used by Congress.").

The majority maintains that it has not deprived the alien exemption provision of all meaning because another negative inference may be drawn from the provision: that aliens are covered by the statute when employed within the United States. The majority relies for this proposition on Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95, 94 S.Ct. 334, 339-40, 38 L.Ed.2d 287 (1973), in which the Supreme Court held that Title VII applied to aliens employed in the United States but did not prohibit an employer from discriminating on the basis of citizenship or alienage. That is, Title VII protected aliens from discrimination on the basis of race, religion, color, sex, or national origin, but did not make alienage itself a prohibited classification.

The majority's reliance on Espinoza is misplaced. The Supreme Court does not rely solely on the negative inference it draws from the alien exemption provision, nor does it discuss the legislative history of the provision which supports the interpretation advanced by Boureslan and the EEOC. It would therefore be erroneous to conclude that the Supreme Court's passing reference in Espinoza to the alien exemption provision was intended to attach only one negative inference to the proviso.

A negative inference drawn from the alien exemption provision was not necessary to bring aliens within the scope of Title VII's domestic protections. As the Supreme Court notes in Espinoza, the use of the term "individual" in defining "employee" is sufficient to bring aliens within the statute's coverage. Id. Any construction of the term "individual" — as distinct from "citizen" — to exclude aliens would be inconsistent with principles of equal protection. While the precise level of scrutiny applied to classifications based on alienage has varied, it is well established that aliens are "persons" within the meaning of the fifth and fourteenth amendments, and are entitled to the equal protection of the laws of the United States. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). Therefore, Congress could not have excluded aliens residing in the United States from the coverage of Title VII without drawing an explicit distinction between aliens and citizens, and providing justification for the distinction sufficient to satisfy equal protection analysis under the due process clause. While it may be appropriate for the Supreme Court to cite the alien exemption provision in support of the obvious conclusion that aliens are covered by Title VII when employed in the United States, the majority's contention that this is the sole meaning to be attached to the provision is nonsensical. Given that aliens are "employees" within the meaning of Title VII in precisely the same sense that citizens are employees, it would be absolutely unnecessary to state that Title VII does not apply to aliens employed abroad unless the statute did apply to U.S. citizens employed abroad. Again, the majority's analysis renders the alien exemption clause completely superfluous, in violation of the canons of statutory construction. See cases cited supra.

Congress' intent to apply Title VII extraterritorially is even more apparent if the alien exemption clause is read in light of the contemporary case law regarding the extraterritorial application of U.S. labor laws and the application of U.S. labor laws to foreign nationals. The Supreme Court appeared at the time to regard the application of U.S. law to foreign nationals as a primary source of conflict with other nations. See cases discussed supra in section II.

Congress' statement that the alien exemption provision was intended to avoid conflicts of law is perfectly logical in the context of this case law: Congress could reasonably have concluded that exempting aliens employed abroad would eliminate any obstacles to protecting U.S. citizens employed abroad by U.S. corporations.

Taken together, the language and legislative history of Title VII evidence a clear intent of Congress to apply Title VII to U.S. citizens employed abroad by U.S. corporations. This showing is sufficient to overcome the presumption against extraterritoriality. See Mitchell, 553 F.2d at 1002.

IV. Conclusion

Although the issue presented in this case — whether Title VII applies to U.S. citizens employed abroad by U.S. corporations — appears simple on its face, its resolution turns on a complex interaction between international law and principles of statutory construction.

The majority errs in attempting to resolve the complex issues raised in this case through a single instrument of analysis: the presumption against extraterritoriality. In the process, the majority distorts the presumption and, in the name of judicial deference to the legislative branch, defeats congressional intent to apply Title VII extraterritorially — without reaching the issue that would justify its conclusion: whether extraterritorial application of Title VII would violate international law.

In order to more carefully evaluate whether the evidence of congressional intent presented in this case is sufficient to support an exercise of extraterritorial jurisdiction, I have employed a two-step inquiry.

The first inquiry is whether extraterritorial application of Title VII would violate section 403 of the Restatement which provides that as a matter of international law, a state may not exercise its jurisdiction to prescribe laws affecting persons or activities connected with another state when it is unreasonable to do so.

Applying the factors listed in the Restatement, it is clear that extraterritorial application of Title VII would not in general be unreasonable. First, the interest of the United States in applying its civil rights laws to its own nationals is sufficiently strong to support the exercise of extraterritorial jurisdiction and is consistent with the interest of the international community in eliminating discrimination. Second, extraterritorial application of Title VII would not offend the sovereignty of other nations because the statute does not attempt to regulate the conduct of foreign nationals. ARAMCO's contention that the United States should defer to the jurisdiction of other states to prescribe employment laws within their own territory would, in the absence of any actual conflict of law, place an untenable restriction on the sovereignty of the United States. The potential for conflict is minimized by the fact that Title VII may be construed to reconcile the competing demands of U.S. and foreign law when a conflict does occur.

Since extraterritorial application of Title VII would not violate the principles embodied in section 403, we do not need to search for an affirmative statement of congressional intent. The presumption against extraterritoriality may be overcome if the language and legislative history of Title VII express a clear (if not affirmative) intent to apply the statute extraterritorially. Applying the canons of statutory construction to the plain language of the statute and referring to the legislative history to determine Congress' intent, only one conclusion is possible: Congress intended that Title VII's protections would extend to U.S. citizens employed abroad by U.S. corporations.

While the exercise of extraterritorial jurisdiction necessarily raises sensitive issues of international law, U.S. employers should not be allowed to escape liability for discrimination by cloaking themselves in a conveniently acquired concern for the integrity of the sovereignty of foreign states. In holding that Title VII affords no protection from employment discrimination to U.S. citizens employed abroad by U.S. corporations, the majority defeats Congress' intent to the contrary. Because I believe that we could give effect to Congress' intent without intruding upon the sovereignty of other nations, I must respectfully dissent.