Civil Rights That Stop at Water’s Edge

The U.S. Supreme Court ruled last week that the reach of federal civil rights legislation does not follow Americans citizens beyond the shores of this country. The 6-3 decision permits American companies employing U.S. citizens or resident aliens to legally treat those employees differently than they could if those same individuals worked within U.S. borders. It means, according to an attorney involved in the case, that “sexual harassment or racial and religious discrimination can start at the water’s edge.”

The issue before the high court was whether Congress, in enacting Title VII of the Civil Rights Act of 1964 (which forbids discrimination against employees on the basis of race, religion, sex or national origin) intended to cover Americans working for U.S. firms outside the United States. The case involved a claim by Ali Boureslan, a Lebanese-American cost engineer, who was hired in Houston by the Arabian American Oil Co. and subsequently transferred to the company’s Saudi Arabian operations. Boureslan sued his employer, charging that he had been harassed and discriminated against because of his race, religion and national origin.

Writing for the majority in Equal Employment Opportunity Commission vs. Arabian American Oil Co., Chief Justice William H. Rehnquist held that Boureslan “failed to present sufficient affirmative evidence that Congress intended Title VII to apply abroad.”

In light of the court’s recent decisions allowing punitive damages against businesses and prohibiting employers from barring fertile women from jobs which may pose a risk of birth defects, it is hard to characterize the Rehnquist court as consistently pro-business. But the EEOC decision does raise questions about whether the court will hold civil rights legislation to a higher and stricter standard of specificity than it holds other legislation. The court contrasted congressional silence as to the territorial application of Title VII with the Age Discrimination in Employment Act of 1967, a federal law barring discrimination on the basis of age. It explicitly applies abroad.

Yet the reach of many federal securities, tax, antitrust, trademark and criminal laws extend abroad--often without specific congressional language about extraterritorial application. And they are applied not just to American nationals, but to foreigners. For example, the Justice Department indicted Panamanian Gen. Manuel Noriega in 1988 for violating U.S. drug trafficking and conspiracy laws.

The court ruling should prod Congress to amend Title VII to clearly state that it applies abroad. Sen. Edward M. Kennedy (D-Mass.) intends to do that in a forthcoming version of the 1991 civil rights bill. For this reason, if no other, Congress should pass strong civil rights legislation this year. And President Bush should sign it.