Petitioners, Mr. and Mrs. Espinoza, brought suit after
exhausting their administrative remedies with the Equal Employment
Opportunity Commission (EEOC), alleging that respondent's refusal
to hire Mrs. Espinoza in its San Antonio division because of her
Mexican citizenship violated § 703 of Title VII of the Civil Rights
Act of 1964, which makes it an unlawful employment practice for an
employer to fail or refuse to hire any individual because of his
race, color, religion, sex, or national origin. The District Court
granted petitioners' motion for summary judgment, relying primarily
on an EEOC guideline providing that a lawful alien resident may not
be discriminated against on the basis of citizenship. The Court of
Appeals reversed.
Held: An employer's refusal to hire a person because he
is not a United States citizen does not constitute employment
discrimination on the basis of "national origin" in violation of §
703. Pp.
414 U. S.
88-96.
(a) In light of the statute's legislative history and the
longstanding practice of requiring federal employees to be United
States citizens, it is clear that Congress did not intend the term
"national origin" to embrace citizenship requirements. Pp.
414 U. S.
88-91.
(b) The EEOC's guideline, though perhaps significant in a wide
range of other situations, does not apply here or support the
premise that discrimination on the basis of citizenship is
tantamount to discrimination on the basis of national origin, since
there is no showing that respondent (96% of whose San Antonio
division employees are Mexican-Americans) discriminated against
persons of Mexican origin. Pp.
414 U. S.
92-95.
(c) Though the Act protects aliens against illegal
discrimination because of race, color, religion, sex, or national
origin, it does not proscribe discrimination on the basis of
alienage. P.
414 U. S.
95.
462 F.2d 1331, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
Page 414 U. S. 87
BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p.
414 U. S.
96.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This case involves interpretation of the phrase "national
origin" in Tit. VII of the Civil Rights Act of 1964. Petitioner
Cecilia Espinoza is a lawfully admitted resident alien who was born
in and remains a citizen of Mexico. She resides in San Antonio,
Texas, with her husband, Rudolfo Espinoza, a United States citizen.
In July, 1969, Mrs. Espinoza sought employment as a seamstress at
the San Antonio division of respondent Farah Manufacturing Co. Her
employment application was rejected on the basis of a longstanding
company policy against the employment of aliens. After exhausting
their administrative remedies with the Equal Employment Opportunity
Commission, [
Footnote 1]
petitioners commenced this suit in the District Court, alleging
that respondent had discriminated against Mrs. Espinoza because of
her "national origin" in violation of § 703 of Tit. VII, 78 Stat.
255, 42 U.S.C. § 2000e-2(a)(1). The District Court granted
petitioners' motion for summary judgment, holding
Page 414 U. S. 88
that a refusal to hire because of lack of citizenship
constitutes discrimination on the basis of "national origin."
343 F.
Supp. 1205. The Court of Appeals reversed, concluding that the
statutory phrase "national origin" did not embrace citizenship. 462
F.2d 1331. We granted the writ to resolve this question of
statutory construction, 411 U.S. 946, and now affirm.
Section 703 makes it
"an unlawful employment practice for an employer . . . to fail
or refuse to hire . . . any individual . . . because of such
individual's race, color, religion, sex, or national origin."
Certainly the plain language of the statute supports the result
reached by the Court of Appeals. The term "national origin," on its
face, refers to the country where a person was born, or, more
broadly, the country from which his or her ancestors came.
[
Footnote 2]
The statute's legislative history, though quite meager
Page 414 U. S. 89
in this respect, fully supports this construction. The only
direct definition given the phrase "national origin" is the
following remark made on the floor of the House of Representatives
by Congressman Roosevelt, Chairman of the House Subcommittee which
reported the bill:
"It means the country from which you or your forebears came. . .
. You may come from Poland, Czechoslovakia, England, France, or any
other country."
110 Cong.Rec. 2549 (1964). We also note that an earlier version
of § 703 had referred to discrimination because of "race, color,
religion, national origin, or
ancestry." H.R. 7152, 88th
Cong., 1st Sess., § 804, Oct. 2, 1963 (Comm. print) (emphasis
added). The deletion of the word "ancestry" from the final version
was not intended as a material change,
see H.R.Rep. No.
914, 88th Cong., 1st Sess., 87 (1963), suggesting that the terms
"national origin" and "ancestry" were considered synonymous.
There are other compelling reasons to believe that Congress did
not intend the term "national origin" to embrace citizenship
requirements. Since 1914, the Federal Government itself, through
Civil Service Commission regulations, has engaged in what amounts
to discrimination against aliens by denying them the right to enter
competitive examination for federal employment. Exec.Order No.1997,
H.R.Doc. No. 1258, 63d Cong., 3d Sess., 118 (1914);
see 5
U.S.C. § 3301; 5 CFR § 338.101 (1972). But it has never been
suggested that the citizenship requirement for federal employment
constitutes discrimination because of national origin, even though,
since 1943, various Executive Orders have expressly prohibited
discrimination on the basis of national origin in Federal
Government employment.
See, e.g., Exec.Order No. 9346, 3
CFR 1280 (Cum.Supp. 1938-1943); Exec.Order No. 11478, 3 CFR 446
(1970).
Page 414 U. S. 90
Moreover, § 701(b) of Tit. VII, in language closely paralleling
§ 703, makes it
"the policy of the United States to insure equal employment
opportunities for Federal employees without discrimination because
of . . . national origin. . . ."
Civil Rights Act of 1964, Pub.L. 88-352, § 701(b), 78 Stat. 254,
reenacted, Pub.L. 89554, 80 Stat. 523, 5 U.S.C. § 7151. The
legislative history of that section reveals no mention of any
intent on Congress' part to reverse the longstanding practice of
requiring federal employees to be United States citizens. To the
contrary, there is every indication that no such reversal was
intended. Congress itself has on several occasions since 1964
enacted statutes barring aliens from federal employment. The
Treasury, Postal Service, and General Government Appropriation Act,
1973, for example, provides that
"no part of any appropriation contained in this or any other Act
shall be used to pay the compensation of any officer or employee of
the Government of the United States . . . unless such person (1) is
a citizen of the United States. . . . [
Footnote 3]"
Pub.L. 92-351, § 602, 86 Stat. 487.
See also Pub.L.
91-144, § 502, 83 Stat. 336; Pub.L. 91-439, § 502, 84 Stat.
902.
To interpret the term "national origin" to embrace citizenship
requirements would require us to conclude that Congress itself has
repeatedly flouted its own declaration of policy. This Court cannot
lightly find
Page 414 U. S. 91
such a breach of faith.
See Bate Refrigerating Co. v.
Sulzberger, 157 U. S. 1,
157 U. S. 38
(1895). So far as federal employment is concerned, we think it
plain that Congress has assumed that the ban on national origin
discrimination in § 701(b) did not affect the historical practice
of requiring citizenship as a condition of employment.
See
First National Bank v. Missouri, 263 U.
S. 640,
263 U. S. 658
(1924). And there is no reason to believe Congress intended the
term "national origin" in § 703 to have any broader scope.
Cf.
King v. Smith, 392 U. S. 309,3
392 U. S. 30-331
(1968).
Petitioners have suggested that the statutes and regulations
discriminating against noncitizens in federal employment are
unconstitutional under the Due Process Clause of the Fifth
Amendment. We need not address that question here, [
Footnote 4] for the issue presented in this
case is not whether Congress has the power to discriminate against
aliens in federal employment, but rather, whether Congress intended
to prohibit such discrimination in private employment. Suffice it
to say that we cannot conclude Congress would at once continue the
practice of requiring citizenship as a condition of federal
employment and, at the same time, prevent private employers from
doing likewise. Interpreting § 703 as petitioners suggest would
achieve the rather bizarre result of preventing Farah from
insisting on United States citizenship as a condition of employment
while the very agency charged with enforcement of Tit. VII would
itself be required by Congress to place such a condition on its own
personnel.
Page 414 U. S. 92
The District Court drew primary support for its holding from an
interpretative guideline issued by the Equal Employment Opportunity
Commission which provides:
"Because discrimination on the basis of citizenship has the
effect of discriminating on the basis of national origin, a
lawfully immigrated alien who is domiciled or residing in this
country may not be discriminated against on the basis of his
citizenship. . . ."
29 CFR § 1606.1(d) (1972). Like the Court of Appeals, we have no
occasion here to question the general validity of this guideline
insofar as it can be read as an expression of the Commission's
belief that there may be many situations where discrimination on
the basis of citizenship would have the effect of discriminating on
the basis of national origin. In some instances, for example, a
citizenship requirement might be but one part of a wider scheme of
unlawful national origin discrimination. In other cases, an
employer might use a citizenship test as a pretext to disguise what
is, in fact, national origin discrimination. Certainly Tit. VII
prohibits discrimination on the basis of citizenship whenever it
has the purpose or effect of discriminating on the basis of
national origin. "The Act proscribes not only overt discrimination,
but also practices that are fair in form, but discriminatory in
operation."
Griggs v. Duke Power Co., 401 U.
S. 424,
401 U. S. 431
(1971).
It is equally clear, however, that these principles lend no
support to petitioners in this case. There is no indication in the
record that Farah's policy against employment of aliens had the
purpose or effect of discriminating against persons of Mexican
national origin. [
Footnote 5]
It is conceded
Page 414 U. S. 93
that Farah accepts employees of Mexican origin, provided the
individual concerned has become an American citizen. Indeed, the
District Court found that persons of Mexican ancestry make up more
than 96% of the employees at the company's San Antonio division,
and 97% of those doing the work for which Mrs. Espinoza applied.
While statistics such as these do not automatically shield an
employer from a charge of unlawful discrimination, the plain fact
of the matter is that Farah does not discriminate against persons
of Mexican national origin with respect to employment in the job
Mrs. Espinoza sought. She was denied employment not because of the
country of her origin, but because she had not yet achieved United
States citizenship. In fact, the record shows that the worker hired
in place of Mrs. Espinoza was a citizen with a Spanish surname.
The Commission's guideline may have significance for a wide
range of situations, but not for a case such as this where its very
premise -- that discrimination on the basis of citizenship has the
effect of discrimination on the basis of national origin -- is not
borne out. [
Footnote 6] It
is
Page 414 U. S. 94
also significant to note that the Commission itself once held a
different view as to the meaning of the phrase "national origin."
When first confronted with the question, the Commission, through
its General Counsel, said:
"'National origin' refers to the country from which the
individual or his forebears came . . . , not to whether or not he
is a United States citizen. . . .'"
EEOC General Counsel's Opinion Letter, 1 CCH Employment Prac.
Guide � 1220.20 (1967). [
Footnote
7] The Commission's more recent interpretation of the statute
in the guideline relied on by the District Court is no doubt
entitled to great deference,
Griggs v. Duke Power Co.,
supra, at
401 U. S. 434;
Phillips v. Martin Marietta Corp., 400 U.
S. 542,
400 U. S. 545
(1971) (MARSHALL, J., concurring), but that deference must have
limits where, as here, application of the guideline would be
inconsistent with an obvious congressional intent not to reach the
employment practice in question. Courts need not defer to an
administrative construction of a statute where there are
"compelling
Page 414 U. S. 95
indications that it is wrong."
Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367,
395 U. S. 381
(1969);
see also Zuber v. Allen, 396 U.
S. 168,
396 U. S. 193
(1969);
Volkswagenwerk Aktiengesellschaft v. FMC,
390 U. S. 261,
390 U. S. 272
(1968).
Finally, petitioners seek to draw support from the fact that
Tit. VII protects all individuals from unlawful discrimination,
whether or not they are citizens of the United States. We agree
that aliens are protected from discrimination under the Act. That
result may be derived not only from the use of the term "any
individual" in § 703, but also as a negative inference from the
exemption in § 702, which provides that Tit. VII "shall not apply
to an employer with respect to the employment of aliens outside any
State. . . ." 42 U.S.C. § 2000e-1. Title VII was clearly intended
to apply with respect to the employment of aliens inside any State.
[
Footnote 8]
The question posed in the present case, however, is not whether
aliens are protected from illegal discrimination under the Act, but
what kinds of discrimination the Act makes illegal. Certainly it
would be unlawful for an employer to discriminate against aliens
because of race, color, religion, sex, or national origin -- for
example, by hiring aliens of Anglo-Saxon background, but refusing
to hire those of Mexican or Spanish ancestry. Aliens are protected
from illegal discrimination under the Act, but nothing in the Act
makes it illegal to discriminate on the basis of citizenship or
alienage.
We agree with the Court of Appeals that neither the language of
the Act, nor its history, nor the specific
Page 414 U. S. 96
facts of this case indicate that respondent has engaged in
unlawful discrimination because of national origin.
Affirmed.
[
Footnote 1]
Section 706(c), 42 U.S.C. § 2000e-5(e).
[
Footnote 2]
See, e.g., Minnesota State Act Against Discrimination,
Minn.Stat. § 363.01, subd. 6 (1971), defining "national origin" as
"the place of birth of an individual or of any of his lineal
ancestors."
Several States have statutes making it illegal to discriminate
on the basis of national origin, and many of these statutes have
apparently been interpreted by the appropriate state enforcement
agency as not barring citizenship requirements. For example, the
New York Human Rights Law provides that it is an unlawful
discriminatory practice to refuse to hire any individual because of
his or her origin, and additionally provides that it shall be
unlawful for an employer to make any pre-employment inquiry "which
expresses directly or indirectly, any limitation, specification or
discrimination as to . . . national origin. . . ." N.Y.Exec.Law §
296 (1972). The New York State Commission Against Discrimination
has ruled that an employer may lawfully ask a job applicant whether
he or she is a citizen of the United States.
See 3 CCH
Employment Prac.Guide � 26,051, p. 8899.
While these interpretations of state statutes do not control our
construction of federal law, we think them indicative of a general
understanding that the term "national origin" does not embrace a
requirement of United States citizenship.
[
Footnote 3]
Petitioners argue that it is unreasonable to attribute any great
significance to these provisions in determining congressional
intent because the barrier to employment of noncitizens has been
tucked away in appropriations bills, rather than expressed in a
more affirmative fashion. We disagree. Indeed, the fact that
Congress has occasionally enacted exceptions to the general barrier
indicates to us that Congress was well aware of what it was doing.
See, e.g., Pub.L. 92-204, § 703, 85 Stat. 726 (Dept. of
Defense); Pub.L. 91-382, 84 Stat. 823 (Library of Congress).
[
Footnote 4]
We left this question undecided in
Sugarman v. Dougall,
413 U. S. 634,
413 U. S. 646
n. 12 (1973).
See Jalil v. Hampton, 148 U.S.App.D.C. 415,
460 F.2d 923,
cert. denied, 409 U.S. 887 (1972);
Mow
Sun Wong v. Hampton, 333 F.
Supp. 527 (ND Cal.1971).
[
Footnote 5]
There is no suggestion, for example, that the company refused to
hire aliens of Mexican or Spanish-speaking background while hiring
those of other national origins. Respondent's president informed
the EEOC's Regional Director investigating the charge that, once in
its history, the company had made a single exception to its policy
against hiring aliens, but the nationality of the individual
concerned is not revealed in the record. While the company asks job
applicants whether they are United States citizens, it makes no
inquiry as to their national origin.
[
Footnote 6]
It is suggested that a refusal to hire an alien always
disadvantages that person because of the country of his birth. A
person born in the United States, the argument goes, automatically
obtains citizenship at birth, while those born elsewhere can
acquire citizenship only through a long and sometimes difficult
process.
See 8 U.S.C. §§ 1423(1), 1423(2), 1427(a), and
1430. The answer to this argument is that it is not the employer
who places the burdens of naturalization on those born outside the
country, but Congress itself, through laws enacted pursuant to its
constitutional power "[t]o establish an uniform Rule of
Naturalization." U.S.Const., Art. 1, § 8, cl. 4.
Petitioners' reliance on
Phillips v. Martin Marietta
Corp., 400 U. S. 542
(1971), is misplaced for similar reasons. In
Phillips, we
held it unlawful under § 703 to have "one hiring policy for women
and another for men. . . ."
Id. at
400 U. S. 544.
Farah, however, does not have a different policy for the foreign
born than for those born in the United States. It requires of all
that they be citizens of the United States.
[
Footnote 7]
The Opinion Letter was addressed to the question whether it was
lawful to discriminate against nonresident aliens in favor of
citizens and resident aliens, and expressly reserved any decision
"regarding discrimination in favor of United States citizens and
against resident aliens." Nevertheless, the definition of "national
origin" set forth in the Letter is inconsistent with that suggested
by petitioners here.
[
Footnote 8]
"Title VII of the Civil Rights Act of 1964 protects all
individuals, both citizens 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) (1972).
MR. JUSTICE DOUGLAS, dissenting.
It is odd that the Court which holds that a State may not bar an
alien from the practice of law [
Footnote 2/1] or deny employment to aliens [
Footnote 2/2] can read a federal statute
that prohibits discrimination in employment on account of "national
origin" so as to permit discrimination against aliens.
Alienage results from one condition only: being born outside the
United States. Those born within the country are citizens from
birth. It could not be more clear that Farah's policy of excluding
aliens is
de facto a policy of preferring those who were
born in this country. Therefore the construction placed upon the
"national origin" provision is inconsistent with the construction
this Court has placed upon the same Act's protections for persons
denied employment on account of race or sex.
In connection with racial discrimination, we have said that the
Act prohibits "practices, procedures, or tests neutral on their
face, and even neutral in terms of intent," if they create
"artificial, arbitrary, and unnecessary barriers to employment when
the barriers operate invidiously
Page 414 U. S. 97
to discriminate on the basis of racial
or other
impermissible classification."
Griggs v. Duke Power
Co., 401 U. S. 424,
401 U. S.
430-431 (1971) (emphasis added). There. we found that
the employer could not use test or diploma requirements which, on
their face, were racially neutral when, in fact, those requirements
had a
de facto
discriminatory result and the employer was unable to justify
them as related to job performance. The tests involved in
Griggs did not eliminate all blacks seeking employment,
just as the citizenship requirement here does not eliminate all
applicants of foreign origin. Respondent here explicitly conceded
that the citizenship requirement is imposed without regard to the
alien's qualifications for the job.
These petitioners against whom discrimination is charged are
Chicanos. But whether brown, yellow, black, or white, the thrust of
the Act is clear: alienage is no barrier to employment here.
Griggs, as I understood it until today, extends its
protective principles to all, not to blacks alone. Our cases on sex
discrimination under the Act yield the same result as
Griggs. See Phillips v. Martin Marietta Corp.,
400 U. S. 542
(1971).
The construction placed upon the statute in the majority opinion
is an extraordinary departure from prior cases, and it is opposed
by the Equal Employment Opportunity Commission, the agency provided
by law with the responsibility of enforcing the Act's protections.
The Commission takes the only permissible position: that
discrimination on the basis of alienage always has the effect of
discrimination on the basis of national origin. Refusing to hire an
individual because he is an alien "is discrimination based on birth
outside the United States, and is thus discrimination based on
national origin in violation of Title VII." Brief
Page 414 U. S. 98
for Commission as
Amicus Curiae 5. The Commission's
interpretation of the statute is entitled to great weight.
There is no legislative history to cast doubt on this
construction. [
Footnote 2/3]
Indeed, any other construction flies in the face of the underlying
congressional policy of removing "artificial, arbitrary, and
unnecessary barriers to employment."
McDonnell Douglas Corp. v.
Green, 411 U. S. 792,
411 U. S. 806
(1973).
Mrs. Espinoza is a permanent resident alien, married to an
American citizen, and her children will be native-born American
citizens. But that first generation has the greatest adjustments to
make to their new country. Their unfamiliarity with America makes
them the most vulnerable to exploitation and discriminatory
treatment. They, of course, have the same obligation as American
citizens to pay taxes, and they are subject to the draft on the
same basis. But they have never received equal treatment in the job
market. Writing of the immigrants of the late 1800's, Oscar Handlin
has said:
"For want of alternative, the immigrants took the lowest places
in the ranks of industry. They suffered in consequence from the
poor pay and miserable working conditions characteristic of the
sweatshops
Page 414 U. S. 99
and the homework in the garment trades and in cigar making. But
they were undoubtedly better off than the Irish and Germans of the
1840's for whom there had been no place at all."
The Newcomers 24 (1959).
The majority decides today that, in passing sweeping legislation
guaranteeing equal job opportunities, the Congress intended to help
only the immigrant's children, excluding those "for whom there [is]
no place at all." I cannot impute that niggardly an intent to
Congress.
[
Footnote 2/1]
In re Griffiths, 413 U. S. 717
(1973).
[
Footnote 2/2]
Sugarman v. Dougall, 413 U. S. 634
(1973).
[
Footnote 2/3]
The only legislative history the majority points to is
Congressman Roosevelt's definition of "national origin":
"It means the country from which you or your forebears came. . .
. You may come from Poland, Czechoslovakia, England, France, or any
other country."
Ante at
414 U. S. 89.
But that only makes clear what petitioners here argue -- that Mrs.
Espinoza cannot be discriminated against because she comes from a
foreign country. The majority's mention of the deletion of the word
"ancestry,"
ibid., is certainly irrelevant. Obviously
"national origin" comprehends "ancestry," but, as Congressman
Roosevelt pointed out, it means more -- not only where one's
forebears were born, but where one himself was born.