ESPINOZA v. FARAH MFG. CO., 414 U.S. 86 (1973) 94 S.Ct. 334
ESPINOZA ET VIR v. FARAH MANUFACTURING CO., INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 72-671.
Argued October 10-11, 1973
Decided November 19, 1973
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. 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. 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. 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. 95.
462 F.2d 1331, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
Page 87
BURGER, C. J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL,
and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion,
post, p. 96.
George Cooper argued the cause for petitioners. With
him on the briefs was Ruben Montemayor.
Kenneth R. Carr argued the cause for respondent.
With him on the brief were Jack T. Chapman and
William Duncan.[fn*]
[fn*] Page 87
Briefs of amici curiae urging reversal were filed by Joseph T.
Eddins, Jr., and Beatrice Rosenberg for the Equal Employment
Opportunity Commission; by Mario G. Obledo and Sanford Jay
Rosen for the Mexican American Legal Defense and Educational
Fund; and by Kenneth Hecht for the Employment Law Center.
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,[fn1] 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 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.[fn2]
The statute's legislative history, though quite meager
Page 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 C.F.R. § 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 C.F.R. § 1280 (Cum. Supp.
1938-1943); Exec. Order No. 11478, 3 C.F.R. § 446 (1970).
Page 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, re-enacted, Pub.L. 89-554,
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 . . . ."[fn3] 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 91
such a breach of faith. See Bate Refrigerating Co. v.
Sulzberger, 157 U.S. 1, 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, 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,
330-331 (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,[fn4] 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 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 C.F.R. § 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, 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.[fn5] It is conceded
Page 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.[fn6] It is
Page 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).[fn7] 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 434;
Phillips v. Martin Marietta Corp., 400 U.S. 542, 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 95
indications that it is wrong." Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 381 (1969); see
also Zuber v. Allen, 396 U.S. 168, 193 (1969); Volkswagenwerk
Aktiengesellschaft v. FMC, 390 U.S. 261, 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.[fn8]
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 96
facts of this case indicate that respondent has engaged
in unlawful discrimination because of national origin.[fn9]
Affirmed.
[fn1] Page 87
Section 706(c), 42 U.S.C. § 2000e-5 (e).
[fn2] Page 88
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.
[fn3] Page 90
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).
[fn4] Page 91
We left this question undecided in Sugarman v. Dougall,
413 U.S. 634, 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).
[fn5] Page 92
There is no suggestion, for example, that the company refused
to hire aliens of Mexican or Spanish-speaking background while
Page 93
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.
[fn6] Page 93
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
Page 94
"[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 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.
[fn7] Page 94
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.
[fn8] Page 95
"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 C.F.R. § 1606.1 (c) (1972).
[fn9] Page 96
Petitioners argue that respondent's policy of discriminating
against aliens is prohibited by 42 U.S.C. § 1981, which provides:
"All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens . . . ." This issue was
neither raised before the courts below nor presented in the petition
for a writ of certiorari. Accordingly we express no views thereon.
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[fn1] or deny employment
to aliens[fn2] 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 97
to discriminate on the basis of racial or other
impermissible classification." Griggs v. Duke Power Co.,
401 U.S. 424, 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 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.[fn3] 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,
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 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.
[fn1] Page 97
In re Griffiths, 413 U.S. 717 (1973).
[fn2] Page 97
Sugarman v. Dougall, 413 U.S. 634 (1973).
[fn3] Page 98
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 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.
Page 100
