author: Justice Stevens Chief Justice Burger,

text:
    GENERAL TELEPHONE COMPANY OF THE SOUTHWEST v. FALCON
    No. 81-574.
    Argued April 26, 1982
    Decided June 14, 1982

      Stevens, J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Burger, C. J., filed an opinion concurring in part and dissenting in part, post, p. 161.

      Thompson Powers argued the cause for petitioner. With him on the briefs were Mark B. Goodwin and E. Russell Nunnally.

      Frank P. Hernandez argued the cause for respondent. With him on the brief was John E. Collins.

      Briefs of amici curiae urging reversal were filed by Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson for the Equal Employment Advisory Council; and by Wayne S. Bishop, Richard K. Walker, and Donald W. Anderson for Republicbank Dallas.

        Jack Greenberg, James M. Nabrit III, Barry L. Goldstein, Vilma S. Martinez, and Morris J. Bailer filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al., as amici curiae urging affirmance.

        Solicitor General Lee, Assistant Attorney General Reynolds, Jessica Dunsay Silver, Mark L. Gross, and Harold Levy filed a brief for the United States as amicus curiae.

   Justice Stevens

delivered the opinion of the Court.

The question presented is whether respondent Falcon, who complained that petitioner did not promote him because he is a Mexican-American, was properly permitted to maintain a class action on behalf of Mexican-American applicants for employment whom petitioner did not hire.

t — <

In 1969 petitioner initiated a special recruitment and training program for minorities. Through that program, respondent Falcon was hired in July 1969 as a groundman, and within a year he was twice promoted, first to lineman and then to lineman-in-charge. He subsequently refused a promotion to installer-repairman. In October 1972 he applied for the job of field inspector; his application was denied even though the promotion was granted several white employees with less seniority.

Falcon thereupon filed a charge with the Equal Employment Opportunity Commission stating his belief that he had been passed over for promotion because of his national origin and that petitioner’s promotion policy operated against Mexican-Americans as a class. Falcon v. General Telephone Co. of Southwest, 626 F. 2d 369, 372, n. 2 (CA5 1980). In due course he received a right-to-sue letter from the Commission and, in April 1975, he commenced this action under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (1976 ed. and Supp. IV), in the United States District Court for the Northern District of Texas. His complaint alleged that petitioner maintained “a policy, practice, custom, or usage of: (a) discriminating against [Mexican-Americans] because of national origin and with respect to compensation, terms, conditions, and privileges of employment, and (b) ... subjecting [Mexican-Americans] to continuous employment discrimination.” Respondent claimed that as a result of this policy whites with less qualification and experience and lower evaluation scores than respondent had been promoted more rapidly. The complaint contained no factual allegations concerning petitioner’s hiring practices.

Respondent brought the action “on his own behalf and on behalf of other persons similarly situated, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.” The class identified in the complaint was “composed of Mexican-American persons who are employed, or who might be employed, by GENERAL TELEPHONE COMPANY at its place of business located in Irving, Texas, who have been and who continue to be or might be adversely affected by the practices complained of herein.”

After responding to petitioner’s written interrogatories, respondent filed a memorandum in favor of certification of “the class of all hourly Mexican American employees who have been employed, are employed, or may in the future be employed and all those Mexican Americans who have applied or would have applied for employment had the Defendant not practiced racial discrimination in its employment practices.” App. 46-47. His position was supported by the ruling of the United States Court of Appeals for the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 417 F. 2d 1122 (1969), that any victim of racial discrimination in employment may maintain an “across the board” attack on all unequal employment practices alleged to have been committed by the employer pursuant to a policy of racial discrimination. Without conducting an evidentiary hearing, the District Court certified a class including Mexican-American employees and Mexican-American applicants for employment who had not been hired.

Following trial of the liability issues, the District Court entered separate findings of fact and conclusions of law with respect first to respondent and then to the class. The District Court found that petitioner had not discriminated against respondent in hiring, but that it did discriminate against him in its promotion practices. App. to Pet. for Cert. 35a, 37a. The court reached converse conclusions about the class, finding no discrimination in promotion practices, but concluding that petitioner had discriminated against Mexican-Americans at its Irving facility in its hiring practices. Id., at 39a-40a.

After various post-trial proceedings, the District Court ordered petitioner to furnish respondent with a list of all Mexican-Americans who had applied for employment at the Irving facility during the period between January 1,1973, and October 18,1976. Respondent was then ordered to give notice to those persons advising them that they might be entitled to some form of recovery. Evidence was taken concerning the applicants who responded to the notice, and backpay was ultimately awarded to 13 persons, in addition to respondent Falcon. The total recovery by respondent and the entire class amounted to $67,925.49, plus costs and interest.

Both parties appealed. The Court of Appeals rejected respondent’s contention that the class should have encompassed all of petitioner’s operations in Texas, New Mexico, Oklahoma, and Arkansas. On the other hand, the court also rejected petitioner’s argument that the class had been defined too broadly. For, under the Fifth Circuit’s across-the-board rule, it is permissible for “an employee complaining of one employment practice to represent another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury. In this case, all of the claims are based on discrimination because of national origin.” 626 F. 2d, at 375. The court relied on Payne v. Travenol Laboratories, Inc., 565 F. 2d 895 (1978), cert. denied, 439 U. S. 835, in which the Fifth Circuit stated:

“Plaintiffs’ action is an ‘across the board’ attack on unequal employment practices alleged to have been committed by Travenol pursuant to- a policy of racial discrimination. As parties who have allegedly been aggrieved by some of those discriminatory practices, plaintiffs have demonstrated a sufficient nexus to enable them to represent other class members suffering from different practices motivated by the same policies.” 565 F. 2d, at 900, quoted in 626 F. 2d, at 375.

On the merits, the Court of Appeals upheld respondent’s claim of disparate treatment in promotion, but held that the District Court’s findings relating to disparate impact in hiring were insufficient to support recovery on behalf of the class. After this Court decided Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, we vacated the judgment of the Court of Appeals and directed further consideration in the light of that opinion. General Telephone Co. of Southwest v. Falcon, 450 U. S. 1036. The Fifth Circuit thereupon vacated the portion of its opinion addressing respondent’s promotion claim but reinstated the portions of its opinion approving the District Court’s class certification. 647 F. 2d 633 (1981). With the merits of both respondent’s promotion claim and the class hiring claims remaining open for reconsideration in the District Court on remand, we granted certiorari to decide whether the class action was properly maintained on behalf of both employees who were denied promotion and applicants who were denied employment.

M

The class-action device was designed as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U. S. 682, 700-701. Class relief is “peculiarly appropriate” when the “issues involved are common to the class as a whole” and when they “turn on questions of law applicable in the same manner to each member of the class.” Id., at 701. For in such cases, “the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Ibid.

Title VII of the Civil Rights Act of 1964, as amended, authorizes the Equal Employment Opportunity Commission to sue in its own name to secure relief for individuals aggrieved by discriminatory practices forbidden by the Act. See 42 U. S. C. §2000e-5(f)(l). In exercising this enforcement power, the Commission may seek relief for groups of employees or applicants for employment without complying with the strictures of Rule 23. General Telephone Co. of Northwest v. EEOC, 446 U. S. 318. Title VII, however, contains no special authorization for class suits maintained by private parties. An individual litigant seeking to maintain a class action under Title VII must meet “the prerequisites of numerosity, commonality, typicality, and adequacy of representation” specified in Rule 23(a). Id., at 330. These requirements effectively “limit the class claims to those fairly encompassed by the named plaintiff’s claims.” Ibid.

We have repeatedly held that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Texas Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208, 216). In East Texas Motor Freight, a Title VII action brought by three Mexican-American city drivers, the Fifth Circuit certified a class consisting of the trucking company’s black and Mexican-American city drivers allegedly denied on racial or ethnic grounds transfers to more desirable line-driver jobs. We held that the Court of Appeals had “plainly erred in declaring a class action.” 431 U. S., at 403. Because at the time the class was certified it was clear that the named plaintiffs were not qualified for line-driver positions, “they could have suffered no injury as a result of the allegedly discriminatory practices, and they were, therefore, simply not eligible to represent a class of persons who did allegedly suffer injury.” Id., at 403-404.

Our holding in East Texas Motor Freight was limited; we noted that “a different case would be presented if the District Court had certified a class and only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives.” Id., at 406, n. 12. We also recognized the theory behind the Fifth Circuit’s across-the-board rule, noting our awareness “that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs,” and that “[cjommon questions of law or fact are typically present.” Id., at 405. In the same breath, however, we reiterated that “careful attention to the requirements of Fed. Rule Civ. Proc. 23 remains nonetheless indispensable” and that the “mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination.” Id., at 405-406.

We cannot disagree with the proposition underlying the across-the-board rule — that racial discrimination is by definition class discrimination. But the allegation that such discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims. For respondent to bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion when several less deserving whites were advanced may support the conclusion that respondent was denied the promotion because of his national origin, such evidence would not necessarily justify the additional inferences (1) that this discriminatory treatment is typical of petitioner’s promotion practices, (2) that petitioner’s promotion practices are motivated by a policy of ethnic discrimination that pervades petitioner’s Irving division, or (3) that this policy of ethnic discrimination is reflected in petitioner’s other employment practices, such as hiring, in the same way it is manifested in the promotion practices. These additional inferences demonstrate the tenuous character of any presumption that the class claims are “fairly encompassed” within respondent’s claim.

Respondent’s complaint provided an insufficient basis for concluding that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of petitioner to hire more Mexican-Americans. Without any specific presentation identifying the questions of law or fact that were common to the claims of respondent and of the members of the class he sought to represent, it was error for the District Court to presume that respondent’s claim was typical of other claims against petitioner by Mexican-American employees and applicants. If one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action. We find nothing in the statute to indicate that Congress intended to authorize such a wholesale expansion of class-action litigation.

The trial of this class action followed a predictable course. Instead of raising common questions of law or fact, respondent’s evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact. Ironically, the District Court rejected the class claim of promotion discrimination, which conceptually might have borne a closer typicality and commonality relationship with respondent’s individual claim, but sustained the class claim of hiring discrimination. As the District Court’s bifurcated findings on liability demonstrate, the individual and class claims might as well have been tried separately. It is clear that the maintenance of respondent’s action as a class action did not advance “the efficiency and economy of litigation which is a principal purpose of the procedure.” American Pipe & Construction Co. v. Utah, 414 U. S. 538, 553.

We do not, of course, judge the propriety of a class certification by hindsight. The District Court’s error in this case, and the error inherent in the across-the-board rule, is the failure to evaluate carefully the legitimacy of the named plaintiff’s plea that he is a proper class representative under Rule 23(a). As we noted in Coopers & Lybrand v. Livesay, 437 U. S. 463, “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’” Id., at 469 (quoting Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 558). Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question. Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation. For such an order, particularly during the period before any notice is sent to members of the class, “is inherently tentative.” 437 U. S., at 469, n. 11. This flexibility enhances the usefulness of the class-action device; actual, not presumed, conformance with Rule 23(a) remains, however, indispensable.

HH b-H b-H

The need to carefully apply the requirements of Rule 23(a) to Title VII class actions was noticed by a member of the Fifth Circuit panel that announced the across-the-board rule. In a specially concurring opinion in Johnson v. Georgia Highway Express, Inc., 417 F. 2d, at 1125-1127, Judge Godbold emphasized the need for “more precise pleadings,” id., at 1125, for “without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the employer does not know how to defend,” id., at 1126. He termed as “most significant” the potential unfairness to the class members bound by the judgment if the framing of the class is overbroad. Ibid. And he pointed out the error of the “tacit assumption” underlying the across-the-board rule that “all will be well for surely the plaintiff will win and manna will fall on all members of the class.” Id., at 1127. With the same concerns in mind, we reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.

The judgment of the Court of Appeals affirming the certification order is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Chief Justice Burger,

concurring in part and dissenting in part.

I agree with the Court’s decision insofar as it states the general principles which apply in determining whether a class should be certified in this case under Rule 23. However, in my view it is not necessary to remand for further proceedings since it is entirely clear on this record that no class should have been certified in this case. I would simply reverse the Court of Appeals and remand with instructions to dismiss the class claim.

As the Court notes, the purpose of Rule 23 is to promote judicial economy by allowing for litigation of common questions of law and fact at one time. Califano v. Yamasaki, 442 U. S. 682, 701 (1979). We have stressed that strict attention to the requirements of Rule 23 is indispensable in employment discrimination cases. East Texas Motor Freight Sys tem, Inc. v. Rodriguez, 431 U. S. 395, 405-406 (1977). This means that class claims are limited to those ‘“fairly encompassed by the named plaintiffs claims.’ ” Ante, at 156, quoting General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 330 (1980).

Respondent claims that he was not promoted to a job as field inspector because he is a Mexiean-American. To be successful in his claim, which he advances under the “disparate treatment” theory, he must convince a court that those who were promoted were promoted not because they were better qualified than he was, but, instead, that he was not promoted for discriminatory reasons. The success of this claim depends on evaluation of the comparative qualifications of the applicants for promotion to field inspector and on analysis of the credibility of the reasons for the promotion decisions provided by those who made the decisions. Respondent’s class claim on behalf of unsuccessful applicants for jobs with petitioner, in contrast, is advanced under the “adverse impact” theory. Its success depends on an analysis of statistics concerning petitioner’s hiring patterns.

The record in this case clearly shows that there are no common questions of law or fact between respondent’s claim and the class claim; the only commonality is that respondent is a Mexican-American and he seeks to represent a class of Mexican-Americans. See ante, at 153, and n. 9. We have repeatedly held that the bare fact that a plaintiff alleges racial or ethnic discrimination is not enough to justify class certification. Ante, at 157; East Texas Motor Freight, supra, at 405-406. Accordingly, the class should not have been certified.

Moreover, while a judge’s decision to certify a class is not normally to be evaluated by hindsight, ante, at 160, since the judge cannot know what the evidence will show, there is no reason for us at this stage of these lengthy judicial proceedings not to proceed in light of the evidence actually presented. The Court properly concludes that the Court of Appeals and the District Court failed to consider the requirements of Rule 23. In determining whether to reverse and remand or to simply reverse, we can and should look at the evidence. The record shows that there is no support for the class claim. Respondent’s own statistics show that 7.7% of those hired by petitioner between 1972 and 1976 were Mexican-American while the relevant labor force was 5.2% Mexican-American. Falcon v. General Telephone Company of Southwest, 626 F. 2d 369, 372, 381, n. 16 (1980). Petitioner’s unchallenged evidence shows that it hired Mexican-Americans in numbers greater than their percentage of the labor force even though Mexican-Americans applied for jobs with petitioner in numbers smaller than their percentage of the labor force. Id., at 373, n. 4. This negates any claim of Falcon as a class representative.

Like so many Title VII cases, this case has already gone on for years, draining judicial resources as well as resources of the litigants. Rather than promoting judicial economy, the “across-the-board” class action has promoted multiplication of claims and endless litigation. Since it is clear that the class claim brought on behalf of unsuccessful applicants for jobs with petitioner cannot succeed, I would simply reverse and remand with instructions to dismiss the class claim.

       App. 14. In paragraph VI of the complaint, respondent alleged:
      “The Defendant has established an employment, transfer, promotional, and seniority system, the design, intent, and purpose of which is to continue and preserve, and which has the effect of continuing and preserving, the Defendant’s policy, practice, custom and usage of limiting the employment, transfer, and promotional opportunities of Mexican-American employees of the company because of national origin.” Id., at 15.

         Id., at 13. Rule 23 provides, in part:
      “(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
      “(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
      “(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunc-tive relief or corresponding declaratory relief with respect to the class as a whole . . . .”

       App. 13-14. The paragraph of the complaint in which respondent alleged conformance with the requirements of Rule 23 continued:
      “There are common questions of law and fact affecting the rights of the members of this class who are, and who continue to be, limited, classified, and discriminated against in ways which deprive and/or tend to deprive them of equal employment opportunities and which otherwise adversely affect their status as employees because of national origin. These persons are so numerous that joinder of all members is impracticable. A common relief is sought. The interests of said class are adequately represented by Plaintiff. Defendant has acted or refused to act on grounds generally applicable to the Plaintiff.” Id., at 14.

       Petitioner’s Interrogatory No. 8 stated:
      “Identify the common questions of law and fac[t] which affect the rights of the members of the purported class.” Id., at 26.
      Respondent answered that interrogatory as follows:
      “The facts which affect the rights of the members of the class are the facts of their employment, the ways in which evaluations are made, the subjective rather than objective manner in which recommendations for raises and transfers and promotions are handled, and all of the facts surrounding the employment of Mexiean-Ameriean persons by General Telephone Company. The questions of law specified in Interrogatory No. 8 call for a conclusion on the part of the Plaintiff.” Id., at 34.

       The District Court’s pretrial order of February 2, 1976, provided, in part:
      “The case is to proceed as a class action and the Plaintiff is to represent the class. The class is to be made up of those employees who are employed and employees who have applied for employment in the Irving Division of the Defendant company, and no other division.
      “Plaintiff and Defendant are to hold further negotiations to see if there is a possibility of granting individual relief to the Plaintiff, MARIANO S. FALCON.” App. to Pet. for Cert. 48a-49a.
      The District Court denied subsequent motions to decertify the class both before and after the trial.

       The District Court ordered petitioner to accelerate its affirmative-action plan by taking specified steps to more actively recruit and promote Mexican-Americans at its Irving facility. See id,., at 41a-45a.

       Respondent’s individual recovery amounted to $1,040.33. A large share of the class award, $28,827.50, represented attorney’s fees. Most of the remainder resulted from petitioner’s practice of keeping all applications active for only 90 days; the District Court found that most of the applications had been properly rejected at the time they were considered, but that petitioner could not justify the refusal to extend employment to disappointed applicants after an interval of 90 days. See 463 F. Supp. 315 (1978).

       The Court of Appeals held that the District Court had not abused its discretion since each of petitioner’s divisions conducted its own hiring and since management of the broader class would be much more difficult. Falcon v. General Telephone Co. of Southwest, 626 F. 2d 369, 376 (CA5 1980).

       The court continued:
      “While similarities of sex, race or national origin claims are not dispositive in favor of finding that the prerequisites of Rule 23 have been met, they are an extremely important factor in the determination, that can outweigh the fact that the members of the plaintiff class may be complaining about somewhat different specific discriminatory practices. In addition here, the plaintiff showed more than an alliance based simply on the same type of discriminatory claim. He also showed a similarity of interests based on job location, job function and other considerations.” Id., at 375-376 (citations omitted).
      The court did not explain how job location, job function, and the unidentified other considerations were relevant to the Rule 23(a) determination.

       The District Court found that petitioner’s proffered reasons for promoting the whites, rather than respondent, were insufficient and subjective. The Court of Appeals held that respondent had made out a prima facie case under the test set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802, and that the District Court’s conclusion that petitioner had not rebutted that prima facie case was not clearly erroneous. In so holding, the Court of Appeals relied on its earlier opinion in Burdine v. Texas Dept. of Community Affairs, 608 F. 2d 563 (1979). Our opinion in Burdine had not yet been announced.
      The Court of Appeals disposed of a number of other contentions raised by both parties, and reserved others pending the further proceedings before the District Court on remand. Among the latter issues was petitioner’s objection to the District Court’s theory for computing the class backpay awards. See n. 7, supra.

       The District Court’s finding was based on statistical evidence comparing the number of Mexican-Americans in the company’s employ, and the number hired in 1972 and 1973, with the percentage of Mexican-Americans in the Dallas-Fort Worth labor force. See App. to Pet. for Cert. 39a. Since recovery had been allowed for the years 1973 through 1976 based on statistical evidence pertaining to only a portion of that period, and since petitioner’s evidence concerning the entire period suggested that there was no disparate impact, the Court of Appeals ordered further proceedings on the class hiring claims. 626 F. 2d, at 380-382.

       See Hall v. Werthan Bag Corp., 251 F. Supp. 184, 186 (MD Tenn. 1966).

       The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest. In this case, we need not address petitioner’s argument that there is a conflict of interest between respondent and the class of rejected applicants because an enlargement of the pool of Mexican-American employees will decrease respondent’s chances for promotion. See General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 331 (“In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes”); see also East Texas Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 404-405.

       See n. 4, supra.

       If petitioner used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a). Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer.

       “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.” Fed. Rule Civ. Proc. 23(c)(1).

      There is no allegation that those who made the hiring decisions are the same persons who determined who was promoted to field inspector. Thus there is no claim that the same person or persons who made the challenged decisions were motivated by prejudice against Mexican-Americans, and that this prejudice manifested itself in both the hiring decisions and the decisions not to promote respondent.


source: Caselaw Access Project

author: Per Curiam. Justice Powell,

license: Public Domain

text:
    CALIFORNIA v. TEXAS et al.
    No. 88,
    Orig.
    Decided June 14, 1982
   Per Curiam.

In this motion, California seeks leave to file a complaint against Texas under this Court’s original jurisdiction. The proposed complaint asks us to decide whether Howard Hughes was domiciled in California or Texas at the time of his death. The decision about domicile could determine which State is entitled to levy death taxes on the estate.

This motion renews the one which California made in November 1977. At that time, we denied leave to file. Cali fornia v. Texas, 437 U. S. 601 (1978). Following the suggestion of four Justices who concurred in California v. Texas, the estate then sought a determination of Hughes’ domicile by filing an interpleader action under 28 U. S. C. § 1335 in Federal District Court. This motion for leave to file a complaint accompanied the petition for certiorari in Cory v. White, ante, p. 85, in which California taxing officials requested review of the decision of the Fifth Circuit holding that the Federal Interpleader Act provided a jurisdictional basis for resolving the dispute.

We granted certiorari in Cory v. White, 452 U. S. 904 (1981), and today have held that the Federal Interpleader Act, 28 U. S. C. § 1335, does not give a federal district court jurisdiction to resolve inconsistent death tax claims by the officials of two States. See ante, at 91. We reached that decision because the suit is barred by the Eleventh Amendment under Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937). We now also conclude that California’s motion for leave to file should be granted.

First, California’s bill of complaint states a “controversy” between California and Texas within the exclusive jurisdiction of this Court under 28 U. S. C. § 1251(a). It is undisputed that each State’s authority to impose a death tax on the intangibles owned by a decedent depends on the decedent’s having been a domiciliary of that State. Also, it is the law of each State that an individual has but one domicile. Thus only one State is entitled to impose death taxes; the outcome of this action would determine which State is privileged to tax. The other would be barred from doing so. It is apparent, therefore, that California and Texas are asserting inconsistent claims and are undeniably adversaries in this action.

Moreover, in its Memorandum in Support of Motion to File Bill of Complaint 6, California asserts:

“The effective rate of tax in California on all amounts in excess of $400,000 is 24% (see Cal. Rev. & Tax Code § 13406(g)); the effective rate of tax in Texas (including the so-called ‘pick-up tax’) on amounts exceeding $1,000,000 is approximately 16% (see Tex. Tax Code Ann. Arts. 14.05, 14.12); and the federal estate tax on amounts in excess of $10,000,000 is 77%, less a credit of 16% for state death taxes (see 26 U. S. C. §§2001, 2011). The combined marginal rate of tax is therefore 101%.” (Footnote omitted.)

California adds that interest on the unpaid taxes will further deplete the estate. Although these allegations have not been proved, they are sufficient under Texas v. Florida, 306 U. S. 398 (1939), to characterize this case as a “controversy” between two States within the meaning of 28 U. S. C. § 1251(a).

In Texas v. Florida, supra, this Court, raising the issue sua sponte, held that it had original jurisdiction over a suit “brought to determine the true domicile of decedent as the basis of rival claims of four states for death taxes upon his estate.” 306 U. S., at 401. None of the States had reduced its claims to judgments, but all conceded that the estate was insufficient to satisfy the total amount of taxes claimed. The Court compared the suit to a bill in the nature of inter-pleader, which permits a plaintiff threatened with rival claimants to the same debt or legal duty to bring an interpleader action before the institution of the independent suits. On the basis of this analogy, the Court concluded:

“When, by appropriate procedure, a court possessing equity powers is . . . asked to prevent the loss which might otherwise result from the independent prosecution of rival but mutually exclusive claims, a justiciable issue is presented for adjudication which because it is a recognized subject of the equity procedure which we have inherited from England, is a ‘case’ or ‘controversy,’ within the meaning of the Constitutional provision- and when the case is one prosecuted between states, which are the rival claimants, and the risk of loss is shown to be real and substantial, the case is within the original jurisdiction of this Court conferred by the Judiciary Article.” Id., at 407-408.

As Justice Stewart wrote when California first petitioned this Court to resolve its dispute with Texas over Hughes’ estate: “The facts alleged in the complaint now before us are indistinguishable in all material respects from those on which jurisdiction was based in Texas v. Florida.” California v. Texas, 437 U. S., at 606 (concurring opinion). We agree. Thus, this dispute is a controversy between two States within our original jurisdiction under 28 U. S. C. § 1251(a).

Second, it is appropriate to exercise our jurisdiction in this case. A determination that this Court has original jurisdiction over a case, of course, does not require us to exercise that jurisdiction. We have imposed prudential and equitable limitations upon the exercise of our original jurisdiction. As we explained in Illinois v. City of Milwaukee, 406 U. S. 91, 93-94 (1972):

“We construe 28 U. S. C. § 1251(a)(1), as we do Art. Ill, § 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases. And the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer.”

At the time we decided California v. Texas, it seemed to several Members of the Court that statutory interpleader might obviate the need to exercise original jurisdiction. Justice Brennan, for example, explained:

“If we have jurisdiction at all, that jurisdiction does not attach until it can be shown that the two States may possibly be able to obtain conflicting adjudications of domicile. That showing has not been made at this time in this case, since it may well be possible for the Hughes estate to obtain a judgment under the Federal Inter-pleader Statute, 28 U. S. C. §1335, from a United States district court, which would be binding on both California and Texas. In this event, the precondition for our original jurisdiction would be lacking. Accordingly, I would deny California’s motion, at least until such time as it is shown that such a statutory in-terpleader action cannot or will not be brought.” 437 U. S., at 601-602.

Our decision in Cory v. White has now shown that such a statutory interpleader action cannot be brought. Thus, the precondition for the exercise of original jurisdiction has been met.

There were several other uncertainties that affected the case when we denied California’s earlier motion. At that time, Texas urged that the controversy was not ripe because of the pending claim of the Howard Hughes Medical Institute that a “lost will” left the entire estate to it and the contention that the so-called “Mormon Will” was valid. A jury has since rejected the “Mormon Will,” the Nevada Supreme Court and the Texas Probate Court the “lost will.” Another changed circumstance is the expiration of a conditional settlement agreement between California and the estate. Texas had argued because of this allegedly collusive agreement, the case was not a justiciable case or controversy.

We conclude that our original jurisdiction is properly invoked under Texas v. Florida, and we grant California leave to file its bill of complaint. The defendants shall have 60 days to answer.

It is so ordered.

Justice Powell,

with whom Justice Marshall, Justice Rehnquist, and Justice Stevens join, dissenting.

In Cory v. White, ante, at 89, the Court today reaffirms the holding of Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), that “inconsistent determinations by the courts of two States as to the domicile of a taxpayer [do] not raise a substantial federal constitutional question.” Under Worcester County there is no constitutional bar to both Texas and California taxing the Hughes estate on the ground that he was a domiciliary.

Having reaffirmed the authority of Worcester County, the Court concludes that “California and Texas are asserting inconsistent claims and are undeniably adversaries in [the interpleader action].” Ante, at 165. But its own premises will not support this conclusion. If both States legally can tax the Hughes estate, a controversy between them would arise only if both were to obtain money judgments against the estate and, further, if the estate then were to prove insufficient to satisfy both claims. Yet it is no more clear today than it was in 1978, when we unanimously decided California v. Texas, 437 U. S. 601 (1978), that this situation ever will occur. Thus, under the Court’s own assumptions, there is no ripe controversy between the States, and no basis for our consideration of the original complaint in No. 88, Original.

As if discomfited by the logic of its position, the Court argues that the jurisdictional allegations here at least are “no more speculative,” ante, at 166, n. 1, than those in Texas v. Florida, 306 U. S. 398 (1939). Yet as Justice Stewart argued persuasively in our 1978 decision in California v. Texas, supra, it is inescapable that Texas v. Florida was wrongly decided. See 437 U. S., at 606, 611-612 (Stewart, J., concurring). The mere possibility of inconsistent state determinations of domicile, resulting in a still more remote possibility of the estate’s being insufficient to satisfy the competing claims, simply does not give rise to a case or controversy in the constitutional sense. “The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. Ill requirement. A federal court cannot ignore this requirement without overstepping its assigned role in our system of adjudicating only actual cases and controversies.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 39 (1976). See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U. S. 464, 472 (1982); Warth v. Seldin, 422 U. S. 490, 508 (1975).

Nor is the Court entitled to base its finding of original jurisdiction on an “analogy” between the original action and “a bill in the nature of interpleader.” Ante, at 167. Under the Interpleader Act, the stakeholder is the “plaintiff.” 28 U. S. C. § 1335. Having been notified of claims by two or more “claimants,” the stakeholder normally would have standing to litigate the validity of each of the individual claims. The presence of these justiciable controversies between stakeholder and claimants satisfies the “case or controversy” requirement of Art. III. Interpleader jurisdiction merely provides for convenient resolution in a single forum. Interpleader jurisdiction thus is irrelevant to the question whether there is an independently justiciable controversy “between” States.

       Texas asserts that California has not demonstrated the jurisdictional prerequisite of showing a “threatened injury” of “serious magnitude and imminent.” Brief in Opposition to Motion for Leave to File 6, quoting Alabama v. Arizona, 291 U. S. 286, 292 (1934). Texas explains that the true value of the estate is subject to dispute and litigation and that the estate can fully satisfy all potential death tax claims against it even under California’s own valuation.
      The Court in Texas v. Florida, however, required only that “[t]he risk that decedent’s estate might constitutionally be subjected to conflicting tax assessments in excess of its total value and that the right of complainant or some other state to collect the tax might thus be defeated was a real one.” 306 U. S., at 410. The claims before us here are no more speculative than the ones there. As that case recognized, to bring an interpleader suit, “[a] plaintiff need not await actual institution of independent suits; it is enough if he shows that conflicting claims are asserted and that the consequent risk of loss is substantial.” Id., at 406. Thus, California’s allegations are sufficient to present a controversy within the meaning of 28 U. S. C. § 1251(a). Despite the suggestion that we do so, we decline to overrule Texas v. Florida.

       As in Texas v. Florida, the idiosyncratic pattern of the decedent’s life provides a basis for more than one State’s claims. Hughes spent much of his time in California and many of his business activities were based there. He was, however, born in Texas and long continued to use Texas as his mailing address and sometimes stated that Texas was his domicile. Indeed, a jury in Texas probate proceedings has already found Hughes to have been a domiciliary of Texas at the time of his death.
      The administrator of Hughes’ estate timely perfected an appeal of that judgment. Brief for Respondent Lummis in Cory v. White, O. T. 1981, No. 80-1556, p. 5. The Texas Court of Civil Appeals stayed the appeal of the Texas domicile judgment pending the outcome of the federal inter-pleader action. Id., at 7.


text:
    TEXAS v. OKLAHOMA
    No. 85,
    Orig.
    Decided June 14, 1982
   DECREE

The motion for entry of judgment by consent of plaintiff and defendant, with the deletion of paragraph 10 thereof, and as amended with respect to paragraph 7, is granted.

It Is Ordered, Adjudged, and Decreed:

1. This judgment determines the boundary line between Texas and Oklahoma along the South bank of the Red River in Grayson County, Texas, from a point on said River as it existed prior to the construction of the Texoma Reservoir Dam (Denison Dam) approximately 1973 feet West of the center line of said Dam, with its meanders, to a point on said River approximately 6103 feet East of the center line of said Dam, upon the Complaint, Answer and agreement of Counsel for Texas and Oklahoma.

2. The source of the boundary line between Texas and Oklahoma from the 100th meridian of longitude to the eastern border of Oklahoma (which encompasses the boundary determined by this judgment) lies in the Treaty of 1819, 8 Stat. 252 (1821), which was construed by the Court in United States v. Texas, 162 U. S. 1 (1895), to be the south bank of the Red River. The Court later confirmed this definition of the boundary in Oklahoma v. Texas, 256 U. S. 70 (1921), and in a later partial decree therein, 261 U. S. 340, 341-342 (1923), defined the South bank as:

“. . . the water-washed and relatively permanent elevation or acclivity, commonly called a cut bank, along the southerly side of the river, which separates its bed from the adjacent upland, whether valley or hill, and usually serves to confine the waters within the bed, and to preserve the course of the river.
“. . . The boundary between the two states is on and along that bank at the mean level attained by the waters of the river when they reach and wash the bank without overflowing it.
“. . . At exceptional places where there is no well-defined cut bank, but only a gradual incline from the sand bed of the river to the upland, the boundary is a line over such incline, conforming to the mean level of the waters, when at other places in that vicinity they reach and wash the cut bank without overflowing it.”

3. As a result of the partial decree in 1923 and other partial decrees arising from the same controversy, a boundary commission was established to take evidence, find facts and report to the Court. Said Commission filed a documentary report, 269 U. S. 536 (1925), styled as the Third Report of the Boundary Commissioners. At page 41 of said Report appears the following entry:

VII
“IN GRAYSON COUNTY, TEXAS OPPOSIVE MARSHALL AND BRYAN COUNTIES, OKLAHOMA.
“Public Hearing:
Sherman, Texas, May 7, 1925
“We found no avulsive changes in the position of the Red River in this County and make no surveys.”

4. In 1939 the United States Army Corps of Engineers made surveys of certain tracts of land in Grayson County, Texas, known as Tract T-2-1, Tract T-2-2 and Tract T-2-4, whose northern boundaries coincide with the South bank of the Red River and the boundary determined by this judgment. Said surveys were made in anticipation of the condemnation of said Tracts for purposes of the construction of the Texoma Dam Facility and Reservoir pursuant to an Act of Congress, 52 Stat. 1215 (1938).

5. On September 7, 1940, a judgment was entered in the United States District Court for the Eastern District of Texas making final the award of special commissioners as to Tract T-2-1. On November 23,1940, judgment was entered in the United States District Court for the Eastern District of Texas making final the acquisition by the United States of Tract T-2-4. On December 28, 1939, a warranty deed was executed by P. 0. Brack to the United States as to Tract T-2-2.

6. On June 23, 1980, the Plaintiff and Defendant together retained a Registered Public Surveyor of the State of Texas to make a reenactment survey of Tract T-2-1, Tract T-2-2 and Tract T-2-4. On the basis of such survey it has been determined that, when tying back to the original South bank of the Red River, the northern boundaries of Tracts T-2-1, T-2-2 and T-2-4 (coinciding with the South bank of the Red River), as established by the U. S. Army Corps of Engineers in its survey of 1939 were correct at the time that survey was made, which was prior to the construction of the Texoma Reservoir Dam Facility. A certified copy of the plat of the survey commissioned by the States with the surveyor’s certified explanation thereof is filed with the Clerk of this Court.

7. The boundary between Texas and Oklahoma determined by this judgment coincides with the boundaries of Tracts T-2-1, T-2-2 and T-2-4 and is described as follows, with all bearings from the above referenced judgment and deed descriptions, and all distances in feet:

BEGINNING at a point, same being the centerline of Shawnee Creek and the Northeast corner of Tract T-2-4 as acquired by the United States in a Judgment as recorded in Volume 420 Page 556 of the Deed Records of Grayson County, Texas.

THENCE up the south bank of the Red River as it existed prior to the construction of the Texoma Reservoir and Deni-son Dam, with its meanders: South 78°08' West a distance of 528.9 feet; South 86°10' West a distance of 1370.50 feet; South 89°06' West a distance of 484.0 feet; North 88°22' West a distance of 447.2 feet; North 85°37' West passing the Northeast comer of Tract T-2-2 as recorded in Volume 417 Page 23 of the Deed Records of Grayson County, Texas and the total distance of 1675.30 feet; North 76°21' West a distance of 413.7 feet; North 86°01' West a distance of 170.10 feet to the Northwest comer of Tract T-2-2;

THENCE North 76°01' West a distance of 394.50 feet; North 87°34' West a distance of 1198.90 feet; North 68°27' West a distance of 362.20 feet; North 55°54' West a distance of 1030.80 feet to a point, same being the Northwest comer of Tract T-2-1 as acquired by the United States in a Judgment as recorded in Volume 417 Page 123 of the Deed Records of Grayson County, Texas.

8. The boundary line delineated hereinabove is depicted by a line marked “STATE LINE” on the plat of the survey commissioned by the States and filed with the Clerk of this Court.

9. The construction of the Texoma Reservoir and Denison Dam did not alter the boundary between Texas and Oklahoma as the South bank of the Red River as it existed prior to such construction in any manner whatsoever.

11. The cost of this action shall be equally divided between the two States.


author: Chief Justice Burger

text:
    SUMITOMO SHOJI AMERICA, INC. v. AVAGLIANO et al.
    No. 80-2070.
    Argued April 26, 1982
    Decided June 15, 1982

      Burger, C. J., delivered the opinion for a unanimous Court.

      Abram, Chayes argued the cause for petitioner in No. 80-2070 and respondent in No. 81-24. With him on the briefs were J. Portis Hicks, Jiro Murase, and Carl J. Green.

      Lewis M. Steel argued the cause and filed a brief for respondents in No. 80-2070 and petitioners in No. 81-24.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Edwin S. Kneedler, Brian K. Landsberg, and Michael J. Connolly.

      Together with No. 81-24, Avagliano et al. v. Sumitomo Shoji America, Inc., also on certiorari to the same court.

         John R. Horan filed a brief for the Japan External Trade Organization as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Nathan Z. Dershowitz for the American Jewish Congress et al.; by Thomas 1. Atkins for the National Association for the Advancement of Colored People; and by Edward John O’Neill, Jr., for Michael E. Spiess et al.
      Briefs of amid curiae were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, and Peter G. Crary, Assistant Attorney General, for the Attorney General of the State of New York; by Robert D. Owen for the Ministry of International Trade and Industry of the Government of Japan; by John K. Weir for the East Asiatic Co., Ltd., et al.; by Neil Martin for C. Itoh & Co. (America), Inc.; and by John R. Hupper and Paul M. Dodyk for Shell Petroleum N.V.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether Article VIII(l) of the Friendship, Commerce and Navigation Treaty between the United States and Japan provides a defense to a Title VII employment discrimination suit against an American subsidiary of a Japanese company.

I

Petitioner, Sumitomo Shoji America, Inc., is a New York corporation and a wholly owned subsidiary of Sumitomo Shoji Kabushiki Kaisha, a Japanese general trading company or sogo shosha. Respondents are past and present female secretarial employees of Sumitomo. All but one of the respondents are United States citizens; that one exception is a Japanese citizen living in the United States. Respondents brought this suit as a class action claiming that Sumitomo’s alleged practice of hiring only male Japanese citizens to fill executive, managerial, and sales positions violated both 42 U. S. C. § 1981 and Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1976 ed. and Supp. IV). Respondents sought both injunctive relief and damages.

Without admitting the alleged discriminatory practice, Sumitomo moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint. Sumitomo’s motion was based on two grounds: (1) discrimination on the basis of Japanese citizenship does not violate Title VII or § 1981; and (2) Sumitomo’s practices are protected under Article VIII(l) of the Friendship, Commerce and Navigation Treaty between the United States and Japan, Apr. 2, 1953, [1953] 4 U. S. T. 2063, T. I. A. S. No. 2863. The District Court dismissed the § 1981 claim, holding that neither sex discrimination nor national origin discrimination are cognizable under that section. 473 F. Supp 506 (SDNY 1979). The court refused to dismiss the Title VII claims, however; it held that because Sumitomo is incorporated in the United States it is not covered by Article VIII(l) of the Treaty. The District Court then certified for interlocutory appeal to the Court of Appeals under 28 U. S. C. § 1292(b) the question of whether the terms of the Treaty exempted Sumitomo from the provisions of Title VII.

The Court of Appeals reversed in part. 638 F. 2d 552 (CA2 1981). The court first examined the Treaty’s language and its history and concluded that the Treaty parties intended Article VIII(l) to cover locally incorporated subsidiaries of foreign companies such as Sumitomo. The court then held that the Treaty language does not insulate Sumi-tomo’s executive employment practices from Title VII scrutiny. The court concluded that under certain conditions, Japanese citizenship could be a bona fide occupational qualification for high-level employment with a Japanese-owned domestic corporation and that Sumitomo’s practices might thus fit within a statutory exception to Title VII. The court remanded for further proceedings.

We granted certiorari, 454 U. S. 962 (1981), and we vacate and remand.

II

Interpretation of the Friendship, Commerce and Navigation Treaty between Japan and the United States must, of course, begin with the language of the Treaty itself. The clear import of treaty language controls unless “application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.” Maximov v. United States, 373 U. S. 49, 54 (1963). See also The Amiable Isabella, 6 Wheat. 1, 72 (1821).

Article VIII(l) of the Treaty provides in pertinent part:

“[CJompanies of either Party shall be permitted to engage, within the territories of the other Party, accountants and other technical experts, executive personnel, attorneys, agents and other specialists of their choice.” (Emphasis added.)

Clearly Article VIII(l) only applies to companies of one of the Treaty countries operating in the other country. Sumitomo contends that it is a company of Japan, and that Article VIII(l) of the Treaty grants it very broad discretion to fill its executive, managerial, and sales positions exclusively with male Japanese citizens.

Article VIII(l) does not define any of its terms; the definitional section of the Treaty is contained in Article XXII. Article XXII(3) provides:

“As used in the present Treaty, the term ‘companies’ means corporations, partnerships, companies and other associations, whether or not with limited liability and whether or not for pecuniary profit. Companies constituted under the applicable laws and regulations within the territories of either Party shall be deemed companies thereof and shall have their juridical status recognized within the territories of the other Party.” (Emphasis added.)

Sumitomo is “constituted under the applicable laws and regulations” of New York; based on Article XXII(3), it is a company of the United States, not a company of Japan. As a company of the United States operating in the United States, under the literal language of Article XXII(3) of the Treaty, Sumitomo cannot invoke the rights provided in Article VIII(l), which are available only to companies of Japan operating in the United States and to companies of the United States operating in Japan.

The Governments of Japan and the United States support this interpretation of the Treaty. Both the Ministry of Foreign Affairs of Japan and the United States Department of State agree that a United States corporation, even when wholly owned by a Japanese company, is not a company of Japan under the Treaty and is therefore not covered by Article VIII(l). The Ministry of Foreign Affairs stated its position to the American Embassy in Tokyo with reference to this case:

“The Ministry of Foreign Affairs, as the Office of [the Government of Japan] responsible for the interpretation of the [Friendship, Commerce and Navigation] Treaty, reiterates its view concerning the application of Article 8, Paragraph 1 of the Treaty: For the purpose of the Treaty, companies constituted under the applicable laws ... of either Party shall be deemed companies thereof and, therefore, a subsidiary of a Japanese company which is incorporated under the laws of New York is not covered by Article 8 Paragraph 1 when it operates in the United States.”

The United States Department of State also maintains that Article VIII(l) rights do not apply to locally incorporated subsidiaries. Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight. Kolovrat v. Oregon, 366 U. S. 187, 194 (1961).

Our role is limited to giving effect to the intent of theTreaty parties. When the parties to a treaty both agree as to the meaning of a treaty provision, and that interpretation follows from the clear treaty language, we must, absent extraordinarily strong contrary evidence, defer to that interpretation.

Ill

Sumitomo maintains that although the literal language of the Treaty supports the contrary interpretation, the intent of Japan and the United States was to cover subsidiaries regardless of their place of incorporation. We disagree.

Contrary to the view of the Court of Appeals and the claims of Sumitomo, adherence to the language of the Treaty would not “overlook the purpose of the Treaty.” 638 F. 2d, at 556. The Friendship, Commerce and Navigation Treaty between Japan and the United States is but one of a series of similar commercial agreements negotiated after World War II. The primary purpose of the corporation provisions of the Treaties was to give corporations of each signatory legal status in the territory of the other party, and to allow them to conduct business in the other country on a comparable basis with domestic firms. Although the United States negotiated commercial treaties as early as 1778, and thereafter throughout the 19th century and early 20th century, these early commercial treaties were primarily concerned with the trade and shipping rights of individuals. Until the 20th century, international commerce was much more an individual than a corporate affair.

As corporate involvement in international trade expanded in this century, old commercial treaties became outmoded. Because “corporation^] can have no legal existence out of the boundaries of the sovereignty by which [they are] created,” Bank of Augusta v. Earle, 13 Pet. 519, 588 (1839), it became necessary to negotiate new treaties granting corporations legal status and the right to function abroad. A series of Treaties negotiated before World War II gave corporations legal status and access to foreign courts, but it was not until the postwar Friendship, Commerce and Navigation Treaties that United States corporations gained the right to conduct business in other countries. The purpose of the Treaties was not to give foreign corporations greater rights than domestic companies, but instead to assure them the right to conduct business on an equal basis without suffering discrimination based on their alienage.

The Treaties accomplished their purpose by granting foreign corporations “national treatment” in most respects and by allowing foreign individuals and companies to form locally incorporated subsidiaries. These local subsidiaries are considered for purposes of the Treaty to be companies of the country in which they are incorporated; they are entitled to the rights, and subject to the responsibilities of other domestic corporations. By treating these subsidiaries as domestic companies, the purpose of the Treaty provisions — to assure that corporations of one Treaty party have the right to conduct business within the territory of the other party without suffering discrimination as an alien entity — is fully met.

Nor can we agree with the Court of Appeals view that literal interpretation of the Treaty would create a “crazy-quilt pattern” in which the rights of branches of Japanese companies operating directly in the United States would be greatly superior to the right of locally incorporated subsidiaries of Japanese companies. 638 F. 2d, at 556. The Court of Appeals maintained that if such subsidiaries were not considered companies of Japan under the Treaty, they, unlike branch offices of Japanese corporations, would be denied access to the legal system, would be left unprotected against unlawful entry and molestation, and would be unable to dispose of property, obtain patents, engage in importation and exportation, or make payments, remittances, and transfers of funds. Ibid. That this is not the case is obvious; the subsidiaries, as companies of the United States, would enjoy all of those rights and more. The only significant advantage branches may have over subsidiaries is that conferred by Article VIII(l).

IV

We are persuaded, as both signatories agree, that under the literal language of Article XXII(3) of the Treaty, Sumi-tomo is a company of the United States; we discern no reason to depart from the plain meaning of the Treaty language. Accordingly, we hold that Sumitomo is not a company of Japan and is thus not covered by Article VIII(l) of the Treaty. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

       General trading companies have been a unique fixture of the Japanese economy since the Meiji era. These companies each market large numbers of Japanese products, typically those of smaller concerns, and also have a large role in the importation of raw materials and manufactured products to Japan. In addition, the trading companies play a large part in financing Japan’s international trade. The largest trading companies— including Sumitomo’s parent company — in a typical year account for over 50% of Japanese exports and over 60% of imports to Japan. See Krause & Sekiguchi, Japan and the World Economy, in Asia’s New Giant: How the Japanese Economy Works 383, 389-397 (H. Patrick & H. Rosovsky eds. 1976).

       Respondents have also filed a cross-petition in this case. Thus, the past and present secretaries, generally referred to as respondents, are the respondents in No. 80-2070 and the cross-petitioners in No. 81-24. Sumitomo is the petitioner in No. 80-2070 and the cross-respondent in No. 81-24.

       Prior to bringing this suit, respondents each filed timely complaints with the Equal Employment Opportunity Commission. The EEOC issued “right to sue” letters to the respondents on October 27, 1977. This suit was filed on November 21, 1977, well within the statutory 90-day period allowed for filing suits after receipt of an EEOC notice of right to sue. 42 U. S. C. § 2000e-5(f)(l).

       Sumitomo argued in the District Court that discrimination on the basis of national citizenship, as opposed to national origin, was not prohibited by Title VII. The District Court disagreed, however. It relied on Espinoza v. Farah Manufacturing Co., 414 U. S. 86, 92 (1973), in which we noted that “Title VII prohibits discrimination on the basis of citizenship whenever it has the purpose or effect of discriminating on the basis of national origin.” Although discussed at length in the briefs, this issue is not properly before the Court and we do not reach it. It was not included in the question certified for interlocutory review by the Court of Appeals under 28 U. S. C. § 1292(b), was not decided by the Court of Appeals, and was not set forth or fairly included in the questions presented for review by this Court as required by Rule 21.1(a).

       In a nearly identical case, a divided panel of the Court of Appeals for the Fifth Circuit came to somewhat contrary results. Spiess v. C. Itoh & Co., 643 F. 2d 353 (1981), cert. pending, No. 81-1496. The Fifth Circuit majority agreed with the Second Circuit decision that a locally incorporated subsidiary of a Japanese corporation is covered by Article VIII(l) of the Treaty, but disagreed with the latter court’s decision on the effect of the Treaty on Title VII. The court held that the Treaty provision did protect the subsidiary’s practices from Title VII liability.
      In dissent, Judge Reavley disagreed with the majority’s initial conclusion. He would have held that under the plain language of the Treaty, locally incorporated subsidiaries are to be considered domestic corporations and are thus not covered by Article VIII(l).

       Similar provisions are contained in the Friendship, Commerce and Navigation Treaties between the United States and other countries. See, e. g., Article XII(4) of the Treaty with Greece, [1954] 5 U. S. T. 1829, 1857, T. I. A. S. No. 3057 (1951); Article VIII(l) of the Treaty with Israel, [1954] 5 U. S. T. 550, 557, T. I. A. S. No. 551 (1951); Article VIII(l) of the Treaty with the Federal Republic of Germany, [1956] 7 U. S. T. 1839, 1848, T. I. A. S. No. 3593 (1954).
      These provisions were apparently included at the insistence of the United States; in fact, other countries, including Japan, unsuccessfully fought for their deletion. See, e. g., State Department Airgram No. A-453, dated Jan. 7,1952, pp. 1, 3, reprinted in App. 130a, 131a, 133a (discussing Japanese objections to Article VIII(l)); Foreign Service Despatch No. 2529, dated Mar. 18, 1954, reprinted in App. 181a, 182a (discussing German objections to Article VIII(l)).
      According to Herman Walker, Jr., who at the time of the drafting of the Treaty served as Adviser on Commercial Treaties at the State Department, Article VIII(l) and the comparable provisions of other treaties were intended to avoid the effect of strict percentile limitations on the employment of Americans abroad and “to prevent the imposition of ultranational-istic policies with respect to essential executive and technical personnel.” Walker, Provisions on Companies in United States Commercial Treaties, 50 Am. J. Int’l L. 373, 386 (1956); Walker, Treaties for the Encouragement and Protection of Foreign Investment: Present United States Practice, 5 Am. J. Comp. L. 229, 234 (1956). According to the State Department, Mr. Walker was responsible for formulation of the postwar form of the Friendship, Commerce and Navigation Treaty and negotiated several of the treaties for the United States. Department of State Airgram A-105, dated Jan. 9, 1976, reprinted in App. 157a.
      See also Foreign Service Despatch No. 2529, supra, App. 182a (Purpose of Article VIII(l) of Treaty with Germany “is to preclude the imposition of ‘percentile’ legislation. It gives freedom of choice as among persons law-fiilly present in the country and occupationally qualified under the local law”).

       The issues raised by this contention are clearly of widespread importance. As we noted in n. 6, supra, treaty provisions similar to that invoked by Sumitomo are in effect with many other countries. In fact, some treaties contain even more broad language. See, e. g., Article XII(4), Treaty of Friendship, Commerce and Navigation with Greece, [1954] 5 U. S. T., at 1857-1859 (“Nationals and companies of either party shall be permitted to engage, within the territories of the other Party, accountants and other technical experts, executive personnel, attorneys, agents and other employees of their choice . . .”) (emphasis added). As of 1979, United States affiliates of foreign corporations employed over 1.6 million workers in this country. Howenstine, Selected Data on the Operations of U. S. Affiliates of Foreign Companies, 1978 and 1979, in Survey of Current Business 35, 36 (U. S. Dept, of Commerce, May 1981).

       The clear language of Article VII(l) and Article XXII(3) is consistent with other Treaty provisions. For example, Article XVI(2) accords national treatment to “[ajrticles produced by nationals and companies of either Party within the territories of the other Party, or by companies of the latter Party controlled by such nationals and companies . . . .” (Emphasis added.) This provision obviously envisions that companies of one party may be controlled by companies of the other party. If the nationality of a company were determined by the nationality of its controlling entity as Sumitomo proposes, rather than by the place of its incorporation, this provision would make no sense.
      Several other Treaty provisions would make little sense if American subsidiaries were considered companies of Japan. Articles VII(l), VII(4), and XVI(2) contain clauses dealing with companies or enterprises controlled by companies of either party. If those companies or enterprises were themselves companies of the country of their parents, this separate treatment would be unwarranted.

       State Department Cable, Tokyo 03300, dated Feb. 26, 1982 (cable from the United States Embassy in Tokyo to the Secretary of State relaying the position of the Ministry of Foreign Affairs of Japan). See also Diplomatic Communication from the Embassy of Japan in Washington to the United States Department of State, dated Apr. 21, 1982 (“The Government of Japan reconfirms its view that a subsidiary of a Japanese company which is incorporated under the laws of New York is not itself covered by article 8., paragraph 1 of the Treaty of Friendship, Commerce and Navigation between Japan and the United States (the FCN Treaty) when it operates in the United States”).

       Brief for United States as Amicus Curiae 8-22; Letter of James R. Atwood, Deputy Legal Adviser, U. S. Department of State, to Lutz Alexander Prager, Assistant General Counsel, Equal Employment Opportunity Commission, dated Sept. 11,1979, reprinted in App. 307a. ("On further reflection on the scope of application of the first sentence of Paragraph 1 of Article VIII of the U. S.-Japan FCN, we have established to our satisfaction that it was not the intent of the negotiators to cover locally-incorporated subsidiaries, and that therefore U. S. subsidiaries of Japanese corporations cannot avail themselves of this provision of the treaty”).
      The Court of Appeals and Sumitomo dismiss the Atwood letter as incorrect, and point to a letter written by a previous State Department Deputy Legal Adviser as taking the contrary view. Letter of Lee R. Marks, Deputy Legal Adviser, U. S. Department of State, to Abner W. Sibal, General Counsel, Equal Employment Opportunity Commission, dated Oct. 17, 1978, reprinted in App. 94a. However neither of these letters is indicative of the state of mind of the Treaty negotiators; they are merely evidence of the later interpretation of the State Department as the agency of the United States charged with interpreting and enforcing the Treaty. However ambiguous the State Department position may have been previously, it is certainly beyond dispute that the Department now interprets the Treaty in conformity with its plain language, and is of the opinion that Sumitomo is not a company of Japan and is not covered by Article VIII(l). That interpretation, and the identical position of the Government of Japan, is entitled to great weight. Kolovrat v. Oregon, 366 U. S. 187 (1961).

       Determining the nationality of a company by its place of incorporation is consistent with prior treaty practice. See Walker, 50 Am. J. Inti L., supra n. 6, at 382-383. The place-of-ineorporation rule also has the advantage of making determination of nationality a simple matter. On the other hand, application of a control test could certainly make nationality a subject of dispute.

       We express no view, of course, as to the interpretation of other Friendship, Commerce and Navigation Treaties which, although similarly worded, may have different negotiating histories.

       See, e. g., Treaties of Friendship, Commerce and Navigation with China, 63 Stat. 1299, T. I. A. S. No. 1871 (1946); Italy, 63 Stat. 2255, T. I. A. S. No. 1965 (1948); Israel, [1954] 5 U. S. T. 550, T. I. A. S. No. 551 (1951); Greece, [1954] 5 U. S. T. 1829, T. I. A. S. No. 3057 (1951); Japan, [1953] 4 U. S. T. 2063, T. I. A. S. No. 2863 (1953); Federal Republic of Germany, [1956] 7 U. S. T. 1839, T. I. A. S. No. 3593 (1954); The Netherlands, [1957] 8 U. S. T. 2043, T. I. A. S. No. 3942 (1956); and Pakistan, [1961] 12 U. S. T. 110, T. I. A. S. No. 4683 (1959). The provisions of several of the treaties are compared in tabular form in Commercial Treaties: Hearing on Treaties of Friendship, Commerce and Navigation with Israel, Ethiopia, Italy, Denmark, Greece, Finland, Germany, and Japan, before the Subcommittee of the Senate Committee on Foreign Relations, 83d Cong., 1st Sess., 7-17 (1953).

       See, e. g., Treaty of Amity and Commerce with France, 8 Stat. 12, T. S. No. 83 (1778); Treaty of Amity, Commerce and Navigation with Great Britain, 8 Stat. 116, T. S. No. 105 (1794); Treaty of Commerce and Friendship with Sweden and Norway, 8 Stat. 232, T. S. No. 347 (1816); Treaty of Commerce and Navigation with the Netherlands, 8 Stat. 524, T. S. No. 251 (1839); Treaty of Commerce and Navigation with Belgium, 8 Stat. 606, T. S. No. 19 (1845); Treaty of Commerce and Navigation with Italy, 17 Stat. 845, T. S. No. 177 (1871); Treaty of Commerce with Spain, 23 Stat. 750, T. S. No. 337 (1884); Treaty of Commerce with Germany, 31 Stat. 1935, T. S. No. 101 (1900); Treaty of Commerce with China, 33 Stat. 2208, T. S. No. 430 (1903).

       See Walker, 50 Am. J. Int’l L., supra n. 6, at 374-378.

       Treaty of Commerce and Navigation with Japan, 37 Stat. 1504, T. S. No. 558 (1911); Treaties of Friendship, Commerce and Consular Rights with Germany, 44 Stat. 2132, T. S. No. 725 (1923); Estonia, 44 Stat. 2379, T. S. No. 736 (1925); Hungary, 44 Stat. 2441, T. S. No. 748 (1925); El Salvador, 46 Stat. 2817, T. S. No. 827 (1926); Honduras, 45 Stat. 2618, T. S. No. 764 (1927); Latvia, 45 Stat. 2641, T. S. No. 765 (1928); Austria, 47 Stat. 1876, T. S. No. 838 (1928); Norway, 47 Stat. 2135, T. S. No. 852 (1928); Poland, 48 Stat. 1507, T. S. No. 862 (1931); Finland, 49 Stat. 2659, T. S. No. 868 (1934); Treaties of Friendship, Commerce and Navigation with Siam, 53 Stat. 1731, T. S. No. 940 (1937); Liberia, 54 Stat. 1739, T. S. No. 956 (1938).
      These rights given to corporations by these Treaties were quite limited. For example, Article VII of the 1911 Treaty with Japan provided:
      “Limited liability and other companies and associations . . . already or hereafter to be organized in accordance with the laws of either High Contracting Party and domiciled in the territories of such Party, are authorized, in the territories of the other, to exercise their rights and appear in the courts either as plaintiffs or defendants, subject to the laws of such other Party.
      “The foregoing stipulation has no bearing upon the question whether a company or association organized in one of the two countries will or will not be permitted to transact its business or industry in the other, this permission remaining always subject to the laws and regulations enacted or established in the respective countries or in any part thereof.” 37 Stat. 1506. A similarly limited provision was contained in the other Treaties.

       The significance of this advance was emphasized in the Senate hearings on an early set of postwar Friendship, Commerce and Navigation Treaties:
      “Perhaps the most striking advance of the postwar treaties is the cognizance taken of the widespread use of the corporate form of business organization in present-day economic affairs. In the treaties antedating World War II American corporations were specifically assured only small protection against possible discriminatory treatment in foreign countries. In the postwar treaties, however, corporations are accorded essentially the same treaty rights as individuals in such vital matters as the right to do business, taxation on a nondiscriminatory basis, the acquisition and enjoyment of real and personal property, and the application of exchange controls. Furthermore, the citizens and corporations of one country are given substantial rights in connection with forming local subsidiaries under the corporation laws of the other country and controlling and managing the affairs of such local companies.” Commercial Treaties: Hearing on Treaties of Friendship, Commerce and Navigation Between the United States and Colombia, Israel, Ethiopia, Italy, Denmark and Greece before a Subcommittee of the Senate Committee on Foreign Relations, 82d Cong., 2d Sess., 4-5 (1952) (opening statement of Harold Linder, Deputy Assistant Secretary of State for Economic Affairs).

       “National treatment” is defined in Article XXII(l) of the Treaty:
      “The term ‘national treatment’ means treatment accorded within the territories of a Party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of such Party.”
      In short, national treatment of corporations means equal treatment with domestic corporations. It is ordinarily the highest level of protection afforded by commercial treaties. In certain areas treaty parties are unwilling to grant full national treatment; in those areas the parties frequently grant “most-favored-nation treatment,” which means treatment no less favorable than that accorded to nationals or companies of any third country. See Article XXII(2) of the Treaty. “The most-favored-nation rule can now, therefore, imply or allow the status of alien disability rather than of favor. In applicable situations nowadays, the first-class treatment tends to be national treatment; that which the citizens of the country enjoy.” Walker, Modem Treaties of Friendship, Commerce and Navigation, 42 Minn. L. Rev. 805, 811 (1958).

       We express no view as to whether Japanese citizenship may be a bona fide occupational qualification for certain positions at Sumitomo or as to whether a business necessity defense may be available. There can be little doubt that some positions in a Japanese controlled company doing business in the United States call for great familiarity with not only the language of Japan, but also the culture, customs, and business practices of that country. However, the Court of Appeals found the evidentiary record insufficient to determine whether Japanese citizenship was a bona fide occupational qualification for any of Sumitomo’s positions within the reach of Article VIII(l). Nor did it discuss the bona fide occupational qualification exception in relation to respondents’ sex discrimination claim or the possibility of a business necessity defense. Whether Sumitomo can support its assertion of a bona fide occupational qualification or a business necessity defense is not before us. See n. 4, supra.

      We also express no view as to whether Sumitomo may assert any Article VIII(l) rights of its parent.