agencies of the government, principally the Department of Health, Education and Welfare. At the present time HEW can, by employing the sanction of cutting off federal funds, compel desegregation of schools, hospitals and similar institutions. Private parties may also bring suits. It has been our experience that private parties have done the pioneering into such questions as the duty of school boards not to discriminate racially in the hiring, firing and assignment of teachers. It is questionable whether HEW would have moved into the area of teacher segregation without the lawsuits that private parties won, holding that a student's right to a desegregated education included the right to attend schools staffed by teachers who had not been placed on a racial basis. Following these cases, HEW strengthened its position on the issue. This example can be multiplied many times over. Indeed, many provisions of the HEW guidelines on school desegregation were modified after judicial decisions in privately financed lawsuits. Moreover, it is important that the Negro communities maintain confidence in the legal system as something that they and their lawyers can invoke, even if a government agency will not. A recent article in the Wall Street Journal quoted an EEOC official as saying: "There is a feeling on the staff level that if a complaint involves General Motors, U.S. Steel or a company of that stature, with access to the White House, then Justice will back off." We need not accept this as true to recognize that when a complaint is filed against a powerful corporation or labor union and the Commission does not bring it to successful fruition, the suspicion is that there is something of the sort sanctioned by the law. The Wall Street Journal article had caused much concern among plaintiffs who have been victims of a long racial discrimination. Their rights to state their case and bring it before federal courts with their lawyers are the basis of assurance against cynicism developing in the Negro community concerning enforcement of the law. The provision in the proposed Bill, setting forth the conditions under which a private party may institute a civil action, is a decided improvement over the provisions in the present law. In many of the cases presently pending in various courts, defendants have atempted to have the cases dismissed on the ground that suit was not filed within the stated time limitation. Under the present law, a private party must institute his action within 30 days of receipt of a letter from the Commission so advising him of his right-to bring suit. It has been our experience that this 30-day limitation is much too short for the average person who would be seeking relief under the Act to seek assistance in bringing his suit and also allow the attorney sufficient time to adequately prepare for the filing of a lawsuit. Under the proposed Bill, a private person would have 60 instead of 30 days in which to bring his action. We feel that the 60-day limitation is still much too short. We would suggest a period of one year from the day the right to go into court arises as being a more appropriate time limitation in which a private party can bring suit. Sections 708(b) and (c) of the proposed Bill would be helpful. If might be that the proposed sections are declaratory of existing law but they should remove any ground for arguments we have directly encountered in many of the cases, to the effect that Title VII proceedings should be held up because of proceedings before the Labor Board or vice versa. Taken literally, however, the proposed amendment does not dispose of arguments that an aggrieved party should first exhaust his contractual grievances or administrative remedies before the Labor Board or the Railway Board before bringing suit in court. Since the proposed subsection (b) applies only to the case where NRLB proceedings had already been instituted, it would be better if the clause were drafted more broadly. The proposed Section 709(d) offers a marked improvement over existing law, in that it does not exempt from EEOC record-keeping requirements employers subject to state anti-discrimination laws. The proposed Section 709 (d) would afford recognition to the needs of state agencies without ham-stringing the Federal Commission. There is one matter which is unclear under the present Title VII and is not clarified by the proposed Bill. That is, what is the status of a conciliation agreement arrived at through voluntary persuasion as provided under the present law and the proposed Bill? If the respondent violates the agreement, does the complainant sue in court for breach of agreement? Does he file against the respondent with the Commission? Does the Commission conciliate breaches of the agreement, The venue provision in de preset hil rites the I eri asim may be Section 710b) of the proposed I abris a respondem an opportunity to We do not see the necessity of regati i speed the thimas twenty-fre 1 employee jurisdiction test in the present statue the timetable by which employers with weapfre 5 e mice empires will not be reached by the statute until July, 1958. We world suggest that the Lumber a coverage purposes be lowered to eight (8) and that is be done immediately. Our suggestion that the number be lowered to eight 8 encucides with the number of employees necessary for coverage of certain her federal states agozanie to labor. It seems anomalous that givement us and agentes should be exempt from the coverage of The VII sure wrings on their part rectly vidate the Fourteenth Amendment as well as possibly falling vitùr the powers of Congress under the Commerce Clause. It might be said that a there already exists a right of action against employmen, Ösebnim by governmental agencies and. (b) that there is something unseeningly about having the Commission, call state and local public officials before in to defend their condom. As to the latter argument, however, there are precedents in which just this bas best done, for example, a state-owned railroad falling within the jurisdiction of the Interstate Commerce Commission; sales by a state being subject to federal price control: a city or state-operated radio station being regulated by the Federal Communications Commission, etc. The Commission should be given specie direction and authority to conduct a continuing survey of apprenticeship and retraining programs which could bring substantial relief in this particularly crucial area. Section 709(e) of the proposed Bill does direct the Commission to require record keeping in this area, but we feel that this approach to apprenticeship and retraining programs is insufficient. Under the present law, an aggrieved party unable to afford his own attorney could apply to the court for the appointment of an attorney and the court has the power to authorize the commencement of an action without the payment of fees, costs or security. We would suggest that the provision relating to appointment of counsel for indigent persons be made a part of the proposed Bill. In conclusion, I am thankful for the Committee extending me the opportunity to appear and present to you our experiences with the present law in addition to setting forth our observations and suggestions on the proposed Bill. It is our sincere hope that the deliberations of the Committee and the Senate will be fruitful in dealing with many of the deficiencies of the present law. APPENDIX LIST OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUNDS, INC., TITLE VII CASES PENDING IN FEDERAL COURT ALABAMA 1. Dent v. St. Louis-San Francisco Railway Co., and Brotherhood of Railway Carmen of America, Civ. No. 66–65 (N.D. Ala.) 2. Ford, et al. v. United States Steel Corporation and United Steelworkers of America, Civ. No. 66-625 (N.D. Ala.) 3. Hardy, et al. v. United States Steel and United Steelworkers of America, et al., Civ. No. 66-423 (N.D. Ala.) 4. McKinstry & Hubbard v. The United States Steel Corporation and United Steelworkers of America, et al., Civ. No. 66–343 (N.D. Ala.) 5. Muldrow, et al. v. H. K. Porter and United Steelworkers of America, et al., Civ. No. 66-206 (N.D. Ala.) 6. Pearson, et al. v. Alabama By-Products Corporation and the United Mineworkers of America, Civ. No. 66-320 (N.D. Ala.) 7. Pettway, et al. v. American Cast Iron Pipe Company, Civ. No. 66-315 (N.D. Ala.) GEORGIA 8. Anthony v. Marion Williamson and Edward J. Shable (Georgia State Employment Service), Civ. No. 9947 (N.D. Ga.) 9. Banks v. Georgia Lodge No. 45, Brotherhood of Railway Carmen of America, Civ. No. 10167 U.S.D.C. (N.D. Ga.) 10. Local Union No. 234 of the Wood, Wire and Metal Lathers Int'l. Union and Jackson v. Acousti Engineering Company, Civ. No. 10306 (N.D. Ga.) 11. Rowe v. General Motors Corporation, Civ. No. 10391 (N.D. Ga.) LOUISIANA 12. Clark, et al. v. American Marine Corporation, Civ. No. 16315 (E.D. La.) NORTH CAROLINA 13. Black, et al. v. Central Motor Lines, Inc., Civ. No. 2152 (W.D. N.C.) 14. Brown v. Gaston County Dyeing Machine Company, Civ. No. 2136 (W.D. N.C.) 15. Griggs, et al. v. Duke Power Company, Civ. No. C-210-G-66 (M.D. N.C.) 16. Harvey v. Sears Roebuck & Company, Civ. No. 1165 (E.D. N.C.) 17. Johnson v. Seaboard Air Lines Railroad Company, Civ. No. 2171 (W.D. N.C.) 18. Johnson and Hickman v. The First National Bank and Trust Company, Civ. No. 668 (E.D. N.C.) 19. Lea, et al. v. Cone Mills Corporation, Civ. No. C-176-D-66 (M.D. N.C.) 20. Lee, et al. v. The Observer Transportation Corporation, Civ. No. 2145 (W.D. N.C.) 21. Moody, et al. v. Albemarle Paper Company and United Papermakers and Paper Workers, et al., Civ. No. 989 (E.D. N.C.) 22. Robinson, et al. v. P. Lorillard Company and Tobacco Workers International Union, et al., Civ. No. C-141-G-66 (M.D. N.C.) 23. Walker, et al. v. Pilot Freight Carriers, Inc., Civ. No. 2167 (W.D. N.C.) TENNESSEE 24. Alexander v. Avco Corporation and Aero Lodge No. 735 of the International Association of Machinist and Aerospace Workers, Civ. No. 4335 (M.D. Tenn.) 25. Hall v. Werthan Bag Corporation, Civ. No. 4312 (M.D. Tenn.) TEXAS 26. Jenkins v. United Gas Corporation, Civ. No. 5152 (E.D. Texas) VIRGINIA 27. Cariles, et al. v. Sturgis-Newport Business Forms, Civ. No. 1153 (U.S.D.C. E.D. Va.) 28. Quarles and Briggs v. Philip Morris Tobacco Company, and Tobacco Workers International Union, et al., Civ. No. 4544 (E.D. Va.) PREPARED STATEMENT OF ROY WILKINS, EXECUTIVE DIRECTOR, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE Mr. Chairman and members of the Subcommittee, I thank you for the invitation to participate in this panel discussion on S. 1308, the proposed Equal Employment Opportunities Enforcement Act. 8. 1308 is a part of the President's civil rights legislative program for 1967. When the President sent his full program to the Senate in the form of S. 1026. we in the NAACP commended him for his continued leadership in civil rights. We are pleased to again commend President Johnson for this proposal. With respect to employment, we note that the President has recognized that enforcement power will harmonize the procedures of the Equal Employment Opportunity Commission with the prevailing practices among states and cities which have had FEP agencies for many years, as well as other Federal regulator agencies. It will reduce the burden on individual complainants and on the Federal courts. The President also recognizes that it is vital to take steps to enhance the orderly implementation of important national policy, in order to overcome "disparity ... clearly attributable to discrimination," as he noted in his 1967 Civil Rights message. We commend also Senators Clark and Javits who have introduced the Equal Employment Opportunities Enforcement Act. The demonstration of bipartisanship in this instance reflects the sincerity of efforts to deal with an urgent problem and willingness to seek ways to benefit every citizen of this nation, as well as to extend each the equal opportunity which is his birthright. A tremendous surge of hope accompanied the passage and signing of the Civil Rights Act of 1964, and it happened anew when, one year later, Title VII became operative. There was hope that at last the nation would deal meaningfully with the problems surrounding discrimination in employment. Despite the disappointment that no cease-and-desist authority had been granted the agency, there was a spirit and determination on the part of Americans to make this law work for those who suffer needless disadvantage as a result of discrimination. The National Association for the Advancement of Colored People and its officers and lawyers have sought to make Title VII an effective law. The Association is responsible, directly or indirectly, for the filing of nearly 1600 individual charges against 350 employers, labor organizations, and private and public employment agencies throughout America. While there have been achievements in some instances as a result of charges filed by citizens, and while some individual complaints have been dealt with successfully, the Commission has been handicapped in dealing with broad patterns of discrimination by lack of adequate enforcement authority. Our examination of Commission reports reveals that the agency has been unsuccessful in conciliating a large number of cases where reasonable cause has been found to exist. That this is so at a time when demands for equality have reached their present pitch and intensity is an indication that the nation has no choice but to come to grips with this problem. The agency scored a notable success in negotiating a companywide conciliation agreement with the Newport News Shipbuilding and Drydock Company, under which "thousands will benefit directly," according to the Commission's annual report. On the other hand, the Commission has been unable to significantly affect the flagrantly discriminatory practices of the Crown-Zellerbach plant in Bogalusa, Louisiana. Nor have other government agencies taken effective action against this company, despite the fact that it is subject to the executive order on government contracts and could be the subject of litigation by the Department of Justice under the "pattern or practice" provision of Title VII of the 1964 Civil Rights Act. If the Commission had the cease-and-desist authority proposed in S. 1038, we are confident it would be able to effect results that would be closer to those obtained at Newport News, rather than those of Bogalusa. The occupational structure of the Negro labor force is seriously out of line with the social characteristics of the American labor force in general. Negroes are disproportionately concentrated in the "lower" occupations, and only very slight improvement has been registered during the past 20 years. Research by Dr. Vivian Henderson indicates that Negroes make up about 11 per cent of all employed workers, but they make up 44 per cent of all household workers-four times their proportion of employed workers. They account for 21 per cent of all service workers and 26 per cent of all laborers, more than twice their proportion of employed workers. On the other hand, they make up less than 6 per cent of all employed craftsmen, 3 per cent of all salesmen, and 6 per cent of all clerical workers. Fully 43 per cent of all employed Negro males are working in jobs below the semi-skilled level, compared with only 15 per cent of all employed white workers. These figures were released in 1966 by the Bureau of Labor Statistics. This imbalance contributes to job insecurity and prevents development of potential. The Negro occupational structure is something that came into being primarily because of restrictions which themselves were discriminatory in origin. It is shot through with systematic exclusion of Negroes with respect to training and employment opportunities. The structure does not lend itself to adjustments to technological change, and it means that the discriminated-against worker is particularly vulnerable to cyclical fluctuations and susceptible to unemployment problems. Some economists hold that approximately 35,000 jobs per week disappear as a result of automation, and while some occupations are decreased, others increase. The decrease, of course, is in the jobs of those who can least afford to lose them, for they are the low-paying, traditional, "Negro" jobs which fall before the march of progress. Pathology with explosive potentials can be observed in the situation of the Negro teen-ager. Unemployment among this group is from 2 to 3 times that of comparable white groups. One out of every three Negro female teen-agers in the labor market today is looking for a job and cannot find one. The same is true for one out of every four Negro males. The figures for the explosive summer months of 1966 were 32 Negro teen-ager unemployed per 100 as against 14 per 100 for white teen-agers. Special problems exist with respect to apprenticeship training and the construction industry. No agreements have been achieved by EEOC where charges have been filed, because the construction industry respondents have refused to conciliate. This area is particularly important as reliable predictions indicate there will be growth during the next few years in this industry and that skilled jobs will greatly increase therein. Furthermore, it is a sad but true fact that some of America's giant corporations have refused to accept conciliation proposals which would eliminate overall patterns of racial discrimination in major sections of the American economy. Those who experienced the great upsurge in hope that equal opportunity would become more the rule than the exception, and those (especially the young people) whose aspirations became greater as a result of hope, have been rudely jolted when, during the course of their transactions with the Equal Employment Opportunity Commission, they have learned that the agency cannot require compliance with an agreement. Indeed, it cannot order a respondent found to be in violation of Title VII to terminate unlawful policies and practices. The proposed legislation represents substantial improvement over the present Act. We do believe there is a need for clarification and modification of some provisions-involving some changes which I will suggest. The first improvement in the bill we would suggest would be a more extended coverage. We ask that employers of eight or more employees and unions of eight or more members be brought within the jurisdiction of the Act. According to testimony offered before the House Committee on Education and Labor by the former chairman of EEOC in 1965, this would bring approximately 500,000 additional employers within coverage of the Act. I would like to point out that this extended coverage was a feature of the Hawkins bill (H.R. 10065) that passed the House of Representatives in the 89th Congress with the combined backing of the Democratic and Republican House leadership. It has been our experience that employers with fewer employees often tend to be major practitioners of discrimination. Further, these employers are often located within the inner city where Negroes, Mexican Americans, and Puerto Ricans are largely confined because of discrimination in housing patterns. The employer with 8-25 employees is less likely to join the growing trek of industry to the suburbs. Their close proximity to the ghetto community may often fan tension and create disturbances if such employers are permitted to discriminate against citizens because of their race, color, religion or national origin. We believe that another large group of employees should be extended the protection of the Act-public employees working for state, county and local governments and their political subdivisions and agencies. Public employment is one of the most rapidly growing fields of employment, and as of now there is little to protect the employee or potential employee from discrimination. We would hape that the present requirement that complaints must be referred to state and local fair employment agencies could be deleted from the law. We believe that the effect of this provision is to unduly burden both the complainant and the EEOC and to delay final resolution. In the interest of efficiency and speedier justice we feel its elimination is in order. |