THE NATIONAL CHAMBER'S POSITION

The proposed amendments contained in S. 1308 are unnecessary. They would, in fact, tend to frustrate the objective of Title VII, which is to provide equal employment opportunity.

The alleged purpose of these proposed amendments is to make the work of the Commission more effective. In the brief two-year existence of the Commission, however, it has not been shown that the Commission's existing procedures are inadequate to accomplish the goals established by Title VII. In fact, the reverse has been shown. The Commission is seeking to further the goal of equal employment opportunity and is doing so with the cooperation of business and the National Chamber. At the same time, the Commission has had to operate under the handicap of an enormous caseload. The worst possible course of action under this circumstance would be the adoption of legislation requiring time consuming and lengthy administrative hearings which would result from the proposed amendments to Title VII.

Using the NLRB as an example (since this agency has the type of power proposed by S. 1308), there is a delay of approximately 12 months before the average case is processed through the NLRB alone to say nothing of the added time required should the decision be taken to the courts. The average delay in time from the date that an NLRB preliminary hearing is closed to the date of the trial examiner's first decision is almost four months.1 Thus, the proposed change in the EEOC's administrative machinery would frustrate the need for speedy disposition of employment discrimination charges. Swift resolution of a charge is of the utmost importance to the individual who has been discriminated against. What this individual needs is a job, not a law suit.

VOLUNTARY COMPLIANCE

It should also be noted that the fair employment bill originally introduced in Congress in 1964 would have given the Commission authority comparable to that of the National Labor Relations Board. The NLRB procedure was not adopted then and it should not be adopted now. It was decided by the Congress in 1964 that the problems of discrimination would be resolved much better through informal methods of conference, conciliation and persuasion rather than through an NLRB-type procedure.

Rep. William McCulloch explained the reason for this Congressional decision: "As the title was originally worded, the Commission would have had authority to not only conduct investigations, but also institute hearing procedures and issue orders of a cease-and-desist nature. A substantial number of committee members, however, preferred that the ultimate determination of discrimination rest with the Federal judiciary. Through this requirement, we believe that settlement of complaints will occur more rapidly and with greater frequency. In addition, we believe that the employer or labor union will have a fairer forum to establish innocence. [Emphasis added.] (Rept. 914, Part 2, 88th Congress, 1st Session, House of Representatives, p. 29.)

Since the Commission began operations, there have been no developments to alter this judgment. On the contrary, every indication is that the vast majority of employers in the United States are anxious to comply with the fair employment requirements of the law and are making every effort to do so. An important factor in this voluntary effort is that compliance is not based on compulsion. In the complex areas of over-all employment, job promotion, seniority, and working conditions, deeply ingrained attitudes and practices are involved. As a consequence, a philosophy of enforcement stressing cooperation and flexibility, as the law now provides, will accomplish more permanent results than any rigid administrative attitude that seeks resolution of problems by commanding a person to "cease and desist."

An important Administrative official active in the area of civil right legisla tion also endorsed the voluntary approach. Former Attorney General Katzenbach in a statement before the Senate Subcommittee on Executive Reorganizations on March 3, 1966, said: "Conciliation is an old friend. Indeed, it has always been the function of the law and the good lawyers to keep tempers down, to find satis

1 Statistics taken from recent hearings before the U.S. House of Representatives, Subcommittee of the Committee on Appropriations, 89th Congress, 2nd Session, Department of Labor Appropriations for 1967, Part I, Page 126.

factory agreement and to settle cases, whenever possible, out of the court." This procedure is particularly relevant in dealing with the many problems arising under Title VII.

Despite the evident success of the voluntary approach, the proposed amendments to Title VII would revert to the NLRB-type procedure, which has been previously considered and rejected by members of Congress.

TITLE VII ENFORCEMENT PROCEDURE

Title VII now provides for enforcement in three distinct stages. The first is voluntary compliance. The second involves conciliation, persuasion, and Commission findings of probably cause that discrimination has occurred. The third stage, when necessary, is through judicial proceedings by the aggrieved individual or the Attorney General.

Voluntary compliance, the first stage, is meeting with considerable success. A survey conducted in 1965 revealed that 75 percent of companies interviewed had taken "positive steps" to employ Negroes. (Daily Labor Report, No. 127, July 2, 1965) Further, more than 300 of the largest companies in the United States, employing nearly nine million workers, entered into an agreement with the then President's Committee on Equal Employment Opportunity to take "affirmative action" to provide equality of opportunity in employment. This is actually more than Title VII requires. The law is negative. It orders an employer not to discriminate. However, as indicated, the great majority of employers are taking positive steps, including recruitment, to insure that Negroes are aware of job opportunities. And these same companies are providing the example and leadership for other companies.

Last year, Franklin D. Roosevelt, Jr., former Chairman of the EEOC, in discussing the first six months of the Commission's operations said:

"The Commission and staff have received tremendous cooperation from employers and labor organizations in every part of the country. Our investigators and conciliators have been received with courtesy wherever they have gone. We continue to find a very real desire on the part of many of those charged to go beyond merely complying with the law.

"Walls are literally coming down where segregated facilities once existed— often at considerable expense. Most employers are outreaching individual complaints to open up new opportunities for minorities in their plants and businesses. Good business and good conscience are going hand in hand and the spirit as well as the letter of the law is being applied with good will." (Daily Labor Report, No. 17, January 25, 1966)

In addition, many business organizations have encouraged their members to comply with this law. The National Chamber, for example, has distributed over 100,000 copies of its "Guide to Civil Rights Act," not only to its members, but also to the public; and it has conducted conferences on Title VII in over 50 cities in all sections of the country in the past three years. Our impression from these meetings is that, in all regions of the nation, there is a clear willingness on the part of employers to comply with this law.

It is our firm conclusion that the first stage, voluntary compliance, is meeting with exceptional success. To inmplement this conviction, the National Chamber, in the past year, has jointly arranged with local and state organizations and business leaders for meetings with the Equal Employment Opportunity Commission in all parts of the country-New Orleans, Memphis, New York, Pittsburgh, Indianapolis, and Charlotte. These seminars were devoted to explaining interpretations of Title VII and discussing ways and means of involving the business community more fully in the multiple programs of affirmative action. Such meetings will continue to take place. In this spirit of cooperation, it is felt that the already excellent record of voluntary employer compliance will be further improved.

The second stage of enforcement under Title VII provides for settlement of disputes through a process of investigation, determination of probable cause, persuasion, and finally conciliation. It has met with amazing success. Only a few cases have gone beyond the conciliation stage without being settled.

Alfred W. Blumrosen, Chief of Conciliation, EEOC, has stated that:

"I could list another number of areas where we have achieved settlements of issues which, if they were litigated, would have taken years to resolve. Those settlements will, I believe, set the pattern for the solution of these problems throughout the nation, and will mean, in fact, that there will be relatively little litigation under Title VII." (BNA Fair Employment Practices Report, No. 21, April 28, 1966, p. 2)

The proposed amendments to Title VII, however, would virtually destroy the conciliatory approach, a proven method of operation. Instead of a friendly climate where the parties sit down to reason together, S. 1308 would substitute a formal adversary proceeding in which public charges and countercharges are disputed by the parties. Rather than searching for areas of agreement so as to reach a settlement, the parties must center on substantiating the hearing record for possible judicial appeal. The proposed amendments would cause employers against whom a claim is filed, to immediately adopt a defensive and wary posture which, as experience with the NLRB has demonstrated, often results in prolonged public hearings and litigation taking years to settle. It would create resistance where none presently exists, and reverse the trend toward successful accomplishment of Title VII goals through mediation.

Certainly the experience of the state commissions enforcing fair employment practice laws do not indicate an overwhelming need for public administrative hearings or agency "cease and desist" power. Former EEOC Commissioner, Mrs. Aileen Hernandez, told the Industrial Relations Research Association that her experience with the California FEP Commission, of which she became a member in 1961, indicated that no more than a very few cases out of over a thousand filed ever went beyond the state agency before settlement. This same situation is no doubt true in other states having similarly established commissions. Mediation and conciliation have met with marked success where attempted at the state level and they are meeting with even better success at the federal level. In short, there is a willingness on the part of all parties involved to achieve the goal of equal employment opportunity.

The final stage for obtaining compliance under the present law is through enforcement by court action. Section 706 (e) provides for an appeal to the courts when there is either a failure to voluntarily comply with Title VII or an impasse in mediation and conciliation. In such cases, the federal court may appoint counsel to represent the individual; waive the payment of all fees, costs, or security; and allow the Attorney General to intervene on behalf of the aggrieved party. If the court finds that discrimination, exists, Section 706(g) calls for wideranging remedies for unlawful employment practices-which may include reinstatement or hiring of employees with back pay.

Another section which proponents of S. 1308 seem to overlook provides for swift and effective action against serious cases of discrimination. Section 707(a) of existing law provides for immediate action by the Attorney General when any person, or group, is engaged in a pattern or practice of discrimination.

The wisdom of these provisions is that they give effective enforcement powers to the government, while preserving the Commission's role as an impartial conciliator. S. 1308, on the other hand, would combine the Commission's role as a conciliator with that of prosecurtor and advocate.

The issue, therefore, is not whether the government needs additional power to enforce Title VII, for it is quite clear that existing law now provides for such power. The question is whether this power should be centered a sproposed by S. 1308, in the same agency which is supposed to be a mediator and conciliator. This, in turn, raises a very serious question whether an agency can assume the contradictory functions of mediator and prosecutor. The result may be to destroy the Commission's effectiveness as a conciliator and undermine the great progress which has resulted from this procedure.

Clearly the wide-range of legal remedies mentioned above have not proven to be inadequate. On the contrary, they have proven to be so effective that there has been little need to resort to the stronger remedies provided for in Title VII. The "final resort" provided for in Title VII-court action by the individual or the Attorney General-is an undeniably potent force for promoting voluntary cooperation by parties who might otherwise be less cooperative. Likewise, the mediation process allows the great majority of employers to adjust differences with their employees on a friendly basis.

S. 1308, therefore, does not confer any additional power on the government, but only concentrates it in the hands of one agency. This Committee must give very serious attention to whether these proposed amendments will, indeed, further the national policy of providing equal employment opportunities for all persons. It may be that they will impede rather than promote this policy..

In conclusion the proposed amendments to Title VII would:

make an adversary out of a Commission which now strives for cooperation; require formal and public hearings, increasing both budgetary expense and delay in settlement of disputes;

lump the functions of the prosecution together with those of an administrator and conciliator-a total contradiction of functions;

ignore the complete absence of any valid reason for change, such as strong resistance to Title VII which is, in fact, not present;

ignore the record of Commission proceedings which show that even existing court proceedings are seldom needed;

seriously hinder progress in providing job opportunities for minority groups.

SUMMARY

The views of the Chamber of Commerce of the United States on the proposed amendments of Title VII of the 1964 Civil Rights Act are:

1. The amendments are unnecessary in that the present law has not been shown to be ineffective in the short duration since its enactment.

2. Voluntary compliance is meeting with great success.

3. There is no indication that EEOC requires additional authority to enforce Title VII, but it is abundantly clear that present enforcement machinery is more than sufficient to achieve the goal of equal employment opportunity.

4. Creation of a formal hearing procedure will tend to inhibit the existing spirit of voluntary cooperation with the Equal Employment Opportunity Commission.

5. The amendments would frustrate rather than promote a speedy and effective resolution of problems involving equal employment opportunity.

Mr. HUNT. My name is James W. Hunt. I am labor relations manager for the National Chamber of Commerce. The chamber shares the concern of this committee for implementing the objectives of title VII which is to provide equal employment opportunity for minority groups. However, there is a serious question that S. 1308 will impede rather than promote those opportunities. S. 1308 would in practice replace the existing provisions of the law providing for conciliation with ceaseand-desist powers like that of the National Labor Relations Board.

Conciliation has worked effectively in promoting employment opportunities and will continue to accomplish this objective. Making the Equal Employment Commission into another NLRB will impede rather than promote such opportunity.

In statements yesterday it was contended that the NLRB approach would encourage voluntary settlements. I would like to analyze those arguments because I think they are not correct.

First, the Labor Board is so swamped with cases that it cannot expedite them. The NLRB is not know for its conciliatory approach to matters and it takes an average of 12 months to dispose of a case. In contrast, the Commission has sixty days to settle a charge filled with it. The Commission, moreover, also has such a tremendous case load that making it into another NLRB may result in even more than 12 months to dispose of a charge.

This will certainly not help an aggrieved person. Second, it is claimed that S. 1308 will take the burden of processing complaints off the individual and place it on the Government. This is misleading. A charge under existing law may be brought not only by the aggrieved person but also by a labor union, a civil rights group, or by the Commission, itself.

Now it is interesting to note that under title VII the Commission does have the power to file a charge of discrimination. This is actually more power than the NLRB has.

The NLRB cannot file a charge. It has to be brought by an outside party.

Senator CLARK. You mean file a charge in the Federal courts?

Mr. HUNT. No, sir; with the agency. The Commission can file a charge with itself alleging discrimination.

Senator CLARK. There is nothing to do after filing the charge except to say "please stop." They have no legal authority to

Mr. HUNT. They have the power of conciliating which has proved effective.

Senator CLARK. The Commission testified yesterday, supported by the Attorney General and the Secretary of Labor and representatives of civil rights groups, that the power to conciliate was quite ineffective. They said that if they had the power to issue cease-and-desist orders they felt they could dispose of a much heavier workload, and they would not often have to use their cease and desist power. I am surprised that the chamber should take the position you have indicated, because it seems to me that, by and large, American business has cooperated very well in the equal employment opportunity effort.

Mr. HUNT. Yes, sir; indeed we have.

Senator CLARK. You heard Mr. Harmon testify a little while before. I do think this type of testimony does tend to give your organization a bit of a black eye just as a matter of policy.

You have every right to do it, of course, and I am going to listen to you very carefully. I am a little concerned as to how the decision was made to do this, to come in here and oppose this.

Mr. HUNT. I would like to answer this because I think there are some points that have not been raised previously. What you are referring to is the power of the Federal Government to enforce this ban on discrimination in employment.

If the case is taken to court after the Commission has acted, title VII already provides for court-appointed counsel, waiver of fees and charges and even allows the Attorney General to intervene.

In addition title VII also provides that the Attorney General may institute a court action whenever there is a pattern or practice of discrimination.

The Secretary of Labor said yesterday a substantial percentage of employers engage in subtle violations of the law. I believe this is a completely unfair characterization of the business community.

We are complying with the law. We are trying to work with the Commission and the Government in this respect.

Senator CLARK. I would hope that we would get from the Commission in the statistics which I asked them to provide us some hard evidence as to the extent to which business enterprises particularly those who are eligible to joint the U.S. Chamber of Commerce, are complying.

My guess is that the overwhelming majority of them will be found to be complying.

Mr. HUNT. Yes, I believe that will be found.

There is a lot that has to be done in this area but I believe the business community is moving in that direction. One of the reasons is the cooperation that employers have had with the Equal Employment Commission. Making the Commission into another NLRB will discourage this cooperation.

Senator CLARK. I raise a eyebrow at that. Give me an argument; I would think it would help and not hurt. You tell me where you think it will hurt.