AFTER RECESS (The subcommittee reconvened at 2:30 p.m., Senator Joseph S. Clark presiding.) Senator CLARK. The subcommittee will resume its session. I will ask our witnesses this afternoon to come forward and sit behind the witness table: Mr. Alfred E. Cowles, executive secretary, Washington State Board Against Discrimination, who is accompanied by Mr. Morton M. Tytler, assistant attorney general of the State of Washington; Prof. William P. Murphy, commissioner, Missouri Commission on Human Rights; Mr. George S. Pfaus, director, New Jersey Division on Civil Rights; Mr. Malcolm C. Webber, chairman, Massachusetts Commission Against Discrimination; and Miss Anna Withey, general counsel, New York City Commission on Human Rights. Ladies and gentlemen, we are happy to welcome you here. I have had an opportunity to read the two statements that were available this morning, Mr. Webber's and Mr. Murphy's. Both of you gentlemen have made some very valuable suggestions for changes or amendments to S. 1308, particularly Mr. Murphy, who had six different suggestions for amendments. As is the case with the witnesses yesterday who made some very valuable suggestions, I am going to ask the counsel for the subcommittee to collate the suggestions of Mr. Murphy for changes in S. 1308, discuss them with the appropriate officers of the various executive agencies, and see to what extent counsel recommends them to the subcommittee that they should be incorporated in the bill as we prepare to mark it up and tender it to the full committee. I wonder whether you have had an opportunity to discuss with each other how you would care to proceed? I know that Mr. Pfaus and Mr. Booth have submitted statements. A PANEL CONSISTING OF ALFRED E. COWLES, EXECUTIVE SECRETARY, WASHINGTON STATE BOARD AGAINST DISCRIMINATION; ACCOMPANIED BY MORTON M. TYTLER, ASSISTANT ATTORNEY GENERAL OF THE STATE OF WASHINGTON; WILLIAM P. MURPHY, COMMISSIONER, MISSOURI COMMISSION ON HUMAN RIGHTS; GEORGE S. PFAUS, DIRECTOR, NEW JERSEY DIVISION ON CIVIL RIGHTS; MALCOLM C. WEBBER, CHAIRMAN, MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION; AND ANNA WITHEY, GENERAL COUNSEL, NEW YORK CITY COMMISSION ON HUMAN RIGHTS Miss WITHEY. My statement was submitted on behalf of Mr. Booth. Mr. Booth is chairman of the New York City commission. Senator CLARK. I think perhaps the best way to proceed is to ask each of you for perhaps no more than 5 minutes to summarize the statements you have submitted. The ones which have just come in from Mr. Cowles, Mr. Pfaus, and Mr. Booth will be printed in the record consecutively and I suppose just because I happen to be looking to my left I will ask each of you to identify yourself for the record so` I will now know who is who here. (The prepared statements referred to follow :) PREPARED STATEMENT OF MALCOLM C. WEBBER, CHAIRMAN, MASSACHUSETTS Mr. Chairman and Members of the Subcommittee, as Chairman of the While I welcome the opportunity to register my support for all the measures contained in this historic proposal, it is to the emphasis on the strong administrative proceedings to which I would like to direct my remarks. "The elimination of discrimination is a corner stone upon which world peace must be based." In the year 1945, the Governor of the Commonwealth of Massachusetts, M. J. Tobin, spoke these words as he appointed a committee to recommend to him and for consideration of our general court, legislation designed to eliminate discrimination in employment because of race, color, or religion. He admonished the committee not to devote time to studying the need, for the need of such legislative action clearly had been established in the findings of a special Commission reporting to the legislature in 1944. This was the third study group since 1943 which had considered the problem in one form or another. And so, in 1945, this special Commission with a mandate from the Governor set out across the Commonwealth scheduling hearings and receiving suggestions as to the most effective type of legislation designed to eliminate such discrimination. More than 200 persons came to address these hearings. Diversified groups representing religious societies and congregations, labor unions, employers groups, civic organizations and organizations for the advancement of minority races and nationalities testified before them. All were in favor of some type of legislation--some made concrete suggestions and others just general presentations. After listening to these citizens the committee offered a draft of a proposed bill embodying the provisions which it deemed most desirable and effective and which most represented the wishes of the citizens of the Commonwealth. From this drafted proposal the Fair Employment Practices Act, now administered by the Massachusetts Commission Against Discrimination, came into being. On August 12, 1945, the law became effective and the then entitled Fair Employment Practice Commission went to work. Like the proposals being considered today in S. 1308, this legislation contained provisions for complaints to be filed with the Commission by aggrieved parties, investigations by the Commission; informal attempts at solutions by conference, conciliation, and persuasion; upon failing these, notices of public hearings; testimony under oath; and finally an order requiring respondent to cease and desist and to take affirmative action. Also the legislation provided for judicial enforcement on behalf of the agency and judicial review on behalf of the respondent. Our Commission has been administrating these laws for 21 years and we believe that the rest of the nation can benefit from our experience. We find that wise and judicious use of the tools of administrative proceedings, the investigations, conferences, public hearings and cease and desist orders with their applicable affirmative actions have had a telling effect not only in eliminating discriminatory acts but in their prevention at the same time. The power of the threat of public hearings before our agency and the possibility of the cease and desist and affirmative orders have been of immeasurable educational value. Employers know that when they are summoned before the Commissioners of Gur Agency, they are facing persons who work with problems of discrimination day in and day out. They know that they are facing persons chosen for the task because they have spent years, sometimes a lifetime working in the complex thicket of human relations of the type that often impedes progress in a heterogeneous society such as ours. They know that they are facing persons who will be conciliatory when practical, but who will not hesitate to use their full powers to bring about compliance when the occasion calls for it. They know that they are facing persons who will be fair but not neutral; whose jobs is to eradicate discrimination in employment wherever it may be found when based on race, color or religion. The expertise of the persons who occupy these positions of public trust should not be minimized. For here is the great strength of the administrative approach to any social problem. The right of civil action in matters dealing with discrimination in employment is unknown to us. We adhere solely to the administrative proceedings. We believe that they can accomplish the end swiftly because they are not dependent upon a calendar and effectively because the arbiters of these disputes work with these problems and none other. And there is seldom a disguise for discriminatory practices which they have not met before. In the 21 years in which our public policy has prohibited discrimination in employment within the Commonwealth only 56 employment cases have gone to public hearing, cease and desist orders have been issued and only two agency determinations have been the subject of appeal to the courts. In one case the Commission found against the complainant and this finding was upheld by both our Superior Court and our Supreme Judicial Court. The other case involved an aspect of discrimination other than race, color, or religion but one covered under our law. The finding and order to cease and desist in the latter case was upheld by the Superior Court and is presently being appealed to the Supreme Judicial Court. But the testimony to the success of a strong administrative approach is not seen best in these statistics but rather in statistics which do not exist. Our Commission keeps a carefully documented record of each case including a follow up. The testimony of success can be found in the column marked "repeat violations," where the accumulations in that column are minuscule. This is no accident. Employers in Massachusetts are aware of the powers given to our agency, are aware of the expertise of the Commissioners and are aware that the citizens of Massachusetts labored hard to bring about this administrative machinery and they intend that we use it. When we have used it once we have never had to return to use it again and our legislature has been diligent in adding to our tools whenever a loop hole could be found. Needless to say, we were pleased when the Congress of the United States placed the public commitment of the United States Government behind the desire of the citizens to bring about equal employment opportunity throughout the land. It meant to us that the rest of the Nation had seen what our many study Commissions had gleaned over 20 years ago from the citizens of Massachusetts. However we are very distressed that a strong administrative approach and the valuable progress which could have been made under it, had been ignored. We have proved that all meaningful tools known to administrative proceedings and honed from the vast experiences of the many other administrative agencies must be made available to those responsible for bringing about equal job opportunities. These have been made available to the solution of other social concerns such as labor disputes with a great measure of success and are needed here. If we can do better, then we must; for not to do our best is to court failure, and we cannot fail. Congress recognized an urgent American problem when it enacted Fair Employment Practice legislation in 1964. If EEOC cannot do the job for want of proper and adequate tools then the courts must. But the courts need not, for we in Massachusetts are firmly convinced that EEOC can and we plead that you give it the tools and it will. PREPARED STATEMENT OF PROF. WILLIAM P. MURPHY, MEMBER OF THE MISSOURI My name is William P. Murphy. I am a member of the Missouri Commission on Human Rights and also a professor of law at the University of Missouri, where I have taught the courses in Constitutional Law, Labor Law and Administrative Law. At the present time, I am on leave from Missouri under a one year appointment to the staff of Sam Zagoria, a member of the National Labor Relations Board. The Missouri Commission on Human Rights was created by the legislature in 1957, so we are celebrating our tenth birthday this year. In 1957 the Commission was given jurisdiction to receive charges alleging discrimination in the area of employment, to investigate such charges and "to make recommendations for the removal of any discrimination" revealed by the investigation. The Commission was not given any power of legal enforcement in situations where discrimination was found to exist and the Commission was unsuccessful in achieving voluntary correction by persuasion and conciliation. Experience demonstrated that very frequently the discriminating party would either deny the Commission's finding that discrimination existed or admit the discrimination and refuse to correct it, knowing that the Commission was powerless to resort to legal sanction. Discussions with Negro leaders revealed that in a large number of cases the victims of discrimination did not bother to resort to the Commission because they felt that it was futile to do so. At the same time a Commission survey which reached into all counties of the state indicated the existence of widespread discrimination in employment practices. In 1960, therefore, the Commission recommended to the legislature and the governor that the statute be strengthened to give the Commission the power to issue complaints when conciliation failed, to hold hearings on the complaints, to issue cease and desist orders when violations were found, and to seek enforcement of those orders in court. The legislature responded to the Commission's recommendations, and a new statute was enacted providing for legal enforcement as indicated. This new statute became effective in October 1961. Since that time the experience of our Commission has completely justified the decision to strengthen our power. The number of charges filed increased sharply; since 1961 we have processed over 700 cases. Investigation determined that discrimination existed in more than one-third of this number. We found also that the power of legal enforcement substantially reinforced our efforts to achieve compliance through conciliation and negotiation, with the result that in only one case has it been necessary to file a complaint and go to a hearing. I might add that in 1965 the legislature prohibited discrimination in places of public accommodation and vested our Commission with authority to enforce that statute. The one case in which conciliation failed involved a school district in Southeast Missouri, an area of the state where segregation patterns are deeply rooted. The school district consolidated the student bodies of a white and Negro school but dismissed all the Negro teachers. After a two-day hearing, the Commission issued an order directing the school board to offer employment to two Negro teachers. As one of the Commissioners who sat on the case, I take some pride in the fact that this was the first case in the nation, so far as I know, in which a state commission directed such remedial action in the sensitive area of faculty desegregation. The hearing was held, of course, in the area where the schools were located, was well attended and widely publicized. The Commission believes that the hearing and the ensuing order have had a salutary effect in achieving voluntary compliance and in supporting our conciliation efforts. In summary, then, our experience in Missouri has been that legal enforcement powers are essential if the purposes of anti-discrimination statutes are to be achieved. In that respect our experience is certainly not unique. Without exception, so far as I know, every study which has been made of anti-discrimination efforts at the state level reaches this same conclusion. Experience with welfare legislation at the federal level teaches the same lesson. Of direct relevance is the situation of the 1930's when the issue was the right of workers to engage in union activity free of employer interference and reprisal. Section 7(a) of the National Industrial Recovery Act of 1933 recognized the rights of workers, and a National Labor Relations Board was created to protect them. But the Board could only seek compliance by persuasion and negotiation; it had no enforcement powers. The result was that in most cases the rights were ignored. In consequence, Congress in 1935 enacted the National Labor Relations Act which created the present National Labor Relations Board with legal enforcement powers almost identical with those which this bill would confer upon the Equal Employment Opportunity Commission. I suggest that in the 1960's the right of Negro workers to be free of racial discrimination in employment practices is directly analogous to the situation of the 1930's and the right of workers generally to be free of discrimination because of their union activities. The teaching of history and experience is clear; if the rights are to be realized and protected, the power of legal enforcement is essential. Now if I may, I would like to call attention to several other points which Occurred to me as I read the bill. First, I would mention those provisions which carry forward the present policy of Title VII under which charges filed with the EEOC are referred to state authorities for action. Although the Missouri Commission is one of the youngest of the state agencies in this area, I am proud to say that, with the active support of Governor Warren E. Hearnes, we were one of the first state agencies to adapt its appropriations, staff and procedures to the system of federal-state cooperation recognized in Title VII. At the present time about sixty percent of our cases come to us by referral from the EEOC. In these days of increased centralization and federal preemption, we applaud the fact that Title VII affords to states which are willing to act the opportunity to do so. This procedure enables the states to perform the useful role on our federal system which the Constitution contemplates. I hope the Committee will make it clear in the legislative history that this example of "cooperative federalism" should continue. I would also call attention to the proposed amendment of section 709 (b) which authorizes EEOC to "engage in and contribute to the cost of research and other projects of mutual interest" undertaken by state agencies, to utilize the services of state agencies and pay for such services "by advance or reimbursement." Under a similar provision in the present law, the Missouri Commission has received several grants which we appreciated and which we used constructively to good advantage. Under present law, however, payments by EEOC to state agencies can be made only by way of reimbursement. This limitation places considerable economic hardship on state agencies which must meet salaries and costs on a current bassis and which do not have any cushion of reserve funds. We urge the retention of the language permitting payment in advance. Second, I note that the bill vests in the EEOC the functions of investigation, conciliation, issuance of complaints and adjudication. Section 706 (n) on the other hand, provides that the Attorney General shall conduct all litigation to which the EEOC is a party. This strikes me as a very unusual departure from customary federal regulation through administrative process. The typical pattern is to vest all functions in the same agency and then, as required by the Administrative Procedure Act, to provide the necessary procedural safeguards by separation within the agency. The outstanding exception is the National Labor Relations Act, which vests the powers of investigation, complaint issuance and litigation in an independent General Counsel and confines the National Labor Relations Board, in complaint cases, to the function of adjucation. The reason for that separation, however, is peculiar to the administration of the labor law and Congress has not repeated that structure in any other agency. This bill on the powers of EEOC is unique, however, in that it separates the function of investigation and complaint issuance from the function of conducting litigation and vests them in completely different agencies. The practical advantages of putting these functions under the same control are obvious. I realize there may be reasons of which I am not aware for this bill's unusual departure from time-tested practice, but I urge that very careful consideration be given to this matter. Third, I am concerned by those provisions of the bill which, in my judgment, do not sufficiently recognize the procedural rights of the individual who is the victim of the alleged discrimination. Under Title VII of the Civil Rights Act of 1964 the individual can sue in federal court if the EEOC's conciliation efforts are unsuccessful. If he does sue, then of course he has all the procedural rights of a party in litigation. The proposed bill, however, sharply circumscribes the rights of a changing party on whose behalf EEOC issues a complaint. Section 706 (g) provides that the charging party ("persons aggrieved") "may submit briefs or other written submissions when such are permitted or directed, may be present to observe at any stage of the proceedings, with or without counsel, and may appeal or petition for review to the same extent as a party, but without the permission of the Commission persons aggrieved may not otherwise participate in the proceedings." I suggest that this is an unwarranted restriction on the procedural rights of an individual to participate in a proceeding which will determine his substantive rights. In unfair labor practice proceedings under the National Labor Relations Act, the parties to the litigation are the General Counsel and the respondent. The charging party, on whose behalf the General Counsel has issued the complaint, can cross-examine witnesses called by the General Counsel and respondent, introduce witnesses of his own, and file exceptions to the the decision of the trial examiner. It is common practice for the charging party to introduce testimony and other evidence, offer legal arguments and request remedies which are in addition to the case presented by the General Counsel. It seems to me that the rights of the individual should be no less under this legislation. Under the NLRA, the rights of the charging party are recognized by Board regulation, not in the statute. Here, however, they are specified in the bill itself, and therefore this is where they should be recognized more fully. I note also that Section 706 (i) authorizes the EEOC and the respondent to settle a case by agreement between themselves, but without the agreement of |