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the charging party. I believe this is contrary to EEOC's practice under present law, and I suggest that it is a step backward to repudiate that practice. It is true that Section 0(1) gives the individual the right to sue if EEOC refuses to issue a complaint or settles a case after complaint has issued. In such a suit section 0(2) directs the court to disregard the action of the EEOC. I submit that this is an unrealistic effort to avoid the prejudice to the plaintiff resulting from & settlement agreement. It would be much better not to authorize any settlement in the first place without the consent of the charging party.
Finally, I refer to Section 706(h) of the bill, which sets forth the remedial power of the EEOC when, after hearing, it finds that an unlawful employment practice has been committed. Under this section, the EEOC is empowered to order the respondent to "cease and desist from such unlawful employment practice, and to take such affirmative action, including reinstatement or hiring of employees, with or without back pay as will effectuate the policies of this title..." This language is almost identical with that found in Section 10(c) of the National Labor Relations Act, which confers remedial authority upon the National Labor Relations Board in unfair labor practice cases. The labor law makes it an unfair labor practice for an employer to restrain or coerce employees in the exercise of their right to engage in union activities or to discriminate against them because of such activities. Experience has demonstrated that, as interpreted by the Board and the courts, Section 10(c) does not provide remedies adequate to deal with these offenses. For many years the Board, the courts and the Congress have been urged to authorize and provide more effective remedies. Under any regulatory statute it is, of course, impossible to anticipate the different factual situations which may arise and the variety of remedies which might be appropriate. The point is that in this bill it might be better to clarify the remedial power of the EEOC at the outset and thus avoid a duplication of the unfortunate experience under the National Labor Relations Act. For example, consider an award of double or treble back pay; an award of repayment for financial losses, in addition to wages, which flow from the loss of employment; or an order which goes beyond relief to the individual and directs the adoption of an overall plan for eliminating discrimination. Such remedies as these are not now available under the NLRA and there is serious doubt that they would be permissible to the EEOC under the language of this bill. I suggest, therefore, that consideration be given to strengthening the remedial power granted in Section 706(h).
PREPARED STATEMENT OF ALFRED E. COWLES, EXECUTIVE SECRETARY, WASHINGTON
STATE BOARD AGAINST DISCRIMINATION The Washington State Board Against Discrimination has been charged with the task of eliminating and preventing discrimination ecause of race, creed, color or national origin. It has had adjudicatory power over discrimination in employment since 1949, and over discrimination in places of public accommodation since 1957. In other areas, it has advisory and investigatory jurisdiction only.
When the Washington Board receives a complaint of ethnic discrimination in employment or in a place of public accommodation, it is assigned to a field representative for preliminary investigation to see if there is reasonable cause to believe that an unfair practice has occurred. If reasonable cause is found, negotiations are commenced to settle the case through a conciliated agreement. If conciliation fails, the chairman of the Board convenes a hearing tribunal, typically composed of one lawyer, one person from the local community, and one member of the State Board, who must not have previously participated in the case. If, after the hearing, the tribunal finds that the charged person has engaged in an unfair practice, it orders him to cease and desist the unfair practice and to take such affirmative action as will carry out the purposes of the Law Against Discrimination. The order is appealable to the state superior court and ultimately to the state supreme court.
The Washington State Board Against Discrimination has experience in administering a human rights law that gives it cease-and-desist powers over some ethnic discrimination and no cease-and-desist power over other ethnic discrimination. Our experience in administering this law convinces us that the power to issue cease-and-desist orders is essential to the accomplishment of the task of a human rights agency.
This is not because it takes a cease-and-desist order to eliminate a discriminatory practice. In fact, only one percent of the cases which our Board has processed have gone to a hearing. All the rest have been settled through conciliation, or have been dismissed for lack of jurisdiction, or on a finding of no reasonable cause to believe that an unfair practice has occurred.
The value of the power to issue cease-and-desist orders lies more in its presence than in its use. The simple presence of the power to go to a hearing makes the charged party take the Board seriously and negotiate seriously with its representatives during the conciliation process. The result is usually a settlement that is acceptable to both sides. To put it bluntly, the charged party is usually not motivated to negotiate seriously with the human rights agency unless by doing so it stands to avoid having the same issues raised in a formal, adversary proceeding.
In saying this, I do not want to create the impression that the possibility of an adversary hearing puts pressure on the charged party only. It is often said that when a case goes to court, everyone loses. This is especially true in the human rights area. So far as the complainant is concerned, if he does not get speedy relief, he gets no relief at all—and hearings take time. So far as the state agency is concerned, a hearing often consumes an amount of man hours and money that seems unjustified in terms of the practical impact of the particular case on the elimination and prevention of discrimination generally.
But, as I have said, the true value of the cease-and-desist power lies not in its use, but in its salutory effect on the conciliation process. It balances the powers at the conference table, and makes for true negotiation between equals.
In recent years, my staff has avoided hearings on all but a few cases, and at the same time has settled cases on conciliated terms that eliminate and prevent discrimination, and that are viewed as fair by both our Board and the charged party. On the other hand, we have had little success in appealing to the better natures of persons whose ethnic discrimination does not come within our Board's cease-and-desist power, although we have tried to resolve every human rights problem which is brought to our attention, whether or not it is within the scope of our cease-and-desist power.
We support legislation to give the Equal Employment Opportunity Commission adjudiciatory power over complaints like that now possessed by the Washington State Board Against Discrimination.
PREPARED STATEMENT OF GEORGE S. PFAUS, DIRECTOR, NEW JERSEY DIVISION ON
CIVIL RIGHTS, DEPARTMENT OF LAW AND PUBLIC SAFETY
My name is George S. Pfaus and I have been the Director of the New Jersey Division on Civil Rights for the past five years. I have studied Senate Bill No. 1308 and I am strongly in favor of its adoption. It has a number of good features which will improve the effectiveness of the Equal Employment Opportunity Commission, but I am especially interested in the provisions which empower the Commission to issue Cease and Desist Orders which will be enforceable in the Federal Courts.
The New Jersey Law Against Discrimination was adopted in 1945. In this first enactment the Law prohibited discrimination in employment and established what was then called the Division Against Discrimination in the State Department of Education. This was the second State agency in the country established to deal with discrimination. In the intervening years the Law has been amended many times so that there is now virtually complete coverage of places of public accommodation and housing as well as employment. The name of the Division was changed to Division on Civil Rights, and in 1963 the agency was transferred from the Department of Education to the Department of Law and Public Safety in order to give greater emphasis to its law-enforcement responsibilities. This Department is headed by the Attorney General of New Jersey, Arthur J. Sills.
Our Law has always had, beginning with its first enactment in 1945, provision for the issuance of Cease and Desist Orders by the Division Director, with these Orders enforceable in the courts. These provisions are found in N.J.S.A, 18:25–17 and 18:25-19.
During the past five years, resulting in part from the social revolution that is going on all over the country and in part from the increased activities of the
Division, our complaint load has increased from 200 per year to 500 per year. Currently, these divide roughly into housing-50%, employment-40%, and public accommodations -10%.
In keeping with the provisions of our Law, the Division operates in what has now become the standard form for anti-discrimination agencies: a complaint is filed with the Division by an aggrieved person or group; the complaint is investigated with both the complainant and the respondent; if the facts adduced in the investigation support the allegations of the complaint, a finding of probable cause is made; if these facts do not support the allegations, a finding of no probable cause is made ; if the finding is one of probable cause, efforts are made with the respondent to conciliate the issues; if the conciliation is successful, the respondent and the Director of the Division sign a Consent Order and Decree; if conciliation is not successful, a public hearing is held before a hearing esaminer designated by the Director from the Division's panel of examiners; at the conclusion of the hearing and following his study of the record the hearing examiner files a written report with the Director which contains the examiner's recommended findings of fact, conclusions of Law and disposition; the report of the hearing examiner and the entire record are studied by the Director who then issues an Order.
Both the Consent Order and Decree which follows successful conciliation and the Director's Order which follows the public hearing contain cease and desist provisions for the kind of discrimination that had been practiced and provisions for affirmative relief for the complainant. Of course, if the facts so warrant, the hearing examiner will recommend, and the Director's Order will provide, for dismissal of the complaint.
The respondent may appeal a Director's Order directly to the Appellate Division of the Superior Court. If the respondent neither obeys the Order nor appeals it, the Division goes to the same court for affirmation of its Order. When an Order has been affirmed by the court, either on appeal from the respondent or on a request for affirmation from the Division, the court tries the case solely on its record. In the 22 year history of the Division we have never lost a case in court. A number of these cases have been decided by the New Jersey Supreme Court. Failure of a respondent to obey the afirming Order of the Court will result in the sanctions of contempt proceedings.
Provision for enforceable Cease and Desist Orders is of paramount importance. In an Order against any specific respondent it serves, in a negative way, as a constant prod against repetition of the same kind of discriminatory practice against which the Order was issued. Of even greater value is its use as a foundation for securing the adoption and carrying out of programs of broad afirmative action. The Cease and Desist provisions of an Order, coupled with an intelligently aggressive approach by the agency staff, almost always result in the adoption by the respondent-employer of improved methods of recruiting, testing, selection, placement, training, up-grading, and all the other components of a set of personnel practices that truly can provide equal opportunity for all persons without any form of active or passive discrimination. Without this cease and desist foundation in the Order only an enlightened employer will undertake equal employment affirmative action programs. Such an employer will do this, anyway, without the necessity of any kind of Order. When the enforcement agency has the authority to issue Cease and Desist Orders all employers are much more amenable to a persuasive approach aimed at voluntary adoption of affirmative action policies and programs, even without complaints being processed against them. Employers are susceptible to the potential of an Order containing Cease and Desist provisions. The mere presence in the statute of this provision makes possible a "wholesale” approach to the problem of discrimination in employment. The total effect of such an approach over even a small period of time, would far exceed the results of the “retail” program of righting the wrongs contained in the individual complaints filed with and proc
In New Jersey, we want the statutory authority for the Federal Equal Employment Opportunity Commission to be as strong as possible, and certainly to be as strong as the provisions of our own Law for our own Division. We are not in any way jealous of the Federal agency, but consider it a very valuable partner in this vitally necessary crusade to eliminate all forms of discrimination in our town, State, and throughout the country. The deferral program, which is
essed by the agency.
continued in S–1308, has worked splendidly and without a single hitch as far as
I earnestly hope that S–1308 will become law as soon as possible.
24 her ministre
PREPARED STATEMENT OF WILLIAM H. BOOTH, CHAIRMAN, NEW YORK CITY
COMMISSION ON HUMAN RIGHTS
The City Commission on Human Rights has a dual responsibility to attempt to dissolve prejudice before it develops into overt acts of discrimination, and to enforce the law banning acts of discrimination when that law is broken. The entire agency is continually engaged in education and, to some extent, in conciliation. Enforcement is the special sphere of the legal and investigating arms of the agency.
In the early years of the Commission, however, education and conciliation were the agency's most important tools of persuasion; until successive amendments to the law strengthened the Commission's enforcement powers, they were sometimes its sole reliance. Today, when education and conciliation fail, the Commission has at its disposal the subpoena, the public hearing, the posting power, the injunction, and, as a. last resort, referral to the courts for cease and desist orders, injunctions and criminal prosecution. These are the tools by which it carries out its mandate under the expanded law on human rights to "eliminate and prevent discrimination in employment, in places of public accommodation, resort or amusement, in housing accommodations and in commercial space, because of race, creed, color or national origin.”
When I was designated by Mayor Lindsay as Chairman of the City Commission on Human Rights, the Mayor charged me with the responsibility of combating discrimination in industry, and thus to secure more jobs for Negroes and Puerto Ricans in New York City. Mayor Lindsay stated that he felt that the New York City Commission on Human Rights should be an effective agency to breakdown discrimination in securing a better deal for all people in New York City. No matter what other programs are undertaken to improve the Negroes' circumstances they cannot succeed unless we eliminate job discrimination. Since that time I have come to the conclusion that effective enforcement machinery is indispensable to demanding and securing equal employment.
Prior to January of 1966, the City Commission on Human Rights had no enforcement power with respect to unlawful discriminatory acts in employment. However, since that time the City Commission has had concurrent jurisdiction with New York State with reference to job discrimination within the five boroughs of New York City. Some persons are of the opinion that a multiplicity of agencies in this field may produce serious problems; however, my experience has been that the law can more effectively be enforced when you have a strong federal law, a strong state law, and a strong local law; and for this reason I am urging that this law be amended to grant to the Equal Employment Opportunity Commission the enforcement power which both the New York State and the New York City Commission on Human Rights have.
The present law permits the New York City Commission to entertain the complaint of any person who feels he is aggrieved because of discrimination. He or his lawyer may file such a complaint with the Commission against any employer, labor organization or employment agency alleged to have committed the unlawful discriminatory practice, or the Commission on its own motion may file a complaint.
The Commission is required to make a prompt investigation and decide whether or not there is probable cause to credit the allegations of the charge. If the Commission so finds, then it may endeavor to eliminate the unlawful discriminatory practice, by conciliation or persuasion, however attempts to conciliate are not mandatory. The terms of such conciliation agreement may include provisions requiring the respondent to refrain from continuing unlawful discriminatory
practices in the future. The argeement may also contain further provisions providing for the entry in Court of a consent decree embodying the terms of the conciliation agreement.
In case there is a failure to eliminate the unlawful discriminatory practice, the Commission may hold a hearing. If after the evidence is received and the Commission shall find the respondent guilty of an unlawful discriminatory practice, the Commission shall state its findings of fact and shall issue an order requiring the respondent to cease and desist from an unlawful discriminatory practice or the Commission can take such affirmative action requiring the respondent to hire the complainant, reinstate with back wages or even to give compensatory damages. During this procedure the Commission has the power to get a restraining order in the Supreme Court. This order would restrain the respondent from doing an act which during the pendency of the proceeding would tend to render any order of the Commission ineffectual. The City's law is subject to judicial review. In addition there is a penal provision which may be exercised against any person who does wilfully violate an order of the Commission. Such person shall be guilty of a misdemeanor punishable by imprisonment for not more than one year or by a fine of not more than $500 or both.
It is my belief that since our strong enforcement powers have been in effect, the City Commission has been able to secure more jobs for both Negroes and Puerto Ricans. During the year of 1966 the Commission embarked upon a program to open up jobs to Negroes and Puerto Ricans and members of other minority groups in sectors of the economy which have been consistently closed to them. Our agency gave this top priority during this period. We confronted contractors that were doing business with the City and insisted that they prove that their work forces were integrated. Jobs were obtained for minority group workers in ten major firms in which the Commission was concerned during the year; total 858. In each company the number of such employees on the rolls when the Commission staff made its initial check was exceedingly small in proportion to the firms' total work force; for example, one firm with a work force of 2500 which was hiring Negroes and Puerto Ricans at a rate of 5% is now hiring them at the rate of 20%. The firm took on 497 new employees of whom 405 were Negroes, 86 Puerto Ricans and 6 Orientals. The Commission attributes the increase of hiring of Negroes and Puerto Ricans to its influence. I believe that a law that conciliates but does not compel cannot work. Conciliation works best when compulsion is waiting in the wings.
It is my belief that a settlement is an object lesson. A strong law is likely to deter violators and encourage complainants, a weak one promises the opposite effect. In the field of discrimination in housing where we have had many more years of experience and struggle to enforce desegregation we have found that as our enforcement powers have increased we have correspondingly been able to secure greater voluntary compliance. I am therefore of the opinion that if the Equal Employment Opportunity Commission is empowered to conclude a complainant's case by going into court to enforce cease and desist orders etc., getting full compliance will be more of a reality. I urge the passage of an amendment to Title 7 of the Civil Rights Act of 1964 to conform with bill number S. 1308.
Mr. Cowles. My name is Alfred E. Cowles, executive secretary of the Washington State Board Against Discrimination.
Mr. PFAUS. I am George Pfaus, director of the New Jersey Division on Civil Rights.
Miss WITHEY. I am Anna Withey, general counsel of the New York City Commission on Human Rights.
Mr. WEBBER. I am Malcolm Webber, chairman, Massachusetts Commission Against Discrimination.
Mr. MURPHY. William Murphy, commissioner, Missouri Commission on Human Rights, and professor of law at the University of Missouri.
Mr. Cowles. With me is assistant attorney general of the State, Morton M. Tytler.
Senator Clark. Mr. Cowles, will you start it out?