17

1 "(c) The Commission shall make a full and complete 2 quarterly report to the Congress, containing the results of 3 such survey during the preceding three months, and such 4 report shall be made available to the public upon request." 5 SEC. 6. The provisions of this Act shall not affect suits 6 commenced prior to the date of enactment of this Act by an 7 aggrieved person pursuant to section 706 (e) of the Civil 8 Rights Act of 1964, or by the Attorney General pursuant to 9 section 707 of such Act, and all such suits shall be continued 10 by such aggrieved person or the Attorney General, as the case may be, proceedings therein had, appeals therein taken,

11

12

13

and judgments therein rendered, in the same manner and

with the same effect as if this Act had not been passed.

[From the Congressional Record, May 3, 1967]

IMPROVING THE ENFORCEMENT PROCEDURES OF THE CIVIL RIGHTS ACT OF 1964 Mr. JAVITS. Mr. President, I send to the desk a bill introduced for myself, the Senator from New Jersey [Mr. Case], and the Senator from California [Mr. Kuchel] to amend the provisions of the Civil Rights Act of 1964 concerning the enforcement powers of the Equal Employment Opportunity Commission. I ask that the bill be appropriately referred and printed in the Record.

This bill is similar to the bill, S. 3092, which I and Senators Case and Kuchel introduced last year, concerning the same subject. This year I am pleased, also to be the cosponsor, with the Senator from Pennsylvania [Mr. Clark], of S. 1308, which embodies, as a separate bill, the amendments concerning the Equal Employment Opportunity Commission proposed in title III of the administration's civil rights bill, and which is one of those bills that have resulted from the splitup of the administration civil rights bill. We are hoping this splitup will facilitate the passage of the bills separately, as they go to different committees and will have different fates.

Mr. President, S. 1308, good as it is, does not go quite far enough. The problems which the EEOC has encountered in handling its caseload as well known. Its performance so far has been excellent-within the budgetary and staff limitations which have been imposed on it. But because of these limitations it has been forced to spend far too much time handling individual cases, and this has not been able to turn its efforts toward sponsoring affirmative programs to end racial discrimination in employment. The recently published first annual report of the EEOC describes the plight of the Commission well. It states:

"Budget and staffing for the new Commission was predicated on estimates that 2,000 job discrimination complaints would be received in the first year. By June, 1966, the Commission had been deluged with 8,854 individual complaints-more than twice the number all state fair employment practice agencies receive in a year.

"This dramatic response to the new law reflected the confidence of civil rights organizations and minority persons in this new avenue to relief from discrimination. It also almost swamped the small Commission staff. In the midst of establishing investigation procedures and organizing the new agency, thousands of hours of uncompensated overtime were devoted to the flood of charges. Despite these dedicated efforts and co-operation of charging parties and parties charged the Commission's first year ended with many hundreds of unreached cases. Even though this backlog bore heavily on limited resources, the Commission and staff, nevertheless, did accomplish noteworthy results with the new law-many of which were far-reaching and precedent-setting."

A major feature of the bill which I am now introducing which is not included in S. 1308, is the strong link it would provide between the EEOC and the nationwide resources of the Department of Labor, particularly the investigative manpower of the vast existing network of its Wage-Hour Division. That division now handles compliance surveys of over 30,000 companies each year. By allowing the Commission to utilize the manpower of the Labor Department for investigatory work, the bill we are introducing would increase its resources immeasureably. The Commission's staff would then be able to concentrate more on its primary role of developing a general, affirmative antidiscrimination program. To aid the Commission even further in this respect, the bill would also authorize the Commission to accept volunteer assistance, particularly from business and industry.

The bill also goes further than S. 1308 in several other ways. It would, for example, extend the coverage of the law to all employers having eight or more employees. S. 1308 would leave present coverage unchanged, present law, at its widest, will cover only employers with 25 or more employees, and even that coverage will be delayed until July 1, 1968. Existing law will cover only 259,000 employers, only 8 percent of the total, and 29 million employees, only 40 percent of the total. Extending coverage to all employers with eight or more employees would expand the coverage of the law to 700,000 employers employing 40 million employees, or 21 percent of the Nation's employers and 54 percent of its employees.

The present bill will also extend coverage to employees of State and local governmental units. S. 1308 neglects entirely the highly important area of coverage of State and local government employees. The U.S. Commission on Civil

Rights in its 1965 report on law enforcement in the South, made the following recommendation:

"In order to help assure that justice is administered in a nondiscriminatory manner, employment in law-enforcement agencies should be available to all persons, regardless of race, color, religion, or national origin. Title VII of the Civil Rights Act of 1964, providing for equal employment opportunities, does not cover public employment. Although discrimination in public employment can be challenged in private lawsuits, administrative and judicial remedies also should be provided. The Commission recommends that Congress consider amending title VII to extend its coverage to public employment."

The bill also goes further than S. 1308 in providing speedier, and more effective relief for violations of the act, or the orders of the Commission. The time which may elapse between the filing of a charge and the issuance of a complaint is limited to 30 days. Temporary injunctions may be obtained prior to the entry of a final order. The Commission is given power to issue final cease and desist orders which may require the establishment of on-the-job training programs, and to award damages. A civil penalty of $5,000 may be levied upon persons who violate Commission orders.

The PRESIDING OFFICER. The time of the Senator has expired.

Mr. JAVITS. Mr. President, I ask unanimous consent that I may proceed for 3 additional minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. JAVITS. Mr. President, the following is a summary of all the major changes in present law which would be effected by the bill. It would:

First. Give the EEOC the power to issue cease-and-desist orders which all other regulatory agencies have, but also retains the power of the Attorney General under the existing title VII to initiate civil suits against patterns or practices of discrimination in employment.

Second. Expand the coverage of title VII to employers and labor unions which have eight or more employees or members.

Third. Require the EEOC to conduct a continuing survey of apprenticeship or other training or retraining programs and to report quarterly to the Congress its findings.

Fourth. Give the EEOC the same investigatory powers which the Federal Trade Commission had under section 10 of the Federal Trade Commission Act.

Fifth. Expand the coverage of title VII to employees of State and local governments, including State employment agencies.

Sixth. Limit precomplaint investigation and conciliation to not more than 30 days after a charge has been filed with the EEOC. This would prevent dilatory tactics on a respondent's part from prolonging the precomplaint proceedings. Other regulatory statutes do not require such precomplaint proceedings, and in this field particularly there is a need for rapid relief if it is to be at all effective. Seventh. Authorize the EEOC to order affirmative action including the estab lishment of on-the-job training for anyone discriminated against. This is a significant remedy particularly where the defense is that there have been no qualified minority group applicants.

Eighth. Authorize the EEOC to order the payment of damages. This is needed particularly where no other relief is available to a particular grievant found to have been discriminated against.

Ninth. Authorize the EEOC to utilize the services of the Labor Department in conducting investigations, seeking voluntary compliance, conducting hearings, and coordinating training programs. This would help to overcome the serious limitations upon the EEOC's ability to handle its caseload, which has far exceeded expectations, by utilizing particularly the nationwide network of the Labor Department's Wage and Hour Division local offices and staff, and the staff of the Manpower Administration.

Tenth. Authorize the EEOC to receive donations of services and funds as so many other Federal agencies are authorized to do. This could be a highly useful source of expertise from the private sector.

Eleventh. Authorize the EEOC to obtain interlocutory relief, a temporary injunction, or restraining order, in the U.S. Circuit Court of Appeals prior to a final order to avoid dilatory practices or repeated violations of the law or to afford relief where otherwise there would be irreparable injury.

Twelfth. Authorize the U.S. Circuit Court of Appeals to order a civil penalty or no more than $5,000 in appropriate cases. The Federal Trade Commission Act provides a similar remedy.

Thirteenth. Make judicially reviewable findings of "no probable cause" by the EEOC and require that notice of such findings be given to complainants. Fourteenth. Make consent agreements enforceable in the courts as EEOC final orders.

Fifteenth. Require complainants' consent to a finding of voluntary compliance prior to a hearing. It is now required only during a hearing.

Sixteenth, Permit a Commissioner who files a charge to participate as a witness in the hearing upon it, as is now authorized generally under the Administrative Procedure Act.

Mr. President, we are seeking to correct centuries of injustice with respect to discrimination in employment. The three major types of discrimination which we must eradicate are discrimination in employment, discrimination in education, and discrimination in housing.

This bill would go all the way in one area-employment-as is essential if we are to cope with the serious situation, which still finds millions of workers unprotected by antidiscrimination laws. It has been shown that these laws can work well. For example, in New York we have had such a law for 20 years, and it has been remarkably successful. Many other States of the Union have had similar success. Such laws are an essential and basic tool in our continuing war against poverty and racial injustice.

It is shocking that we still have widespread discrimination in employment. We have had it in the trade unions, such as the building trade unions. We have had it elsewhere, and we still have it, wherever we find it we must fight it.

The Equal Employment Opportunity Commission is a great weapon for that purpose. We should give it the power it needs to do the job.

Mr. President, the Subcommittee on Employment, Manpower, and Poverty of the Committee on Labor and Public Welfare begins hearings tomorrow on S. 1308. It is my hope that this year, at least, we can enact legislation to put some teeth in the Civil Rights Act of 1964. That act was the beginning; now it is up to us to finish the job.

Mr. President, I ask that the bill be received and appropriately referred, and printed in the Record.

The PRESIDING OFFICER (Mr. Montoya in the chair). The bill will be received and appropriately referred; and, without objection, the bill will be printed in the Record.

The bill (S. 1667) to prohibit more effectively discrimination in employment because of race, color, religion, sex, or national origin, and for other purposes, introduced by Mr. Javits (for himself and other Senators), was received, read twice by its title, referred to the Committee on Labor and Public Welfare, and ordered to be printed in the Record, as follows:

"S. 1667

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) section 701(a) of the Civil Rights Act of 1964 is amended by inserting 'a State or political subdivision of a State or an agency of one or more States or political subdivisions and' after 'include'. "(b) Section 701 (b) of such Act is amended to read as follows:

"(b) The term "employer" means (1) a person engaged in an industry affecting commerce who has eight or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, (2) a State or political subdivision of a State, or an agency of one or more States or political subdivisions, but such term does not include the United States, or an Indian tribe: Provided, That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex, or national origin and the President shall utilize his existing authority to effectuate this policy.'

"(c) Section 701 (c) of such Act is amended by striking out 'or an agency of a State or political subdivision of a State,'.

"(d) Section 701 (e) of such Act is amended by striking out ‘(A)' and all that follows down to and including 'thereafter' in the matter preceding paragraph (1) and inserting in lieu thereof 'eight or more.'

"SEC. 2. Title VII of the Civil Rights Act of 1964 is amended by deleting section 706 and inserting in lieu thereof the following:

80-226 0-67- 4

“'PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES

"SEC. 706. (a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 703 or 704.

"(b) Whenever a written charge has been filed by or on behalf of any person claiming to be aggrieved, or a written charge has been filed by a member of the Commission that any employer, employment agency, or labor organization has engaged in any unlawful employment practice, the Commission shall notify the employer, employment agency, or labor organization charged with the commission of an unlawful employment practice (hereinafter referred to as the "respondent") of such charge and shall investigate such charge. If the Commission shall determine that there is not probable cause for crediting such charge it shall state its determination and notify any person claiming to have been aggrieved and the respondent of such determination. Each such determination shall be deemed to be a final order of the Commission. If the Commission shall determine after such preliminary investigation that probable cause exists for crediting such written charge, it shall endeavor to eliminate any unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such endeavors may be used as evidence in any subsequent proceeding.

"(c) (1) If within a period of thirty days after a charge is filed with the Commission, the Commission fails to secure an agreement between the parties for the elimination of such unlawful practice on mutually satisfactory terms, approved by the Commission, the Commission shall issue and cause to be served upon the respondent a complaint stating the charges in that respect, together with a notice of hearing before the Commission, or a member thereof, or before a designated agent, at a place therein fixed, not less than ten days after the service of such complaint. Whenever the Commission is required to endeavor to secure voluntary compliance with this title and it determines that circumstances warrant an early hearing, the Commission may issue a complaint, in the same manner as provided in the preceding sentence, prior to the expiration of such thirty-day period. No complaint shall issuè based upon any unlawful employment practice occurring more than one year prior to the filing of the charge with the Commission unless the person aggrieved thereby was prevented from filing such charge by reason of service in the Armed Forces, in which event the period of military service shall not be included in computing the one-year period.

"(2) The respondent shall have the right to file a verified answer to such complaint and to appear at such hearing in person or otherwise, with or without counsel, to present evidence and to examine and cross-examine witnesses.

(d) (1) The Commission or a member or designated agent conducting such hearing shall have the power reasonably and fairly to amend any complaint, and the respondent shall have like power to amend its answer.

"(2) All testimony shall be taken under oath.

(3) The member of the Commission who filed a charge shall not participate in a hearing thereon, except as a witness.

(e) (1) At the conclusion of a hearing before a member or designated agent of the Commission, such member or agent shall transfer the entire record thereof to the Commission, together with his recommended decision and copies thereof shall be served upon the parties. The Commission, or a panel of three qualified members designated by it to sit and act as the Commission in such case, shall afford the parties an opportunity to be heard on such record at a time and place to be specified upon reasonable notice. In its discretion, the Commission upon notice may take further testimony.

"(2) With the approval of the member or designated agent conducting the hearing, a case may be ended at any time prior to the transfer of the record thereof to the Commission by agreement between the parties for the elimination of the alleged unlawful employment practice on mutually satisfactory terms.

"(f) If, upon the preponderance of the evidence, including all the testimony taken, the Commission shall find that the respondent engaged in any unlawful employment practice, the Commission shall state its findings of fact and shall issue and cause to be served on such respondent and other parties an order requiring such respondent to cease and desist from such unlawful employment prac tice and to take such affirmative action as will effectuate the polices of this title, including, but not limited to, establishing on-the-job training for any person aggrieved by such unlawful employment practice, or payment of damages, or