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Senator CLARK. Thank you very much, Senator Kennedy.
Our first witness this morning is Attorney General Ramsey Clark, whom we are most happy to welcome before the subcommittee.
Mr. Attorney General, I have had an opportunity to read your excellent prepared statement, which I think is a fine argument in support of S. 1308. I will ask to have it printed in full in the record at this point and if you care to add anything to your prepared statement, I will be glad to hear from you. But I think the statement speaks for itself.
(The prepared statement of Attorney General Clark follows:)
PREPARED STATEMENT OF ATTORNEY GENERAL RAMSEY CLARK,
DEPARTMENT OF JUSTICE
Mr. Chairman and Members of the Subcommittee, President Theodore Roosevelt told us that "far and away the best prize that life offers is the chance to work hard at work worth doing.” Some Americans are denied this prize simply because of race, color, religion, national origin or sex.
In recent years, the Congress has acted to eliminate racial discrimination in voting, in education and in access to public accommodations and facilities. While Congress has also acted to eliminate discrimination in employment, enforcement has proved relatively ineffectual because of inadequate sanctions. Yet, without an equal opportunity to obtain employment many other opportunities may mean little.
More effective action is needed to secure equal opportunity in employment. While the unemployment rate in 1965 was twice as high for nonwhites as for whites, the disparity increased to a ratio of 2.2 to 1 by the end of 1966. At least one reason for this is racial discrimination in employment.
Equal employment opportunity is vital to the accomplishment of many important national goals. Efforts to reduce crime are hampered by frustrations resulting from discrimination in employment. Indeed, one of the recommendations of the President's Crime Commission was to eliminate barriers to employment posed by discrimination. Hence, the bill could be called an anti-crime measure. The war on poverty is hindered when jobs are not open on an equal basis to those who make up a substantial percentage of the poor in our land. Hence, the bill could be called an anti-poverty measure. To reduce the alarming number of school dropouts is more difficult when many have reason to believe that education leads no where for them. Hence, the bill could be called an education measure. An end to job discrimination would permit full use of our nation's manpower and increase the national productivity. Hence, the bill could be called an economic measure.
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers, labor organizations, joint-apprenticeship committees and employment agencies to engage in enumerated acts of discrimination based upon race, color, religion, national origin or sex. The Act established an Equal Employment Opportunity Commission to receive claims of unlawful discrimination. However, the Commission is authorized to seek compliance only by informal methods of conference, conciliation and persuasion. Where these methods prove unsuccessful, the victim of discrimination is left to seek relief in the federal courts.
S. 1308 retains the Commission's present functions under Title VII of the 1964 Act and continues to give priority to enforcement by these informal, non-public methods. Where these methods fail, however, the Commission will have enforcement powers. The Commission will be authorized to issue a complaint against the party charged with unlawful discrimination and to hold a public hearing. Respondents at such hearings will be entitled to all the protections afforded by the Administrative Procedure Act, including the right to counsel and the right to call and examine witnesses. If, based on the evidence presented at such hearing, the Commission determined that the law had been violated, it can issue an order requiring the respondent to cease and desist its discriminatory practices. The Commission's orders will be enforceable or reviewable in the courts of appeals, both as to the Commission's findings of fact under the usual “substantial evidence" rule, and the Commission's interpretations of law.
The enforcement authority to be conferred on the Commission by S. 1308 closely parallels that given to and long exercised by federal agencies, such as the National
Labor Relations Board, Federal Trade Commission and Federal Power Commis
The present authority of the Department of Justice to institute civil suits to Pe. restrain patterns and practices of discrimination is retained. This authority, adt lodged in a Department with years of experience in the enforcement of civil ting
rights—is an important supplemental tool in the attack on a widespread national
The bill will permit the Department of Justice to inspect employment records atelli prior to institution of suit. This provision is patterned after one in the Civil
Rights Act of 1960 which was helpful in combatting racial discrimination in voting. The determination by investigation of whether a pattern of discrimination exists is extremely difficult without an analysis of employment records. The bill at the same time provides safeguards to protect these records from public disclosure.
That S. 1308 will create more effective enforcement machinery is clear. It will permit a more expeditious handling of cases by an administrative agency dealing solely with discrimination in employment than is possible by courts whose dockets are already overcrowded with other cases.
The bill will reduce costs for an aggriered person. Under the current law, the i bez
aggrieved may have to pay fees, security and costs for himself and, if unable to
prove discrimination, for the defendant. Most victims of employment discriminamatice
tion are in no position to take such an economic risk.
The experience of the Equal Employment Opportunity Commission substan
tiates the need for this legislation. The Commission has had only limited success thout
in obtaining voluntary compliance. Enforceable cease and desist authority will RT IN
undoubtedly lead to greater success. The Commission's effectiveness as a concili
ator would be enhanced. Those subject to the Act will be more willing to negotiate. loret
Experience of the State fair employment agencies support this proposition.
Of the 36 states with enforceable FEP legislation, 31 provide enforcement by means of agency cease and desist powers. So do the District of Columbia and Puerto Rico,
Several of these 31 states—including Kansas, Nevada, Colorado, Wisconsin,
Indiana, and most recently, West Virginia-whose statutes did not originally tions
confer such enforcement powers later found it necessary to amend their laws to provide for such powers. The Model Anti-Discrimination Act of the Commissioners for Uniform State Laws, which is directed at employment discrimination, also contains enforcement provisions of the type proposed by S. 1308.
Three states-Arizona, Oklahoma, and Tennessee-currently have FEP provi
sions which are either completely or partially unenforceable. The responsible ads
agencies in all three of these states have informed us of the handicap under which they work and the need for agency enforcement power to help solve the problem of discriimnation in their states. In at least one of these states, legislation is now pending which would provide these agencies with enforceable cease and desíst authority.
Enactment of this bill will lead to development of a needed expertise in the area of equal employment. Charges of discrimination under Title VII often raise complex issues concerning company structure, seniority and promotion. Expertise will help resolve these. The legislation would also achieve a greater uniformity of result and legal interpretation--a more unified implementation of a truly national policy.
This policy recognizes that it is not easy for a man who is unemployed solely because of his color to maintain his faith in this nation's institutions. He cannot support his family, he cannot afford a suitable place to live, he cannot enjoy the material benefits of his society. Worst of all, he cannot hope to improve his condition-and in that respect he is denied the most valuable oportunity America has in the past held out to the deprived and dispossessed.
I urge the prompt, favorable consideration of S, 1308.
STATEMENT OF HON. RAMSEY CLARK, ATTORNEY GENERAL OF
THE UNITED STATES
Attorney General CLARK. Unless there are some questions or something, Mr. Chairman, the statement, I believe, adequately expresses the affirmative case.
xplorers 1.19 The Ce
Senator CLARK. Thank you very much, Mr. Attorney General. I know how busy you are and we certainly appreciate your coming down here and the fact that we do not ask you to testify verbally at length is not the slightest indication that I at least am not impressed by the validity of your argument.
I appreciate your coming down.
Attorney General CLARK. Thank you very much, Mr. Chairman. You know how strongly we feel about this measure and how urgent it is to the administration.
Senator CLARK. The subcommittee will now take a 10-minute recess in order to permit the chairman to make a very brief appearance before the Appropriations Committee. I will hope to be back here in 10 minutes.
(Whereupon, a brief recess was taken.)
Senator PELL (presiding, pro tempore). The Subcommittee on Manpower, Employment, and Poverty will resume its hearing and the next witness will be the Honorable Stephen Shulman, Chairman of the Equal Employment Opportunity Commission.
Mr. Shulman, come forward please. Do you have a prepared statement?
Mr. SHULMAN. Yes, Senator, I do have a prepared statement.
fellow Commissioners come up and join me. The statement would take approximately 15 minutes. I could
summarize it, if you prefer. Senator PELL. We have time. Please go ahead and read it. Would you please identify your colleagues.
STATEMENT OF STEPHEN N. SHULMAN, CHAIRMAN, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, ACCOMPANIED BY
Mr. SHULMAN. Mr. Chairman, on my left is Dr. Luther Holcomb, vice chairman of the Commission; and on my right, Mr. Samuel C. Jackson, Commissioner.
While I will present testimony for the Commission, my fellow Commissioners will be pleased to join me in answering any questions the subcommittee may have.
The Equal Employment Opportunity Commission was established by title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination because of race, color, religion, sex, or national origin in all aspects of employment. Enforcement of this prohibition was entrusted to a bipartisan Commission, to become operational on July 2, 1965, and to be composed of five members, appointed by the President, with the advice and consent of the Senate. These Commissioners serve staggered 5-year terms.
Title VII prohibits four major groups affecting commerce from engaging in discriminatory practices : employers, public and private employment agencies, labor organizations, and joint labor-management apprenticeship and training programs.
Employers of 100 or more persons, labor unions with 100 or more members or operating hiring ħalls, and employment agencies dealing with employers of 100 or more persons were covered in the first year of the law's operation, with the number dropping in each succeeding year to 75, 50, and finally 25. The stepdown process thus ends with employers and labor unions of 25 persons or more being covered on July 2, 1968.
The Commission has two major assignments under title VII, The compliance program, which is fundamentally affected by S. 1308, provides for the imvestigation, determination of reasonable cause, and conciliation of complaints of employment discrimination.
The technical assistance program offers advice and assistance, educational aids, and affirmative projects for voluntary efforts to promote the objectives of the act. To carry out these assignments, the Commission has an authorized staff of 314 persons and a fiscal year 1967 budget of $5.2 million. A majority of the Commission personnel serve in 11 field offices covering the entire country. These field offices work closely with other Federal agencies which have related responsibilities and also with State and local fair employment practices commissions.
Under the existing legislation, the complaint procedure works as follows:
The aggrieved person files a sworn, written charge with the Commission.
If the charge involves an employment practice committed in a State or political subdivision which has an effective fair employment practices law, the Commission must defer to the State or local agency for a period of 60 days, extended to 120 days during the first year of the State or local law.
A charge must be filed within 90 days after the alleged unlawful practice has occurred, or 210 days if a State or local agency was involved.
The Commission then investigates the charge, makes a finding of reasonable cause, if indicated, and attempts to obtain voluntary compliance. Investigation and conciliation are undertaken by agents of the Commission; reasonable cause is determined by the Commission its
Within 30 days of filing with the Commission, the charging party may bring a civil action in the Federal courts. This period may be extended to 60 days by the Commission.
The Attorney General may also bring a civil action in the Federal courts to correct a pattern or practice of discrimination. The EEOC may refer cases to the Attorney General with the recommendation that he institute such a civil action, and it may also recommend that he intervene in a civil action brought by an aggrieved party. Since the Commission has gone into operation, it has received over 16,000 charges. More than 60 percent of these charges have been based on racial discrimination; some one-third have involved sex discrimination; roughly 3 percent cite discrimination based on national origin; and somewhat over 1 percent, religious discrimina
Omitting those complaints that were deferred to State or local commissions, closed for lack of jurisdiction or other reasons, or re
turned for additional information, the number of charges that had been scheduled for investigation through April 12 of this year was over 7,000. Of this 7,000 approximately 3,500 charges were in the process of or pending investigation, and investigations had been completed on the other 3,500. Of the approximately 3,500 charges where investigations had been completed, conciliation had been completed on 819.
The breakdown of these 819 is as follows: In fiscal year 1966 conciliation of 191 charges was completed. Of these, 131 were successful or partially successful; or 69 percent of the total.
So far during fiscal year 1967, conciliation has been completed for 628 charges, of which 357 were successful or partially successful, for a rate of 57 percent of the total.
As you can see, the percentage of successful conciliations has de creased, and the trend continues in that direction. With added resources and improved procedures, we anticipate a significant increase in the number of charges for which conciliation will be completed.
In any event, a sizable minority of persons whose rights to equal employment opportunity have been violated do not at present receive redress from the Commission. Their only recourse is to initiate private suits, unless the Attorney General finds that a pattern or practice of discrimination exists.
The legislation on which I am testifying today, S. 1308, would serve as a vital contribution to insuring that the equal employment rights of these individuals are protected and to facilitating conciliations
. The major provision of S. 1308 is the one that grants power to EEOC to issue cease-and-desist orders.
Under the bill, after the Commission determines that further conciliation efforts are unwarranted, the following steps would take place:
The Commission would issue and cause to be served upon the respondent a complaint stating the facts on which discrimination is alleged.
A hearing would then be held before the EEOC or its member or agent.
After the hearing, if the Commission found that the respondent had engaged in an unlawful employment practice, it would state its findings of fact and issue a cease-and-desist order. This order could include appropriate affirmative relief, such as reinstatement and payment of back wages, and could also require the respondent to make reports from time to time on the extent of his compliance. If the Commission found that no unlawful employment practice occurred, the complaint would of course be dismissed.
Once a cease-and-desist order was issued, the EEOC could petition a court of appeals where the unlawful employment practice occurred or wherein the respondent resided or transacted business for enforcement of the Commission's order. The Attorney General would then litigate the case.
Any respondent or person aggrieved by a Commission order could likewise obtain review of the order in an appropriate court of appeals.