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The aggrieved person would have the right to bring a civil ac-.
Of the 38 State laws presently on the books, 25 have always provided
In the words of the executive director of the Tennessee Commission on Human Relations:
We worked very hard in the area of equal employment opportunity, advising Negroes of their rights under title VII of the Federal Civil Rights Act of 1964 and helping complainants file complaints with the Equal Employment Opportunity Commission. We had a good deal of experience with the operation of the EEOC on the local grassroots level.
I became convinced that the EEOC could not effectively perform the duties entrusted to it without the power to hold hearings and issue enforceable cease and-desist orders. The EEOC representatives who came into Tennessee had basically nothing behind them in their efforts to conciliate cases. If the employer could not be persuaded to comply with the law, the EEOC representative had to go back to Washington, or Atlanta [the appropriate EEOC regional office), and the complaining Negro was forced to hire a lawyer to bring a suit in Federal Court.
This is a thoroughly inadequate procedure for administrating fair employ-
On the basis of the Tennessee experience, I certainly believe that Congress
Senator CLARK (presiding). I have had an opportunity to read your
I have some questions and I suspect Senator Pell does, too.
(The prepared statement of Mr. Shulman follows:)
comb, Vice Chairman, and Mr. Samuel C. Jackson, Commissioner. As you know, the nomination of Mr. Vicente T, Ximenes to fill one of the Commission's two vacancies is pending before the Senate.
While I will present the 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 five-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 halls; 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 step-down 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 investigation, 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 asignments, 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 eleven 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.
À 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 itself.
Within 30 days of filing with the Commission, the chraging 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 discrimination. Omitting those complaints that were deferred to state or local commissions, closed for lack of jurisdiction or other reasons, or returned for additional information, the number of charges that had been scheduled for investigation through April 12, 1967, was over 7,000. Of this 7,000, approximately 3500 charges were in the process of or pending investigation, and investigations had been completed on the other 3500. Of the approximately 3500 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
The Te as
percent of the total. So far during Fiscal Year 1967, conciliation has been conpleted 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 decreased, 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 Com. mission. 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, $. 1308, would serve as a vital contribution to ensuring 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 unwar. ranted, 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 were 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.
The aggrieved person would have the right to bring a civil action in an appropriate Federal District or State Court if within 180 days of filing his charge the Commission had for any reason failed to issue a complaint or upon receipt of a notice from the Commission of its intention not to issue a complaint, whichever is earlier. This would include the situation where failure to issue a complaint resulted from the achievement of voluntary compliance satisfactory to the Commission but not to the aggrieved person. The availability of this procedure will make the Commission a far more effective agent in ensuring equal employment opportunity. It will give the Commission not only the power that is ordinarily afforded to Federal regulatory agencies in general, but it will bring the Commission's authority and procedures into harmony with those traditionally held by state agencies in this field. Of the 38 state laws presently on the books, 25 have always provided enforcement procedures. Six other states, which did not originally provide enforcement, have since amended their statutes to do so. The Federal Commission should certainly have this traditional enforcement power. In the words of the Executive Director of the Tennessee Commission on Human Relations :
"We worked very hard in the area of equal employment opportunity, advising Negroes of their rights under Title VII of the Federal Civil Rights Act of 1964 and helping complainants file complaints with the Equal Employment Opportunity Commission. We had a good deal of experience with the operation of the EEOC on the local grass roots level.
“I became convince'l that the EEOC could not effectively perform the duties entrusted to it without the power to hold hearings and issue enforceable cease and desist orders. The EEOC representatives who came into Tennessee had basically nothing behind them in their efforts to conciliate cases. If the employer could not be persuaded to comply with the law, the EEOC representative had to go back to Washington, or Atlanta (the appropriate EEOC regional office), and the complaining Negro was forced to hire a lawyer to bring a suit in Federal Court. This is a thoroughly inadequate procedure for administering fair employment provisions. The administering agency should be able to carry out the whole process of enforcement from initial investigation to final imposition of penalties if an agreement is impossible. Under the present system, too much of the burden still rests on the hacks of those who are discriminated against.
The government must carry the whole burden of proceeding against racial
“On the basis of the Tennessee experience, I certainly believe that Congress
Perhaps the most compelling justification for giving the Commission enforce ment power is that it would improve the conciliation process. This has been the experience of the states. Highly relevant is the experience of the Kansas Antidiscrimination Commission, which moved from an unenforceable to an enforceable law. The Executive Director during that period reports as follows:
All rent! "In 1959 I became Executive Director of the Kansas Antidiscrimination Commission which since 1953 had been administering a nonenforceable fair employment law. The record was dismal. The Commission processed formal complaints
IL SITO which were marked with delay throughout the investigatory process through
dat we lack of cooperation from respondents.
"In 1961 the Kansas act against discrimination became enforceable including the power to issue cease and desist orders after a public hearing. The picture changed. Investigations proceeded without undue delay through the cooperation of respondents. Only two public hearings were held from 1961 until I left in April, 1966. Public hearings were not necessary because the possibility of a cease and desist order encouraged respondents to cooperate during the period of con
Mahor ference and conciliation leading to satisfactory adjustment of ceases where probable cause had been found to credit the allegations of discrimination. slo
"During the 'nonenforceable' period from 1953 to 1961 only 89 complaints had been filed with 23 complaint cases remaining open because 'Respondent Uncooperative.' The period from 1961 through 1964 revealed 137 complaints
MISTO processed with not a single case open for lack of cooperation from respondents.”
The Pennsylvania experience is similar. The Executive Director of that state's
“The Pennsylvania Human Relations Commission has been in operation since
“Of these 51 public hearings, the complaint was dismissed in four of them because of lack of evidence to definitely prove the respondent was guilty of discrimination. In the remaining 47 cases, definite Cease and Desist Orders were issued.
"While the total number of such orders appears to be small, an intimate relation exists between these 47 orders and the 3,838 complaints processed successfully and adjusted without going to a public hearing and issuing an order,
"It is our feeling that the mere existence of the Cease and Desist provision has lent weight to our deliberations and has led, therefore, to this large number of successful adjustments. We believe that if we did not have these provisions as part of our law, our total program would have produced a low level of accomplishment with the evident disillusion of our entire program a most likely result."
By the same token, the success rate of EEOC conciliations would increase if persuasion could be backed up by the power of enforcement. By providing enforcement power, the Congress would enhance, not degrade, the Commission's conciliation role. It would produce more, not fewer, conciliation agreements.
There are a number of other improvements which S. 1308 would make over the present provisions of Titlle VII. I will be happy to answer any questions the mem; bers of the Subcommittee have about them. The provisions regarding cease and desist orders, however, constitute the basic change.
I might make one other point, Mr. Chairman. The Commission has just concluded two days of public hearings, on May 2 and 3, on three areas of particular difficulty involving discrimination on the basis of sex: (1) the relationship between Title VII and state or local laws and regulations respecting the employment of women; (2) the question of separate male and female columns in job opportunities advertising; and (3) the status of private retirement and pension plans which provide different benefits for men and women. It is obviously too soon for the Commission to have reviewed and digested the material obtained during these hearings, but we would like to offer a copy of the hearing record to the Subcommittee, and we may also possibly want to offer some suggestions on these or other areas at a later time.
Mr. Chairman, I believe that President Johnson in his Message to the Cozigress on Equal Justice on February 15, 1967. succintly summed up the need for cease and desist order powers when he said:
"Unlike most other Federal regulatory agencies, the Equal Employment Opporportunity Commission was not given enforcement powers. If efforts to conciliate or persuade are unsuccessful, the Commission itself is powerless. For the individual discriminated against, there remains only a time-consuming and expensive lawsuit."
The Commission recognizes that Title VII at present emphasizes its fundamental role as a conciliator. We believe that the addition of cease and desist order powers would reenforce that role.
Mr. Chairman, we are most appreciative of your responding to the urgency of this matter by holding these hearings in the midst of extensive poverty hearings, and I want to thank you and the other members of this Subcommittee for your long history of constructive concern about this problem.
Mr. Shulman. Let me say the only point I would like to emphasize is that we believe providing the Commission with enforcement power, the ability to issue cease-and-desist orders, will result in greater numbers of conciliations.
We think we will achieve better and more successful conciliation through having that power, a power that is traditional in this field.
Senator CLARK. Thank you very much, sir. I have a few questions I would like to ask you. How long have you been chairman? Mr. SHULMAN. I have been Chairman since September 21, 1966. Senator CLARK. Were you a member before that? Mr. SHULMAN. No, I was not, Senator. Senator CLARK. You have had a little over 6 months' experience. Mr. SHULMAN. That is correct. Senator CLARK. Several years ago Vice President, then-Senator Humphrey, prepared a bil] which we processed through this subcommittee and the full committee and brought to the Calendar. That bill called for a different administrative setup from the present one and different, too, from the proposals of S. 1308. It called in general for a quasi-judicial commission with a strong executive director, who was given substantial administrative authority, including investigatory power. He was to bring before the commission complaints which
either had been made by aggrieved persons or those who felt they were aggrieved, or complaints which he dug up on his own.
It always seemed to me that that was a preferable form of organization. I note the administration has rejected it. I don't know to what extent your lips are sealed, but to the extent you can comment, can you tell us whether you have found any difficulties which appear to have plagued various other commissions which try to operate both administratively, on the policy level, and quasijudicially as well, and whether you think the provisions of the Humphrey bill, as we called it, would be an improvement ?
Mr. SHULMAN. Of course, I have to preface my comment, Senator', by pointing out that we have never had cease-and-desist order power, so I cannot say for certain how that would work if we had it.
Senator CLARK. That bill did have it. Mr. SHULMAN. Given the absence of cease-and-desist order power, I have found no reason to believe that the procedure envisioned by the Humprey bill would be preferable. The Commission is set up on a basis that has administration as the responsibility of the chairman and not the Commission, and the adjudication functions are the responsibility of the Commission.