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public and private as well as the placing of orders through that medium, helped bring to our attention the steps that were needed to correct it.

We can do that in an individual State, but I think the problem is wider than one or two States where this has been given attention.

I do not want to take the time of the other panel members.

Senator CLARK. Thank you very much, Mr. Male. That is very helpful. Mr. Spitz.



Mr. Spitz. My name is Henry Spitz, I am the general counsel to the New York State Commission for Human Rights, known by this name since 1962 and previously known as the New York State Commission Against Discrimination.

I have served as general counsel to the commission since its inception in 1945, a period of 18 years.

Senator CLARK. Mr. Spitz, do you have a civil service rating or like most lawyers you just

Mr. Spitz. All members in the legal division are in the competitive civil service class except the position of general counsel which is the exempt class and I may say that during the period of my tenure I have served under both Republican and Democratic administrations. I was appointed by Governor Dewey during his administration and served through the Harriman administration and now under the Rockefeller administration.

The New York State law came into being in 1945 as a result of a study made by a temporary commission against discrimination to study the need for such legislation in the State of New York. The temporary commission came to the conclusion that there was a need for such legislation. It drafted a bill and then held public hearings on the bill in various cities throughout the State.

At these public hearings the consequences of enacting a law against discrimination were expressed by many elements in the community in the most dire terms. It was predicted that if such a law were enacted it would increase and aggravate racial and religious tensions rather than minimize such tensions. It was argued that blood would flow in the streets of the city and State, that the law would immediately be declared unconstitutional, and that business would leave the State rather than submit to an infringement of its prerogatives to choose or reject whomsoever it saw fit as employees for any reason or no reason.

I am pleased to note that after 18 years of administration, none of these dire consequences has come to pass. Business has not left the State but has increased, and the law has not been attacked and never has been attacked as unconstitutional.

The statute in New York State was the first of its type to be enacted anywhere in this country or in the world. Since its enactment, more than 20 other States have adopted similar legislation with the same salutary results and more than 30 cities have enacted such fair employment practice legislation.

The law which originally was limited to the elimination and prevention of discrimination in employment has, through successive sessions of the legislature, been broadened through the years. At the present time the State commission for human rights has the responsibility of eliminating and preventing discrimination not only in employment because of race, creed, color, or national origin, but also to eliminate and prevent discrimination based on age and also to eliminate and prevent discrimination in places of public accommodation, resort, and amusement, in public and publicly assisted housing, and in education. Effective September 1, 1963, the commission's jurisdiction will be extended to include the elimination and prevention of discrimination in private housing; that is, in conventional financed housing with simply two exceptions which are of such a minor nature that the commission's jurisdiction will extend to more than 95 percent of all the housing in the State of New York.

The pattern on which the commission operates is the pattern that I am sure you are familiar with. It is a two-pronged attack with the emphasis primarily on education, conference, conciliation, and persuasion, with regulatory power vested in the commission to process formal complaints which may be filed in verified form by aggrieved persons. In this area, to wit, the area of formal complaints, the commission has power, after a public hearing, to issue a cease-anddesist order which is enforcible through the courts. A violation of a court order entered on a commission order is deemed to be a contempt of court, punishable as such, and, in addition, there is a provision in the statute that a willful and deliberate impairing or impeding of the work of the commission constitutes a penal offense and is punishable as a misdemeanor.

The commission also has the power on its own initiative, and this as a result not of a specific statutory provision, but rather by commission interpretation and court construction, to initiate investigations and inquiries on its own motion, in any area where it suspects the existence of discrimination and to use the subpena power in support of such investigation.

Most of the commission's work is resolved through the process of conference, conciliation, and persuasion, and in this connection the commission is aided by local councils, advisory and conciliation councils, which are established in major centers of population throughout the State.

In order that we may have people who are sympathetic and familiar with the comunission's approach in the event that an incident should arise in less concentrated areas of population, we have, in addition to these community councils, established a corps of counselors in every hamlet, village, town, and other communities where we do not have community councils so that if any trouble should break out in any of those areas we would have an individual who is familiar with the commission's approach with whom contact can be made and who can marshal and serve as the key resource in bringing together the elements of good will in that community to help in the resolution of any difficulty which may occur there.

Senator Clark. Is that in your law or do you do that by administrative order?

Mr. SPITZ. That is not in our law. All that the law provides for is the establishment of advisory and conciliation councils.

To date, covering the period from July 1, 1945, to December 31, 1962, the commission has processed over 7,000, closer to 8,000, verified complaints of discrimination in employment.

Senator Clark. I have had a chance to read your statement, Mr. Spitz, so you do not need to repeat the statistics.

Mr. Spitz. I wanted to say in addition we have initiated 1,349 commission investigations in the absence of verified complaints. A brief statistical table is appended to the statement.

Senator CLARK. Thank you very much, sir.

Mr. SPITZ. I just want to call your attention to one other matter, if I may, and that is that I previously appeared before a Subcommittee on Labor and Management Relations, which conducted hearings during the 82d Congress, and filed a rather extensive brief which is part of the minutes of those hearings.

Senator CLARK. Mr. Spitz, what committee was this subcommittee attached to, sir?

Mr. Spitz. It was the subcommittee of this committee, the Committee on Labor and Public Welfare of the U.S. Senate, and in that brief I cover the problem of preemption and the extreme desirability of the Federal Government in not preempting the field in this area of fair employment practices.

Senator Clark. Thank you very much, Mr. Spitz, for a very enlightening testimony.

Mr. Howden.



Mr. HOWDEN. Mr. Chairman, my name is Edward Howden, I am the executive officer of the California Fair Employment Practice Commission and chief of the division of fair employment practices which is located within the Department of Industrial Relations of the State of California, a department incidentally, headed until rather recently by the new Under Secretary of Labor, Mr. John F. Henning, who also previously served as a commission member for 2 years of the first FEPC law in California, which was the city of San Francisco's fair employment ordinance, preceding the enactment of the State law.

California's law did not come into being until slightly less than 4 years ago1959. It was happily the No. 1 item on Gov. Pat Brown's initial legislative programs when he came into office in 1959, and went through with reasonable speed in that first legislative session.

At that time we felt in California that such legislation was long overdue, and Governor Brown has asked me to emphasize to you that just as our act was long overdue at that time--1959— we do feel that à Federal Fair Employment Act is long overdue today.

The Governor has asked me to urge most strongly, as he has had occasion to urge several times in recent years, the enactment of legislation such as his before this committee at present.

We do feel that the combination of Federal Government services with those of the 22 States that have effective and enforcible fair employment practice legislation would be a highly significant partner

ship, it would strengthen the operations of our existing statutes and would, of course, give the kind of service to those 28 States which do not have such legislation which is urgently needed.

Coming as I do from a Western State I think I would like to call to the committee's attention an item which I noticed coming here yesterday on the plane, in Saturday's Western New York Times, a story out of Phoenix, Ariz., relating to a march in 100° temperature in the city of Phoenix in which the NAACP leadership was specifically calling attention to serious job discrimination, naming a number of corporations there—a very full story.

Senator CLARK. Does Arizona have a State fair employment practice?

Mr. HOWDEN. No, it does not. This is why I call it to the subcommittee's attention as an example in the West of a State which has aggrieved persons, aggrieved in the field of employment, who have no recourse whatsoever, the kind of State I am sure would be served effectively by a Federal statute.

I think perhaps you have had an opportunity, Mr. Chairman, to see my prepared statement which went in already.

Senator CLARK. Yes, I have.

Mr. HOWDEN. I would like to emphasize, very briefly, the California act is essentially the same in most respects as the original New York statute which Mr. Spitz has described and I will not go back over that same ground.

Senator CLARK. Do you have the authority to initiate complaints!

Mr. HOWDEN. We do not have the power to initiate a formal complaint which may be carried to enforcement. We do have, however, unlike the original New York act, a section which authorizes the commission, specifically, to initiate investigations and to use its good offices, through persuasion and conciliation, to try to bring about changes in discriminatory situations, so that we have the formal complaint procedure just the same as Mr. Spitz has described in New York, with regard to employment—the commission initiation of investigations and conciliation approaches and we do feel there is an implicit authority in our act and our commission has recently placed a fresh emphasis upon what it is calling an affirmative action approach, where it does feel that there is an implicit power to move into a situation without necessarily implying or alleging a violation of the statute itself, but simply where there appears to be an opportunity to promote equal employment opportunity.

Just in the last few weeks we have had several examples where we happened to learn of a new, large plant about to open a few weeks hence in the Central Valley of California, and was opening in an area where there was serious unemployment and where minority group unemployment was serious and we have sat down in conference and have found the firm quite responsive and we have suggested ways in which, not that they would engage in preferential hiring but ways in which they could be sure that their approaches to recruitment were inclusive rather than exclusive, perhaps without any necessary intent, perhaps going along in patterns of the past, using old sources of recruitment, people assuming all around the place, perhaps in a department of employment, perhaps in a private employment serrice, that this firm wished to proceed in the old restrictive fashion and nobody even asking the question.

Affirmative action, we think, is extremely important and we are much interested in that aspect of all of the measures before you. There are some apparently new formulations in the draft of Senator Humphrey's bill which we have seen that I should think would warrant very serious attention by the committee in addition to the other very strong features of your own bill and some of the others before the committee.

We would perhaps make one or two specific comments on some of the bills before you, Mr. Chairman.

I would like to suggest some consideration to narrowing the range of exemptions of, perhaps, not exempting the employer of fewer than 50 employees; I would hope that figure could come down somewhat. I would like to suggest that perhaps the traditional exemptions in most fair employment practice statutes of nonprofit associations bears a little closer scrutiny, very properly, of course, where there is a religious aspect and where the employment is clearly related in a nonprofit, religious or sectarian or fraternal organization, to the doctrines or programs of an organization, then, of course, there is very properly an exemption there.

The traditional formulation, however, that is rather sweeping, all nonprofit, charitable, fraternal, religious, so on, organizations being exempted I think, is unnecessarily broad and our own act, I think, is unnecessarily broad in that respect and it is hoped that one of these days it will be tightened.

I think a very highly desirable feature of your own bill, S. 773, and of S. 1210 is the forbidding of the utilization of any discriminatory source of recruitment by the employer.

I note, however, that there is apparently an omission of a specific prohibition of discrimination by employment agencies in S. 773, and I assume that is probably just an inadvertent omission, certainly the practices of private employment agencies should be regulated as in most fair employment practice statutes.

The initiation power is important. Perhaps there is an omission also with regard to the power with regard to forbidding any person to aid or abet the doing of any of the acts defined as unlawful in these several bills before your committee.

Perhaps we have missed this, but we did not find it and I think that should be called to your attention. With respect to the general question of jurisdiction as between a State and the Federal Government, we do hope that the Federal law will not in any way impede or restrict the jurisdiction of those States that have truly enforcible and effective fair employment practice statutes and it would be the express intent of Congress that there would be full cooperation between Federal and State authorities.

Essentially, then, a concurrent jurisdiction is what we would think would make sense and this is not to suggest in the slightest that some sort of standard, as I note is indicated in one of the bills, a standard of effective power, be applied. In other words, the Federal agency should certainly be free to act where it decides that a State is not, for reasons whether of lack of adequate statute, lack of adequate personnel or budget, or whatever other reason, then surely the Federal

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