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Title VII of the 1964 act has as its avowed purpose the elimination of all employment discrimination based on race, color, religion, sex, or national origin in all industries affecting interstate commerce. In recognition of the profound effects of this title, Congress delayed the effective date of the prohibition for 1 year (July 2, 1965), and provided for the gradual extension of coverage of the title during the succeeding 3-year period. When fully effective title VII will apply to virtually all employers of 25 or more employees, labor unions which have an aggregate membership of 25 or more persons, and employment agencies.
This report will examine the legislative history of the law and analyze the new set of obligations imposed on all who may be affected by title VII. Where appropriate, probative congressional commentary is reproduced to further explain the force and effect of the act's many complex provisions.
II. LEGISLATIVE HISTORY
On June 19, 1963, President Kennedy submitted to Congress the proposed Civil Rights Act of 1963. Although he renewed his support of pending Federal fair employment practices legislation, applicable to both employers and labor unions, title VII was not a part of the omnibus proposal which accompanied his civil rights message. The bill did contain an employment title (also title VII), which would have provided specific statutory authority for prior executive action by authorizing the establishment of a commission to prevent discrimination in employment by Government contractors and subcontractors in federally assisted programs. This responsibility was and continues to be vested in the President's Committee on Equal Employment Opportunity, established by Executive Order No. 10925 of March 6, 1961, as amended,' but the President felt that it "should be given a permanent statutory basis, assuring it of adequate financing and enforcement procedures.”
The administration bill was introduced in the House as H.R. 7152 by Congressman Celler, chairman of the Committee on the Judiciary, and was referred to a subcommittee of that committee. During subcommittee consideration the bill underwent extensive revision. In particular, title VII of the original proposal was deleted and in its place the subcommittee inserted H.R. 405, an equal employment opportunity bill which had been favorably reported by the House Committee on Education and Labor and was pending before the Rules Committee.10
H.R. 405 prohibited arbitrary employment discrimination because of race, religion, color, national origin, or ancestry. It covered employers or 25 or more employees, labor organizations with 25 or more members, and employment agencies. It authorized the establishment of a Federal Equal Employment Opportunity Commission and delegated to it the primary responsibility for preventing and eliminating unlawful employment practices as defined in the bill. The Commission was to consist of an Equal Employment Opportunity Board and an Office of the Administrator, headed by the Administrator of the Equal Employment Opportunity Commission. The Administrator was empowered to investigative complaints and to file formal charges to the Board. If, upon a preponderance of the evidence, the Board found that an unlawful employment practice had occurred, it was authorized to issue a cease and desist order and to order such affirmative action as was necessary to correct the unlawful discrimination. The Administrator was authorized to seek the aid of the courts in enforcing the order of the Board. Any person adversely affected by a final order of the Board could obtain judicial review, but the Board's findings of fact were conclusive if supported by substantial evidence on the whole record.
This version of the bill reported to the full Judiciary Committee by the subcommittee was substantially stronger than that originally proposed, and administration sources and others feared that it would endanger the bipartisan support indispensable for enactment. As a consequence, the bill, particularly title VII, was again revised by the full committee. In the report on H.R. 405, the Education and Labor Committee had divided over the administrative procedure incorporated in the bill by the majority. In particular, some Republican members were opposed to vesting the Equal Employment Opportunity Board with powers to make final judgments and to issue cease and desist orders. In their place, minority members advocated the enforcement procedures embodied in H.R. 10144 which had been favorably reported in 1962. Under this earlier proposal, if the Board considered that a violation existed—and a voluntary settlement could not be worked out-then the agency was required to seek relief by filing a civil suit in a Federal district court. Such a proceeding would be a trial de novo rather than a review of the action of the Board. In order to insure the widespread support needed for passage, the full committee substituted the enforcement provisions of H.R. 10144 for those in H.R. 405 which had been adopted by the subcommittee.
5 For the evaluation of the Federal fair employment policy, see the 1961 U.S. Commission on Civil Rights Report, “Employment," at pp. 6–17.
& H. Doc. No. 124, supra, note 2, at p. 11. See app. A. 7 26 F.R. 1977, as amended by Executive Order No. 11114 of June 22, 1963, 28 F.R. 6485. 8 H. Doc. No. 124, supra, note 2, at p. 10.
The Senate Committee on the Judiciary held hearings on a companion bill, S. 1731, but did not issue a report on the legislation.
10 H. Rept. No. 570, 88th Cong., 1st sess. See app. B.
As reported by the Judiciary Committee, title VII prohibited employment discrimination because of race, color, religion, or national origin ("ancestry” was dropped during the full committee's deliberations on the bill). Despite numerous proposals to amend the bill on the floor, the principal change approved by the House was an amendment adding discrimination on account of sex to the proscribed basis of discrimination. On February 10, 1964, the House passed and sent to the Senate the Civil Rights Act of 1964.93
In the Senate, supporters of the legislation moved for immediate consideration of H.R. 7152 as it came from the House, rather than referring it to the Judiciary Committee which they felt was antagonistic to the bill. In the early stages, supporters expressed the hope that the House bill would be accepted verbatim, thus obviating the necessity of a conference which might allow the opposition to renew debate. As the debate continued on its way to an 83-day precedent smashing record, it became obvious that cloture could not be obtained for any civil rights bill that did not represent the broad bipartisan consensus. Accordingly, the Senate leadership, in consultation with the Attorney General, fashioned a bill that was acceptable to enough Senators to shut off debate.14 Nine days later the Senate voted 73 to 27 to pass the bill,15 and on July 2, 1964, the House concurred in the Senate amendment and the bill was approved by President John
Title VII of the leadership compromise approved by the Senate differed from its equivalent in the House-passed bill in a number of significant respects. First, and doubtless the most important change was to strip the Equal Employment Opportunity Commission of any and all authority to issue enforcement orders. Second, States with antidiscrimination legislation and machinery are given the tirst opportunity to correct the particular problem. Third, the leadership compromise limited the recordkeeping requirements so as to avoid duplication in certain cases, particularly where the covered employer is already required to maintain similar records by State laws and executive orders. These changes were explained at length by Senator Humphrey on June 4. He said :
11 H. Rept. No. 1370, S7th Cong., 2d sess. See app. C.
12 Although proposed by opponents of the legislation, the effect of this change is to expand greatly the scope of title VII. It also creates a number of troublesome problems which, for the most part, escaped the attention of the Members on the floor. These problems result principally because of the existence of numerous State laws regarding the employment of women, such as prohibiting women in certain hazardous occupations, regulating their hours of work, and authorizing more liberal rest periods. earlier retirement privileges, etc. Laws singling out women, or particularly classes of women for special treatment, are a valid exercise of the State's police powers and do not violate the 11th amendment. Miller v. Wilson, 236 U.S. 373 (1915): Bosley v. McLaughlin, 236 U.S. 383 (1915); Muller v. Oregon, 208 ('.S. 412 (1508) ; Dominion Hotel v. Arizona, 249 ('.S. 265 (1919): Radice v. New York, 264 (s. 292 (192+1 ; West Coast llotel Co. v. Parrixh, 300 U.S. 379 (1937); Jorchead v. N.Y. er rel. Tipoldo, 298 U.S. 587 (1936). Women may be forbidden to engage in an occupation where their employment may create special coral and social problems. A State statute forbidding women to act as bartenders, but making an exception in favor of wires and daughters of the male owners of liquor establishments was sustained over the objection that the act denied the equal protection of the law to female owners of such establishments. Said Justice Frankfurter for the majority: "The fact that women now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharpe line between the sixes, certainly in such matters as the regulation of the linor traffic
The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to krep abreast of the latest scientific standards. Goesaert v. Cleary, 333 US 464, 466 1945)
If Congress in logi-lating serual equality in employment did not intend to disturb these State requirements, the problem of harmonizing the two which devolves upon the courts is far from a simple one
ja 110 Corrental Record, p. 2709 (dallr edition).
"Mr. President, there are a number of proposed amendments to title VII; but the major changes relate to its enforcement procedures. The basic coverage and the substantive prohibitions of the title remain almost unchanged. The title continues to apply to employers, employment agencies, labor organizations, and joint labor-management committees in industries affecting commerce. There is no change in the provisions extending the coverage of the title over a 4-year period from employers and labor organizations with 100 or more employees or members to those with 25 or more employees or members, nor have there been any significant changes in the sections specifying what actions constitute unlawful employment practices.
"The major changes in title VII have been in three areas: First, the relationship of Federal to State laws and procedures; second, the authority to bring suit; and third, the provisions for recordkeeping.
"First. Relationship to State laws: As it was passed by the House, section 708 preserved the effectiveness of existing State antidiscrimination laws, and granted the Equal Employment Opportunity Commission authority, in States and communities where there were effective antidiscrimination statutes, to enter into agreements with State and local agencies. In effect, these agreements would give jurisdiction over complaints to such agencies wherever the practice complained of also violates State or local law. This authority is preserved in section 709(b) of the substitute.
"If the practice complained of occurs in a State or locality which has a law prohibiting such practices and establishing an agency to deal with them and there is no such agreement, the individual complainant cannot file his charge with the Commission until the State or local agency has been given an opportunity to handle the problem under State or local law. However, after the agency has had 60 days to adjust the complaint, or after it terminates proceedings on it, the complainant may go to the Federal Commission. The 60-day period will be 120 days during the first year that a State or local law is in effect. Similarly, when a complaint filed by a member of the Commission alleges a practice which violates State or local law, the Commission must give the State or local agency 60 days—or 120 days, in the case of a new State law-to remedy the complaint before the Commission can act.
“Second. Authority to bring suit: It is in connection with the authority to bring suit that the most significant change has been made in title VII. Under the House version, if conciliation by the Commission failed, the Commission, if it determined that there was reasonable cause to believe that the respondent had violated the title, could bring suit for relief against him in Federal court. If the Commission for any reason failed to bring suit, the individual complainant, with the consent of one member of the Commission, could bring suit in his own name and at his own expense.
"The amendments of our substitute leave the investigation and conciliation functions of the Commission substantially intact. However, if the Commission has not been able to achieve voluntary compliance within 30 days—this period may be extended by the Commission to 60 days—the Commission must so notify the person aggrieved, who then may within 30 days bring his own suit in Federal court for enforcement of his rights. No permission from a Commission member is required for such a suit.
"Where a suit has been brought, the court may stay proceedings for up to 60 days, pending the termination of proceedings under State or local law or further efforts at concilation by the Commission. Since it is recognized that the maintenance of a suit may impose a great burden on a poor individual complainant, the Federal court may, on application of the complainant, appoint the attorney for him and authorize the commencement of the action, without the payment of fees, costs, or security.
“The role of the Federal Government in obtaining enforcement of the title through litigation is preserved, but not through the Commission. Instead, the Attorney General is given authority to intervene, with the permission of the court, in any action brought by an individual under title VII. More important, the Attorney General is authorized by section 707 to institute suit whenever he has reasonable cause to believe that there is a pattern or practice of discrimination in violation of the title VII. Therefore, in significant cases of discrimination in employment the United States will have adequate authority to initiate legal action.
“Third. Recordkeeping: Section 709 (c) of the House version authorized the Commission to prescribe recordkeeping requirements for employers, employment agencies, labor organizations, and joint labor-management committees covered
by the title. This authority has been limited, in the substitute, to prevent duplication of recordkeeping requirements. Where the employer, agency, organization, or committee is also subject to a State fair employment practice law, the Commission may not prescribe general recordkeeping requirements. Instead, it may require such notations on existing records or records required by law as are necessary because of the differences in methods of enforcement or of coverage between the State and the Federal law. Furthermore, to eliminate the possibility that employers who are Government contractors may have to prepare and file separate reports for two Government agencies, it is provided that where the employer files reports on his employment practices with the President's Committee on Equal Employment Opportunity, the Commission shall not require the filing of additional reports. It is likely that even without such a provision, the Commission and the President's Committee would have coordinated their respective reporting requirements; but this provision offers assurance to employers on that score.17
III. ANALYSIS OF THE EQUAL EMPLOYMENT OPPORTUNITY LAW
As noted above, the fundamental purpose of title VII of the Civil Rights Act of 1964 is to eliminate all employment discrimination based on race, color, religion, sex, or national origin in all industries affecting commerce. Coverage is set forth in various definitions in section 701,18 in various exemptions described in section 702,19 and in various provisos in section 703.20 As is obvious from the language of the act, especially the definitions of covered persons and organizations, the constitutional basis for the application of the act is the authority conferred on Congress to enact legislation to regulate employment which affects interstate and foreign commerce.21 (a) Who is covered
Section 101 (b) defines a covered "employer" as "a person engaged in an industry affecting commerce who has twenty-five or more employees * * *.” 22 Section 701 (g) defines "commerce" as “trade, traffic, commerce, transportation, transmission, or communication” among or between the several States or between points in the same State if the terminus is reached through a point outside such State. The term also includes "commerce" within the District of Columbia and possessions. The term "industry affecting commerce" is patterned after and incorporates the definition of "affecting commerce" in the Labor Management Reporting and Disclosure Act of 1959,44 which, in turn, incorporates the definition of “affecting commerce" of the Labor Management Relations Act of 1947. By this technique, Congress invoked “the fullest jurisdictional breadth constitutionally permissible under the commerce clause." 20 In view of the broad scope of the commerce power sustained by the courts, there is little reason to doubt that it will reach the minimal standards contained in the act.
The term "employer” as used in title VII is given an added dimension by virtue of the definition of “person" in section 701 (a). "Person" is there de fined to include not only one or more natural persons, but also “partnerships, associations, corporations, mutual companies, joint-stock companies, trusts, and unincorporated organizations." Legal representatives, trustees, trustees in bank. ruptcy, and receivers also are "persons."
All these individuals and organizations are deemed to be covered employers if they are engaged in an industry affecting commerce and if they have 25 or more employees (when title VII becomes fully effective) for each workingday in each of 20 or more calendar weeks in the current or preceding calendar year.
17 110 Congressional Record, pp. 12295–12296 (daily edition). 18 42 U.S.C. 2000e. 19 42 U.S.C. 2000e-1. 20 42 U.S.C. 20000-2. 11 U.S. Constitution, art I, sec. 8, cl. 3. 22 42 C.S.C. 2000e(b). 23 42 U.S.C. 2000e(g). 94 29 U.S.C. 402(c). * 29 U.S.C. 1327); 42 USC. 2000p (h). * Labor Board v. Reliance Fuel (usp., 371 U.S. 224, 226 • 1963). (Emphasis in originall.
37 Senator Clark inserted a numher of briefs on the constitutionality of title VII in the Congressional Record on Apr. 8. 1964. He concluded his comments on this point by saying "that objection to the constitutionality of title Vil can be nothing other than frivolous and not worthy of serious consideration." 110 Congressional Record, p. 6991 (dally edition). See app. E.
24 42 U.S.C. 2000e (a).
As already noted the prohibitions of the title do not become effective until July 2, 1965. From July 2, 1965, to July 1, 1966, it is applicable to employers of 100 or more employees; from July 2, 1966, to July 1, 1967, the minimum is lowered to 75 employees; from July 2, 1967, to July 1, 1968, the minimum is 50 employees; and thereafter, to employers who have 25 or more employees.
Section 701 (b) makes a number of selective exemptions from the category of "employers." The Federal Government and corporations wholly owned by it are excluded from the definition. Similarly excluded are States and their political subdivisions, Indian tribes, and private membership clubs. As pointed out by Senator Robert Byrd “the exclusion of the Federal and State Governments does not mean that they are free to discriminate with regard to public employment opportunities. The former is covered by the President's Committee on Equal Employment Opportunities, the latter is covered by the equal protection clause of the 14th amendment." 29 Furthermore, the leadership compromise added a statement in the form of a proviso to section 701 (b) that it is the policy of the United States to insure equal employment opportunity for Federal employees. Senator Humphrey explained that this change hardly represents a change in the law, but it was thought desirable because the United States, like all governmental units, State and local, is generally excepted from the category of employers covered by the title.30
Section 702 exempts employers with respect to aliens they employ abroad and educational institutions with respect to educational personnel. Section 702 also exempts religious organizations, but only with respect to the “employment of individuals of a particular religion to perform work connected with the carrying on" of its religious activities. 31
It should be noted that the last mentioned group of exceptions only offer a partial exemption from the act. Thus, an employer of aliens abroad may be otherwise covered if his domestic operation is an “industry affecting commerce" and it meets the minimal standards with respect to the number of employees. The exemption in favor of educational institutional and religious organizations is limited to individuals whose work relates to the essential nature of such insti. tution or organization i.e., educational and religious activities. In all (ther respects, title VII is applicable to these two categories of "employers” who otherwise meet the jurisdictional standards of section 701.
An "employee" is defined by section 701 (f) as “an individual employed by an employer." *2 The sole apparent limitation on the word “employee" under the definition is that the individual must be employed by a covered employer. In short, every member of the work force, from the highest to the lowest, is deemed an employee and to be counted in computing the total number of personnel. However, it appears that neither board members nor stockholders are to be considered employees. 33
As defined by section 701(3), title VII applies to all employment agencies which “regularly" procure employees for a covered employer or which "regularly" procure for employees opportunities to work for covered employers. In other words, it is the fact of a covered employer that makes an employment agency amenable to the act. The term includes the U.S. Employment Service and the system of State and local employment services receiving Federal assistance, but not any other Federal, State or local agencies.
The definition of "labor organization” in section 701 (d) is substantially the same as the definition in the Labor Management Reporting and Disclosure Act of 1959,X except that State and local central bodies are treated as are other labor organizations. It includes "any organization of any kind *** in which employees participate and which exists for the purpose * * * of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment * * *.” National and international unions and their subordinate units conferences, general committees, joint or system boards, or joint councils—are included in the definition as well as local unions.
* 110 Congressional Record, p. 12803 (daily edition, June 10, 1964). 20 110 Congressional Record, p. 12297 (daily edition, June 4, 1964). 31 42 U.S.C. 2000e-1. 32 42 U.S.C. 2000e (f). 33 Congressional Record, p. 6997 (daily edition, Apr. 8, 1964). 34 42 U.S.C. 2000e (c). *5 29 U.S.C. 402 (1). 36 42 U.S.C. 2000e(d).