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employment practice and to take remedial action by going to court and seeking injunctive relief. The substitute does not so provide. It reads:
""Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he was reasonable cause to belive a violation of this title has occurred'
“And so forth—that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization * * * with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.'
**The substitute measure would not permit a Commissioner to take enforcement powers into his own hands. The only time they can come into being is when an individual takes his own case into court and the Attorney General may find there is a pattern or practice of a discriminatory employment practice.
"The Commission can only investigate. The Commission can only persuade, conciliate, or mediate. The Commission does not have any de novo enforcement powers in its own right.
"Mr. CANNON. The language beginning on line 5 of page 50 states: 'or a written charge has been filed by a member of the Commission where he has reasonable cause to believe that a violation of this title has occurred.'
"In line 16, it is stated :
"If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate,'”
"And so forth. Does not this language in fact place a member of the Commission in the position of filing a charge and having the Commission determine whether or not there is any basis for the charge?
"Mr. HUMPHREY. Were the Commission to have enforcement powers, the Senator's point would be well taken. This has been a point that has been argued. Suppose an aggrieved party makes a complaint and states, 'I have not been able to obtain satisfaction at the local or State level. Will you please take a look at it?' The most the Commission can do is to take a look at the case and say that there is reasonable cause for a complaint and remedy in this connection. After the investigation is completed, the most the Commission can do is call in the State employment commission and say, “Will you think this case over? Will you work it out?' But the Commission has no enforcement power or administrative remedy, regrettably.
"Mr. CANNON. Would there be any objection to striking out the authority given to a member of the Commission to file a charge? Under this language an aggrieved person could still file the charge, and the Commission could determine the validity of the charge. That would resolve the question of a member of the Coinmission being a prosecutor and judge.
"Mr. HUMPHREY. When the Senator speaks of being a judge, he is assuming there will be some adjudication in which certain penalties will be assessed. The Commission can assess no penalties.
"The substitute reads, beginning at the bottom of page 51 :
“'(c) In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State, which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify, the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.'
"The most the Commission can do is to act like Paul Revere. All it can say is, ‘A charge is made. This charge will be returned to the State or local authority after 120 days'-if it is a new law-'or 60 daysif it has an established FEPC law.
“Let us assume that the State does not take any action. The most a Commissioner can do is go to the Commission and say, "There is unlawful practice as I see it. The Commission should examine the case. There is no power in the bill for a Commissioner to institute a lawsuit. What more could one ask for than to try to seek conciliation by using the Commission or a Commissioner, rather than seeking punishment? If there is a question of seeking punishment, it will be because of an individual who feels that he has been aggrieved and will use a court of law to seek such satisfaction. If there are practices and patterns of discrimination, the Attorney General may institute legal action under what is called pattern or practice conditions.
"Mr. CANNON. Mr. President, will the Senator from Minnesota yield for another question ?
“Mr. HUMPHREY. I yield.
“Mr. CANNON. Is it not a fact that if the Commission does not obtain voluntary compliance, it has the right to proceed with legal action ?
"Mr. HUMPHREY. No. That is the point. That is the point which I am making. It has only the right to do so. That is provided on page 53, in the following language:
“'If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) (except that in either case such period my be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this title, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved
"Mr. CANNON. If the Senator will read further
"Mr. HUMPHREY (continuing). 'If such charge was filed by a member of the Commission'
“Mr. CANNON. Does the distinguished Senator agree that it is a prerequisite that the Commission find that such condition existed before the individual can bring action?
“Mr. HUMPHREY. I do not agree to that. The point is that the Commission may offer to advise the Attorney General. The individual may proceed in his own right at any time. He may take his complaint to the Commission, he may bypass the Commission, or he may go directly to court.” 62
The Attorney General is authorized to intervene, with the permission of the court, in any action brought by an individual under title VII. Before he may successfully intervene, however, the Attorney General is required to certify that the case is one of general public importance.
The authority to try such suits is lodged with the Federal district courts. Proper venue lies with the judicial district in the State in which the practice occurred, in the district in which the relevant employment records are kept, or in the district in which the plaintiff would have been employed but for the alleged discrimination. In the rare case where the respondent cannot be served in any of these districts, suit may be brought in the district of his principal office.
Section 706 (g) provides that if the court finds an intentional violation, it may enjoin the respondent from engaging in further violations and order such affirmative action as may be appropriate. “The express requirement of intent is de signed to make it wholly clear that inadvertent or accidental discriminations will not violate the title or result in the entry of court orders. It means simply that the respondent must have intended to discriminate."* Appropriate forms of relief include reinstatement or hiring of employees, with or without backpay, but interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the backpay otherwise allowable. The court cannot, however, require the admission or reinstatement, or promotion of an individual as a member of a union or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay, if he was refused admission, suspended, or expelled, or was
* 110 Congressional Record, pp. 13693-13694 (daily edition, June 17, 1964). * Id., at p. 12298.
refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin, or for participation in an investigation, proceeding, or hearing designed to eliminate discrimination.
If an employer, employment agency, or labor organization fails to comply with a court order, the Commission may institute proceedings to compel compliance.
All appeals from a district court judgment are to be made to the courts of appeals.
Section 706(k) authorizes reasonable attorney's fees as part of the costs. Although neither the Commission nor the United States is eligible to receive attorney's fees, they are liable for such costs the same as a private person. According to Senator Humphrey, this provision was designed "to make it easier for a plaintiff of limited means to bring a meritorious suit.” 64
Section 707 authorizes the Attorney General to bring a civil suit if he believes that there is a “pattern or practice of resistance to the full enjoyment of rights" protected by title VII.* Before bringing suit, however, he must be convinced that the "pattern or practice is of such a nature and is intended to deny the full exercise" of these rights. The complaint must be signed by the Attorney General and must set forth facts pertaining to such “pattern or practice" and request such relief, including an application for a permanent or temporary injunction, restraining order or other order as he deems necessary. As explained during the debate on this provision, the term “pattern or practice" of discrimination
“* * * is meant to exclude action in sporadic instances of violation of rights, which will be left to correction by individual complainants under other sections of these titles. It would be clear that an establishment or employer that consistently or avowedly denies rights under these titles is engaged in a pattern or practice of resistance.'
"The Attorney General may obtain relief in public accommodations and em. ployment cases only where a pattern or practice has been shown to exist. Such a pattern or practice would be present only when the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute.
“As a further safeguard, the bill requires a showing that those engaged in the pattern or practice had the intention to deprive others of their rights under title II or title VII. That is, where several companies are involved, the Attorney General could not show a pattern or practice by proving that one company refused to serve a Negro because of his race and several other companies also refused service but for legitimate reasons. That kind of a showing would not satisfy the requirement of intent; what required is a showing of intentional discrimination. Intention could, of course, be proved by, or inferred from, words, conduct, or both. The issue would then be whether, as a matter of fact, there was a refusal of service or employment amounting to a pattern or practice, not whether the companies acted in concert or in a conspiracy. And the bill would authorize the Attorney General to join all or some of several defendants in the same action.
“The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice, and thus the fears which have been expressed in this regard are totally groundless.'
The Attorney General may request that the proceeding be tried by a threejudge district court by certifying that the case is one of general public importance. Appeals from the decision of a three-judge tribunal lie immediately to the U.S. Supreme Court.
Section 708 provides that "nothing in this title shall be deemed to exempt or relieve any person from liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than
42 U.S.C. 2000e-6. * 110 Congressional Record, pp. 13745, 13776 (daily edition, June 17, 1964).
any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.” 67 (d) Investigations and records keeping
Sections 709 and 710 relate to the Commission's investigating powers. Unlike the original House proposal which authorized the Commission to roam the whole range of employment discrimination, the provisions of the adopted version confine the investigatory power to charges under investigation. Section 709(a) grants the Commission access to, and the right to copy evidence of a person being proceeded against or investigated. The right to copy is strictly limited to evidence that relates to unfair labor practices as defined above, and that is relevant to the charge under investigation by the Commission. Although its investigatory powers are limited, they are nevertheless significant, particularly when viewed against the power conferred on the Commission by subsection (c); i.e., the authority to require employers, employment agencies, and labor organizations to keep and preserve records and to make reports therefrom.
I'nder section 709(b), the Commission may utilize the services of State and local agencies, with their consent, and reimburse them for services rendered to assist the Commission in carrying out the provisions of this title. In addition, the Commission is authorized to enter into agreements with State and local agencies relinquishing the Commission's concurrent jurisdiction over such classes of cases as may be specified therein.
Section 709 (c) authorizes the Commission to impose recordkeeping and reporting requirements on employers, employment agencies, and labor organizations subject to the act. Similarly, covered persons and organizations are required to maintain records including, but not limited to, a list of applicants who wish to participate in apprenticeship and other training programs, the chronological order in which applications were received, and a detailed description of the manner in which participants are selected.
In order to mitigate any undue hardship which may result from the strict imposition of the recordkeeping requirements, covered persons and organizations may apply to the Commission or the courts for an exemption or relief therefrom.
Again, in keeping with the act's deference to State and local enforcement, subsection (d) provides that where an employer, employment agency, or labor organization is subject to a relevant State or local regulation, it shall not be subject to the recordkeeping or reporting requirements adopted by the Commission pursuant to subsection (c). However, the Commission may require such notations on records kept or required to be kept “as are necessary because of differences in coverage or methods of enforcement” between State anad local law and title VII.
Another exemption from the recordkeeping requirements is authorized in the cast of Government contractors who are subject to the reporting requirements of Executive Order 10925, which governs employment practices by Government contractors and subcontractors in federally assisted programs.
Commission officials and employees are forbidden by section 709(e) from disclosing any information obtained during an investigation. This broad prohibition carries a maximum fine of $1,000 or imprisonment for 1 year.
Section 710 provides that the "Commission shall have authority to examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation.” It may “demand" (1) the right to examine and copy evidence in the possession or control of the respondent, (2) production of such evidence, (3) the testimony of a witness under oath. If such a “demand" is not complied with, the Commission may seek court enforcement of its "demand." It cannot require the attendance of a witness outside the State where he is found, resides, or transacts business, or the production of evidence outside the State where it is kept.
Anyone served with a "demand" for access to or the production of evidence by the Commission has 20 days in which to object. A petition for relief from a Commission "demand" must specify each ground upon which the petitioner seeks relief, but objections not raised within the 20-day period cannot be raised in defense to a proceeding to enforce the “demand," in the absence of special circumstances.
42 U.S.C. 20000_7. * 42 U.S.C. 2000e-8, 2000e-9.
A number of important considerations should be noted. First, the Commission's investigatory power may be exercised only in connection with the investigation of an alleged unlawful employment practice. Second, the Commission does not obtain information by a subpena, but rather by making a “demand." This latter means that if it seeks to compel compliance with its demands for documents or testimony of witnesses, it must first go to court and secure an order of compliance. (e) Posting requirements
Under section 711, employers, employment agencies, and labor organizations subject to title VII are required to post in conspicuous places notices to be prepared or approved by the Commission setting forth excerpts of the act or other relevant information. Willful violation of the posting requirements carry a fine of not more than $100 for each offense."
Section 712 provides that title VII does not repeal or modify any Federal, State, territorial, or local law creating special rights for veterans," (9) Rules and regulations
Section 713 contains the Commission's rulemaking powers."2 Subsection (a) empowers the Commission to issue, amend, or rescind suitable procedural regulations to carry out its functions. Such regulations must be in conformity with the standards and limitations of the Administrative Procedure Act.13
Subsection (b) provides that in any action or proceeding based upon an alleged unlawful employment practice, no person will be subject to any liability or punishment because of the commission of an unlawful employment practice if he shows that the act complained of is in good faith, in conformity with, or in reliance upon a written interpretation of the Commission. No such person will be subject to any liability or punishment because of his failure to publish or file any information required by the act if he shows that he published or filed such information in good faith in conformity with instructions of the Commission. These good faith defenses are effective even though the interpretation or opinion in question is modified or rescinded or is determined by judicial authority to be invalid and even though, after publishing or filing, it is determined by judicial authority not to be in conformity with the provisions of title VII. (h) Miscellaneous
Section 714 makes the provisions of 18 U.S.C. 111 applicable to Commission personnel. This section makes it a crime to forcibly assault, resist, oppose, impede, intimidate, or influence with certain governmental employees while engaged in or on account of the performance of their official duties. The penalty provided is a fine of not more than $5,000 or imprisonment for not more than 3 years, or both, except that if a deadly weapon is used, the maximum fine is not more than $10,000 and the maximum imprisonment is not more than 10 years."
Section 715 directs the Secretary of Labor to make a full and complete study of the problem relating to discrimination in employment because of age. He is further directed to report to the Congress not later than June 30, 1965, with the results of his study and recommendations for legislation."
Section 715(c) directs the President to convene one or more conferences for the purpose of familiarizing those affected by the rights afforded and the obligations imposed by this act and of making plans for fair and efficient administration of the act. The President is to invite to the conference (1) members of the President's Equal Employment Opportunity, (2) members of the Commission on Civil Rights, (3) representatives of relevant State and local agencies and private agencies, and (4) representatives of employers, labor organizations and employment agencies subject to this title."
(Whereupon, at 12:17 p.m., the subcommitee adjourned, to reconvene on Thursday, July 22, 1965, at the call of the Chair.)
* Senator Humphrey, 110 Congressional Record, p. 12298 (daily edition, June 4, 1964). 70 42 U.S.C. 2000-10. 71 42 U.S.C. 2000e11. 72 42 U.S.C. 2000e12. 73 5 U.S.C. 1001 et seq. 74 42 U.S.C. 2000e-13. 76 42 U.S.C. 2000e-14. 78 42 U.S.C. 2000e-15.