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In both of the last two sessions of the general assembly such proposals have been defeated, mainly because we were able to point out that the heavy influx of complaints would result in an administrative load that the Commission would not be able to administer. It was the considered judgment of the general assembly, after 4 years' experience with the law, that coverage should not be lowered. Yet, H.R. 9222 is asking for lowering of coverage after 19 days of experience. The sponsor of the Illinois bill to lower coverage from 50 to 10 stated that it would mean an additional 29,347 employers would be covered. It is impossible to predict the number of complaints that would result, but it is basically factual to assume they would be in the hundreds—mostly unfounded. The reason is that lowering of coverage would affect mainly the small firms in areas of the State outside of the city complexes of Chicago, Peoria, Rockford, and East St. Louis. It is in these areas where qualified minority group employees are probably less available than in city areas. Proof of this fact is contained in the report of the Governor's Committee on Unemployment in Illinois, released in 1963, which stated in part that “it is necessary, however, that they understand that discrimination is, in fact, lessening and that many of the problems that Negroes face in the job market are due to inadequate skills and education rather than to color.” Multiply this Illinois situation by the other 49 States of the Union and you can obtain some idea of the enormity of the problems which would result to Federal administration.
A recent survey among members of the BNA personnel policies forum on the employment of Negroes, gives further indication of the problems which may result. The survey indicated that,
(1) Although Negroes are employed in blue-collar jobs by 94 percent of the companies surveyed, they are employed in white-collar jobs by only 70 percent.
(2) Nearly 75 percent of the companies are taking positive steps to recruit Negroes, but the percentage of Negroes in the work force is 3.9 percent, or lower, in 58 percent of the firms.
(3) More than 60 percent of the companies reported that there has been no increase in their employment of Negroes since the passage of the Civil Rights Act last year. Some stated that they expect their emloyment of Negroes to decline, rather than increase, because of adherence to a policy
of merit employment and a lack of qualified minority group applicants. The Governor's Committee on Unemployment report also indicated that (1) while Negroes constitute approximately 10 percent of the Illinois population, they constituted about 30 percent of those seeking jobs; (2) one-half of the jobseekers were factory workers with little or no occupational skill, but jobs for such workers constituted only a fourth of the Illinois total; thus, two-thirds of the jobseekers were possessed of skills which required little or no training ; and (3) 68 percent of the jobseekers have not completed high school; 17 percent had not completed the eighth grade; 22 percent had completed only the eighth grade, and another 29 percent were high school dropouts.
These characteristics are reflected by the Ilinois State Employment Service's figures on surplus occupation (those where the job applicants exceed the job openings) for February 1965. Virtually all of the surplus occupations were ones demanding little or no skills, such as laborers, clerks, chambermaids, and porters.
The Bureau of Labor Statistics has completed the first phase of a survey, and noted that from a third to a half of the job vacancies were difficult to fill, in that filling the job required a month or more of employer recruitment effort. Among the vacancies most frequently mentioned as difficult to fill were those for engineers, registered nurses, draftsmen, laboratory technicians, physical therapists, stenographers, typists, machinists, tool and die makers, and various types of mechanics and repairmen.
An analysis of the unemployment problem, thus, shows that the difficulty in our fast changing and upgraded society does not lie with a deficiency of demand for labor, but with the lack of skills among the labor force to fill existing demand.
In talking with civil rights leaders in Chicago one learns that these leaders are the first to admit, but only privately, that minority group members today do not possess the skills to handle the majority of jobs open today in American business. Therefore, lowering of coverage can only result in impossible administrative burdens for the Federal Commission through an influx of unfounded complaints-unfounded because of lack of skills for the job in question. The result will be unfilled promises to those who will expect employment because they now come under the provisions of the act.
The Federal Commission also may experience manpower problems. A recent training seminar in Washington indicated that 65 investigators, on loan to the Equal Employment Opportunity Commission from various Government agencies, were urged to conduct broad investigations into employment practices rather than to overemphasize adjustment of the individual complaints. If 65 investigators are required now when the law applies to employers of 100 or more, what number will be needed if the coverage drops to 8?
What will happen on the State level should coverage be lowered? At present some 30 States have FEP statutes. In Illinois lowering of coverage under the Federal act would bring immediate demands for further lowering of the State coverage, although this could not be done until the next session of the general assembly. Yet, lowering of coverage on the State level also would result in an influx of complaints and would place an even heavier administrative burden on the staff. Under both title VII, and under proposals contained in H.R. 9222, the Federal Commission may enter into agreements with State agencies which would, in essence, grant to States the right to handle their own fair employment problems. However, it is also provided that the “Commission shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforcement under this Act.” The State chamber fought, successfully, for passage of a bill in the just concluded session of the Illinois General Assembly which would grant the right to the Illinois FEPC to enter into such a relationship with the Federal authorities. We have long preached the theory of States rights and felt that this was one area where we could practice what we preach.
Any attempt to lower coverage on the Federal level, that would result in State action to lower coverage, would certainly render the Illinois operation ineffective and could result in the cancellation of any State-Federal agreement. In fact, to my knowledge no such agreement has yet been signed. It is our considered opinion that the reason for no agreement being reached is the indecision concerning the Federal program-an indecision contributed to by the proposals made in H.R. 9222.
Let us assume that the coverage under Federal law is lowered to 8, but Illinois remains at its present 50. Cases involving employees in the 8-49 range would be handled by the Federal Government. Cases involving 50 or more would be handled by the State agency, so long as the State FEPC operated "effectively." Cases involving charges of discrimination based on sex would be handled by the Federal authorities, as it is presently under title VII. The end result would be chaotic, to say the least.
What would happen in the smaller firms to be covered? Every personnel man acquainted with this subject knows that, even under the very best conditions and with the best intentions, an integration program can only be installed gradually. Such a program is difficult enough with larger, well-staffed firms who have had some experience with fair employment problems. To lower coverage to these smaller firms will be confusing and would not serve the best interests of the fair employment program itself.
For these reasons lowering of coverage as proposed in H.R. 9222 is just not feasible.
The second major change in H.R. 9222 comes in Section 6–Prevention of Unlawful Employment Practices. The original intent of title VII was to provide machinery for conciliation and persuasion. This is the basis of any FEP statute, and the Illinois FEP Commission has continually played up the role of conciliation since the act became effective in 1961. If the conciliation approach was good enough last year when the civil rights bill was passed, what is wrong with it today? Is new language proposed in section 6 a shift away from the conciliation approach? One of the leading exponents of conciliation, and one of the most respected groups, is the National Urban League. They believe in racial diplomacy, rather than the direct action approach. This country has been able to compare the two systems in recent months and, we believe, the great majority of Americans favor the diplomatic—the conciliatory-approach.
Provisions of section 6 seem to switch from the conciliatory approach to a new concept including service of complaint upon the respondent, hearings by the Commission or designated agent, issuance of cease-and-desist orders, court enforcement, etc. We have had experience with these procedures in Illinois. While the performance of the FEPC in our State has been generally good, there is one case which did involve public hearings, examiner's reports, a Commission review, and other procedures similar to proposals under section 6. This
was the now famous, or possibly it should be infamous, Motorola case. It is interesting to note that the conciliation step was bypassed in the Motorola case.
The original concept of title VII, that of conciliation, should be given a thorough trial before being tossed aside. Business must object to this sudden and considerable turnabout in the procedures now available under title VII.
If the Illinois experience can contribute to a better understanding of our mutual problems, then we respectfully suggest that language proposed in section 6(f) referring to taking such "affirmative action * * as will effectuate the policies of the act” should be stricken from the bill. Similar language, ambiguous at best, led to some of the actions taken in the Motorola case, including the order that the company pay the complainant $1,000. The courts reversed the FEP Commission on this point, but experience has shown that unless clear-cut provisions are set forth in legislation, the administrative agency will promptly proceed, in the absence of such provisions, to act above and beyond the intent of Congress. Language should be clear and should protect the employer, as well as complainants, against pressures and administrative rulings which fly in the face of normally accepted employment relationships.
Therefore, we would recommend complete elimination of language in section 6(f) which would allow the Commission to take affirmative action. We do not object to the inclusion of reinstatement or hiring of an employee and, in fact, suggest that specific language to make clear what authority the Commission has would be preferable. If such language is deemed necessary, it should be definitely spelled out.
There is a large public interest in assuring that the Commission conduct its affairs in accordance with the statute and within its own rules and regulations. History indicates that innocuous language will result only in abandonment of principles, departures from established rules, and an eventual ascending order of chaos.
There is one further but highly important item we would like to commend to your attention. Under title VII, States with FEP statutes have 60 days' initial jurisdiction, during which time the State can act on any charge before it goes to Federal authorities. This right is deleted in proposals contained in H.R. 9222. In essence, the bill would leave State commissions with little authority, unless the agreement previously referred to on page 8 of this testimony was signed by the respective parties. This leaves too much to chance and, in essence, could effectively eliminate all State commissions from the area of fair employ. ment practices. There are other changes to which we object, but time does not allow for full coverage of all items.
Although we have officially indicated that now is not the time for any revisions of title VII, we would call to your attention one word which could, and should, be deleted from any section of any statute dealing with discrimination. The deletion of "sex" as a basis of discrimination would be welcomed by all those covered by the act-and probably those in charge of enforcement of the act's provisions. The State chamber has been flooded, as has the Federal Commission, with questions about the sex issue. Legislative history indicates no reason of substance for its inclusion as a factor in discrimination. Here is one example of questions being received:
"Title VII indicates that an employer may not refuse to hire any individual because of sex. An employer may be reluctant to hire young, single girls for jobs that require extensive training for fear they will become married in the near future and leave. Can the employer refuse to hire on this basis?"
"Under a labor contract, or because of policy, women are provided certain fringe benefits (sick leave, pregnancy pay) without comparable benefits to men. Is this discrimination ?"
"Most States have laws which restrict the hours of work of females. Will an employer, because of necessity of working overtime, be violating title VII if he hires only males because of such laws?"
The State chamber opposed inclusion of the word "ser" in title VII. It should be eliminated as a basis of discrimination.
CONCLUSION In conclusion, the Ilinois State Chamber of Commerce respectfully requests this subcommittee to withhold action on any changes in the present title VII of the Civil Rights Act. Further, we urge the immediate appointment of a Citizens Advisory Committee to the Equal Employment Opportunity Commission whose task it will be to act as an "unofficial advisory group" to the Commission
in all matters relating to its jurisdiction. The group would be well equipped to suggest procedures and to approve or disapprove rules and regulations which will be promulgated. Although the business community should be represented, other groups concerned with equal employment, including labor unions, should be asked to serve. Also, this group could act to eliminate the overlap which has and will continue to result from local, State, and Federal rules on equal employment.
Other positive steps should be taken while title VII becomes operative, to help insure that members of minority groups will be qualified for the positions which will open up in American business and industry. To that end we recommend adequate programs for the education, training, and retraining of the unemployed. The existence of severe labor shortages in many industries, especially for skilled help, indicates the desirability of well-planned and specific programs for the education, training, and retraining of the unemployed to hold these jobs. To this end the Illinois State Chamber has supported State utilization of funds available from programs such as the Vocational Education Act and the Manpower Development and Training Act. Business and industry, too, must take responsibility in this vital area and follow the lead of many companies which have already given support to programs designed to reduce unemployment and create jobs. Recently, Secretary of Labor Wirtz announced that Chrysler Corp. had entered into the largest Federal on-the-job training program negotiated to date. The agreement will result in training 1,000 previously unemployed workers as automobile mechanics and auto-body repairmen. Many groups and associations have joined to find increased job opportunities for minority group members. Much more can, and should, be done.
Finally, we continue to urge voluntary participation by all business firms in a full-fledged merit employment program as outlined in our new film “Challenge." It is particularly distressing to us, however, that the thousands of firms which have practiced merit employment for years have been given little or no credit. Samuel C. Bernstein, employment security administrator, Department of Labor, State of Illinois, in a recent publication said "There are hundreds of other firms throughout the Chicago area which have also succeeded in integrating their labor forces and whose stories could also be detailed * * *." He continued on by saying “No employer, of course, should in hiring Negroes or other minority workers, feel that he has been clubbed into a bad situation by the sheer force of law and economics. Actually, merit employment is simply plain, commonsense."
We agree with Mr. Bernstein. Political freedom and free enterprise are necessary conditions for a democratic way of life. Both demand that every man and woman be allowed to succeed according to his abilities. Businessmen generally are believers in free initiative and voluntary action. They can play the most constructive role of all in assuring equal employment opportunity for all.
We sincerely trust that this presentation has contributed to a better understanding of the issues involved. Thank you.
Mr. O'SHAUGHNESSY. I am James B. O'Shaughnessy. I am a partner in the Chicago law firm of Schiff Hardin Waite Dorschel & Britton. I am a member of the Labor Relations Committee of the Illinois State Chamber of Commerce, and am authorized to speak here today on behalf of this 110-member committee as well as the chamber's 70member board of directors.
I am accompanied by Robert M. Perry, manager, labor relations department, of the State chamber. Mr. Perry also has served since its inception as a member of the advisory committee to the State FEPC. I would like to say that we come to this committee with some experience. Illinois has had a Fair Employment Practices Act in effect for some time and Mr. Perry has worked very closely with the commission and I have worked very closely with the Illinois State Chamber.
I might also say in my practice I am called upon regularly to consult with confused clients who are wondering just exactly what impact the State law has on their employment practices. I believe that this experience, at least I am hopeful, that it can add a dimension to
the thinking of the subcommittee and possibly throw some light on the problems as they are seen in the field, so to speak.
What I have to say here today might be deemed in one sense a voice of the Midwest, activities that have taken place and are already written into the history of merit employment.
The Illinois State Chamber of Commerce is a statewide civic association with membership of almost 20,000 business and professional people representing some 8,000 companies located in every section of the State of Illinois. The State chamber appreciates the opportunity to offer its views on the highly controversial section of the Civil Rights Act dealing with equal employment opportunities.
While it may not serve the purpose of this subcommittee or the State chamber, to refer to the "controversial” nature of this section, the fact remains that this section is controversial. It is our basic contention that proposals made in H.R. 9222 will not contribute to the lessening of controversy, a goal of all who are sincerely concerned with equal employment opportunities but will have the reverse effect.
There is a high degree of common thinking on this subject. To me it is rather amazing that such diversity of industry can think in many respects in one mind on this subject. I can say that there is a widespread feeling that title VII should not be amended at the present time.
I would like to give some of those reasons.
First I would like to point out that the Iillinois State Chamber is not new to this field. I don't know how many of you gentlemen recall the first Presidential Committee on Employment Practices in 1945. Pro lent Roosevelt appointed this Committee, and it was, I believe, the first of its kind to explore the subject of merit employment, discrimination in employment, and its first activity was to cite some 27 of the Nation's leading railroads to appear before the Committee. Monsignor Haas was Chairman of that Committee and the hearings were held here in Washington in, I believe, 1945.
As a result of that, all of the railroads but one was cited for discrimination in employment. If I may be permitted a personal note, I was with the Chicago Northwestern Railroad at that time and by virtue of activity in eliminating job prejudices and discrimination in employment the Northwestern Railroad got a clean bill of health from that committee.
I think that this was the first activity of its kind in 1945. Let me say as long ago as that the Illinois State Chamber of Commerce was beginning to develop its policy of merit employment.
I don't maintain that the association for which I am appearing here this morning has believed in compulsory nondiscrimination in hiring practices, but it has for a long period of time consistently maintained that voluntary merit employment is the best way to go about the problem.
I would like to read very briefly from a statement that was made back in 1951, some 14 years ago, quoting:
Something new and revolutionary is happening-many ranking industrialists have taken the lead in campaigning against job bias. Even more extraordinary, a leading C.S. business organization has made a film that tells businessmen that it is time to replace the traditional system of hiring by race with a new pattern of hiring by merit.