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I wish you would review this matter and see if some afterthinking would not remove your opposition on that particular point.
Mr. OʻSHAUGH NESSY. I support 100 percent the equal-pay-for-equalwork concept. I think it is disgraceful for an employer to take advantage of a large labor pool and underpay women, pay women less for equivalent work done by men. This, I think is impermissible. With that statement of the chairman I thoroughly agree.
Mr. BELL. It seems to me the brunt of the witness' question was: because it required an employer to make special provisions and adjustments for women, does he have a right to hire a man in place of a woman? Is this the crux of your question?
Mr. O'SHAUGIINESSY. Yes, sir. Suppose you have a production line in Illinois where men and women are integrated in the production line. An employer can work the men 10 hours, 2 hours overtime. He can't work the women more than 8 hours so his whole production line has to terminate at the end of 8 hours.
It is this kind of problem, and there are countless examples that may be considered and the employers in Illinois are truly concerned about the impact of the Federal statute. In our law firm, we get more questions on the subject of sex than anything else.
Mr. BELL. In other words you have to make special provisions for them?
Mr. O'SHAUGHNESSY. Yes.
Mr. BELL. Can he hire a man under the same circumstances who is just as able? Can he hire the man with the knowledge that he may be discriminating because of sex even though he is not going to have to make certain provisions that he would normally make?
Mr. DENT. What we are driving at here, taking the example the gentleman gave, and it is integrated between men and women and you hare 60 or 70 men and 30 or 40 women, and comes a period of reduction in labor force and it so happens that on a seniority basis or whatever rules they use, they reduce 15 women and 5 men.
Now when the employer rehires, if he refuses to hire women back on to that particular job he would be discriminating because of sex because there would be no other reason. I am not saying he has to take a job never done by a female and specifically employ that female for a field such as mining coal, which they do in Japan.
If the job is integrated and there is a percentage of women on the job and there is a period of reduced work force, that is the only area in which we have authority. I don't believe the Commission would have the authority to go out and tell an employer to break down his work force and say these are female-type jobs and these are male-type jobs. If he has already employed women and then refuses to re-employ them he is discriminating.
Mr. BELL. The witness is asking you a question. Do you feel this is discrimination?
Mr. Dent. If the women had been already on the job prior to the forced layoff, but the employer refused to rehire the women who had been here doing the job before, I imagine that would be a charge of discrimination. I imagine that would not be a situation where the employer and the union would agree these are men-type jobs.
Mr. HAWKINS. On page 5 of your statement, you made several statements which appear to me to be unfounded in asking about these statements.
However, may I at the same time say I want to commend you for the
Ι work you have done in the field of merit employment. I think that many of the things you have been doing, have been very excellent. I don't want to overlook the fact that you have done some excellent things.
But on this particular page, for example, you speak of the Illinois law. Did the chamber, may I ask you, support the passage of the Illinois bill?
Mr. O'SHAUGIINESSY. Frankly id did not support it. It felt that its program, some 15 years old, of merit employment was preferable. After the law was entcted it became a part of the statutory structure, I don't believe the Fair Employment Practices Act ever has had any more devoted supporter than the Illinois Chamber of Commerce.
Mr. HAWKINS. So you have supported the law since its passage but you did not support it prior to passage?
Mr. O'SHAUGHNESSY. There was a difference of philosophy that operated. The State chamber's official position was that voluntary merit employment is preferable.
Mr. HAWKINS. Is it also not possible, even though you do not support the extension of the present law, you probably will end up defending it also as you are now defending the Illinois law which you did not originally support?
Mr. O'SHAUGH NESSY. At the moment we are trying to keep title VII as it is without amendment, except possibly for the deletion of this category of the section. Aside from that we think that this may be the best balanced structure than can be worked out, at least for the time being
Mr. HAWKINS. Of course, that was your feeling prior to the passage of the Illinois law also ?
Mr. O'SHAUGHNESSY. I think it is a measure of the wisdom and maturity of the State chamber.
Mr. HAWKINS. I commend the chamber for being able to adapt to the changing situation. It does not seem to anticipate the benefit of some of the laws but you cetrainly adapt to some of the laws after they have been passed.
Mr. O'SHAUGHNESSY. I would say very well. The State commission used the materials that the State chamber used for a period of a year. The only materials available in Illinois were those prepared by the State chamber. It did hold seminars, conferences, and so on.
Mr. HAWKINS. You say in the first paragraph on page 5:
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.
How were you able to anticipate a heavy influx of complaints or why did you assume there would be a heavy influx of complaints!
Mr. O'SHAUGHNESSY. If you look down a few more lines you will see there was an extrapolation of a figure of almost 30,000 employers that it is estimated would result from the lowering of the coverage from 50 to 10 employees.
Mr. ILAWKINS. So this estimate was based on the assumption that the additional employers would have a certain number of complaints based on race, is that it?
Mr. O'SHATGINESSY. That is right.
Mr. HAWKINS. That these would be founded or unfounded complaints ?
Mr. O'SHAUGHNESSY. For the most part unfounded, I believe.
Mr. HAWKINS. Are you anticipating that the great influx of complaints then would be complaints that were unfounded complaints and if so why do you assume they would be unfounded ?
Mr. O'SHAUGHNESSY. I suppose I would have to relate to the experience of the commission to date.
Many of the complaints that come before the Illinois state commission are dismissed as without merit.
Mr. HAWKINS. If that is so unfounded complaints are dismissed, why would they add tremendously to the administrative load ?
Mr. O'SHAUGHNESSY. Because each of these complaints has to be investigated. The complainant is brought in, a statement is taken. Frequently the statements do not in themselves resolve the questions, so the employer must be called in and a statement taken from him and then the complainant and the employer sometimes have to be brought together and there is conciliation. Each of these takes time.
Mr. HAWKINS. Are the complaints verified in Illinois ? Mr. O'SHAUGHNESSY. They may be verified. They are in writing. The practice is for the complainant to go to the offices of the commission and one of the staff members sits down and listens to the story. I have been in the commission office for many, many hours working on different things and I have heard the extensive discussion that goes on—telephone conversations that last for an hour while a staff member is trying to explain to somebody that he really was not discriminated against.
Mr. HAWKINS. Are the complaints sworn to?
Mr. HAWKINS. Do you know offhand, how many complaints have been received under the State law?
Mr. O'SHAUGHNESSY. I do not.
If I could I would like to make one statement with respect to page 5, as Mr. O'Shaughnessy stated in his testimony. These complaints would be mainly in smaller areas where the people involved are not qualified to handle the jobs and this was the basis of our argument in Illinois.
The fact, also, was that the State commission did not officially request lowering of coverage in Illinois. The requests came from other areas, but not from the official commission empowered to enforce the act. There have been no official requests to lower the coverage.
Mr. HAWKINS. Is it not possible they made that recommendation because they did not have the money with which to operate and could not handle the present load?
Mr. PERRY. I am not sure of this. This could be the case.
Mr. HAWKINS. Could it not be based on the feeling that the complaints would not be justified ?
Mr. Perry. There was—their budget was increased this period over the prior period.
Mr. HAWKINS. From what to what?
Mr. HAWKINS. I can understand why they would oppose coverage. Getting back to the number of complaints, do I understand you had some 700 since the operation of the act ?
Mr. PERRY. That is right.
Mr. HAWKINS. Would you say that that is a great number of complaints ?
Mr. PERRY. It depends on what you are comparing it with. I would not say it is excessive although it has been a problem at times for the Commission under its present procedures to handle.
Mír. DENT. If the gentleman will yield, we have the commissioner of the Illinois State FEPC and I would certainly hope that the gentleman from California will direct his questions along the same lines tomor
because it seems to me that 700 complaints in a 4-year period is a very insignificant amount of workload for a commission because in violations of any kind of a State law, you could get that many complaints in 6 months.
Pennsylvania's experience was even much less than that. I don't know whether it is due to the lack of financial support for the complaintant and the ability to employ good spokesmen for them against the barrage of the high caliber lawyers of the employers, but the reason you don't have the number of complaints that would measure somewhere near the number of incidents of discrimination is simply because of the inability of the complaintant to prove his case.
For instance, do you happen to know how many times in the 700 cases they were-how they were adjudicated, how many were favorable to the employee who filed the discrimination complaint ?
Mr. PERRY. I have no official figures. Eighty percent of them were conciliated however, and this conciliation is in direct contradiction to the intent of this bill we are testifying on today.
Mr. DENT. We are eliminating the go-between the State agent and the enforcement of the Federal act. That is the question the chairman had in mind. In many cases, it takes so much time the witnesses disappear.
Mr. BELL. What is wrong with the commission having the right to take legal action after all persuasion seems to fail! Does Illinois now have such a proviso?
Mr. O'SHAUGINESSY. Yes, it does. It has provisions for hearing. Let me answer the question this way: A State that has the kind of law that Illinois has, we believe, knows best its own problem and can resolve the difficulties within the framework of its own statute, so we are not opposing-we are not opposed to the concept of enforcement of a commission's order as such.
Mr. BELL. The enforcement would be the same as Illinois'?
Mr. O'SHACGHNESSY. The differences are minor. The ultimate enforcement comes from a court order. The orders of the State commission and the orders under of the commission under House bill 9.292 are not self-enforcing. They must go to a court, this is in this case the court of appeals and in our case the circuit court.
Mr. BELL. In your opinion, the objection to this amendment is that you think Illinois should do it rather than the Federal Government?
Mr. O'SHATGINESSY. I would use the expression preemption operating in House bill 92.9.
Mr. BELL. I think there is one thing you should recognize, Mr. O'Shaughnessy. I think Illinois and California, my home State, do pretty well in this area though other of the States do not.
Mr. O'SHAUGHNESSY. I realize that.
Mr. BELL. This is one of the things that must be considered in this legislation. It is unfortunate that the good States have to suffer.
Mr. O'SHAUGHNESSY. Possibly if this 60-day period were retained, and I would say expanded, it should be longer than that, maybe 120 days, if this were continued so that a State such as California or Illinois or Pennsylvania were an enlightened forward looking program
Mr. BELL. Pennsylvania has discrimination against lawyers.
If the States that do have operating systems were free to continue and this preemption did not affect them, then I suppose speaking for Illinois we would have to say that we don't think the structure should be changed but we would not have grounds for appearing here.
Mr. BELL. In other words you would like to see the bill more sectional?
Mr. O'SHAUGHNESSY. The present law provides if there is a State law in effect which covers the alleged violation, no complaint shall be filed for 60 days from the date of the violation so that the State, in other words, can go to work on the complaint and see what it looks like.
House bill 9222 does not have this standby or suspension of Federal activity. As soon as the complaint is filed the Commission can move right away. This means it would move in ahead of Illinois so that there would really be two agencies at work but obviously the Federal agency would be preemptive so that the Illinois commission would gradually get to a point by erosion of activity where it would virtually disappear.
To get back to your question of enforcement powers of the commission, if Illinois were still free to manage itself as well as California and any other State that has a similar law and if the Federal agency was to move into those areas where there is presently no State law, then I would say that our concern would abate.
Mr. BELL. Are you assuming that Federal enforcement would be better than States? Why would the State not go to the Federal Government?
Why would the State enforce it by itself?
Mr. O'SHAUGHNESSY. I believe the legal principal of preemption would be operative. This is true in the Taft-Hartley.
Mr. DENT. May I inject here what I think the gentleman is driving at and of course what is very apparent that under their law today they have a 60-day period in which the Commission is permitted for conciliation and persuasion and if they can't adjudicate the particular problem is 60 days then it is a matter of going to court or whatever other enforcement procedure is available.
The purpose of this bill is to circumvent or bypass the 60-day waiting period where there is a charge of discrimination affecting interstate commerce, of course, they would move right in. Everything