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The New York law, as previously stated, now covers employers of six or more persons and the activities of all labor unions.
Another important change which would be brought about by H.R. 9222 is in the relationship of the Equal Employment Opportunity Commission to State agencies. I do not concur in and cannot support this change. The Civil Rights Act of 1964, insures that the Federal and State agencies will cooperate with one another and coordinate their efforts toward achieving the common goal of equal employment opportunity.
This is achieved, in part, by provisions mandating notice to State agencies and deferring Federal proceedings in favor of State proceedings for fixed periods of time. Those provisions have been deleted from H.R. 9222.
Under H.R. 9222 the Federal Commission will be able to process a complaint from its inception through to a conclusion in the Federal courts, without ever notifying the State agency involved or giving the State agency a chance to act. This procedure may have the effect of weakening State agencies.
It is true that H.R. 9222 still provides for agreements under which the Federal Commission would refrain from processing charges in specified cases but these agreements may be terminated at will.
Our commission desires to cooperate with the Equal Employment Opportunity Commission and supports legislation to give that Commission administrative machinery to enforce the Federal law. We do feel, however, that a more harmonious relationship and more effective enforcement of the laws, both State and Federal, will result if the State involved receives notice of a charge and a stated period of time within which to act, before the Federal Commission becomes actively involved.
The New York State law with its concern for all areas of living undergirds the philosophical concept that just as freedom is indivisible, the equalities are inseparable and if we are to project this philosophical concept of human rights to embrace all persons in the Nation, Federal law must, and in all probability will be expanded in all areas to assure to every American that full and equal opportunity shall become a viable reality in every State and locality.
Mr. ROOSEVELT. Thank you very much, Mr. Fowler.
You have certainly given us a most interesting statement. There are a number of things that it immediately brings to mind. The first one is on page 1.
It is interesting that as of July 1 of this year, the Governor said in New York State and added to our responsibilities to prevent discrimination in employment because of sex.
Mr. FOWLER. Yes.
Mr. ROOSEVELT. This is an area where probably we have had more complaints about the existing Federal statute, and I wonder if the little time in which you have had a chance to look at this, whether you think that this is going to be a practical matter to enforce, or whether you will have difficulties in this area?
Mr. Fowler. In my judgment, we will not have serious difficulties, and I would like to give you my reasons for this. First of all, I think that the cultural factors are such that we won't be confronted with lines of women bringing complaints because they are not allowed to become coal miners
I think that factually, the kind of complaints that exist in the minds of women are those that have to do primarily with promotional opportunities in various areas where women are quite active. We plan, on our own, to begin to identify those areas, and to try to get the employers to move without awaiting complaints from women. The power that we have to initiate complaints, this new power, will give us the opportunity to move in ourselves, in identifiable areas.
We are now planning to set up in our commission a special unit, headed by a woman of good background and interest and concern in this field, who will help us to really administer law, and also to let women know, throughout the State, that we welcome this addition to our responsibility, and to urge them to work with us to see that they get the justice that was intended.
Mr. ROOSEVELT. It brings to mind that one of the important companies in the United States, the telephone company, brought to my attention that for the first time, they had had to go out and recruit male telephone operators. Then he said:
I wonder how you are going to feel the first time the telephone operator turns out to be a very deep-voiced individual when you are complaining about why you did not get your number.
I said it did not bother me any. As Mr. Pucinski just said, to me, this happens in Europe many times, and the important thing, I think, is that perhaps in the past, employment of the telephone operator was given to a woman because this was the limit to which that employee probably would go, and would be satisfied to stay in that area.
This may break that down, and give opportunity to move on up through the system, no matter where your starting point might be.
Mr. PUTINSKI. Would the gentleman yield?
I think the more surprising thing would be when we see the woman climbing up the telephone pole to make the repairs.
Mr. ROOSEVELT. Mr. Fowler, in yesterday's testimony, one of the witnesses stated that title VII indicates that an employer may not refuse to hire an 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? How are you going to handle a problem like that?
Mr. FOWLER. Well, I have a feeling that there would have to be some justification that could be scientifically proven in relationship as to whether or not discrimination existed in an individual case. I would feel certain that in some areas, the turnover among men is greater than among women. Now there may be any number of reasons for this. Culturally, and so forth.
Mr. BELL. Will the gentleman yield on this point ?
Mr. BELL. I was wondering, Mr. Fowler, if an effort could be made to get under this particular umbrella of classifying jobs, specifically for women, and jobs specifically for men. Would it then cover this particular problem that you are discussing?
Mr. FOWLER. I would not be in favor of that, unless I knew what the jobs were. I mean, I wonder, sir, if you would be good enough to give me an example of the kind of thing you might have in mind.
Mr. BELL. It is difficult for me to give you an example. I know that there is an area that you could classify jobs. For example, it is difficult for an employer to know that a woman is just as capable as a man in a particular area. He has to make special provisions for her.
I was wondering if conceivably they could get by this on the basis of classifying jobs for women and jobs for men? It goes to Mr. Roosevelt's question.
Mr. Fowler. For this, of course, I think I understand specifically. Let me see if I can just use an example of the kind of thing that I think we will be faced with, and I am frank to admit that we have not resolved these problems. This is a whole new area, and I am groping, as everyone else is who has responsibility in this area, but let's take the concept of marriage.
I mean, I think many employers use this as one basis for making a difference-let's put it this way, between the employment of women and men. I don't think that one could justify the position in a specific-unless you dealt with a specific case, that a woman should not be hired in relationship to going up the ladder in business, for example, because the probability is that after 2 years or 3 years, she will drop out.
We have too many examples of women who have, despite marriage, despite the rearing of a family, been quite active in all areas of our lives.
I think that a case could be made out for where a woman, for an example, might take the position that she does not intend to take certain of the training courses that would be prerequisite to advancement, because she is married, and because she looks forward to the day when she can stay home with the children.
With that kind of evidence, I would feel it would be just and fair to the respondent, to the employer, to say that because she does intend to act out her role that woman should-ihat womanhood would demand, she is not being discriminated against, because you don't move her into certain areas.
I think that what we have to do is to try not to be too generous ,in terms of categorizing our actions toward women in this regard.
I think that we have got to play it by ear, and in a sense, take each woman who files a complaint, look into her specific complaint, and background and ambitions, and so forth, and try to rule on that basis.
Mr. ROOSEVELT. You would, perhaps, agree, that this is not going to be an easy job and not an easy responsibility for the Commission.
Mr. FOWLER. I agree.
Mr. ROOSEVELT. I have one more question in this area. Under a labor contract, the witness stated yesterday, or because of policy, women are provided certain fringe benefits, such as sick leave, pregnancy pay, without comparable benefits to men. Under the New York State statute, would this be discrimination?
Mr. FOWLER. The statute does not deal with that situation. My personal feeling would be that nothing should be taken away from women that they have presently. I think there have been good reasons for some of the special legislation, and special rules and regulations, and administrative policies and procedures.
Mr. ROOSEVELT. But would a man have the right to come before your commission and then ask for the same thing? "My wife is now hav
baby: I want 10 days off to recuperate."
Mr. FOWLER. I guess he could have a right, but were I the commissioner handling the case, I think that I would not consider that to be substantive, in relationship to his demand for equal opportunity.
I might suggest
Mr. ROOSEVELT. You realize I am trying to get directives so that the Federal Commissioner will find the Federal law easier to administer. He will have a guideline that you will have established for him.
Mr. FOWLER. I can understand. Well, you know, in that regard, we have had some complaints, a few, relatively few complaints from whites who have taken the postion that “This employer is interested in living out his responsibility as an equal opportunity employer. He is going to the Urban League, hiring Negroes and Puerto Ricans. Well, now, what about me? I submit that this is an act, that, in effect, discriminates against me."
Fortunately, we have not had very many such complaints, and I guess that really, the only answer that one can give the fellow with integrity is that we are dealing with a problem that has to do with some historical factors and cultural factors that have deprived people of equal opportunity. It is unfortunate that during a judgment period, there might be people who individually might be hurt, but in terms of the total good, this is the only solution we have, and I have the same feeling philospohically, about the women's situation, as far as employment is concerned.
I think that most of it, most of the discrimination against women, has just been based on ignorance, and based on a sort of superiority complex that men have, and it is really a complex, not superiority, in my judgment.
Mr. ROOSEVELT. Mr. Fowler, I am going to ask Mr. Pucinski, if, when his turn comes, whether he would be good enough to ask you to detail the provisions of the law and the experience you have had in it where you have been given the responsibility for discrimination because of age. It would be very helpful to us if we could have the specific sections, the new sections which have recently been added to the New York statute.
Have we got it? We don't have it. If you have it, it would be very helpful. But I hope when Mr. Pucinski asks a question, because he has been very active and interested in this area, that you will give him as full account of it as possible.
My last question relates to your testimony on page 4, with reference to the suggestion that we not delete the time given to State agencies to move in this area.
Mr. FOWLER. Yes, sir.
Mr. ROOSEVELT. I would be inclined to agree with you, if there was a uniformity of effective State agencies. But as you I am sure know, that even in the State agencies that exist, there is great divergence of standards and of application, and to give all State agencies the same amount of time might well, in some instances, lead to the creation of a State agency for the very purpose of defeating the Federal law.
How are we going to get around that? If we don't, perhaps, word it a little differently than it is now, where by statute it is specifically in this area, a specific time is given, wouldn't it be better, perhaps, to simply say that where in the judgment of the Federal Commission, a State commission exists with the power and the ability, and the proven desire to properly enforce the law in this area, that the Commission is
directed to be in contact, and try to let the State agency handle the problem.
Wouldn't that be a better arrangement from the point of view of the overall problem that we are working on?
Mr. FOWLER. I would think so, and I was speaking from a frame of reference of New York State. However, I agonize a bit over my approach to the problem in, recognition of the fact that there are many States where the Federal Government's intervention speedily, and without any redtape or any local political drawbacks, is quite important and fundamental, and I would feel that we could live very easily with an agreement between the Federal agency and ourselves, without too much concern about the time, whether it is 60 days or 30 days or 20 days. But I think that if we have the proper kind of liaison, and cooperation, we will have an operation where they will notify us what is happening, and we will share with them our ideas as to whether or not we can move as fast, maybe, as they would want.
I would feel that there would be some instances where we might agree to cede jurisdiction as it were, in a different given situation, but this, I think, has to come about on the basis of a close, friendly, cooperative relationship.
Mr. BELL. Mr. Chairman, if the gentleman would yield.
I am glad to hear you say what you have said, because I think we can accomplish the essence of your request here, and at the same time, do a little better with respect to the rest of the situation. I am going to instruet counsel to try to work on an amendment which would do exactly that. I have a feeling that it will result in having a very close association between the Federal agency and the effective State agencies.
Mr. FOWLER. Yes.
Mr. ROOSEVELT. And yet prevent unfortunate situations from arising
Mr. Bell. I might agree with the Chairman on this. Mr. Fowler, the only question that might arise would be if you could always depend on having a Commissioner that was not too desirous of moving too fast.
I think your point is well taken, where you say that you have to watch out for the possible weakness, weakening of your own State programs.
Mr. FOWLER. Yes.
Mr. BELL. And of becoming too dependent upon an overaggressive Commissioner.
I can see where your effective machinery in your own State would be adversely affected, could you not?
Mr. FOWLER. Oh, I could see that, too.
Mr. BELL. Well, the Chairman of the Commission might be the significant one.
Mr. FOWLER. I have a feeling that there will be some balances that will come from the citizens themselves on this issue. It has been my experience, and we have dealt with the city commission in New York City, and we have a lot of local commissions. We have encouraged the formation of local commissions with the feeling that people in a