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script of the entire record. The court shall have the same exclusive jurisdiction as in the case of an application by the Administrator.
Commencement of proceedings under this section shall not operate as a stay of the Board's order unless specifically ordered by the court. Jurisdiction of the court shall not be simited by the provisions of the Norris-LaGuardia Act (29 U.S.C. 101–115). Petitions filed under this act shall be heard expeditiously. Section 12. Effect on State laws
Subsection (a) provides that nothing in this act shall be deemed to relieve or exempt any person from any liability, duty, penalty, or punishment provided by any State law, unless such State law would require or permit the doing of an act which would be an unlawful employment practice under this act.
Subsection (b) provides that where a State or local agency has effective power to eliminate and to prohibit discrimination in employment in cases covered by this act, and the Administrator determines the agency is effectively exercising such power, the Administrator is directed to seek written agreements with such agency by which the Administrator shall refrain from filing charges in any such case or class of cases.
No person may file charges under section 10(b) in any such case or class of cases referred to in such agreement, except that where the State or local agency fails or refuses to issue a complaint within a reasonable time, the person filing such charge may petition a Federal court and such courts shall have jurisdiction to require the Administrator to issue a complaint under section 10. The Administrator shall rescind any agreement when such agency no longer has power, or is no longer effectively exercising such power. Section 13. Investigations, inspections, records
Subsection (a) provides that the Administrator shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question in connection with a charge filed under section 10.
Subsection (b) provides that the Administrator may utilize the services of State and local agencies, with their consent, and reimburse such agencies for such services.
Subsection (c) provides that persons subject to this act shall keep and preserve such records, and make reports therefrom, as the Administrator shall prescribe by regulation or order, after public hearing, as reasonable and necessary for the enforcement of this act. Any person who believes that application to it of any order or regulation issued under this section would result in undue hardship may apply to the Administrator for exemption or to the U.S. district court in the event that the Administrator has failed or refused to grant such exemption. The Administrator or the court, as the case may be, may grant appropriate relief. Section 14. Investigatory powers
The provisions of sections 9 and 10 of the Federal Trade Commission Act of 1914 are made applicable to the powers and duties of the Administrator for purposes of any investigation under this act, except that an individual must first claim the privilege against self-incrimination as a condition to grants of immunity as provided in section 307 of the Federal Power Commission Act. It is also provided that the attendance of witnesses may not be required outside of the State where he is found, resides, or transacts business, and the production of evidence may not be required outside of the State where such evidence is kept. When directed by the President, the several departments and agencies of the Government shall furnish at the Administrator's request all records, papers, and information in their possession relating to any matter before the Administrator. Section 15. Employment practices of governmental agencies
The President is authorized and directed to conform Federal employment practices to the policies of this act. Section 16. Notices to be posted
Employers, employment agencies, and labor organizations subject to this act will be required to post in conspicuous places notices to be prepared or approved by the Administrator setting forth excerpts of the act and other relevant information. Failure to comply with this section will result in a fine of not less than $100 or more than $500 for each offense. Section 17. Veterans' preference
This act will not repeal or modify any Federal, State, territorial, or local law creating special rights for veterans. Section 18. Rules and regulations
Subsection (a) empowers the Administrator and the Board from time to time to issue, amend, or rescind suitable procedural regulations to carry out their respective functions. Such regulations must be in conformity with the standards and limitations of the Administrative Procedure Act.
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, and reliance upon a written interpretation or opinion of the Administrator. 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 the instructions of the Administrator issued under this act regarding the filing of such information. When such defense is established it will be a bar to the action or proceeding 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 the act. Section 19. Forcibly resisting the Commission or its representatives
The provisions of section 111, title 18, United States Code, are made applicable to the personnel of the Commission. This section makes it a crime to forcibly assault, resist, oppose, impede, intimidate, or interfere 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 or dangerous
is used, the maximum fine is not more than $10,000 and the maximum imprisonment is not more than 10 years. Section 20. Appropriations authorized
This section specifies the maximum amount which may be appropriated for the administration of the act by the Commission during the first 2 years of its existence. The section authorizes the appropriation of not to exceed $2,500,000 during the first year after the enactment of the act and not to exceed $10 million during the second year after such date. Section 21. Separability clause
This section contains a traditional separability clause. Section 22. Special study by the Secretary of Labor
The Secretary of Labor is directed to make a full and complete study of the problems relating to discrimination in employment because of age. He is further directed to report to the Congress not later than June 30, 1964, with the results of such study and such recommendations for legislation as he determines advisable. Section 23. Effective date
It is provided that the majority of the provisions of this act will become effective on the date of its enactment, however, the very important provisions relating to the description of unlawful employment practices and section 10, which deals with the enforcement of the act, will not become effective until 1 year after the date of enactment.
The President is required as soon as possible to convene one or more conferences for the purpose of enabling leaders of groups whose members will be affected by this act to become familiar with the rights afforded and obligations imposed by it and for the purpose of making plans which will result in the fair and effective administration of the act when all of its provisions become effective.
While we support this legislation in principle, we must vigorously object to the administrative procedure which has been incorporated in this bill by the majority members of the committee.
At nearly the last minute in its deliberations, the full committee decided to vest the proposed Equal Employment Opportunity Board with powers to make final judgments and to issue cease-and-desist orders. This represents a complete reversal of the sound position taken in 1962 when the committee favorably reported H.R. 10144. Under the earlier bill if the proposed board (or commission) considered, after investigation of a complaint, that a violation existed-and a voluntary settlement could not be effected—then the agency would have been empowered to file a civil suit in a Federal district court, in much the same manner as the Labor Department enforces the wagehour law, the Landrum-Griffin law, as well as the newly enacted equal pay for women legislation.
The historic safeguard of trial before an impartial judiciary would be abandoned in this bill by the majority in favor of hearings before a newly created NLRB-type administrative tribunal, with only a very limited right of review in a court of appeals. It is unfortunate that the committee in its zeal to protect one civil right has seen fit, unnecessarily, to cast aside other fundamental and well-established civil rights which are at least of equal importance.
Administrative agencies and tribunals have acquired a welldeserved reputation for ignoring the rules of evidence. In some instances administrative appointees who sit as judges have had no legal training. Once a finding of fact is made by an administrative tribunal, it cannot be disturbed by a court upon appeal if there is any substantial evidence in the record to support the findings.
Under such rules of justice the accused in an administrative proceeding often finds, as a practical matter, that he must bear the burden of proving his freedom from guilt. By contrast, under the wage-hour law, for example, the Government is required to prove in a court of law by a preponderance of the evidence that the accused has violated the law. This is in keeping with our historic concept of justice and fair play; and it would be ironic, indeed, if these fundamental principles should be abandoned by a Congress which seeks justice and fair play in employment practices.
The case for enforcement in a court of law was well stated last year by Representative James Roosevelt, chairman of the subcommittee which handled this legislation. Shortly after the committee reported H.R. 10144 in February 1962, Representative Roosevelt circulated a memorandum, some relevant portions of which are set forth below:
EXCERPTS FROM A MEMORANDUM DATED FEBRUARY 21,
1962, BY REPRESENTATIVE JAMES ROOSEVELT Section 9 (of H.R. 10144, the 1962 equal employment opportunity bill) obviously departs substantially from the procedural patterns of most State fair employment practices laws and of many independent Federal agencies. That is to say, rather than investing the Equal Employment Opportunity Commission with quasi-judicial functions, including the power to hold public hearings and issue cease and desist orders in the event that conciliation and mediation fail to obtain compliance with the law, the Commission may take the matter into Federal district court to secure injunctive relief. The decision of the committee to institute such procedure is based upon the following observations:
(1) A considerable body of opinion holds that it is more in keeping with basic principles of American jurisprudence to have final judicial determinations made by the judiciary rather than by an investigative, prosecuting agency.
President Franklin D. Roosevelt, who created the majority of the independent Federal agencies, expressed his uneasiness upon the very point in question as follows:
"There is a conflict of principle involved in their makeup and functions * * *. They are vested with duties of administration * * * and at the same time they are given important judicial work, ***. The evils resulting from this confusion of principles are insidious and far reaching Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible. Furthermore, the same men are obliged to serve both as prosecutors and judges. This not only undermines judicial fairness; it weakens public confidence in that fairness. Commission decisions affecting private rights and conduct lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself” (S. Doc. No. 8, 77th Cong., 1st sess. 206 (1941)).
It might be added that a long-standing position of the American Bar Association is against an agency serving as judge, jury, and prosecutor.
(2) The experience of State fair employment practices commissions furnished to the committee indicates that in actuality the mediation and conciliation provisions of State laws have been far more important in achieving compliance with said laws than the provisions for hearings and issuance of cease and desist orders. The following table shows the experience of the majority of States with effective laws. The period of time covered is from effective date of the State law to the end of 1961.
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