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Section 8. Equal Employment Opportunity Commission
This section creates an Equal Employment Opportunity Commission of five members appointed by the President subject to Senate confirmation. The Commission will be bipartisan in character. Members of the Commission will receive the usual salaries of members of independent regulatory agencies. The members of the Commission will have staggered terms of 5 years each, and will have the usual powers and duties with respect to employment of personnel, quorum, right to act while vacancies exist, use of official seal, reports to Congress and the President, and so on.
The Commission will be subject to several somewhat unusual administrative and organizational requirements. It is required to maintain separate divisions within its staff each of which will be assigned responsibility for processing all cases involving one of the major categories of unlawful employment practices through the stage of conference, conciliation, and pursuasion. The Commission is, also, directed to establish regional offices at least one of which shall be in each of the major geographical areas of the United States.
The Commission is given power to create local, State, or regional advisory and conciliation councils and may empower them to study the problem of discrimination forbidden by this act and to foster through community effort or otherwise good will, cooperation, and conciliation among groups and elements of the population. The Commission may also empower them to make recommendations for the development of policies and procedures in general and in specific instances. These councils will be composed of representative citizens of the areas for which they are appointed who will serve on an uncompensated basis (except for a per diem in lieu of subsistence). The Commission will provide them with technical and clerical assistance, and members will be exempt from the conflict of interest provisions of the United States Code.
In addition the Commission will have power to cooperate with and utilize regional, State, and other agencies, both public and private, and individuals, it will be authorized to furnish technical assistance to persons subject to this act who request it to further their compliance with this act or with an order issued thereunder. If the employees of an employer refuse or threaten to refuse to cooperate in effectuating the provisions of this act, the employer may request assistance from the Commission in effectuating such provisions by conciliation or other remedial action. The Commission may make such technical studies as may be appropriate to effectuate the purposes of the act and may make the results of its studies available to interested agencies,
Attorneys appointed under this act will be permitted, at the direction of the Commission, to appear for and represent the Commission in any case in court. The Commission is directed to cooperate with other departments and agencies in the performance of its educational and promotional activities. Section 9. Prevention of unlawful employment practices
This section contains the provisions relating to enforcement of the act. The first stage in the enforcement process is the filing of a charge in writing under oath by or on behalf of a person claiming to be aggrieved or the filing of a written charge by a member of the Commis
sion, alleging that an employer, employment agency, or labor organization has engaged in an unlawful employment practice. When the Commission receives such a charge, it will furnish the employer, employment agency, or labor organization against whom the charge is made with a copy of the charge and shall make an investigation of that charge. If two or more members of the Commission believe after such investigation that reasonable cause exists for crediting the charge, the Commission must endeavor to eliminate any such unlawful employment practice by informal methods of conference, conciliation, and persuasion and, if appropriate, to obtain from the charged party a written agreement describing particular practices which he agrees to refrain from committing. Nothing said or done during and as a part of these endeavors may be used as evidence in a subsequent proceeding.
If, through these informal methods, the Commission has failed to effect the elimination of an unlawful employment practice (or in advance thereof if circumstances warrant), it shall, if it determines there is reasonable cause to believe that the charged party has engaged in or is engaging in an unlawful employment practice, bring a civil action within 90 days to prevent the charged party from engaging in such unlawful employment practice, except that the Commission is to be relieved of any obligation to bring a civil action in any case in which it has by affirmative vote determined that the bringing of such action would not serve the public interest.
If the Commission has failed or declined to bring a civil action within the time required, the person claiming to be aggrieved may, if one member of the Commission gives his permission in writing, bring a civil action himself to obtain relief.
The district courts of the United States (including those of the U.S. courts of places subject to the jurisdiction of the United States) are given jurisdiction of actions brought under this act. These actions will be brought either in the judicial district where either the unlawful employment practice is alleged to have been committed or in the judicial district in which the charged party has his principal office. No civil action under this section may be based on an unlawful employment practice occurring more than a year prior to the filing of a charge with the Commission, except in cases in which the party aggrieved was prevented from filing the charge within the prescribed time by reason of service in the Armed Forces.
If the court finds that the charged party has engaged or is engaging in an unlawful employment practice as charged in the complaint, it may enjoin him from engaging in such practice and shall order him to take such affirmative action as may be appropriate. This affirmative action may include the reinstatement or the hiring of employees with or without backpay (payable by the employer, employment agency, or labor organization, as the case may be responsible for the unlawful employment practice). In a case in which the payment of backpay is ordered interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against will reduce the backpay otherwise allowable. No order of the court may require the admission or reinstatement of an individual as a member of the union or the hiring, reinstatement, or promotion of an individual as an employee or payment of any backpay if the individual was refused admission, suspended, or separated, or was refused employment or advancement or was suspended or discharged for cause.
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The section permits the court to appoint masters to hear the evidence in these cases. The court may require the master to submit a recommended order together with his findings of fact. The provisions of the Norris-La Guardia Act are waived in the case of these civil actions. Section 10. Effect on State laws
Subsection (a) is what might be called an antipreemption provision; that is, it provides that nothing in the act will be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided under State law, unless the 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 there is a State or local agency which has effective power to eliminate and to prohibit discrimination in employment in cases covered by this act and the Commission determines that the agency is effectively exercising such power, the Commission must seek written agreements with that agency under which it will refrain from bringing civil action in any cases or class of cases referred to in the agreement. No individual may bring a civil action under section 9(c) in any such cases or class of cases. The Commission will rescind any such agreement when it determines the agency no longer has such power or is no longer effectively exercising it. Section 11. Investigations, inspections, records
Subsection (a) authorizes the Commission, when it is investigating a charge, to gather data regarding the practices of any person, and permits its representatives to enter and inspect such places and such records, question such employees, investigate such facts, conditions, practices, or matters, as may be appropriate to determine whether the person charged has committed or is committing an unlawful employment practice or which may aid in the enforcement of the act.
Subsection (b) provides that with the consent and cooperation of State and local agencies charged with the administration of State fair employment practices law, the Commission may, for the purpose of carrying out its functions under this act, and within limitations of appropriated funds, utilize State and local agencies and their employees and reimburse them for services so rendered.
Subsection (c) provides that every employer, employment agency, and labor organization subject to the act must keep and preserve such records and make such reports therefrom, as the Commission shall prescribe by regulation or order as reasonable, necessary, or appropriate for the enforcement of the act or regulations or orders thereunder. The Commission is particularly directed to require each employer, labor organization, and joint labor management committee subject to this act which controls an apprenticeship or other training program to maintain such records as are reasonably necessary to carry out the purposes of this act, including but not limited to a list of applicants who wish to participate in such program including the chronological order in which such applications were received, and to furnish to the Commission upon request a detailed description of the manner in which persons are selected to participate in the apprenticeship or other training programs. Where any employer, employment agency, labor organization, or joint labor management committee believes that the application to it of a regulation or order issued under this section would result in undue hardship, it may apply to the Commission for an exemption or bring a civil action in the U.S. district court for the district where such records are kept. If either the Commission or the court finds the application of such regulation or order would indeed impose an undue hardship, it may grant appropriate relief. Section 12. Investigatory powers
The provisions of sections 9 and 10 of the Federal Trade Commission Act are made applicable to the Commission for the purposes of any investigation provided for in the act, except that the attendance of witnesses may not be required outside the State where the witness is found, resides, or transacts business, and the production of evidence may not be required outside the State where the evidence is kept. Federal agencies are required to furnish the Commission upon its request all records, papers, and information in their possession relating to any matter before the Commission when directed to do so by the President. Section 13. Employment practices of governmental agencies and of
contractors with the Government The President is directed to take necessary action to provide protection within the Federal establishment to insure equal employment opportunities of Federal employees in accordance with the policies of the act. He is authorized to take such action as may be appropriate to prevent the permitting or continuing of unlawful employment practices by persons in connection with the performance of contracts with Federal agencies. Section 14. 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 Commission 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 15. Veterans' preference
This act will not repeal or modify any Federal, State, territorial, or local law creating special rights for veterans. Section 16. Rules and regulations
Subsection (a) empowers the Commission from time to time to issue, amend, or rescind suitable regulations to carry out the provisions of this act. These regulations must be in conformity with standards and limitations of the Administrative Procedure Act.
Subsection (b) provides that in any action or proceeding based on 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 on a written interpretation or opinion 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 the instructions of the Commission 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 the description and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the provisions of the act. Section 17. 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 weapon is used, the maximum fine is not more than $10,000 and the maximum imprisonment is not more than 10 years. Section 18. Appropriations authorized
This section authorizes the appropriation of not to exceed $2,500,000 for the administration of the act by the Commission during the first year after its enactment and not to exceed $10 million for such purpose during the second year after such date. Section 19. Separability clause
This section contains the usual type of separability provision. Section 20. Effective date
It is contemplated that the bulk of the provisions of this act will become effective on the date of its enactment, however, the very important provisions which describe what acts constitute unlawful employment practices and the section which deals with the enforcement of the act will not become effective until 1 year after the date of its 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.