« AnteriorContinuar »
respondent, which will usually be best evidenced by his pattern of conduct on similar occasions. The provisions of section 709 (C) have been carefully drawn to prevent the imposition of unreasonable burdens on business and there are more than the customary safeguards against arbitrary action by the Commission.
“The requirements to be imposed by the Commission under section 709 (C) must be ‘reasonable, necessary, or appropriate for the enforcement of the title. Such requirements cannot be adopted without a public hearing at which the persons to be affected would have an opportunity to make their views known to the Commission. Most of the persons covered by the title are already required by law or by practical necessity to keep records similar to those which will be required under this title. The Wage and Hour Administrator imposes recordkeeping requirements on employers subject to the Fair Labor Standards Act with respect to the persons employed and wages, hours, and other conditions and practices of employment (29 U.S.C. 211(c)). Other employment records must be kept for Federal tax purposes (26 U.S.C. 6001), and for normal business purposes. Labor organizations are required to maintain certain records under the Labor-Management Reporting and Disclosure Act (29 U.S.C. 431, 136). Any recordkeeping requirements imposed by the Commission could be worked into existing requirements and practices so as to result in a minimum additional burden. Furthermore, the Federal Reports Act of 1942, 5 United States Code 139–139f, gives the Director of the Bureau of the Budget authority to coordinate the information-gathering activities of Federal agencies, and he can refuse to approve a general recordkeeping or reporting requirement which is too onerous or poorly coordinated with other requirements.
"Finally, there is express provision in section 709 (c) for an application either to the Commission or directly to the courts for appropriate relief from any recordkeeping or reporting requirements which would impose an undue hardship. We know of no other statute which provides such comprehensive safeguards around an authorization to require the keeping of records.
"GRANTS OF IMMUNITY
“Section 710 incorporates by reference in support of the investigatory powers of the Equal Employment Opportunity Commission the provisions of sections 9 and 10 of the Federal Trade Commission Act, as amended (15 U.S.C. 49, 50), except that the provisions of section 307 of the Federal Power Commission Act (more properly cited as the Federal Power Act, 16 C.S.C. 791a) (16 U.S.C. 825f). shall apply with respect to grants of immunity. A question has been raised as to the purpose of this exception.
“Section 9 of the Federal Trade Commission Act provides, in part:
“ No person shall be excused from attending and testifying * * * before the Commission * * * for the reason that the testimony or evidence, documentary, or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any * * matter * * * concerning which he may testify, or produce evidence * * * before the Commission in obedience to a subpena issued by it.'
“This language has been held to grant immunity to a witness testifying in obedience to a subpena even though the witness does not claim the benefit of the privilege against self-incrimination. See United States v. Pardue, 294 F. 513 (S.D. Texas, 1923); United States v. Frontier Asthma Co., 69 F. Supp. 994 (W.D.N.Y., 1947) ; see United States v. Monia, 317 U.S. 424 (1954). In such a situation an interrogator is not placed on notice that a given line of inquiry will result in a grant on immunity to the witness.
"Consequently, since the enactment of the Securities Act of 1933, it has been the usual practice for Congress, in drafting an immunity provision, to require that a witness does not obtain immunity unless he is compelled to answer after having claimed his privilege against self-incrimination. The assertion of the privilege affords the interrogator an opportunity to decide whether or not to persist with his questioning and grant immunity thereby. Section 307 of the Federal Power Act is typical of such provisions. It states:
“No person shall be excused from attending and testifying or from producing * * * records and documents before the Commission * * * on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify or produce evidence, documentary otherwise, after having claimed his privilege against self-incrimination.'
“Provisions substantially identical to section 307 may be found in the Securities Exchange Act of 1934, 15 United States Code 78u, the Public Utility Holding Company Act of 1935, 15 United States Code 79r, and the National Labor Relations Act, 29 United States Code 161.
"Title VII does not make it a criminal offense to commit an unlawful employ. ment practice. The only remedy is a civil action. However, if a person who is under a court order not to discriminate should persist in doing so, he would be subject to normal judicial proceedings for contempt of court, which have already been described.
"The only new offense created by title VII is willful failure to post notices as required by section 711, which would be punishable by a fine up to $500.
“However, certain existing criminal statutes are made applicable to the activities of the Equal Employment Opportunity Commission. Thus, 18 United States Code 111, which makes it a crime forcibly to assault, resist, impede, or interfere with certain Federal officers in the performance of their duty is by section 714 of the bill made applicable to officers, agents, and employees of the Commission.
"Section 10, as applied to title VII, would also penalize unauthorized dis. closure of information by an officer or employee of the Commission.
"The President's Committee on Equal Employment Opportunity was created by Executive Order 10925, March 6, 1961, and its authority was extended by Executive Order 11114, June 22, 1963. It presently supervises the administration of an equal employment opportunity program with respect to employment by the Federal Government, by contractors and subcontractors on contracts with the Federal Government, and by contractors and subcontractors on construction financed with Federal financial assistance. Title VII, in its present form, has no effect on the responsibilities of the committee or on the authority possessed by the President or Federal agencies under existing law to deal with racial discrimination in the areas of Federal Government employment and Federal contracts. (See Congressional Record, February 8, 1964, p. 2482 (daily ed.)).
"The President is directed by section 718(c) of the bill to convene one or more conferences of Government representatives and representatives of groups whose members would be affected by the provisions of title VII, to familiarize the latter with the provisions of the title and to make plans for the fair and effective administration of the title. The members of the President's Committee will participate in such conferences, and the scope of the continued and future responsibilities of the President's Committee would be an appropriate topic for consideration at that time.
"STUDY ON DISCRIMINATION BASED ON AGE “Section 717 directs the Secretary of Labor to make a full and complete study of the factors which might tend to result in discrimination because of age and of the consequences of such discrimination on the economy and on the individuals affected."
Mr. CLARK. Mr. President, those who are interested in the details will wish to refer to the memorandum. I briefly summarize title VII, as follows:
It deals with discrimination in employment, and would make it an unlawful employment practice for those who employ more than 25 persons and for employment agencies or labor organizations with more than 25 members, to discriminate on account of race, color, religion, sex, or national origin, in connection with employment, referral for employment, membership in labor organizations, or participation in apprenticeship or training or retraining programs
The title would create an Equal Employment Opportunity Commission, which would be charged with the duty of enforcing the title, investigation of consplaints of discrimination, conciliation of disputes, and, where necessary, suits in the Federal courts, to compel compliance with the title.
There are certain obvious exemptions to the coverage, including religious or organizations
I shall not deal with the exemptions in any detail, although I shall be happy to answer any questions which any of my colleagues may desire to ask me in that regard.
The size of coverage starts with employers and labor unions having 100 or more members.
The second year coverage is increased to include those having 75 or more members; the third year 50; and the fourth year 25. The remainder of the memorandum, in my judgment, meets the desirability of having in the Record a detailed explanation of each section of the bill, and of those subsections the meaning of which might appear obscure to the casual reader.
I shall not extend this talk further by dealing with the details of the legislation.
Mr. President, some time ago the able minority leader, the Senator from Illinois (Mr. Dirksen), expressed some concern on the floor of the Senate with respect to title VII. I understand that yesterday the Senator from Illonis had available but I was unable to obtain a copy—the detailed language of amendments which he has in mind submitting to title VII. Since I have not had the opportunity to read the text, and since in a matter as complicated as this it is important that we should refer specifically to a detailed, legal text, I shall not undertake to comment on the newspaper articles which were published this morning with respect to the burden of the amendments of the Senator from Illinois. I am confident that, to the extent they do no more than to perfect language, they will be received on this side of the aisle with an open mind. To the extent that they water down the bill—and I do not say that they do—I am sure they will be opposed on this side of the aisle. I am also sure that the Senator from Illinois [Mr. Dirksen] will have the legislative good sense to clear any amendments which he seriously desires the Senate to adopt, with his Republican colleague, Representative McCulloch, of Ohio, who, as I stated earlier in these remarks, has become to some extent the "czar" of the Senate, since was are in a parliamentary situation where we do not dare adopt any amendment which has not received the categorical approval of Representative McCulloch.
If we should do so, we might be forced to go to conference. If the House would not accept the Senate amendments, and if the bill went to conferencethat is, if the House should let it go there, we would then be faced with the threat of a second filibuster.
I should like to respond at this time to some of the questions asked by the Senator from Illinois [Mr. Dirksen] when he was debating the Morse motion to refer the pending bill to the Judiciary Committee.
At that time, the Senator caused a large number of eyebrows to be raised. He suggested dire consequences if drastic amendments were not made to title VII as well as many of the other titles. One cannot be sure—at least I cannot be sure-how strongly the junior Senator from Illinois will press the position he then took. I can speak only myself. Some of the suggestions he made appear to be immaterial and quite unimportant; some would seem to make drastic and unacceptable changes in the bill—that is, they would if they were adopted. Some would interject into the House bill some wise provisions in the Senate bill the FEPC bill which is now on the calendar-provisions which, unhappily, we are not in a parliamentary situation to approve, because of the danger which I have already indicated over on the House side.
In my opinion, as chairman of the subcommittee which conducted the hearings and brought the bill to the floor by a vote of 12 to 3 in the Committee on Labor and Public Welfare, the Senate bill is infinitely preferable to the House bill because it is a stronger bill.
But there is some doubt as to whether the House, or even the Senate, would be ready to adopt such strong medicine. I would hope they would. Again, there is the problem of the parliamentary situation with respect to conference and the position which the House holds over us of primacy in determining what shall go into the final bill. Therefore, I do not believe there will be a practical opportunity to accept the suggestions of the Senator from Illinois which would strengthen title VII by increasing its coverage and perhaps in other matters.
During his speech, the Senator from Minois asked a number of questions. I am sure they were asked in all sincerity. Their phraseology indicates grave concern as to the feasibility and the wisdom of a large part of title VII. I have undertaken to have those questions answered in brief compass; and in my opinion they are answered rather convincingly.
I conclude from the questions and answers that most of the objections of the Senator from Illinois to title VII, as evidenced at that time, are untenable.
Mr. President, I ask unanimous consent that a copy of the memorandum, giving the questions of the Senator from Illinois and the answers I have caused to be prepared thereto, may be printed in full in the Record at this point in my remarks.
There being no objection, the memorandum was ordered to be printed in the Record, as follows:
"RESPONSE TO DIRKSEN MEMORANDUM "Question. What records are employers required to keep by title VII?
“Answer. Employers will be required to keep such relevant records as the Commission prescribes after public hearing.
“Question. Employers voluntarily participating in the program of the President's Commission on Equal Opportunity are apprised in detail of the records which they must keep-and the records are, I believe, more comprehensive than are those that would be required by title VII. Are we to superimpose another set of records on the employer in addition to a third set that he may be keeping for a State FEPC?
"Answer. There will not be a layering of recordkeeping requirements. The President's Committee does not require that records be kept, and none of the State FEPC laws contain recordkeeping requirements.
"Question. What of the conflict between State and Federal record requirements? Illinois prohibits any reference to color or religion in employers' records. Title VII would require this information to be kept. Are we now to force an employer to violate a State law in order to comply with a Federal statute, each of which has the same purpose?
“Answer. No State has a law which would prohibit disclosure of racial or religious information on employees. Some States do have laws which prohibit disclosure on employment application forms. These laws would yield to the supremacy of the Federal law, since it is necessary to have this data to determine if a pattern of discrimination exists.
"Question. Every employer is required to make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed and shall preserve such records for such periods as the Commission shall require. In the wage and hour laws we clearly set forth the records to be kept and prescribed the periods for which they should be preserved. Why not do the same in this legislation? Is there any compelling reason why this cannot be done? I know of no such restriction on the Senate or on the Judiciary Committee, where in fact it should be done.
“Answer. Congress cannot set definite recordkeeping requirements, and should not try to write them in the statute, because it is not yet known what records will be needed. The Commission should do it, after full public hearing, and subject to appropriate judicial review.
“Question. Who is to determine what are essential what are nonessential reords? Without adequate statutory direction an employer may well risk severe penalties if he destroys records relevant to the determination of whether unlawful employment practices have been or are being committed. Who is to determine what is relevant, certainly not the employer unless he is willing to risk prosecuttion.
“Answer. The Commission will make the initial determination after public hearing, as to what records are 'reasonable, necessary, or appropriate for the enforcement of this title or the regulations or orders thereunder and will issue regulations specifying those records. Of course, these regulations are subject to appropriate court review. An employer will have ample notice of what records he must keep, because they will be specified in the regulations. He can only be punished if he willfully destroys or fails to keep records; not if he inadvertently does so. He need not wait to be prosecuted to have a court determination of what records are relevant. A subpena is not self-enforcing; it can be enforced after a court has heard his arguments and disagreed with them. Of course, if he disobeys the court's order, then he would be in contempt of court.
“Question. What protection is afforded to an employer from fishing expeditions by investigators in their zeal to enforce title VII? Examine section 709(a) on page 44. The Commission or its designated representative shall at all reasonable times have acress 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. Can there be a greater grant of investigatory authority? I can recall none. Should the ('ommission be per mitted to copy evidence? Should an employer be permitted to request a detailed
list of the records to be examined by the Commission? Should the employer be permitted to go before a competent court in order to determine what records relate to any matter under investigation or in question? Or are we to allow the Commission carte blanche authority in its examination, in its copying of evidence, in its inquiry? Should this examination be limited to specified documents? How broad can such inquiry be? It will be limited only by determination of the Commission. No private rights will remain,
“Answer. The Commission should have the power to copy information from the records which it requires to be kept. It will specify by regulation what records must be kept, and notify the employer which of these records it wishes to see. The employer is entitled to a day in court before the Commission inspects any records; he can contest the subpena. Private rights will be amply protected by the courts.
"Question. On page 41 section 707 provides for relieving the Commission of any obligation to bring a civil action where the Commission has determined that the bringing of such action would not serve the public interest. I feel the public interest should be more clearly defined for the purposes of this bill and that the language should be changed to read 'which would serve the interest of this title.'
"Answer. The term “public interest in section 707 (b) means 'public interest within the purpose of this title. It is not necessary to amend it.
"Question. Section 708 of this title vests in this Commission the authority to determine the effectiveness of State or local action in the field of fair employment. I do not feel such language is appropriate. The people of the State should have the right to determine the effectiveness of their agencies consistent with the expressed purpose of this section.
"Answer. Title VII leaves State and local FEPC laws untouched, except where they are in conflict with it. Title VII does permit the Federal Commission to agree to refrain from bringing any civil actions in any cases or classes of cases in a particular State or locality, where it determines that the State or local agency has effective power to implement the purposes of title VII, and is effectively exercising it. But it does not repeal any consistent State or local laws. Of course, neither does any State or local law cancel out the Federal law. If this were true, some States might be encouraged to enact sham laws in order to prevent enforcement of the Federal law.
"Question. Now let's take the case of the operator of an establishment who has been determined to be in violation of one or another of the provisions of title VII and who has been so ungracious as to refuse the gentle persuasive efforts to the Commission or perhaps the not-too-gentle armtwisting of the Commission, toward conciliation. The bill provides that within 90 days the Commission shall, and I emphasize the mandatory nature of the verb, bring a civil action to prevent the respondent from engaging in such unlawful employment practice unless by affirmative vote the Commission shall determine that the bringing of such an action would not serve the public interest. So he finds himself in the Federal district court.
**Now, if he operates in a State which has a fair employment practice statute, such as my State of Illinois does, he is likely to have been the respondent in an administrative proceeding by the State commission and the subject of an order requiring him to cease and desist from the unemployment practice complained of and to take such further affirmative or other actions as will eliminate the effect of the practice compained of. And, if he does not comply, the commission shall, that is the word, commence an action in the name of the people of the State of Illinois for the issuance of an order directing such person to comply with the commission's order. For violation of that order he may be punished as in the case of civil contempt. What a layering upon layer of enforcement. What if the court orders differ in their terms or requirements? There is no assurance that they will be identical. Shall we have the Federal forces of justice pulling on the one arm and the State forces of justice tugging on the other? Shall we draw and quarter the victim ? If he has violated a valid law, he must be brought into line, but should we not give consideration to the overlapping of jurisdiction and multiple suits against the same defendant arising out of the same discrimination? I know there is a provision, as I have mentioned, for the Federal agency, at its discretion, to enter into agreements with a State or local agency to refrain from bringing a civil action in classes of cases to which they can agree. But, if that agreement does not come to pass, where are we under the provisions of overlapping Federal and State statutes?