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"Answer. The Federal law will apply in all the States, but it will not override any State law or municipal ordinance which is not inconsistent. However, the Federal authorities will stay out of any State or locality which has an adequate law and is effectively enforcing it. This provision bas two beneficial effects: (1) it will induce the States to enact good laws and enforce them, so as to have the field to themselves; and (2) it will permit the Federal FEPC to concentrate its efforts in the States which do not cooperate. In any event, there cannot be contrary and conflicting orders from State and Federal agencies, because of the doctrine of Federal supremacy.
"Question. Who is an employer within the meaning of title VII? I am not sure, the bill is indefinite, we have no committee hearings, no report. Can an employer readily ascertain from the language of the bill whether or not he is included ? Employers with a large number of employees will have no difficulty, but what of the small businessman ?
"Answer. The term "employer' is intended to have its common dictionary meaning, except as expressly qualified by the act.
“Question. Most statutes in defining an employer in relation to the number of employees he has are rather specific. Contrast the language on page 28 of this bill: 'The term "employer" means a person engaged in an industry affecting commerce who has 25 or more employees' with the language from the Illinois FEP Act:
“(d) 'Employer includes and means all persons, including any labor organization, labor unions, or labor association employing more than 100 persons within the State within each of 20 or more calendar weeks, within either the current or proceeding calendar year prior to January 1, 1963; assume if you will the operation of a medium-size orchard. For 11%months of the year the employer has no employees. But during 2 weeks of the year he employs 100 pickers. Is he to be subjected to the provisions of this title? What of summer or winter resort operations where employment is only for 2 or 3 months at the most. Are they to be covered by this title? Certainly we have no clear state ment by which an employer can be guided. Is this the way to legislate?
"Answer. Employers whose staffs fluctuate seasonally are covered by the act at times when the number of employees exceeds the minimum figure; they are not covered when it is below the minimum.
“Question. If an employer obtains his employees from a union hiring hall through operation of his labor contract is he in fact the true employer from the standpoint of discrimination because of race, color, religion, or national origin when he exercises no choice in their selection? If the hiring hall sends only white males is the employer guilty of discrimination within the meaning of this title? If he is not, then further safeguards must be provided to protect him from endless prosecution under the authority of this title.
“Answer. An employer who obtains his employees from a union hiring hall through operation of a labor contract is still an employer. If the hiring hall discriminates against Negroes, and sends him only whites, he is not guilty of discrimination—but the union hiring hall would be.
"Question. Would the same situation prevail in respect to promotions, when that management function is governed by a labor contract calling for promotions on the basis of seniority? What of dismissals? Normally, labor contracts call for 'last hired, first fired.' If the last hired are Negroes, is the employer discriminating if his contract requires they be first fired and the remaining em. ployees are white?
"Answer. Seniority rights are in no way affected by the bill. If under a ‘last hired, first fired' agreement a Negro happens to be the last hired' he can still be first fired' as long as it is done because of his status as 'last hired' and not because of his race.
"Question. If an employer is directed to abolish his employment list because of discrimination what happens to seniority?
"Answer. The bill is not retroactive, and it will not require an employer to change existing seniority lists.
"Question. Does an unfair practice arise as a result of the operation of this discrimination provision in title VII?
"Answer. Nothing in this act affects the determination of what an “unfair labor practice would be under the National Labor Relations Act.
"Question. Now I turn to discrimination on account of sex. Frankly. I always like to discriminate in favor of the fairer sex. I hope that the might of the Federal Government will not enjoin me from such discrimination. But let 18
look further at this provision. Historically, discrimination because of sex has been a protective discrimination because we do not believe that women should do heavy manual labor of the sort which falls to the lot of some men. This is not true, of course, in some other countries where we see pictures of women working on the roads and in the mines. Then, too, we discriminate in favor of women because of nimble abilities in many fields, such as the assembly of radios and delicate instruments and machines. Where the discrimination is not in the best interest of the fairer sex we have approached the problem by specific prohibitions such as the requirement of equal pay for women doing the same work as men.
"Answer. Wherever sex is a bona fide qualification or disqualification for a particular job, title VII does not require that equal job opportunity be given to both sexes.
"Question. Section 704 provides that it shall be unlawful employment practices for an employer * * * to fail or refuse to hire * * * any individual * * * because of such individual * * national origin. This as well as other restrictions on employers under this title would tend to create difficulties for the defense contractors, for example, who are required by reason of security clearance regulations to practice what amounts to discrimination because such discrimination in security matters is both vital and necessary.
"Answer. Title VII creates no problems for defense contractors who must require a security clearance for employees. National origin alone is never a basis for the denial of a security clearance; there must always be some other factor, such as the presence of a close relative in a hostile country. Consequently the security program does not conflict with title VII, since it never requires discrimination on the ground of mere national origin.
"Question. Section 704 describes the employment practices which are made unlawful by this bill. Subsection (e) of that section provides certain exceptions-namely: 'where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise' or where a religious educational institution wishes to hire only employees of its particular religion. But what of other reasonable occupational qualifications? The Harlem Globe Trotters may well wish to preserve their racial identity. A movie company making an extravaganza on Africa may well decide to have hundred of extras of a particular race or color to make the movie as authentic as possible. A religious institution which operates a hospital may have as great a desire to employ people of its own religious persuasion in the hospital as it would in its educational institution.
"Answer. Although there is no exemption in title VII for occupations in which race might be deemed a bona fide job qualification, a director of a play or movie who wished to cast an actor in the role of a Negro, could specify that he wished to hire someone with the physical appearance of a Negro-but such a person might actualy be a non-Negro. Therefore, the act would not limit the director's freedom of choice. With regard to the Harlem Globe Trotters, it is probably true that they have less than 25 employees and so they would not be covered by the act in any case. A hospital which is owned and operated by a religious order would be exempt under section 703.
Question. Section 707 of this title provides for action to be taken by the Commission on behalf of a person when it has received information on behalf of a person who is claiming to be aggrieved. I feel that action taken under this title should be by complaint of an individual and not initiated on his behalf by others.
"Answer. It is essential that the act permit a complaint to be filed on behalf of a person since persons suffering discrimination, either by ignorance of their rights or lack of sophistication to pursue them, may be unable to initiate the complaint procedure. This would enable a union to act on behalf of one of its inembers, for example.
"Question. Section 704 (f) of this title reads as follows: Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to refuse to hire and employ any person because of said person's atheistic practices and beliefs. This language was added to the bill in the House of Representatives and would, if passed, be in my opinion, the subject of review by the Supreme Court. I have some doubt, in view of recent decisions of the Supreme Court, that this section would be sustained.
"Answer. The atheist proviso appears to be unconstitutional. However, it is clearly severable, and the fact that it is void does not impair the rest of the act. (The Communist proviso may be unconstitutional—but in any case is irrelevant, since there is nothing in the act about discrimination on the ground of political belief.)”
Mr. CLARK. Mr. President, during the course of this debate, a number of objections have been raised to various provisions of title VII. I believe, rather than to deal with them seriatim, and to an empty Chamber, it would be wiser to have them printed in the Record, where they can be perused at leisure by Senators—there may be one or two who still read this debate in the Congressional Record. Accordingly, I ask unanimous consent that a series of objections which have been raised by opponents of the bill, either on or off the floor, to title VII, and the answers to these objections may be printed in full in the Record at this point in my remarks.
There being no objection, the statement was ordered to be printed in the Record, as follows:
"Objection: The Federal law is only needed because State laws have not worked but the Federal law will not be any more effective than the State laws.
“Answer: Much progress has been made under State FEPC laws but they cover less than half of the Negro working population. The Federal law will provide remedies in the 25 States which do not have laws. It will be an important supplement in the States which do, both by bringing additional resources into play, but also because it will be effective in dealing with large interstate employers.
"Objection : Title VII was tacked on to the bill. It was not in the original package, it was never taken seriously and was not the subject of careful committee deliberation in the House of Representatives.
“Answer: President Kennedy in his civil rights message on June 19, 1963. specifically recommended the enactment of fair employment practice legislation. Hearings were held before the House Labor Committee, and before the Senate Labor Committee on numerous bills covering this entire field. Indeed, the Senate Labor Committee in its consideration of S. 1937, studied the provisions of title VII with great care, and incorporated some of them into the Senate bill.
“Objection: The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs.
"Answer: The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII.
"Objection: Section 707(c) provides for private civil actions in all cases, including those in which the board has dismissed for want of merit. All the charging party requires is permission of a single member, and having this, he may harass employers by filing actions in the Federal courts.
*Answer: Private actions have been permitted under the Fair Labor Standards Act for a quarter century. In the fair labor standards cases, permission is not required. There is no record of harassment under this statute. Indeed, efforts to authorize back-pay actions by the Wage Hour Administrator through enactment of Fair Labor Standards Act amendments were resisted for many years
"Objection : Many employers will lean over backwards to avoid discrimination, and as a result will discriminate against other employees, thereby increasing case volume.
“Answer: The Presidential conferences under section 718, should result in a board understanding of the equal pay opportunity program. In addition, the ('ommission has a clear mandate to engage in widespread educational and promotional activities to encourage understanding and acceptance of the policy of the act, including the obligation not to discriminate against whites.
"Objection: It is arguable that the bill apply to the election of the board of directors by stockholders.
"Answer: It will not. Board members are not employees nor are stockholders employers.
**Objection: Practically every small business is subject to this title.
Answer: The bill would cover only those employers with 100 or more employees during the second year after its enactment, and would gradnally he stepped-up until its fifth year when it would reach employers with 25 or more employees. In its second year following enactment, it would cover 56,000 employers, and would expand to this number gradually until it would reach the tigure approximately of 257,000 employers in its fifth year.
"Objection: The language of the statute is vague and unclear. It may interfere with the employers' right to select on the basis of qualifications.
"Answer: Discrimination is a word which has been used in State FEPC statutes for at least 20 years, and has been used in Federal statutes, such as the National Labor Relations Act and the Fair Labor Standards Act, for even a longer period. To discriminate is to make distinctions or differences in the treatment of employees, and are prohibited only if they are based on any of the five forbidden criteria (race, color, religion, sex, or national origin) any other criteria or qualification, is untouched by this bill.
"Objection: A defense contractor working on secret materials will not be able to comply with security regulations because he would have to hire persons from behind the Iron Curtain.
"Answer: The title does not affect the employers right to refuse to hire an applicant because he does not meet security requirements. In any event, discrimination on the basis of national origin is permitted where it is a bona fide.
"Objection: The bill would make it unlawful for an employer to use qualification tests based upon verbal skills and other factors which may relate to the environmental conditioning of the applicant. In other words, all applicants must be treated as if they came from low-income, deprived communities in order to equate environmental inequalities of the culturally deprived group.
“Answer: The employer may set his qualifications as high as he likes, and may hire, assign, and promote on the basis of test performance.
"Objection: Under the bill, employers will no longer be able to hire or promote on the basis of merit and performance.
"Answer: Nothing in the bill will interfere with merit, hiring, or merit promotion. The bill simply eliminates consideration of color from the decision to hire or promote.
"Objection: If the employer discharges a Negro, he must prove that the dismissal has nothing to do with race. When an employer promotes or increases the pay of a white employee, he must show that he was not biased against the Negro worker who was not promoted.
"Answer: The Commission must prove by a preponderance that the discharge or other personnel action was because of race.
"Objection: The bill would require employers to establish quotas for nonwhites in proportion to the percentage of nonwhites in the labor market area.
"Answer: Quotas are themselves discriminatory.”
Mr. CLARK. Mr. President, a question has been raised as to how much title VII of the bill would cost, and how many new Federal employees would be required to administer it.
I have requested the Department of Justice to answer those questions for me to the best of its ability. I am told that 190 new employees would be required to enforce title VII.
I note, parenthetically, that, before sex raised its ugly head in the bill, the number was 150. Apparently, it requires 40 more employees to take care of the discrminatory charges against members of the fair sex.
In response to my question as to how much the bill would cost, the Department of Justice tells me the average cost would be $4,750,000 over a 5-yeai period. Had we not been dealing with sex, that sum would be reduced to $3,800,000.
I also asked how much the study of employment discrimination on the grounas of age, which is called for by the bill, would cost, and how many employees would be required. I was told that 5 employees would be required, at a cost of $75,000.
I conclude as I began. The overwhelming reason for the passage of the proposed legislation is that when we pass it we answer a moral question in the right way. We do our share as a legislative body in assuring that rights secured. as our forefathers then thought, by the 14th and 15th amendments to the Constitution of the United States shall become living rights, and enforcible rights, rights of all American citizens regardless of race, creed, color, national origin, or sex.
We have a grave responsibility in the Senate, to measure up, for the first time in almost 100 years, to the simple challenge of justice, to see that in Congress we hold this truth to be self-evident, that all men are created equal, and
that the phrase above the temple of justice of the Supreme Court of the United States, a few short steps across the park from here, “Equal Justice Under Law,” shall become at long last a meaningful reality in the richest, greatest, and freest country the world has ever known; and that we shall have at long last removed the blot on our escutcheon which for so long has resulted in the hypocrisy of our holding forth to the world that we profess ideals which we are unwilling to put into practice.
Unless Senators desire to question me, I am prepared to yield the floor.
Mr. JOHNSTON. Mr. President, I should like to ask a few questions of the Senator. Who prepared the charts in the rear of the Chamber?
Mr. CLARK. Chart No. 1, showing the median wage or salary income in 1939, 1947, and 1962, is based on published U.S. Census Bureau data. Chart No. 2, the estmated lifetime earnings, is based on Bureau of Census figures. Chart No. 3, which shows rates of unemployment, was prepared by the Bureau of Labor Statistics of the Department of Labor. The fourth one, which is the map, is based on information obtained from the Library of Congress, furnished to me at my request.
Mr. JOHNSTON. The first chart shows the white and nonwhite males, 14 years of age and over. The Senator calls attention to the fact that the earnings of the colored are about 50 percent of the white, on the average; is that correct?
Mr. CLARK. It was less than 50 percent in 1939. By 1947 it was a little better than 50 percent.
Mr. JOHNSTON. Fifty-five percent.
Mr. JOHNSTON. At least 50 percent of the colored people live in the South; is that correct?
Mr. CLARK. I believe so.
Mr. CLARK. States which do not have fair employment practices acts, which includes only the South and several States with very small populations, have roughly 60 percent. Therefore, I would not quarrel with the Senator on that point.
Mr. JOHNSTON. I invite the Senator's attention to the reason for that situation. What is the per capita income in States where the ratio of colored to white is very low--for example, in New York and Pennsylvania ? I refer particularly to the Senator's State of Pennsylvania.
Mr. CLARK. I am ashamed to admit that I do not know. It is probably a little higher than in South Carolina.
Mr. JOHNSTON. It is almost double, I am sorry to say. That is where the colored people live. We should bear that in mind in examining the chart. Now then, another thing
Mr. CLARK. Before the Senator goes on-
Mr. CLARK. I have the floor. I am required to yield only for a question. I wish to extend to my friend from South Carolina every courtesy. I do wish to have the opportunity, however, to interrupt him before he goes on with another thought, so that my reply to his argument can be read consecutively in the Record. What I am pointing out is that while it is true that the income in my State of Pennsylvania is higher than it is in the State of South Carolina, that is true for Negroes as well as whites, and does not in any way impugn the validity of the showing made by the chart.
Mr. Johnston. It does. Let me go a step further. The Senator will find that the colored people live on the farms. That means that their income is much less than the income of people who live in municipalities. Even in my State, that is true. That is another thing that cuts into the argument, is it not?
Mr. CLARK. No; that is not true. There is another chart.
Mr. Clark. I would prefer to answer my friend's question before taking np aniother question. In my State the overwhelming majority of Negroes live in the cities of Pittsburgh and Philadelphia. They came to my State from the Senator's State because they did not like conditions down there.
Mr. JOHNSTON. In South Carolina most of the people are leaving the farms. Mr. CLARK. They leave the South because they believe they are unjustly treated. Mr. JOHNSTON. That is true of farms everywhere.