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employment. Most employers, like other people, want to obey the law. With clear public policy and with firm enforcement they will do what is right. TO illustrate this in its practical application, it may be helpful to review some aspects of the California FEPC program that are relevant to discussion of H.R. 9222.
From September 18, 1959, through June 30, 1965, a total of 4,202 individual complaints of job discrimination on account of race, religion, or national origin were docketed through the San Francisco and Los Angeles offices of FEPC. Each case originated with a verified complaint stating a cause of action under the law, and each was investigated by professional staff under supervision of an assigned commissioner. If there was no evidence or insufficient evidence of discrimination, the case was dismissed. If evidence of discrimination was found, the commissioner endeavored through conference, conciliation, and persuasion to obtain corrective action on behalf of the complainant—often with significant salutary consequences for others similarly situated. There was such corrective action, based on evidence of discrimination, in approximately one-third of the completed cases.
With negotiations usually conducted in a spirit of conciliation, with full protection of all parties' rights, the FEPC aim has been not punitive, but corrective. The goal is to bring employers, employment agencies, and unions into compliance with the law, and to promote their continuing practice of fair employment. Generally, the avenues of conference, conciliation, and persuasion that the California FEPC and similar agencies in other States have followed appear also to be the main approaches that the new Federal Equal Employment Opportunity Commission will pursue in administering title VII of the Civil Rights Act of 1964. Our experience indicates that these are workable, desirable methods. But it is vital to recognize that the emphasis on conciliation must be backed by adequate enforcement powers. The H.R. 9222 provision for formal hearings and, where necessary, issuance of enforceable orders is perhaps its single most important addition to existing law.
While the California FEPC continues necessarily to devote the bulk of its staff and commissioner time to investigating and resolving individual job complaints alleging discrimination because of race, religion, or national origin, in recent years it has placed increasing emphasis on two other types of compliance: Commission-initiated investigations and affirmative actions.
As to the first of these, section 1421 of the California statute provides that the commission, on learning of an apparent violation, may initiate an investigation and seek corrective action through conference and conciliation. To date 120 such investigations have been undertaken; 63 of these have been completed and closed, while 57 are currently in progress. Such investigations may cover, for example, the practices of both unions and employers in a certain industry in a metropolitan area; or the upgrading practices of a major firm in several plants and offices throughout the State; or the status of minority workers and applicants in a large public institution, department, or municipality.
Not infrequently, although formally classified as investigations, such undertakings take on more of the character of a cooperative undertaking in which our commissioners and staff assist the firm or union or public agency in self-examination of its practices and in working out, where needed, ways of improving these practices. Many thousands of members of the work force may be affected, over a period of years, by the outcome of one such FEPC investigation.
The second of these methods of implementing broader compliance the "affirmative action"—to a variation of the section 1421 investigation. It is different in two main respects: the effort does not stem from an allegation or supposition that an actual violation of the FEP law has occurred, and cooperation in the action is voluntary on the part of the employer or other organization concerned.
Key features of the affirmative action process are willing cooperation of the employer, his positive commitment to full equality of employment opportunity throughout his establishment, and his use of FEPC's expert consultative services to broaden his utilization of minority manpower.
Our first formally designated affirmative action was undertaken in 1963, although similar work in positive compliance had already been going on for several years. By July 1 of this year, 43 such actions had been undertaken ; 29 are now in progress.
Advantages of this approarh are increasingly obvious. Basic recruitment and hiring patterns are expanded to include workers of all backgrounds. Well con. ceived affirmative actions, carried out vigorously on a large scale over a considerable period, will no doubt tend to diminish the number and complexity of individual complaint cases—though provision for redress of such cases must always be retained. The old system of curing is now complemented by promising and increasingly proven means of prevention of discrimination in recruiting, hiring, assignment, and upgrading.
Under title VII of the Civil Rights Act of 1964, there will exist a combination of Federal Government services with those of the approximately 25 States that have effective and enforcible FEP legislation to create a highly significant partnership, strengthening operations of existing statutes and, of course, providing service for those other States which do not have such legislation.
In comparing this bill, H.R. 9222, with title VII, we strongly favor the elements—similar to those in the California FEP Act—that provide for hearing and enforcement, giving the Federal Commission power to move against the respondent, where warranted, if voluntary compliance is not secured through conciliation; to hold a hearing, to issue a cease-and-desist order or to require appropriate affirmative actions to effectuate equitable remedies of unlawful employment practices found.
Also desirable in the present bill are provisions for narrowing the range of exemptions to reach employers with 8 or more employees—rather than title VII's first-year exemption of employers of fewer than 100, with successive annual reductions until the employer of 25 or more is covered. The California act covers employers of five or more persons, and we have found this to be a reasonable coverage.
We also approve the limitations of the nonprofit or religious employer exemptions, both in the pending bill and in title VII. In some State statutes, including our own, the traditional exemptions are unnecessarily broad.
Another important provision of H.R. 9222 is that the findings of the Commis. sion with respect to questions of fact, if supported by substantial evidence on the record as a whole, shall be conclusive. This, we think, is both essential and justifiable, if our Nation is to apply all reasonable strength to the elimination of racial and religious discrimination in employment.
One of our principal concerns involves the creation of an effective working relationship between the Federal Commission and the State agencies, and we note that many of the excellent provisions of title VII in this respect are retained by H.R. 9222, such as those which call for utilization of State or local services, with reimbursement for costs, plus other forms of cooperation, and for written agreements. Such cooperative agreements are essential to avoidance of confusion and inefficiency in administration of the law by the respective Federal and State agencies. Whatever provisions are made concerning the confidentiality of case matters or endeavors at conciliation, the need for meaningful working cooperation between the respective agencies requires that information be shared and procedures be closely coordinated.
In any Federal legislation which would replace title VII of the Civil Rights Act of 1964, we recommend inclusion of provisions such as those of section 709(b) of the present title, clearly authorizing the Federal Commission and State and local agencies to enter into written agreements under which the Federal Commission may refrain from processing certain charges and may cede to the State agencies broad powers in this respect, subject, of course, to resission whenever warranted.
We approve, too, of section 706(b) of title VII which allows States with effective nondiscrimination laws 60 to 120 days to act on all complaints within their States before the Federal Commission will proceed. This seems to us, from our State perspective, a very sound provision. We recognize, however, that there will be a better basis for evaluation of this deferment of case processing from the standpoint of overall national policy after title VII has been in effect a year or two.
These provisions of title VII for Federal-State working relations have al. ready stimulated a number of States to enact good fair employment legislation. and it is likely that there will be more such enactments. The Federal agenry must-and, I am sure, will-be alert to the possibility that some local or State laws or commissions may be lacking in strength, capacity, or commitment to the urgent purpose of the Nation's policy in this field. In regard to sixh cases, of course, the Federal Commission must have and exercise the option nor to delegate its powers and responsibilities.
H.R. 9222 appears to take into account these important considerations concerning the Federal-State mix of FEP powers and functions. Possibly some improvements could be incorporated as the bill is studied further. that the measure be kept strong and clear in these respects.
Since H.R. 9222 is intended basically to strengthen the Nation's new fair employment law, the committee and author may wish to devote study to the little-explored question of just what form or structure of FEP agency is likely to be most efficient and effective, while providing adequate safeguards to due process and to the rights of all parties. H.R. 9222 incorporates essentially the standard organizational model adopted in New York State in 1945 and largelythough not uniformly--followed ever since by other States and cities, then by the Congress in title VII. This model, now conventional among fair employment agencies, typically involves a commission which is not only responsible for policy and program formation and for hearing and review functions, but which is involved in one degree or another with operations and program administration. I suggest that certain kinds of problems are often engendered by this organizational structure which tend to impair the overall effectiveness of fair employment agencies. I do not propose a particular alternative at this time, but wish only to bring the matter to your attention as an important one warranting study.
Finally, I would recommend that the bill set forth clearly the duty and authority of the Federal Commission not merely to attend to the particular instance of unlawful practice against an individual but to engage in broad affirmative action seeking to bring about more widespread adoption of positive recruitment, training, and upgrading practices. Major State FEPC's have been emphasizing such endeavors in the last several years. I have mentioned California's program along these lines, and shall append herewith a brief, illustrative report of this work.
Any new Federal legislation, it seems to me, should take into account the actual, living content of the best of the State affirmative opportunity programs and should seek to establish the highest possible standards for the Nation in this regard. I stress "living content" of the program because you will not necessarily find this spelled out in the formal language of a statute, even though it may constitute excellent and faithful service to the spirit of the law.
As a final example of an affirmative undertaking in this spirit, I wish to submit copies of a voluntary agreement reached between the California FEPC and the Bank of America in June 1964; two progress reports pursuant to that agreement; and a recent major address by Mr. Robert L. Gordon, senior vice president of the bank. (Additional copies of these materials will be provided if desired.) I hope that the following brief excerpt from Mr. Gordon's address will whet your interest in reading his full text:
** * * we have taken the view that merely neutral, or passive, equal opportunity programs are not enough. It is our determined opinion that employers cannot merely sit and wait, but must go out and encourage competent and trainable minority people * * *.
“Within our own organization, we began the practice of consistently and forcefully communicating with all officers at administrative and branch levels the bank's commitment to activism in seeking out and hiring qualified minority personnel, that is, members of Negro, oriental, other nonwhite, and Spanish surname groups."
H.R. 9222 might well be strengthened, we suggest, by adding explicit recognition of the importance of affirmative endeavors to overcome the terribly deep, pervasive habits and sources of employment inequity which are still characteristic of much of our society today. Among possible strengthening amendments, for example, why should not the power be given to the Commission to investigate and press for correction of a pattern of inequity or resistance, as a parallel to the power conferred on the Attorney General by section 7(a) of the bill? Other such ideas might be developed in careful reexamination of the measure.
It is eminently fitting that even as the Nation's first fair employment law is in its first month of administration a committee of the Congress is considering a measure which seeks to strengthen that law in ways suggested by the past two decades of State and local FEP experience around the country. We all recognize today that major educational and economic programs in addition to fair employment law are essential if the Nation is to progress with all possible speed toward the great goals set by President Johnson in his Howard University address. But
this recognition only adds force to the statement that enacting the strongest possible fair employment law is the very least we can do at this late date.
Title VII is an excellent beginning. A fine commission is at work--under yet another Roosevelt carrying forward this historic family's tradition of high public service, and including Commissioner Aileen C. Hernandez, the California FFPC's wonderfully capable recent contribution to the Federal Establishment. Undoubtedly much will be learned through the experience of the Equal Employment Opportunity Commission in the months ahead. But it is both possible and indispensable now, on the basis of existing experience and studies, to proceed to remedy weak spots in the new law and to shape it into the most workable possible instrument. The national welfare demands no less.