tionwide standard, and it is important to avoid unnecessary areas of exemption.

A most desirable provision of both S. 773 and S. 1210, appearing in each bill as section 5(a)(1), forbids utilization by the employer of any discriminatory source of recruitment. S. 773 seems to omit, however, explicit prohibition of discrimination in classification and referral of jobseekers by employment agencies. This is a common prohibition of FEP statutes, and I would recommend its inclusion. By the same token, the employment referral and placement functions of schools and colleges should be covered in any such law. The committee may wish also to examine the possibility of giving the FEP agency the general power to conduct investigative hearings, apart from specific complaint cases. This power has been important in the work of the U.S. Civil Rights Commission, and the Philadelphia Commission on Human Relations has found it most useful. It is not yet a standard feature of State fair employment laws, but could be of great service in affirmative compliance endeavors.

The commission initiation power provided in both S. 773 and S. 1210 is of the utmost importance. There is, I believe, a broad consensus among the State and local FEPC's and students of their work to the effect that limitation of such an agency to a compliance program stemming only from the receipt of miscellaneous individual complaints is to hold it to a haphazard, piecemeal, and wholly inadequate method of operation. There is no necessary correlation between the existence of restrictive practices in certain sectors of industry and the filing of FEP complaints; in fact, it is not uncommon for a fair employment agency to find that it is receiving few or no complaints concerning a firm which has a conspicuously discriminatory policy. The reason is simply that minority jobseekers are in the market for work, not to create cases, and they are rarely inclined to waste their time or subject themselves to the psychological wear and tear involved in knocking on the door of a firm they believe to be exclusionary. Without the power to initiate action where needed, a fair employment commission is obliged to close its eyes to practices which flout the law. Under such circumstances the law will, of course, fail to gain respect or to bring about that general observance and living adherence which is its ultimate objective.

Both S. 773 and S. 1210 are silent on a point which I believe should be seriously considered. California's FEP law and those of other States expressly forbid any person to aid, abet, incite, compel, or coerce the doing of any of the prohibited discriminatory acts, or to attempt to do so. One application of such a provision is to the employees of a firm who may seek to interfere with the management when it complies with the law by hiring or promoting members of a minority group. Other applications are equally important. I urge this addition to the list of unlawful employment practices which appears in section 5 of each of the bills.

I should add that I have also seen the unnumbered draft of a forthcoming equal employment opportunity bill by Senator Humphrey, and that it contains, in my judgment, certain approaches and emphasis which merit thorough consideration. The focus in this bill upon the need for affirmative action and its structural-operational departure from the standard FEPC organization are most interesting. I look forward to discussion of the bill, in final form and in relation to S. 773 and S. 1210, during the committee hearing.

In the first section of this statement I cited Governor Brown's strong endorsement of Federal fair employment legislation and his hope for significant partnership between a new Federal commission and the various State and local agencies in this field. It would seem desirable that Federal action should have three main aspects: (1) to establish a strong, uniform fair employment standard for the whole Nation; (2) to work with high priority in the 28 States which has no such laws, or weak ones; and (3) generally to supplement and strengthen FEP programs in the 22 States which have enforceable statutes with provision for agency administration.

We hope that the Federal law will in no way impede or restrict the jurisdiction of those States with truly enforceable and effective FEP statutes, and that it will be the express intent of the Congress that there be full cooperation between Federal and State authorities in administration of these c'osely related laws. The State laws typically have jurisdiction over employers, employment agencies, and labor organizations active within the State, whether or not engaged in interstate commerce, and this has not been found to constitute an unreasonable burden upon interstate commerce. As a practical

matter, of course, State and municipal fair employment laws provide at present the only effective instrumentalities through which to secure remedies and promote compliance, with the exception of some parts of the Federal contract compliance program. We suggest that there is here, all things considered, an indispensable role for those State and local agencies that have demonstrated their vigor and effectiveness and which measure up to the high national standard which the Congress hopefully will enact.

The three fair employment bills touched on above appear to contemplate concurrent jurisdiction with the State agencies plus the close liaison and cooperation which we are urging. It would be necessary, no doubt, to spell out clear understandings as to situations in which one or both agencies would assume a share or all of the responsibility for cases which had come to both, for cooperative planning and execution of affirmative action undertakings, for educational programing, and other work of common concern.

While recommending unimpaired State FEP law jurisdiction, we recognize the possibility that some State or local laws or agencies might not, at all times, meet the Federal standard of "effective power." The Federal agency must, of course, have discretion to utilize non-Federal facilities, with consent, or to refrain from doing so. Since the Federal caseload and overall responsibility will undoubtedly be very large in relation to its resources at a given time, it may be wise to plan to have the State agencies, where fully up to standard, handle most or all of the complaints brought under the Federal law by residents of such States, enabling the Federal agency to give more attention to the problems of non-FEP States. If it should become necessary to provide for election of remedies by the complainant, whereby he may not have the same cast processed by both the State and Federal agencies, it should be obligatory that the complainant be informed fully of his rights and choices prior to filing, or that either agency be authorized, with the consent of the complainant, to transfer the case to the other agency if it appears this would best serve the common purpose of the laws.

Finally, attention may be necessary to the problem of exchange of information between the Federal and State agencies. Whatever provisions are made concerning the confidentiality of case matters or endeavors at conciliation, the need for close working cooperation between the various agencies makes it essential that information be shared. Under suitable safeguards, relaxation of rules of confidentiality to these ends would be fully justified.

Under a law which establishes procedures substantially of the nature I have suggested, both the Federal Government and the States would remain reasonably free to move either together or separately, but in any event with adequate mutual knowledge. If the Federal Government finds that the States are not moving strongly to protect the rights of citizens in this field, it may act. If a State does afford adequate protection, the Federal Government may choose not to move, or to act in close cooperation with such a State. If the Federal Government for some reason is not moving with diligence, recourse could be had to the State agencies. The overall, long-term consequence could thus be stronger protection and optimum promotion of the right to equal employment opportunity.

In closing, let us recall figures such as these for the Nation as a whole: One-fifth of all the unemployed are Negroes. This is twice their proportion in the labor force.

Among men 25 to 44, the rate of unemployment is three times as high for Negroes as for white workers.

One of every five Negro men and one of every four Negro women are looking for jobs.

Seventeen percent of all Negro workers are nonfarm laborers-the occupation with the deepest unemployment. Only 5 percent of all white workers are in this occupation. On the other hand, in the white collar jobs, where unemployment rates are low, we find only 13 percent of all Negro workers.

Negro Americans suffer disproportionately from long-term unemployment. Although they comprise about 11 percent of the population, 24 percent of those who have been unemployed 15 or more weeks are Negro, and 26 percent of those jobless 6 months are more.

What a shocking story these statistics tell. What a commentary on the condition of social justice in America as of the centennial year of the Emancipation Proclamation. The figures may be recited in broad impersonal terms, as I

have just done. Yet the stark human individual and family deprivation and tragedy reflected in such statistics is staggering. Surely the conscience of every American who is more fortunate must be deeply troubled, and his resolve to revise the shape of things must assume powerful and unshakable proportions in the face of such cruel current realities.

Approval by the Congress of fair employment practice legislation will provide one of the keys to unlock the Negro worker, and others in the potential work force who suffer discrimination, from the intolerable bonds of enforced idleness, deprivation, and desperation. Prolonged unemployment, underemployment, or the inability to exercise skills for which he is qualified by talent and training is a galling experience for anyone. When the trap has been shut by arbitrary springs of race, color, religion, or national origin, the result can only be deep anger and frustration.

The elimination of barriers to full economic participation by Negroes and other minorities is now essential to the national welfare. We need a strong Federal Fair Employment Practice Act, establishing cooperation with those States which have adequate facilities to deal with the problems of job discrimination, and filling the gap in those States which do not. The legislation before you, especially if it is strengthened in the ways I have suggested, will create an indispensable instrument for protecting a fundamental civil right, promoting equality of opportunity, and assuring the Nation of the best use of its vital resources of manpower.

PREPARED STATEMENT OF HENRY SPITZ, GENERAL COUNSEL, NEW YORK STATE COMMISSION FOR HUMAN RIGHTS

The New York State law against discrimination was enacted in 1945. I have served as general counsel to the Commission for Human Rights, formerly the Commission Against Discrimination, since its inception 18 years ago. The law created the commission to carry out the provisions of the statute. The commission is headed by seven commissioners appointed by the Governor, one of whom is designated by the Governor as chairman, to serve as the chief executive officer of the commission. The administrative structure of the commission consists of several divisions, namely, regulatory, legal, education research, and housing, each performing various functions under the law.

The law as originally enacted, covered only discrimination in employment. In the years which followed, the law was amended to extend its coverage to places of public accommodation, publicly assisted housing, certain types of private housing, and at the last session of the legislature, to practically all housing in the State.

Since your committee is presently concerned with bills relating solely to discrimination in employment, I shall address myself exclusively to the commission's experience in this area.

It is the considered judgment of the commission as reflected in its recent annual reports to the Governor and the legislature, that job discrimination based on race, creed, color, or national origin, while still existing, is being steadily eliminated as a result of the combined administrative application of the law's educational and regulatory procedures. The cooperation of civic and social welfare organizations has contributed materially to the progress of effectuating the law's purposes and objectives. Responsive cooperation by many business and labor organizations has also been helpful.

The statutory pattern under which the commission functions has two facets-one educational, the other regulatory. In its regulatory aspect the law provides that discrimination by an employer, an employment agency, labor organization or other person, against an employee, applicant for employment, union member, or applicant for union membership, because of race, creed, color, or national origin is an unlawful employment practice. In 1958, the law was amended to extend the Commission's jurisdiction to discriminatory employment practices because of age as well as race, creed, color, and national origin. In 1962, the commission's jurisdiction in the area of employment was further extended to include discrimination in guidance, apprenticeship, onthe-job training and other occupational training or retraining programs. Any direct or indirect preemployment inquiry or specification based on age, race, creeed, color, or national origin is an unlawful employment practice. Aiding, abetting, inciting, compelling, or coercing the doing of any of these acts is also

unlawful. In addition, it is unlawful for an employer, licensing agency or employment agency to discharge or otherwise discriminate against any person because he has opposed practices prohibited by the law or because he has filed a complaint or assisted in any proceeding by the commission.

Any individual who claims to be aggrieved by an alleged unlawful employment practice may file a verified complaint with the commission. This complaint is investigated by a commissioner to determine whether there is a reasonable basis for believing the complainant's charge. If the investigating commissioner finds that there is no probable cause to credit the allegations of the complaint, he will dismiss the complaint. However, if he finds probable cause, he will make efforts to eliminate the unlawful employment practice complained of through conference, conciliation and persuasion. Even in those cases where no overt acts of discrimination have been proven, employment practices which have traditionally barred members of certain groups have been changed, thereby opening up fresh opportunities to the workers of the State. For example, the commission utilizes the device of suggesting to employers that they broaden their sources of recruitment by using the services of such agencies as the New York State Employment Service, the Urban League, and similar media in addition to those currently employed to recruit applicants for employment. Underlying these suggestions is the premise that a broadened recruitment policy will produce qualified minority group applicants capable of competing successfully with others and will result in minority group representation in the general employment pattern.

It is only after efforts at conciliation fail, that a case will be ordered for a formal hearing. At these hearings the complainant is represented by the commission's counsel and/or by his own attorney and the respondent likewise has the right to be represented by counsel. Based on the evidence presented at the hearing, the hearing commissioners will either dismiss the complaint or make a finding of discrimination and issue a cease and desist order. If a cease and desist order issues, it may contain provisions for affirmative relief to the complainant. This affirmative relief may consist of an award of back pay, a direction to hire or reinterview the complainant, a requirement that the complainant be reinstated in a labor organization, admission to an apprenticeship training on-the-job training or other occupational training program, and other comparable provisions based on the equities of the particular case. Either party may appeal to the supreme court from a commission order. All orders of the commission are enforcible through the courts.

The preponderance of employment complaints filed with the commission allege discrimination because of color, and it is in that area that the greatest gains have been made. To a considerably lesser degree, religion and national origin have been the basis for complaints.

From July 1, 1945, when the law went into effect through December 31, 1962, 7,725 verified complaints were filed with the commission alleging discrimination in employment. Of that number 4,198 dismissed by the investigating commissioner either for lack of jurisdiction or for lack of probable cause to credit the allegations of the complaints. In 1,620 cases, no probable cause was found as to the specific complaint but other discriminatory practices were found and adjusted by the investigating commissioner. The great majority of complaints that were well-founded have been settled amicably through the commission's conciliation process, backed up by the sanctions provided for under the law. Only four employment complaints, not adjusted through the conciliation process, actually went to public hearing which culminated in the issuance of cease and desist orders. Twenty-seven complaints, although ordered for public hearings, were settled before the scheduled hearing dates or during the course of hearing.

This record of achievement has been possible only because the law gives the commission the power not only to investigate and conciliate but also the power to issue subpenas, hold public hearings, issue cease and desist orders and to enforce its orders through the courts, if necessary, by contempt proceedings and the imposition of criminal penalties for willful resistance. The fact that the commission has these powers gives it persuasive force at the conference table. The sanctions provided in the law have thus served as supports for the conciliation process. They have been used to reinforce, not to abort the conciliation procedure.

Another aspect of the commission's regulatory work is its self-initiated investigations, which differ from verified complaints in that they are based on

credible information from a reliable source rather than on formal complaints filed with the commission by aggrieved persons. Through 1962, the commission initiated 1,349 such investigations in the field of employment. From the point of view of jurisdiction, the commission classifies such investigations as being within its nonenforcement jurisdicton. This classification denotes that the investigation is not based on a verified complaint and accordingly, the investigating commissioner could not order a formal hearing if his efforts at conciliation were ineffectual. However, the commission could, under the law, direct the matter to the attention of the State attorney general or the State industrial commissioner, either of whom may file a verified complaint.

In this connection, several days ago, Governor Rockefeller directed the commission to initiate a program of educational conferences and investigations into the employment practices of all employers engaged in public work construction for the State or in the manufacture, sale or distribution of materials, equipment or supplies for the State. Based on the commission's past experience, it is expected that in the great majority of cases in which discriminatory practices are found, such practices will be eliminated through the conciliation process. Cases in which efforts at conciliation fail will be referred to the attorney general or the industrial commissioner.

The other facet of the statutory pattern under which the commission functions, is educational. In recognition of the fact that the elimination of discrimination requires education of the community as well as legal sanctions, the commission maintains an educational division which utilizes all media of mass communication to carry forward a comprehensive educational program. The educational division is assisted in this work by community councils established by the commission throughout the State. These community councils are made up of leading citizens in the various communities who set the pattern of nondiscrimination at the grassroots level. Each council has a speakers' bureau and makes studies and recommendations to the commission on ways and means of meeting the problems that exist in their respective communities. Of further assistance to the commission in carrying out the purposes of the law, is the provision in Governor Rockefeller's code of fair practices, issued in 1960, which directs all State agencies to cooperate with the commission and to comply with the commission's requests and recommendations for effectuating the State's policy against discrimination.

It has been the experience of the commission that the complaints filed with it represent a cross section of occupational interests: professional and technical workers, sales personnel, white-collar workers, craftsmen, foremen, skilled, semiskilled, unskilled, and service workers. There is no segment of the industrial life of the State that is not affected in some measure by the educational and regulatory programs of the commission.

Perhaps the greatest single gain is the effect that the law has had on the morale of members of so-called minority groups. Observing the day-to-day improvement in employment practices, they have been encouraged to train and qualify for more responsible positions, regardless of past patterns of employment.

The commission recognizes that all of the problems of job discrimination have not been permanently solved. It is convinced, however, that the law has been an important instrument in the progress which has been made.

In conclusion, I wish to note that many States and municipalities have enacted laws prohibiting discrimination in employment. I would hope that any Federal law enacted in this field take into consideration the operations of existing State and local agencies engaged in eliminating unlawful employment practices. I would suggest that in order to achieve the most effective Federal and State cooperation, the Federal legislation should contain a provision authorizing the Federal Government to cede jurisdiction to the State in cases which can be effectively administered at the State level even though such cases may fall within the scope of the Federal law.

In the absence of such provision, the goal of cooperative Federal and State action might be defeated by any statutory provisions which would preclude the State from operating in the same general field as the Federal Government. The Federal Government should not preempt the field.

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