know how you can do it quick but maybe you can do the best you can. Mr. Litvak, you look ready. Mr. LITVAK. I think the exemptions are too broad and I believe it should only be limited to those which are generally religious, charitable, educational, and of a sectarian nature, religious nature, rather than attempt to exclude all charitable, educational associations. Senator CLARK. How about what has come to be referred to, to the Mrs. Murphy situation where there is a small business or a small innkeeper, or something? We have 50 employees in the draft. Mr. LITVAK. I think essentially you have covered it by 50 employees, in other words, I think that is sufficient to exclude Mrs. Murphy's restaurant. Senator CLARK. I have just been handed the statement of Gov. Endicott Peabody, of Massachusetts. I will place it in the record at this point. Following his statement will appear statements adopted by the Second and Third Conferences of Governors on Civil Rights held in 1959 and 1960, respectively. (The statements are as follows:) STATEMENT OF HON. ENDICOTT PEABODY, GOVERNOR, STATE OF MASSACHUSETTS Massachusetts by 1963 has had 17 years of experience with fair employment practice legislation, and we are now thoroughly convinced that such legislation is an essential first step to the ultimate goal of equal employment opportunity for minority citizens. When first passed, there were many who had grave doubts as to whether such a law could be effective and could be administered without heightening tensions between minorities and employers. Our experience, however, has completely justified the passage of this law. When the original FEP bill was being considered, some business groups opposed its passage. Once the bill was passed, however, the commission has found these groups, and especially the Associated Industries of Massachusetts, to be most cooperative. The CIO and the A.F. of L. supported the original bill. Employment agencies both public and private have posed no difficult problems. In fact, top management in industry, labor and employment agencies (the three groups to which the law addresses itself) have assisted the commission in policing members and in cooperating in studies and surveys. This, of course, does not mean that violations do not occur and many more than come to the attention of the commission. But the fears that were expressed that such a law could not work out because "you can't legislate acceptance, etc." just haven't happened. Legislation does not attempt to control how a person thinks, but it can hopefully control how he acts. If he changes his action pattern and changes it without bitterness, he often seems to change his mental processes as well. Since its inception in 1946, the Massachusetts Commission Against Discrimination has processed over 2,819 complaints in the field of employment, only one of which has proceeded beyond the conciliation stage. During this time the commission has achieved many breakthroughs for minority group citizens. In short, the law has served us well. It first served to remove all outward signs of discrimination. Advertisements and placards announcing "Negroes need not apply" disappeared. Personnel offices and hiring halls were forced to display at least outward courtesy to minority citizens. It served as well to garner the support of that vital segment of the community which heed an abiding respect for the law though they may have been indifferent to the moral considerations posed by discrimination. Simultaneously, it isolated the violently prejudiced persons and groups and tended to mute their public statements. Beyond this it afforded those who administered the law and the many community organizations devoted to its principles continuing opportunity for effective education of employers and employees. A law with less teeth or less budget for its administration would never have commanded the attention that this law has enjoyed, and there would have been correspondingly fewer opportunities for effective education. Most importantly, however, by giving opportunities for minority persons which otherwise would have been closed to them, the law has proved the feasibility of fair employment policies in almost every conceivable situation from laborer to executive from scientist to supervisor, and in positions highly visible to the public. Today no one who is familiar with the experience accumulated under the law could raise a rational objection to a qualified Negro being employed in any position. Unfortunately, however, the law has not achieved the broad equality in economic status for Negroes which its supporters once envisioned. Today the Negro is still twice as likely to be unemployed as a white. In Metropolitan Boston he earns 50 percent less than the average white, and even after attending college, he earns no more than the median income earned by a white person with 3 years of high school. Thus if we as a State and as a Nation are to achieve a broad improvement of the economic status of the nonwhite, it will be necessary to adopt new theories in administering this law. It is not easy to make progress in this area as it once was, for many reasons. As I cited above, discrimination which was once openly practiced is now more covert. In addition, some of the tools that the commission used for opening jobs in the lower ranks of employment have been found less effective in promotional, supervisory, and executive jobs and for jobs in smaller companies. The taking of a head count, for example, is most effective in establishing a prima facie case of discrimination, when there are many jobs in that company in one job category. This is more likely to be the case in larger companies in the lower ranks-at the base of the economic pyramid. In the higher job levels where there are generally fewer jobs, one cannot rely as well on this technique. In jobs where the hiring or promotional decision is subjective, it has also been extremely difficult to establish the act of discrimination. The Commission must often make a judgment of whether or not a person is qualified for the job applied for and where factors such as executive ability, human relations sensitivity, and leadership potential enter into the hiring decision, it is harder to be certain that the law has been broken. This too is frequently the case for the higher level jobs. In short, we believe that the present law against discrimination which once was considered a potent remedy has lost some of its curative power. Discrimination like a hardy virus has developed new strains resistant to present medication. In addition, there were certain areas of employment discrimination which were never reached by the law. For the above reasons, we now believe that it is time to experiment with new types of legislation, and for this reason we feel that the bill which Senator Humphrey plans to introduce has greater potential than S. 773 and S. 1210, which are quite similar to the present Massachusetts statute. The Administrator possesses much clearer authority and has greater ease of action so that more energetic enforcement is possible. Instead of being limited to situations where complaints are filed, the Administrator is permitted to investigate any employer or organization where he suspects discrimination may be present. It has been our experience that there are many situations where discrimination may exist and yet no complaint may be forthcoming. The employer may be subtle enough to avoid such complaints, and those applicants who may recognize discrimination often are not aware that they are protected by law or how to go about exercising their rights. Moreover, we have found that most people would rather seek elsewhere for a job rather than face the hostility they expect will result if they should win their case. In actuality such hostility rarely eventuates, but this is difficult to impart. In cases where promotional rights are at stake, fear of retaliation is particularly acute. We feel it is essential, therefore, that initiatory powers be granted and liberally used if further progress is to be made. We believe as well that the concept of separating the prosecuting and investigative functions of the administration from the adjudicatory functions of the Equal Employment Opportunity Board is preferable to the concept in the other bills which combines these functions into a single organization. Perhaps the most important feature of the bill is that it permits regulations to be promulgated requiring affirmative action on the part of employers. The efforts of the present commission against discrimination have been directed toward eliminating open hostility to the employment of minority people and persuading individual employers and the community at large to adopt as a minimum a neutral position. The experience of the past 17 years, however, and the current racial turmoil today shows clearly that neutrality is not enough and that now we must do more. There are certain changes in the Humphrey proposal, nevertheless, which we feel would improve its effectiveness. They are as follows: (a) We question the necessity of a five-man full-time board. It has been our experience in this field that extremely few employers will contest the deci sions of a commission against discrimination if their power is well defined or if a sincere attempt has been made to conciliate the case. There have been extremely few public hearings held in any of the commissions during the past 15 years. In Massachusetts only 5 have been held though more than 3,000 cases have been processed. It is likely that more might result if the law were more aggressively administered, but it still seems unlikely that in the first few years there would be a sufficient workload for five men working full time if their only tasks were to hear appeals. It would be our advice, therefore, that for the time being the number of board members be kept to three until such time that the workload proves too burdensome. (b) We suggest that those firms employing less than 10 employees be excluded from the law's jurisdiction. It is our impression that there are extremely few firms smaller than this which are engaged in interstate trade, and it is our belief that the Federal board should not be burdened with such cases. (c) There is no clause prohibiting those groups or individuals who aid and abet discrimination. Inclusion of such a clause would improve the law's coverage. (d) There should be an exclusion of religious or denominational groups from the law, but only insofar as it concerns those who actually take religious orders. Employees of hospitals or schools, etc., run by religious groups should be covered. In addition, other charitable organizations, such as foundations, social welfare, or nonprofit groups, in general should also be covered. (e) The placing of such an agency within the Department of Labor, in our opinion, lends insufficient status to this commission. The problem of gaining equal opportunity for all our citizens and rooting out discrimination is unquestionably the greatest domestic problem that our country has ever faced. It has plagued us for more than two centuries and will continue to so plague us unless we assign it the priority it deserves. Submerging this commission in a department which the ICC and the SEC and the many other regulatory commissions remain independent is utterly incongruous. (f) There should be a statute of limitations added. (g) The question of whether or not this commission will preempt the field is one that needs much more consideration. Those States who are willing and able to pass and enforce the legislation which is here proposed should be encouraged to do so. However, where no State legislation exists, or where the State demonstrated an unwillingness to properly enforce such a statute, the Federal Government should indeed preempt the field. Suitable standards of acceptability should be determined and included in the law. (h) It should be permissible to award compensatory damages to victims of discrimination, particularly where complaints have been filed. Present State laws do not include the concept. Some permit the award of backpay but do so very infrequently, and none acknowledge the very real psychological costs suffered due to an act of discrimination. Provision for such awards would be extremely helpful and specifically in cases where the victim does not get the soughtfor job because it had been filled in the meantime. STATEMENT ADOPTED AT SECOND CONFErence of GoVERNORS ON CIVIL RIGHTS, DETROIT, MICH., JANUARY 31, 1959 The Second Conference of Governors on Civil Rights emphasizes the fact that more than two-thirds of this Nation's population now have the protection of statutory civil rights safeguards through their State governments. The manifestations of discrimination which mar the unity of our Nation in its effort to assure equal rights to all are regrettable but fortunately are not general in our society. 22-287-63-19 Our conference finds that special programs to fight this inequity are now in effect in 25 States, and is encouraged to observe that progress is being made in other States. California, Illinois, and Ohio, all huge, industrial States newly represented at this conference, are now supporting new FEPC legislation. Six additional States Connecticut, Michigan, Minnesota, Pennsylvania, Rhode Island, and Washington, are considering new or strengthened legislation to curb discrimination in housing. We are encouraged by this positive and affirmative experience reported by the 18 States represented at this conference. We affirm our acceptance of public responsibility to protect the civil rights of our citizens in matters of employment, public accommodation, housing, and education regardless of race, religion, or ancestry. To do this we believe, first, that our States, individually and jointly, need to strengthen the body of law and procedure that has enabled us to make such progress as they have. The processes of conciliation and education, when backed by enforcement powers, have broken the bonds of fear and ignorance. They are a light for the whole Nation to follow. We support this proven principle of conciliation and education procedures, backed by reasonable civil enforcement, and look forward to their extension. The conference considers the problem of civil rights a mutual problem of the States and Federal Government. Progress on this front, it is recognized, rests ultimately on understanding, tolerance, and democratic acceptance. Our experience demonstrates that a framework of law is necessary to bring about this understanding. If we are to live up to the American ideal of equal opportunity, we must work at both State and Federal levels to built this workable framework. At the Federal level, we call upon the executive branch and the Congress to match the commitment of these States. We call upon the Chief Executive to use his prestige and power to give guidance and leadership that will help create a positive climate of public opinion. We call upon the Congress to enact and extend vitally needed Federal legislation. We are heartened by the vigor and leadership of our courts in redefining and reasserting our moral concern with the issues of human rights. But we can no longer leave to the courts alone the responsibility for effecting and achieving the civil and human rights of all our people. We call for strict Executive enforcement of existing laws and Executive orders. We pledge compliance ourselves and call upon all States to do likewise. We specifically call upon Congress to authorize broader Federal action with regard to voting rights, to facilitate the orderly desegregation of schools, to curb violence and intimidation and to enact Federal fair employment practices legislation. We endorse the creation of an effective Federal service on community relations problems. Finally, we pledge and call upon all America to reemphasize our heritage of morality and brotherhood to the end that all men may live in dignity, peace, and security. MEMBERS OF STATE DELEGATIONS TO THE SECOND CONFERENCE OF GOVERNORS ON CIVIL RIGHTS, JANUARY 30-31, 1959 California: Senator Fred Farr. Connecticut: Thomas Henry, supervisor of enforcement and conciliation, Commission on Civil Rights. Illinois: Gov. and Mrs. William Stratton. Johnson Kanady, press aid. Indiana: Gov. Harold Handley. Iowa: Prof. Don Boles, chairman, Governor's Commission on Human Relations. Kansas: Roy Shapiro, State comptroller. Kentucky: Hal Thurmond, chairman, Kentucky Committee on Civil Rights; John Blane, Jr., Subcommittee on Equal Job Opportunities. Massachusetts: Gov. and Mrs. Foster Furcolo. Margaret O'Donnell, administrative assistant to Governor. Elwood McKenney, executive secretary, executive council. Judge J. John Fox. Michigan: Gov. and Mrs. G. Mennen Williams. John G. Feild, chairman, interim subcommittee. Charles Brown, administrative assistant. Senator Basil Brown. Minnesota : Gov. and Mrs. Orville Freeman. Mr. (and Mrs.) Thomas Hughes, secretary to Governor. Wilfred C. Leland, Jr., executive director, FEPC. Clifford E. Rucker, executive director, Governor's Human Rights Commission. Judge L. Howard Bennett. Missouri: Fr. Trafford Maher, S.J., chairman, Missouri Commission on Human Rights. New Jersey: Gov. and Mrs. Robert Meyner. John P. Milligan, assistant commissioner of education. New York: Elmer Carter, chairman, State commission against discrimination. Ohio: Lt. Gov. and Mrs. John Donahey. Senator Frank King. Frank Baldau, executive director, Cleveland Community Relations Board. Chester Gray, State supervisor, Minority Groups Service, Bureau of Unemployment Compensation. Pennsylvania: William Batt, secretary of labor and industry. Andrew Bradley, secretary of property and supply. Elliott Shirk, executive director, FEPC. Rhode Island: Senator C. George De Stefano, deputy Republican leader of Senate. Washington: Mr. Sidney Gerber, chairman, State board against discrimination. Wisconsin: Lt. Gov. and Mrs. Phileo Nash. Mrs. Rebecca Barton, executive director, Governor's Commission on Human THIRD ANNUAL CONFERENCE OF GOVERNORS ON CIVIL RIGHTS, ST. PAUL, MINN., MARCH 3-4, 1960 Summary of Principles Agreed Upon The following is a summary of principles agreed upon at the Third Annual Conference of the Committee of Governors on Civil Rights. Fifteen States were represented at the conference by Governors or their representatives. I. RESPONSIBILITY A. We recognize the urgent and imperative need for continued and intensified programs in the field of human rights, and the responsibility of all levels of government to contribute to this progress in their own fields of operation and to cooperate with each other wherever possible. Any proper concept of States rights includes the imperative of States' responsibilities. B. The Governor of a State, representing all its citizens, must be the spokesman of their aspirations. This purpose can be served by— (1) Encouraging a favorable climate of opinion for disadvantaged groups through public statements in all the media of communication; |