affect conduct of compliance effort.

The influence of the former

extends beyond the firms involved in compliance to include others subject

to federal purview and some that are not.

The Legal Structure

As interpretations of Title VII slowly emerged from the courts, the Act began to take on legal meaning as a document of law. The Commission on one side and potential respondents (employers, unions, and employment agencies) on the other increased their sophistication in regard to various provisions of the Title: respondents gained considerable adroitness in avoiding obvious direct violation and Commission personnel countered with widening skills in nosing out the "discriminatory bone"--to steal the phrase of one of the Commission's attorneys. Compliance procedure and its use of conciliation inevitably matured, and compliance agreements started by 1969 to appear as class action settlements whose scope encompassed numerous institutionalized forms of discrimination--testing, recruitment, 3/ selection procedures, and the like. This was especially true of larger companies whose resources allowed specialized attention to equal employment problems and EEOC policies.

It would, of course, be erroneous to ascribe all changes in employment structures to activities of the EEOC, and, in particular, to compliance and conciliation activities. Some of these changes in employment structure occurred through earlier affirmative action requirements of the OFCC. Others took place as a consequence of public awareness of Commission and court decisions. This distribution effect of Title VII, as it might be

termed, is unmeasured.

It clearly extends beyond the immediate firms

involved in compliance to include others aware of Commission activities.

The expanded scope of conciliation in these cases is not the cause but merely the reflection of systemized restructuring of the employment process. The cause lies deeply embedded in the early years of litigation which helped give life and meaning to equal employment opportunity.

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From another perspective, the expanded scope of conciliation to classoriented issues has brought more substantive change to minority employment than earlier specific complaint-oriented settlements. True, it has increased the cost of settlement to those charged with discrimination: than one respondent has argued that the Commission's practice of "expanding" charges has raised issues leading to failure in conciliation at the expense of relief to the particular charging party. But it is also true that settlements obtained in court have firmly established that there is a potential cost to noncompliance, and that reminder, in turn, partially offsets the possible increased respondent resistence attributable to the enlarged cost of settlement associated with class actions. Casual empiri

cism suggests that the expansion of charges has probably had little effect upon the success-failure rate of conciliation and has positively affected a broad range of structural issues associated with minority employment.

Administrative Procedures

The administrative procedures employed by the Commission in its enforcement of Title VII also have had a substantial impact on the outcome of conciliation and its effect on minority employment. These procedures have changed through time as the Commission adjusts to courts' interpretation of Title VII and to events surrounding compliance efforts.

The level of professionalism employed in the investigation and conciliation of alleged unlawful employment practices is a major factor affecting the outcome of conciliation. The most frequently heard complaints of

respondents involved in conciliation were:

(1) the number of Commission

personnel with whom they had to work, (2) the amount of repetitious

collecting of records, and (3) the not infrequent guilt-before-innocent Each of these complaints has a direct

attitude of Commission personnel. relationship to the rapport and goodwill established between the respondent and Commission, and consequently to the outcome of conciliation.

Since turnover among Commission personnel in investigation and conciliation has been fairly rapid, the number of Commission personnel associated with a case is largely a function of time required to reach a settlement decision. For the 14 respondents studied, the average time from the filing of a charge to successful conciliation was 12 months with extremes of 8 4/

An

and 27. Estimates from other sources average from 18 to 24 months. extended interval between service of a charge and the settlement decision increases the likelihood that new Commission personnel will enter the case. These people must become acquainted with the personalities and facts of the case, all of which entails more man-hours (and cost) to the respondent. The new pre-decision settlement may reduce the importance of this complaint--initial reports were favorable--but some respondents object to settlement without a cause finding decision.

The passing of time and the entrance of new personnel sometimes leads to repetitious collecting of records. This may also result from poorly conducted investigations or from the Commission's failure to coordinate its investigation efforts with those of the OFCC in cases where the jurisdictions overlap. Hopefully, recent administrative changes will serve to reduce the frequency of this type complaint and to improve the chances of favorable settlement.

Finally, the very nature of the procedure generating charges of

discrimination through individual complaints insures that many respondents

will be charged on numerous occasions with the same form of discrimination. Even when cause does not exist, the charge must be investigated and facts returned, often at some inconvenience to the respondent.

The Commission

has recently acted to retain and coordinate investigation information on individual respondents, but the obligation to deal with recurring charges remains a strong point of contention with some of them.

The complaint expressed most vocally by respondents is the guiltbefore-innocent attitude of some Commission personnel. The respondent in a food processing plant investigation described one Commission representative as an "arrogant s.o.b.," and in a large chemical plant pre-decision settlement the respondent objected to the conciliator's unwillingness to negotiate and found his attitude demeaning "even before we were judged guilty." When dealing with personalities one finds it difficult to refute or substantiate such claims. Nevertheless, it is true that use of inexperienced investigators and conciliators can thwart compliance efforts. The most substantive settlement reviewed in this study was that reached in 1966 by the manufacturer of cast iron products: an experienced negotiator was involved, and he was given credit by the respondent for the successful conciliation.

Although there exists a clause in each settlement, or more recently, in each pre-decision settlement, which allows the Commission to later review results of the agreement, manpower shortages in the Commission permit only a limited number of such reviews. There is a need for them, however, as is shown by the number of cases (4 out of 14) in which a review revealed

little, if any, respondent awareness of an earlier agreement. In those circumstances, conciliation had little impact on minority employment. One representative of a small manufacturer of bagging materials admitted that the party negotiating the settlement for the respondent and "the only one who knew anything about the [1967] agreement" was now employed elsewhere selling programmed piano lessons.

The expansion of technical assistance by the Commission at the regional level in 1971 is also an important compliance activity. There is a strong need for such assistance, particularly among employers with less than 100 employees, since they, unlike larger firms, do not have sufficient personnel to provide for specialization in equal employment activities. As a consequence, small employers may not be aware of minority recruitment sources, nondiscriminatory testing and selection procedures, or other means of establishing compliance with Title VII, all of which inhibits their ability to comply with conciliation procedures and affects the impact of conciliation.

Form of Discrimination

Discrimination charges which involve complex and costly issues-segregated lines of progression, back-pay settlements, strong personal issues such as discharge and promotion--are likely to result in unsuccessful conciliation. Less costly issues--discriminatory hiring, selection proce

dures, unequal conditions of employment, including segregated facilities-are more likely to be settled through conciliation. When sizeable monetary or nonpecuniary costs are involved respondents are more willing to risk the threat of civil suit and court imposed settlement.