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STATE AND LOCAL GOVERNMENT EMPLOYEES

Presently approximately 10.1 million persons are employed by State and local governmental units. This figure represents an increase of over 2 million employees since 1964. Indications are that the number of employees in State and local government will continue to increase, perhaps even more rapidly. Few of these employees, however, are afforded the protection of an effective forum to assure equal employment. The bill amends section 701 of the Civil Rights Act of 1964 section 2 of the bill) to include State and local governments, governmental agencies and political subdivisions within the definition of an "employer" under Title VII. All State and local government employees would under the bill have access to the remedies available under the Act.

In a report released in 1969, the U.S. Commission on Civil Rights examined equal employment opportunity in public employment in seven urban areas located throughout the country-North as well as South. The report's findings indicate that widespread discrimination against minorities exists in State and local government employment, and that the existence of this discrimination is perpetuated by the presence of both institutional and overt discriminatory practices. The report cites widespread perpetuation of past discriminatory practices through de facto segregated job ladders, invalid selection techniques, and stereotyped misconceptions by supervisors regarding minority group capabilities. The study also indicates that employment discrimination in State and local governments is more pervasive than in the private sector. The report found that in six of the seven areas studied, Negroes constitute over 70 percent of the common laborers, but that most white-collar jobs were found to be largely inaccessible to minority blacks in city managerial positions. persons. For example, in Atlanta and Baton Rouge, there were no

In another report issued by the U.S. Commission on Civil Rights in 1970, Mexican Americans and the Administration of Justice in the Southwest, the Commission found, on the basis of a 1968 survey, that in the law enforcement agencies and district attorneys' offices in the five Southwestern States, Mexican Americans were generally underrepresented in proportion to their demographic distribution. The statistics in this report show that in the Southwestern States Mexican Americans, who constitute approximately 12 percent of the population, account for only 5.2 percent of police officers and 6.11 percent of civilian employers with law enforcement agencies.

The problem of employment discrimination is particularly acute and has the most deleterious effect in these governmental activities which are most visible to the minority communities (notably education, law enforcement, and the administration of justice) with the result that the credibility of the government's claim to represent all the people equally is negated.

This widespread discrimination is evidence that State and local

governmental units have not instituted equal employment opportunity required by the national policy to eliminate discrimination in employment. In its 1969 report, For All the People... By All the People,

the U.S. Civil Rights Commission concludes that:

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The basic finding of this report is that State and local governments have failed to fulfill their obligation to assure equal job opportunity. . . . Not only do State and local governments consciously and overtly discriminate in hiring and promoting minority group members, but they do not foster positive programs to deal with discriminatory treatment on the job.

The Constitution is as imperative in its prohibition of discrimination in state and local government employment as it is in barring discrimination in Federal jobs. The courts have consistently held that discrimination by state and local governments, including job discrimination, violates the Fourteenth Amendment and is prohibited. While an individual has a right of action in the appropriate court if he has been discriminated against, the adequacy of protection against employment discrimination by state and local governments has been severely impeded by the failure of the Congress to provide Federal administrative machinery to assist the aggrieved employee. There are two exceptions. Federal Merit Standards provisions are applied to approximately 250,000 state employees where the Federal and state governments participate jointly in furnishing government services, and there are nondiscrimination requirements Department of Housing and Urban Development (HUD) contracts which are applicable to approximately 900 local urban renewal agencies and 2,000 local public housing authorities.

Otherwise, state and local governments constitute the only large group of employees in the nation who are almost entirely exempt from Federal nondiscrimination protections. Although the aggrieved individual may enforce his rights directly in the Federal district courts, this remedy, as already noted, is frequently an empty promise due to the expense and time involved in pursuing a Federal court suit. It is unrealistic to expect disadvantaged individuals to bear the burden.

The Committee feels that it is an injustice to provide employees in the private sector with an administrative forum in which to redress their grievances while at the same time, denying a similar protection to the increasing number of state and local employees. Accordingly, H.R. 1746 provides the administrative remedies available to employees in the private sector should also be extended to state and local employees.

In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual's right to file a civil action in his own behalf, pursuant to the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected. During the floor debate surrounding the passage of Title VII of the Civil Rights Act of 1964, it was made clear that the Act was not intended to preempt existing rights under the National Labor Relations Act or the Railway Labor Act. Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment dis

See e.g., Shelly v. Kraemer, 334 U.S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

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crimination. Two recent court decisions, Young v. International Telephone and Telegraph Co., F. 2d, 3 FEP Cases 145 (3rd Cir. 1971) and Saunders v. Dobbs House, 431 F. 2d 1097 (5th Cir. 1970), have affirmed this Committee's belief that the remedies available to the individual under Title VII are co-extensive with the indivdual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive. The bill, therefore, by extending jurisdiction to State and local government employees does not affect existing rights that such individuals have already been granted by previous legislation.

The expansion of Title VII coverage to State and local government employment is firmly embodied in the principles of the Constitution of the United States. The Constitution has recognized that it is inimical to the democratic form of government to allow the existence of discrimination in those bureaucratic systems which most directly affect the daily interactions of this Nation's citizens. The clear intention of the Constitution, embodied in the Thirteenth and Fourteenth Amendments, is to prohibit all forms of discrimination.

Legislation to implement this aspect of the Fourteenth Amendment is long overdue, and the committee believes that an appropriate remedy has been fashioned in the bill. Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate administrative remedy to the existing prohibition against discrimination perpetuated "under color of state law" as embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983. In extending Title VII coverage, the Committee recognizes that States frequently can best deal with violations which occur within their boundaries and has, accordingly, retained the provisions of Section 706(b) of the present Act (706(c) under the bill) whereby the Commission will defer to appropriate State agencies cases where the State or local agency can grant the complainant relief similar to that which he can obtain with the Commission under the provisions of this bill.

EDUCATIONAL INSTITUTION EMPLOYEES

The present Section 702 of Title VII exempts educational institution employees connected with educational activities from the equal employment requirements. The bill removes this exemption (Section 3 of the bill).

There is nothing in the legislative background of Title VII, nor does any national policy suggest itself to support the exemption of these educational institution employees-primarily teachers from Title VII coverage. Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment. In the field of higher education, the fact that black scholars have been generally relegated to all-black institutions, or have been restricted to lesser academic positions when they have been permitted entry into white institutions is common knowledge. Similarly, in the area of sex discrimination, women have long been invited to participate as students in the academic process, but without the prospect of gaining employment as serious scholars.

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When they have been hired into educational institutions, particularly in institutions of higher education, women have been relegated to positions of lesser standing than their male counterparts. In a study conducted by Theodore Kaplow and Reece J. McGee, it was found that the primary factors determining the hiring of male faculty members were prestige and compatability, but that women were generally considered to be outside of the prestige system altogether. The committee feels that discrimination in educational institutions is especially critical. The committee can not imagine a more sensitive area than educational institutions where the Nation's youth are exposed to a multitude of ideas that will strongly influence their fuure development. To permit discrimination here would, more than in any other area, tend to promote misconceptions leading to future patterns of discrimination. Accordingly, the committee feels that educational institutions, like other employers in the Nation, should report their activities to the Commission and should be subject to the provisions of the Act.

EMPLOYERS AND LABOR UNIONS WITH EIGHT OR MORE EMPLOYEES OR MEMBERS

The bill amends section 701 of the Act, by changing the jurisdictional reach of Title VII to include all employers and labor unions with eight or more employees or members, effective one year after enactment (section 2 of the bill). The present coverage is 25 or more employees or members.

The committee feels that discrimination in employment is contrary to the national policy and equally invidious whether practiced by small or large employers. Because of the existing limitation in the bill proscribing the coverage of Title VII to 25 or more employees or members, a large segment of the Nation's work force is excluded from an effective Federal remedy to redress employment discrimination. For the reasons already stated in earlier sections of this report, the committee feels that the Commission's remedial power should also be available to all segments of the work force. With the amendment proposed by the bill, Federal equal employment protection will be assured to virtually every segment of the Nation's work force.

TESTING

Section 8 of the bill amends subsection 703 (h) of the Act and perfects the Title VII provisions dealing with testing and apprenticeship training. Tests, while they are a useful and necessary selection device for management purposes, often operate unreasonably and unnecessarily to the disadvantage of minority individuals. General intelligence tests commonly used by employers as selection devices for hiring and promotion deprive minority group members of equal employment opportunities. Culturally disadvantaged groups-groups

See generally, Kaplow and McGee, The Academic Marketplace, Anchor Edition (Garden City: 1965).

See eg, M. Culhane, "Testing the Disadvantaged," The Journal of Social Issues (April, 1965); D. Goslin, The Search for Ability: Standarized Testing on Social Perspective, (New York: Russell Sage Foundation (1963)); R. Krug, "The Problem of Cultural Blas in Selection," Selecting and Training Negroes for Management Positions, Princeton: Educational Testing Service (1985).

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which because of low incomes, substandard housing, poor education, and other "atypical" environmental experiences-perform less well on these types of tests on the average than do applicants from middle class environments. The net result is that members from culturally disadvantaged groups are screened out of employment and training programs merely because of their failure to score well on such tests. Such tests are often irrelevant to the job to be performed by the individual being tested and uncritical reliance on test results may not aid management decisions and selection of personnel, but will screen out the disadvantaged minority individual.

In a report issued in 1970, Personnel Testing and Employment Opportunity, the Commission describes the ways in which employment tests can discriminate against minority groups. An aptitude test that fails to predict job performance in the same way for both minorities and whites, or fails to predict job performance at all is an invalid test. If such a test is weighted to differentiate between blacks and whites, it is similarly discriminatory. Tests may discriminate in the social sense if they deny equal opportunity for consideration. A test which tends to discriminate generally operates in the following manner: (a) when scores on it tend to differentiate between identifiable sub-groups where sub-grouping itself is not a relevant factor, and either (b) scores for the lower group underpredict performance on the job when the standards of the upper group are applied, or (c) scores on the test do not predict job performance of either group. The Supreme Court recently examined the problem of employment testing and its relationship to employment discrimination in its decision in Griggs v. Duke Power Co., U.S., 91 S. Ct. 849 (1971). In its decision, the court held that employment tests, even if valid on their face and applied in a non-discriminatory manner, were invalid if they tended to discriminate against minorities and the company could not show an overriding reason why such tests were necessary. At page 5 of its opinion, the Court stated:

The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers. that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent cannot be maintained if they operate to "freeze" the status quo of prior discriminatory practices.

The Court stated further, on page 6 of its opinion, that:

Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity only in the sense of the fabled offer of milk for the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job seeker be taken into account. . . . The Act proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation. The touchstone is business neces