EQUAL EMPLOYMENT OPPORTUNITY, 1965

TUESDAY, JULY 20, 1965

HOUSE OF REPRESENTATIVES,

GENERAL SUBCOMMITTEE ON LABOR

OF THE COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C. The subcommittee met at 10:05 a.m., pursuant to recess, in room 2261, Rayburn House Office Building, Hon. James Roosevelt (chairman of the subcommittee) presiding.

Present: Representatives Roosevelt, Pucinski, Hawkins, Goodell, Martin, and Bell.

Also present: Jay H. Foreman, subcommittee counsel.

Mr. ROOSEVELT. The committee will come to order, please.

The committee this morning has its second day of hearings on H.R. 9222, and similar bills, to amend section 7 of the Civil Rights Act of 1964.

Our first witness this morning is the Honorable George H. Fowler, chairman, New York State Commission for Human Rights.

Mr. Fowler, we appreciate very much your being with us this morning. I want to tell you, although you may know it, that I had a delightful letter from Governor Rockefeller, also, and replied to him that we were very proud and happy to have you as a representative of the State, as well as a representative of the commission this morning. STATEMENT OF HON. GEORGE H. FOWLER, CHAIRMAN, NEW YORK STATE COMMISSION FOR HUMAN RIGHTS

Mr. FOWLER. It is certainly nice to be here, Mr. Roosevelt, and the Governor asked me to give you his warm personal regards.

Mr. ROOSEVELT. Thank you very much.

Mr. FOWLER. I am George H. Fowler, chairman of the New York State Commission for Human Rights. I was appointed as a commissioner on November 2, 1961, and as chairman on May 17, 1962. Thereafter and on July 1, 1963, I was reappointed as commissioner and chairman of this commission for a 5-year term. I am appearing here today at the invitation of this committee as a representative of Gov. Nelson A. Rockefeller.

As you know, Governor Rockefeller took office on January 1, 1959. During the 612 years of his administration the legislative and administrative changes affecting the New York State law against discrimination and the State commission for human rights have been significant and monumental. The number of legal enactments to strengthen the New York State law against discrimination has exceeded that of any previous administration or any comparable period of years.

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The budget of the State commission for human rights has been increased from $715,944 in 1958-59 to $1,876,875 for the current fiscal year 1965-66.

In the employment area the law has been strengthened by amendment designed to assure to all persons equal opportunity in apprenticeship and on-the-job training and retraining programs. Last year an amendment made it an unlawful discriminatory practice to select persons for State registered apprentice training programs on any basis but objective criteria. On July 1 of this year, Governor Rockefeller signed into law a bill which will empower the State commission for human rights to receive and act upon complaints charging discrimination in employment because of sex.

Only a few days ago Governor Rockefeller signed a bill bringing clubs and nonprofit organizations within the jurisdiction of the commission and broadening the powers of the commission to include employers with four or more workers. The commission previously had jurisdictional powers over employers of six or more workers. The State law also contains a Rockefeller measure forbidding discrimination because of age in employment in the 40- to 65-year age bracket. New York was the first State in the Nation to enact a law against discrimination. The law, which became effective on July 1, 1945, 20 years ago, covered initially only discrimination in the employment relationship because of race, creed, color, or national origin. While equal opportunity in employment is significant and fundamental, New York State experience has suggested that equal opportunity in other areas is of comparable importance. Therefore, the law has been expanded to cover nonsectarian, tax exempt educational institutions, housing and commercial space and places of public accommodations, resort, or amusement. By amendments enacted during the present administration, the jurisdiction of the commission in housing has been progressively increased so that today the commission has the power to receive and process complaints alleging discrimination in the rental and sale of housing accommodations covering 95 percent of housing throughout the State.

The commission is composed of seven commissioners, one of whom, the chairman, functions as its chief executive officer. The commission has a large professional staff and operates on a statewide basis through offices located in the principal cities of the State. During the Rockefeller administration the number of commissioners has been increased from 5 to 7 and the number of offices from 5 to 11.

The law is enforced through proceedings instituted by the filing of verified complaints with the commission. In most instances a complaint is filed by a person claiming to be aggrieved by an unlawful discriminatory practice. The law also permits the attorney for an aggrieved person, and the industrial commissioner and the attorney general of the State of New York, to file complaints. In the past our commission has often, in the absence of a verified complaint, conducted informal investigations of situations where there was reason to believe that the law was being violated. Recently the law was amended to allow our commission to initiate complaints on its own motion. This was during this session of the legislature.

After a complaint is filed, one commissioner investigates the complaint and makes an intermediate finding as to whether or not probable

cause exists to credit its allegations. If he finds probable cause, he attempts to eliminate the alleged unlawful practice by conference, conciliation, and persuasion. If successful this results in a conciliation agreement between the commissioner and the respondent, which disposes of the case.

If conference, conciliation, and persuasion are unsuccessful, the case is noticed for a public hearing before three hearing commissioners, other than the investigating commissioner. After a formal hearing, the hearing commissioners must state their findings of fact. If they find that respondent did not commit an unlawful discriminatory practice, an order is issued dismissing the complaint.

If the hearing commissioners find that respondent committed an unlawful discriminatory practice, an order is issued dismissing the complaint. If the hearing commissioners find that respondent committed an unlawful discriminatory practice, a cease-and-desist order is issued against the respondent. This order may contain such affirmative action provisions as in the judgment of the commission will effectuate the purposes of the law.

The order of the hearing commissioners made after hearing is the first determination that the respondent has or has not engaged in an unlawful discriminatory practice. Thereafter, the complainant, the respondent, or other person aggrieved by the order of the commission may obtain judicial review thereof and the commission may obtain an order of enforcement, at the special term of the Supreme Court of the State of New York.

The events of the last few years clearly demonstrate the growing importance, both at home and abroad, of the ideals of full equality, freedom, and opportunity for all Americans. Our experience in New York leads me to believe that an agency operating under the present title VII of the Civil Rights Act of 1964, without administrative enforcement machinery, will not and cannot be as effective as one which has the power to issue an enforceable order after a hearing.

I, therefore, support legislation which will give the Federal Equal Employment Opportunity Commission the power to hold hearings and to issue orders enforcible in the Federal courts.

People are increasingly aware of existing State and local laws concerning human rights and of the Federal Civil Rights Act of 1964. Those who violate these laws today do so with a full consciousness of the illegality of their actions. Conference, conciliation, and persuasion are not always adequate to deal with such violators who deliberately trespass on the rights of other American citizens. Our commission has held more hearings in the past 3 years that it did in the previous 17 years of its existence. The total number of cases requiring hearings remains, however, only a fraction of the total number of cases processed by the commission; at the same time our increasing emphasis on law enforcement will have the saluatory effect of making the public aware of the sanctions to which those who violate the human rights of others are subject.

The legislation under consideration here makes the Federal law applicable to employers who have eight or more employees and to labor unions who have eight or more members, engaged in industries affecting commerce. These are significant increases in coverage over the Civil Rights Act of 1964. I see no reason why the coverage of the Federal law should not be thus increased.

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The New York law, as previously stated, now covers employers of six or more persons and the activities of all labor unions.

Another important change which would be brought about by H.R. 9222 is in the relationship of the Equal Employment Opportunity Commission to State agencies. I do not concur in and cannot support this change. The Civil Rights Act of 1964, insures that the Federal and State agencies will cooperate with one another and coordinate their efforts toward achieving the common goal of equal employment opportunity.

This is achieved, in part, by provisions mandating notice to State agencies and deferring Federal proceedings in favor of State proceedings for fixed periods of time. Those provisions have been deleted from H.R. 9222.

Under H.R. 9222 the Federal Commission will be able to process a complaint from its inception through to a conclusion in the Federal courts, without ever notifying the State agency involved or giving the State agency a chance to act. This procedure may have the effect of weakening State agencies.

It is true that H.R. 9222 still provides for agreements under which the Federal Commission would refrain from processing charges in specified cases but these agreements may be terminated at will.

Our commission desires to cooperate with the Equal Employment Opportunity Commission and supports legislation to give that Commission administrative machinery to enforce the Federal law. We do feel, however, that a more harmonious relationship and more effective enforcement of the laws, both State and Federal, will result if the State involved receives notice of a charge and a stated period of time within which to act, before the Federal Commission becomes actively involved.

The New York State law with its concern for all areas of living undergirds the philosophical concept that just as freedom is indivisible, the equalities are inseparable and if we are to project this philosophical concept of human rights to embrace all persons in the Nation, Federal law must, and in all probability will be expanded in all areas to assure to every American that full and equal opportunity shall become a viable reality in every State and locality.

Mr. ROOSEVELT. Thank you very much, Mr. Fowler.

You have certainly given us a most interesting statement. There are a number of things that it immediately brings to mind. The first one is on page 1.

It is interesting that as of July 1 of this year, the Governor said in New York State and added to our responsibilities to prevent discrimination in employment because of sex.

Mr. FOWLER. Yes.

Mr. ROOSEVELT. This is an area where probably we have had more complaints about the existing Federal statute, and I wonder if the little time in which you have had a chance to look at this, whether you think that this is going to be a practical matter to enforce, or whether you will have difficulties in this area?

Mr. FOWLER. In my judgment, we will not have serious difficulties, and I would like to give you my reasons for this. First of all, I think that the cultural factors are such that we won't be confronted with lines of women bringing complaints because they are not allowed to become coal miners.

I think that factually, the kind of complaints that exist in the minds of women are those that have to do primarily with promotional opportunities in various areas where women are quite active. We plan, on our own, to begin to identify those areas, and to try to get the employers to move without awaiting complaints from women. The power that we have to initiate complaints, this new power, will give us the opportunity to move in ourselves, in identifiable areas.

We are now planning to set up in our commission a special unit, headed by a woman of good background and interest and concern in this field, who will help us to really administer law, and also to let women know, throughout the State, that we welcome this addition to our responsibility, and to urge them to work with us to see that they get the justice that was intended.

Mr. ROOSEVELT. It brings to mind that one of the important companies in the United States, the telephone company, brought to my attention that for the first time, they had had to go out and recruit male telephone operators. Then he said:

I wonder how you are going to feel the first time the telephone operator turns out to be a very deep-voiced individual when you are complaining about why you did not get your number.

I said it did not bother me any. As Mr. Pucinski just said, to me, this happens in Europe many times, and the important thing, I think, is that perhaps in the past, employment of the telephone operator was given to a woman because this was the limit to which that employee probably would go, and would be satisfied to stay in that area.

This may break that down, and give opportunity to move on up through the system, no matter where your starting point might be. Mr. PUCINSKI. Would the gentleman yield?

I think the more surprising thing would be when we see the woman climbing up the telephone pole to make the repairs.

Mr. ROOSEVELT. Mr. Fowler, in yesterday's testimony, one of the witnesses stated that title VII indicates that an employer may not refuse to hire an individual because of sex. An employer may be reluctant to hire young single girls for jobs that require extensive training, for fear they will become married in the near future and leave. Can the employer refuse to hire on this basis? How are you going to handle a problem like that?

Mr. FOWLER. Well, I have a feeling that there would have to be some justification that could be scientifically proven in relationship as to whether or not discrimination existed in an individual case. I would feel certain that in some areas, the turnover among men is greater than among women. Now there may be any number of reasons for this. Culturally, and so forth.

Mr. BELL. Will the gentleman yield on this point?

Mr. ROOSEVELT. Yes, sir.

Mr. BELL. I was wondering, Mr. Fowler, if an effort could be made. to get under this particular umbrella of classifying jobs, specifically for women, and jobs specifically for men. Would it then cover this particular problem that you are discussing?

Mr. FOWLER. I would not be in favor of that, unless I knew what the jobs were. I mean, I wonder, sir, if you would be good enough to give me an example of the kind of thing you might have in mind.