« AnteriorContinuar »
any appropriate way. This has been the history of New York, both parties, where we had the first fair employment practices commission. I believe it let to the strengthening of commissions of this character. We deeply welcome the gentleman's leadership to this program, at the Federal level, and we are anxious to work with him and to see it further strengthened by appropriate legislation, and we have much appreciated his appearing before the committee.
Mr. FRANKLIN ROOSEVELT. Thank you, Mr. Reid.
Mr. ROOSEVELT. Mr. Chairman, you may now proceed as you may wish, sir.
Mr. FRANKLIN ROOSEVELT. Mr. Chairman, before I start, may I just point out one minor correction. Mr. Reid, I am not the Chairman of the Civil Rights Commission. It is the Equal Employment Opportunity Commission, and I mention this only because there are a good many agencies of the Federal Government now involved in the civil rights area, and this does lead to some confusion, even among my colleagues on the Commission.
Mr. Reid. Well, if the gentlemen will yield, I meant civil rights in the broadest sense, because I hope the gentleman will be taking the lead in the Federal Government in this area, and that his Commission, while it is the Equal Employment Opportunity Commission, will, in fact, be the Civil Rights Commission of the Federal Government dealing with this problem in the broadest and most effective sense.
Mr. FRANKLIN ROOSEVELT. Thank you, sir.
Gentlemen, I was pleased to receive and accept your invitation to appear here today. I have followed, with interest, your very ambitious schedule this session and I know it is true to say that, under the forceful and effective leadership of Chairman Powell, no committee of the Congress in recent sessions has been more engaged or successful in promoting needed social gains than the Committee on Education and Labor. Also, I know I speak for many Americans when I commend you on your work and accomplishments this session.
My fellow Commissioners and myself, along with those contributing legal services to the Commission have studied closely H.R.
I look forward to our discussion and your questions on this bill. But first, Mr. Chariman, since your subcommittee was, in effect, the birthplace of the legislation which established the Equal Employment Opportunity Commission, I would like to tell you briefly of our activities since my fellow Commissioners and myself were sworn to duty on June 1.
We are temporarily located at 1730 K Street NW., and expect to remain there for a few weeks until our permanent quarters at 1800 G Street WW. are made available. Our staffing of top policymaking positions has proceeded slowly because of the close review being given to the highly qualified persons recommended to us. This task is now nearly completed and my colleagues and myself are very proud of both the dedication and talent which we have been able to gather around us.
Four task forces headed by Vice Chairman Holcomb and Commissioners Jackson, Hernandez, and Graham have moved us well along the road in the areas of initial responsibility.
This morning, Mr. Chairman, we don't have all the members of our Commission with us, but I would like to introduce the Vice
Chairman, Mr. Luther Holcomb to the committee, and also Commissioner Sam Jackson, of Kansas.
Mr. ROOSEVELT. Mr. Commissioners, we are delighted to have you with us, and appreciate your presence.
Mr. FRANKLIN ROOSEVELT. I might also introduce Mr. Tom Powers, who is our Executive Director, and Dick Berg, who is our Deputy General Counsel.
And Mr. Chairman, Mr. Charlie Duncan, who is our new General Counsel. We are able to steal him from the U.S. attorney's office.
Mr. ROOSEVELT. I just hope you left somebody minding the store. We are very happy to have all you gentlemen with us.
Mr. FRANKLIN ROOSEVELT. I thought I needed my own support.
Title VII differs markedly from the State statutes I have discussed; it is in some ways unique. While title VII provides a procedure for enforcing compliance, the principal enforcement weapon is lawsuits by aggrieved individuals. Lawsuits by the Attorney General are provided for certain aggravated cases. Thus, unlike the comparable State commissions, the Equal Employment Opportunity Commission itself has only a limited control over the compliance procedure.
Title VII in its present form places a major emphasis on the role of the Commission as a conciliator. This is as it should be, for intelligent, patient, understanding conciliation is an absolutely vital part of the job of achieving equality of opportunity in employment. But to divorce the conciliation function from the enforcement function, as title VII has done, seems to me a questionable decision.
Education, conciliation, and enforcement should not be viewed as alternative means of effecting compliance; they serve to complement each other.
The experience of the State and local agencies, and the experience on the Federal level of the President's Committee on Equal Employment Opportunity, demonstrate that conciliation is most successful when the parties know that effective machinery for enforcement is readily at hand. Mr. Theodore Kheel, a distinguished labor relations arbitrator, in a report prepared for the President's Committee spoke of the Committee's enforcement and voluntary programs as follows:
Enforcement and persuasion are not separate and distinct, nor incompatible, but related parts of the same program. They are opposite sides of the same coin. Both are necessary and indispensable to the other.
Discrimination in employment is a wrong to the individual victim; it is also a wrong to society. Fair employment legislation should not only offer effective redress to the individual, it should establish and protect the public right to seek enforcement.
The enforcement provision in H.R. 92:22 are the type which the States have found necessary to make their laws effective. For that reason alone they merit the serious consideration of this committee. While no one can state with any assurance what the Commission's experience will be with the enforcement procedures of title VII and while we intend to use our present authority as wisely and effectively as possible, I must say in all candor that it seems ikely that some stronger enforcement authority in the Commission will be necessary to achieve the progress toward equal employment opportunity which the Congress expects and the Nation demands.
Procedural rules and regulations have been published; planning for the President's National Conference is underway; a research program is being developed and proposals for recordkeeping, and reporting systems are being studied.
Posters and other publications have been designed and drafted and consultations on future relations have been held with the directors of 32 State human rights agencies. In addition, our budget was prepared and testimony on it has been given before the appropriate Senate subcommittee. A 4-day seminar for 65_field representatives recruited temporarily from several State and Federal agencies has been conducted and these persons stand ready to assist the Commission during the next few months while our own field staff is formed. Also, a program to insure the prompt handling of complaints has been developed. And finally, in addition to the leadership they have provided in these areas, the Commissioners have participated in employer, union, and civil rights conferences in many sections of the country securing firsthand the thoughts and suggestions of leaders in these fields.
Now let me turn to the business at hand, H.R. 9222. While it is not yet possible to draw from the experience in action of the Equal Employment Opportunity Commission, we have done considerable research into the problems encountered and accomplishments made by State FEP commissions during the past 20 years.
As you know, New York and New Jersey enacted the first modern State fair employment practices laws in 1915. Since then 33 States and some 80 local governmental units have enacted legislation in this area. These laws have differed, both in coverage and enforcement procedures. From the body of experience developed in the "social laboratories” of the States, we can get some idea of what can be expected from the Federal law.
One point on which there is surely general agreement is that there is a need for statutory procedures to compel compliance. Of the 35 State laws presently on the books, 28 have always provided enforcement procedures. Of the seven States which initially relied exclusively on voluntary procedures, four have since amended their statutes to provide enforcement powers. The history of the Kansas commission seems to be a case in point. Under the initial State statute, action was confined to investigation and confidential mediation which, during the first 8 years, proved ineffectual. As a result, the statute was rewritten to enable the commission to hold public hearings and to issue cease-and-desist orders in addition to ordering the respondent to hire or reinstate a complainant with or without backpay. Similar experiences in Wisconsin, Colorado, Indiana, Baltimore, and Cleveland also indicate that on the State and local level voluntary programs have generally been ineffective.
Among those States with enforcible fair employment practices laws there is a substantial preference for administrative enforcement. While 5 States merely make employment discrimination a criminal offense, the laws of 27 States provide for enforcement through administrative agencies. Such agencies have powers of investigation and conciliation, and also authority, where conciliation fails, to hold public hearings, and, where appropriate, to issue cease-and-desist orders enforcible in the courts.
Now, I would like to identify several provisions in title VII and H.R. 9222 which, from the Commission's study of the statute and very brief experience, appear to deserve consideration relative to possible future amendment.
For example, clarification of the Commission's reporting and recordkeeping powers with respect to persons under the jurisdiction of State and local agencies. Section 709(d) of title VII in its present form apparently assumes State reporting and recordkeeping requirements which do not in actuality exist.
Also, you may want to give consideration to clarifying limiting or deleting the exemption provision in section 702 for educational institutions. Not only is the scope of the term "educational institution” rather vague, but it is hard to find compelling justification for the special treatment which the section extends to the employment policies of these institutions.
Further, it appears that additional consideration should be given to the matter of employment discrimination based on sex. As you know, the sex provisions in title VII were added to the civil rights bill on the floor of the House. Debate on the amendment was in fairly general terms. As a result legislative history is lacking as to the application to particular situations of the general principle of nondiscrimination on account of sex.
While the Commission has the initial responsibility for interpreting the statute as it stands, and we will bear that responsibility to the best of our ability, we would welcome such clarification as Congress may choose to give of its intent with respect to sex discrimination.
I would suggest that attention be focused on three particular areas of difficulty. The relationship between title VII and State or local laws and regulations respecting the employment of women; the status of private retirement and pension plans which provide different terms or benefits for men and women; and the relationship between title VII and the Equal Pay Act.
I know that as the Commission's experience grows, other areas of mutual concern in addition to those touched on above, will be identified. In this regard I want this committee to know that the Commission is ready to cooperate in every possible way.
I hope our appearance here today proves of some help to you in your deliberations on H.R. 9222. On behalf of my fellow Commissioners and myself, thank you for your courtesies.
Now, Mr. Chairman, having completed my written, prepared testimony, I am prepared to try to answer any questions that the committee would like to address to me as Chairman.
Mr. ROOSEVELT. Thank you very much, Mr. Chairman.
Thank you for your help and a very, I think, complete analysis of the existing enforcement problem. You have brought up one or two other problems. Our colleague, Mr. Pucinski, I think, will want to discuss with you the problem of discrimination because of age, as well as sex. A number of other rather pertinent problems were presented to us this morning in a joint statement by the legislative representative of the AFL-CIO, and Mr. Clarence Mitchell of the NAACP on behalf of the Civil Rights Leadership Conference.
These went to some very substantive matters, and we will be glad to give you a copy, and ask that you give it some study and perhaps
have your general counsel confer with the counsel of this committee as to the general pertinency and if there is any urgency in the adoption of any of them.
Our problem, frankly, as I told Mr. Biemiller and Mr. Mitchell, is going to be the question of legislating now, completely, and trying to take in all the problems we think deserve attention, or whether we should concentrate on the main area of enforcement at this time, leaving to some future time some of the other problems that may develop with a little bit more experience.
I want to say to you frankly that Mr. Mitchell said to me in answer to my question that he would rather have the complete job done. I interpreted your testimony as indicating that unless we do strengthen the enforcement policies, that we may seriously hinder the administration of title VII. If I misinterpreted you, I hope you will say so, but perhaps you may feel that this should have priority over some of the other subjects which, of course, should have consideration.
Would that be fair?
Mr. FRANKLIN ROOSEVELT. I agree with the chairman. I do think that the enforcement problem is the priority problem. The other situations which I mentioned were addressed, really, as questions of further study. I think the enforcement question is the priority question, and I can readily agree with the committee that that should be the first order of business.
Mr. ROOSEVELT. Thank you. My colleague, Mr. Scheuer, has requested permission to make a short statement, inasmuch as he is in rather a hurry to get on the floor.
Mr. SCHEUER. I am sorry, but I have to leave, because the poverty program is coming on, which I am involved in.
I did want to emphasize and underscore the emphasis, Mr. Chairman, that you have placed on the indispensability of clear, effective enforcement procedures.
I know that you, sir, two decades ago, as chairman of New York City's first civil rights committee, and I served there over the last decade as chairman of the housing advisory council of the State commission against discrimination, and I am sure my colleague from New York, Mr. Reid, will have something to say on this subject, too, but we have learned in New York that where you have only the carrot and not the stick, you don't get much enforcement.
And a decade ago, when I became involved with the State commission we did not. There was an 1898 civil rights statute, to equal access to housing, employment, public facilities. But we found that the civil right which left it up to the individual to prosecute his case, in effect, was a sham and a fraud, and it made a mockery of the public will.
It built disrespect for the law, and in effect, was an exercise in futility and frustration, and it was not until we took that right out of the civil rights statute of 1898 and created an enforcement procedure, adequately staffed, and highly trained, that we began to make a reality out of the legislative will.
And I can't underscore not only the necessity of this change, but the great desirability of starting out your program ab initio with proper enforcement procedures, so that the will of Congress will not, in the first 6 months or a year, turn out to be nothing more than sanctimoni