Senator CLARK. So you have not had any bounce back?

Mr. PFAUS. No. There is a bouncing back in this respect. Occasionally then it comes up that an individual will file a complaint with us and then without telling us anything about it will also write a letter to EEOC in Washington. Then we get the case referred to us from Washington and of course we see that it matches up in the clerical work and we see what we have got.

That has been the only bouncing, if you call that bouncing.
Senator CLARK. Mr. Cowles.

Mr. CowLES. Senator, our agency is 18 years old, and it is well known throughout the State of Washington. Most cases are sent to us for original jurisdiction. However, about 5 percent of the total caseload has involved cases that have been referred by EEOC.

Two or three of those we have had to refer back to EEOC, because the 60-day statutory limitation had expired, and we had not finished our work.

But our relationship with the EEOC has been excellent, not so much with respect to grants-we have not received any money from the Federal Government in this area-but in terms of affirmative action, staff members of the EEOC have come out to the west coast, and they have helped us enormously in terms of meeting with labor groups and labor union organizations to help us to break through some of the barriers that have nothing to do with complaints but in terms of seeing where we can eliminate complaints.

Senator CLARK. Have most of your troubles with unions in the
employment discrimination area been with the building trades?
Mr. CowLES. Yes, sir; also operating engineers, however, both.
Senator CLARK. Construction workers, I guess?

Mr. CowLES. Yes.

Senator CLARK. Mr. Murphy, I think I interrupted you before you were through. Didn't I?

Professor MURPHY. I was about to inject a mercenary note in the proceedings, Senator. The States, of course, are glad to get this business on deferral.

At the same time it does increase the workload on them and the burden upon the staff. I would hope that this subcommittee, if it were so disposed, might suggest to the EEOC that financial assistance to the State commissions for the purpose of making investigations should be a part of their program.

for

My understanding is that at the present time the money can go research grants but not to carry on the cost of investigating complaints. I don't want to appear grasping, but it is a practical problem.

Senator CLARK. Do you have that in your statement as a suggestion? Professor MURPHY. I don't recall whether that is in my statement or not. If it is not, it should have been.

Senator CLARK. Perhaps it was one of the other witnesses who suggested that while there were provisions in the law for the reimbursement of State agencies for various expenditures, as a practical matter as a pragmatic matter this was not too useful, because the accounting procedures involved rarely require a revolving fund which the State commission could advance money for these expenses.

It would be much better if payments could be made in advance rather than as reimbursement. Do you concur with that?

Professor MURPHY. Definitely. That is set forth in my prepared

statement.

Senator CLARK. Have you finished!

Professor MURPHY. The final point I wanted to make on this deferral is that I would like to echo what Mr. Greenberg said yesterday, and that is that there is no point in having a policy of deferral to a State agency unless the State agency is really doing an effective job in the area.

You can have a beautiful law on the books, but unless it is being enforced properly your deferral simply results in delay in vindicating the rights of the individuals and the public.

Mr. Greenberg suggested that deferral might be a matter of discretion with the Federal agency rather than mandatory. That certainly, I think, would be quite proper.

Senator CLARK. As I understand it there are 12 States that don't have State commissions and seven others that don't have any cease and desist power and possibly some of the other States are not doing the kind of job you indicate you are doing in your States.

I think that is something we should take under advisement. Two of you seemed to be a little incredulous when I suggested that may be you had succeeded in eliminating discrimination in employment.

I wondered if the other three were equally incredulous or perhaps view it at least to a significant extent as an unsolved problem? Mr. WEBBER. I would like to comment on that.

On the pure discrimination against the man on his entry level job we get few cases with validity, today, on the actual entry level. In this area I don't believe it is all the work of a civil rights commission.

I believe, too, that the voluntary worker on the part of the employers in the Commonwealth of Massachusetts and I believe the full employment picture in the Commonwealth of Massachusetts have a great deal to do with this.

However, it is true that at the entry level we don't get very many good solid complaints.

Senator CLARK. This is a more or less recent phenomenon, isn't it? Mr. WEBBER. Right. This has been a change over the last 3 or 4 years. Senator CLARK. And who knows to what extent it is due to the tight labor market and to what extent it is due to education?

Mr. WEBBER. I don't know. But I do feel we remain with this torribly complex area and discrimination is becoming more complex all the time. The terrible complex area of upgrading is a very, very serious problem.

Senator Clark. Secretary Wirtz dwelt on that yesterday at considerable length. He felt the situation with regard to discrimination on entry had improved enormously since the enactment of the 1964 act, possibly even before that, but that discrimination in upgrading and promotion is still a serious problem.

Do you concur?

Mr. WEBBER. I concur. I also would like to add it is a most complex and difficult area. This is an area where you get investigation that requires one man for weeks going through applications and qualifica tions, a very difficult area, which of course affect this time cycle that we talk about.

When we get through it is a most difficult determination to make. Senator CLARK. Do the rest of you agree with Mr. Webber that perhaps the primary area of concern is in the upgrading and promotion rather than actual employment of persons?

Mr. CowLES. I agree. I think it is a complex area as Mr. Webber has pointed out primarily because some large employers are hesitant to put a nonwhite person as a superior above people from a majority group.

It is a tradition or pattern of exclusion at that level of operations which perpetuates this problem that he speaks of. I certainly would concur however that it is more prevalent at the managerial and supervisory level than at the entry level at this time.

Senator CLARK. Mr. Pfaus.

Mr. PFAUS. I certainly agree that then insofar as the job that is outlined in the law for agencies, as far as ours is concerned, that the entry level is minor and the upgrading is major. But insofar as the total picture of America being completely free of discrimination there still remains in the entry level job perhaps the greatest problem, but that is the problem that our agencies are not at all geared up to do and to some extent even the EEOC is not geared up to do this involves the training, the business of antipoverty programs 10 times as big as they now are and the elimination of ghettos.

Senator CLARK. It is a much bigger picture than merely equal opportunity.

Mr. PFAUS. That is right.

Miss WITHEY. I would agree with that. I think in certain areas there is still a great deal of discrimination in the entry level. Senator CLARK. Dr. Murphy.

Professor MURPHY. Most of our complaints at the present time do deal with on-the-job discrimination rather than in hiring.

Senator CLARK. Ladies and gentlemen, I don't want to dismiss the panel if there is anything more that anyone of you would like to say. You have been most helpful to the subcommittee. I want to commend you for your willingness to come down here to be of such assistance.

Mr. CowLES. Senator, Mr. Tytler is the assistant attorney general in the State of Washington. He wants to make one point that has not been covered already.

Senator CLARK. Yes, sir.

STATEMENT OF MORTON TYTLER, ASSISTANT ATTORNEY
GENERAL, STATE OF WASHINGTON

Mr. TYTLER. I would like to add one thing in answer to your question concerning the criticism of the chamber of commerce that ceaseand-desist power prevents amiable settlement of complaints.

Adding to what has already been said about good relations between industry and the civil rights agencies in this State I think if there were bad feelings it would be reflected in the number of cases that go to hearings that are not able to be settled through conciliation. I am particularly familiar with these hearings in the State of Washington because it is my job to process-to prosecute them on behalf of the State.

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While we don't have a large population of them I have some generalities. The hearings involve mainly three types of cases, first of all our test case where somebody simply wants to raise issues of law over whether somebody is covered or the law is constitutional or that sort of thing.

No dispute over the facts. Almost friendly cases.

A second type of case is where the contest is not over the facts but over the appropriate type of order to be issued.

The charged party may in effect admit liability but think the order should be less strict.

The third type is a dispute over what occurred and the commission is put to the duty of proving its case.

Particularly the large corporations have viewed this as a business matter and have not gotten emotional. In fact I can only think of two contested cases in the State of Washington where the emotional frame of mind of the charged party had something to do with the case going to a hearing.

Both of these cases involved charged parties who were themselves members of a minority and they were so embarrassed by the charge that they could not come to conciliation and in effect admit that the charges had some merit.

Senator CLARK. That is very interesting.

Would you all agree that in the unfortunate event that we should have, again, as we have had so often in the past, a significant amount of unemployment, your problems will become more serious in view of the apparent experience that minority groups are the last to be hired and the first to be fired?

I see everybody nodding his head. I take it that is what the President calls a consensus.

Mr. WEBBER. I think we should shudder at the thought.

Senator CLARK. Does anybody else care to say anymore?

Thank you very much for your help. I am most grateful to you all.
Professor MURPHY. Thank you, Mr. Chairman.

Senator CLARK. The subcommittee will stand in adjournament subject to further call of the chair.

Without objection, I order statements, material, et cetera, on hand, and pertinent material subsequently received, placed in the record at this point.

(The material referred to follows:)

PREPARED STATEMENT OF DAVID A. BRODY, DIRECTOR, ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH

The Anti-Defamation League of B'nai B'rith wishes to take this opportunity to express its support for and to urge the prompt passage by Congress of S. 1308 which is designed to enlarge the authority of the Equal Employment Opportunity Commission established by the Civil Rights Act of 1964.

The Anti-Defamation League is the educational arm of B'nai B'rith which was founded in 1843 and is America's oldest and largest Jewish service organization. It seeks to develop good will and understanding among Americans of the various religious, ethnic, and racial groups. Its program is rooted in the religious teachings of Judaism: man is a creature of God and all men are equal before Him; the dignity of the individual is God-given and must not be violatedteachings which are shared by all the great religions in America and which undergird the constitutional guarantees of freedom and equality.

At the outset we wish to commend you as Chairman of the Subcommittee and Senator Javits for co-sponsoring this bill and for making possible early hearings

on this crucial legislation. S. 1308 is, of course, identical with Title III of S. 1026, the six point omnibus civil rights bill which was transmitted to the Congress by President Johnson in mid-February and introduced in the Senate several days later by a bi-partisan group of 27 Senators led by the distinguished Senator from Michigan, Philip A. Hart. At the time the President sent his proposals to the Congress, we applauded his action and pledged our support.

The main thrust of S. 1308 is to give to the Equal Employment Opportunity Commission much needed authority to issue cease and desist orders to bring about an end to discriminatory employment practices. All the Commission can do under present law is to investigate and try to conciliate complaints of discrimination. Where persuasion proves unsuccessful, the Commission is powerless to act; the victim of discrimination is left to his own resources. He must seek relief in the courts alone, unless the Attorney General finds a pattern or practice of discrimination and exercises his statutory authority to bring suit to enjoin such discrimination. To date only a handful of such suits have been instituted.

In his message to the Congress, the President emphasized the importance of removing this limitation on the Commission's authority. He stated:

"Unlike most other Federal regulatory agencies, the Equal Employment Opportunity Commission was not given enforcement powers. If efforts to conciliate or persuade are unsuccessful, the Commission itself is powerless. For the individual discriminated against, there remains only a time-consuming and expensive lawsuit."

It is to fill this gap in the Commission's authority that S. 1308 has been introduced.

There is no need for us in this brief statement to document the broad range of existing job discrimination. That has been done, time and again and the fact of discrimination has been acknowledged even by the opponents of the legislation. Testimony before your Subcommittee has established that despite the progress made in recent years, the problem of employment discrimination is still a pervasive and persistent one. Statistics furnished your Subcommittee in its two days of oral hearings have provided a graphic picture of the extent of discrimination against Negroes and Mexican-Americans. Other minority groups, including Jews, also suffer the burden of discrimination. Many areas of employment, particularly in the upper levels of the major and older established American industries are still closed to Jews or are only just beginning to be opened.

Testimony before your Subcommittee has made it plain that if prompt and substantial progress is to be achieved in reducing employment discrimination, the Equal Employment Opportunity Commission must be equipped with additional enforcement powers to do the job assigned to it by Congress in 1964. As Secretary of Labor Wirtz stated before your Subcommittee it is clear "that we have gone perhaps about as far as the present legislative vehicles will carry us, that there is still a long way to go, and that the more effective enforcement provisions in S. 1308 are essential."

In conferring power upon the Commission to issue cease and desist orders, S. 1308 would do no more than give the Commission the standard authority long enjoyed by federal regulatory agencies and by nearly all state and local fair em· ployment practice agencies. The experience of the state agencies as described to your Subcommittee clearly establishes that such enforcement powers are required to make the conciliation process effective and to prevent its being used as a delaying device. The experience of these agencies also shows that when there is enforcement authority to back up conciliation relatively few cases ever go to an administrative hearing-they are settled or otherwise disposed of without a formal public hearing-and even fewer are ever appealed to the courts. The mere existence of cease-and-desist powers helps to insure the success of the conciliation approach and to bring about voluntary compliance.

There are, of course, other desirable improvements which may be made in the existing law, such as the amendment, to cite but one, included in the Javits, Kuchel, Case bill S. 1667 which would expand the coverage of the law to make employers and labor unions which have eight or more employees or members subject to its jurisdiction. But it is not our purpose at this time in this brief statement to go into any detailed analysis of these other features, important as they may be to the ultimate solution of the problem of job discrimination. It is our aim, by concentrating on this one provision, to stress the urgent need to give the Commission the cease and desist powers which it must have if it is to carry out successfully the responsibility mandated to it by the Congress, to eliminate employment dicrimination on account of race, color, religion, national origin and sex.