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laws will cover. In the past year alone, 5 State spurred by enactment of the Civil Rights Act have adopted such legislation, making a total of 30 States with fair employment practice laws.
Another factor which cannot be overlooked is the administrative burden such extended coverage will place on the Commission. The National Labor Relations Board has placed a self-imposed limitation on its jurisdiction because its case load is rising constantly. For example, the NLRB will not consider cases involve ing retail operations, even though they affect interstate commerce, unless the business involved does a gross volume of business of $500,000 annually. If the Commission is given additional jurisdiction, it may be faced with the same problem as the NLRB.
Another problem associated with a rising caseload, apart from the expense involved, is the additional time it takes to process a case. Again using the NLRB as an example, it takes 10 months for an average case to be processed from the time of the filing of a charge to the issuance of a decision.
For these reasons, the proposal to extend the coverage of title VII to smaller employers should be deferred until such factors as State fair employment practice laws and the Commission's caseload can be properly considered.
PURPOSE OF TITLE VII
Title VII was enacted because Congress found that persons from certain minority groups were denied equal opportunity for employment on the basis of their race or color rather than on the basis of their ability or qualifications.
The bill originally introduced in Congress would have given the Commission authority comparable to that of the National Labor Relations Board. The NLRB has the power to issue cease and desist orders enforceable in court. However, this NLRB procedure was not adopted. Instead, it was decided by the Congress that the problems of discrimination should be resolved through informal methods of conference, conciliation, and persuasion.
Representative William McCulloch, Republican, of Ohio, explained the congressional intent: “As the title was originally worded, the Commission would have had authority to not only conduct investigations, but also institute hearing procedures and issue orders of a cease and desist nature. A substantial number of committee members, however, preferred that the ultimate determination of discrimination rest with the Federal judiciary. Through this requirement, we believe that settlement of complaints will occur more rapidly and with greater frequency. In addition, we believe that the employer or labor union will have a fairer forum to establish innocence * * *." [Emphasis added.] (Rept. 914, pt. 2, 88th Cong., 1st sess., House of Representatives, p. 29.)
There have been no developments in the past year which would alter this judgment. On the contrary, all indications are that employers affected by title VII are willing to comply voluntarily and are making every effort to do so. An important factor in this voluntary effort is that compliance is not based on compulsion. In the area of civil rights, probably more than any other, deeply ingrained attitudes are involved. As a consequence, a philosophy of enforcement stressing cooperation, as the law now provides, will accomplish more permanent results than an order commanding a person to “cease and desist.” Mr. Hobart Taylor, Jr., Executive Vice Chairman of the President's Committee on Equal Employment Opportunity, stated in a recent interview that “* * * primary reliance is on the good will and on the American spirit, and on the decency of the people who are involved. We rather think that that will be sufficient. But there are these other things in the event that they are not." [Emphasis added.]
TITLE VII ENFORCEMENT PROCEDURE
Title VII, in effect, provides for enforcement in three distinct stages. The first is voluntary compliance. The second is conciliation and persuasion by the Commission. The third step is through judicial proceedings.
The first stage, voluntary compliance, is meeting with considerable success. A survey reported in the Daily Labor Report, Bureau of National Affairs (No. 127, dated July 2, 1965), reveals that 75 percent of the companies interviewed are taking "positive steps” to employ Negroes. This is actually more than title VII requires. The law is negative. It orders an employer not to discriminate. Howerer, as indicated, many employers are taking positive steps, including recruitment, to insure that Negroes are aware of job opportunities.
The June 1965 report by the “Plans for Progress" organization, involving 100 companies enrolled in the Government's voluntary program to provide equal employment opportunity, revealed that there was an increase in nonwhite employ. ment of 14.5 percent. Total employment by these companies, however, only increased 3 percent during the 1963-64 survey period. In addition, many business organizations have encouraged their members to comply with this law. The national chamber, for example, has distributed over 100,000 copies of its “Guide to Civil Rights Act" not only to its members but also to the public, and it has conducted conferences on title VII in over 50 cities in all sections of the country in the past year. Our impression from these meetings is that, irrespective of the region, there is a clear willingness on the part of employers to comply with this law. Thus, it is our conclusion that the first stage, voluntary compliance, is meeting with success.
The second stage of enforcement under title VII is for the settlement of disputes through conciliation and persuasion by the Commission. It is, of course, too early to determine the results of this procedure. Nevertheless, it is our view that conciliation will provide a workable method of resolving problems involving discrimination in employment. Until the Congress has more information, therefore, the Commission should be given sufficient time to act upon this problem. The Chairman of the Commission, Franklin D. Roosevelt, Jr., has stated that he will report, with recommendations, to the respective committees in both the House and the Senate on any problem of enforcement which the Commission may discover during the course of its activities.
The final stage is through court action to compel compliance when other approaches fail. Title VII gives the courts broad authority to take action in this area of the law. Section 706(g) of title VII, for example, gives a court the power to enjoin a person from engaging in a discriminatory employment practice, and to order “such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay." [Emphasis added.) There is no need to strengthen the hand of the courts to deal with discrimination in employment.
TITLE VII PROVIDES EFFECTIVE AND PROMPT RELIEF
The arguments advanced for giving the Commission more power is that at the second stage of enforcement too much time will elapse before a person can obtain judicial relief. This will generally be no more than 60 days, as this is the time in which the Commission is permitted to act.
This is not an unreasonable amount of time to permit the voluntary approach of conciliation and persuasion to work. What H.R. 9222 contemplates is to give the Commission power to issue cease and desist orders similar to authority given to the NLRB under the Taft-Hartley Act. But, increased power will create an adversary out of a Commission which not strives for cooperation. This may result in decreasing the Commission's effectiveness.
As this statement pointed out earlier, the average case before the NLRB takes an average of 302 days before the parties can get to court. This does not expedite case handling. Accordingly, H.R. 9222 would be self-defeating.
Even assuming, for argument's sake, that immediate court action may be needed in some instances, there is already a provision in title VII that allows for such action. Section 707 allows the Attorney General of the United States to institute a court action whenever a pattern or practice of discrimination exists. The Attorney General, in fact, may take such action before or simultaneously with action by the Commission. If the situation warrants, therefore, there is no reason for delay. The Attorney General under existing law certainly has extraordinary power since he is not required to defer to the actions of the Commission. In any event, title VII does allow immediate court action.
SUMMARY In sum, our views on amendments of title VII of the Civil Rights Act are
1. Voluntary compliance is meeting with success. There are no indica. tions that the Equal Employment Opportunity Commission requires addi. tional authority to enforce title VII.
2. Existing law provides for immediate court action if the need arises.
3. Extending the coverage of title VII to more employers will increase the administrative burden of the Commission. (Whereupon, at 11:45 a.m., the subcommittee recessed, to reconvene at 9:45 a.m., Tuesday, July 20, 1965.)
EQUAL EMPLOYMENT OPPORTUNITY, 1965
TUESDAY, JULY 20, 1965
HOUSE OF REPRESENTATIVES,
GENERAL SUBCOMMITTEE ON 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.
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 61/2 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. 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 en forced 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 diseriminatory 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 veritied 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 filerl, 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 en forcible 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.