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given area who become interested in resolving this problem can do a much better job, if they want to do it, than having someone from on high come on and say: "Now you do it this way, and the other way, and the other way.
When the local commissions don't do the job and we have 49 of them in New York State-well, then, this is when we begin to get the entreaty, and the demand that we move in.
Well, if this follows logically, I would feel that if we, in New York State, do the job that we are supposed to be doing--and I confess we will have to do a better job as time goes on—but if we do the kind of job that we are supposed to do, there will be relatively little need for any problem in relationship to the timing of intervention of the Federal or State Government.
What I project and would hope for, and foresee, are cases, maybe limited, but certainly some cases, where in the nature of things the cooperation, public cooperation of the State and the Federal agencies, would be needed to do the job.
And again, if we have the kind of rapport which I am sure we will have, and the kind of liaison, I believe that at the very top level there
agreement on behalf of the Chairman of the Federal Commission and certainly ourselves, to move into a given situation, with our full weight and powers, in order to take care of a most difficult job.
Mr. BELL. Pardon my foolish question, Mr. Chairman; maybe I didn't understand your viewpoint on uniformity, but I would assume, if you had two States for example, New York and California, who are doing a good job in this field, why couldn't you use this as the basis, , and upon those that did not conform could be taken proper action?
Mr. ROOSEVELT. Well, let me say that to write, legislatively, a description of a good State commission is an impossibility.
Mr. BELL. No, I mean the laws.
Mr. ROOSEVELT. I think that it has to be left to the judgment of the Commission as to which State agencies by experience and record and legislation are, by their record, doing a good job, and allow the State agencies and the Federal agencies, thereby, to make a compact, such as really was provided in the law originally. I think if we can do it this way, as Mr. Fowler has said, that we will have very few instances in which a proper State agency won't have that kind of an arrangement with the Federal agency. This has worked pretty well in the past in other areas. I don't think we would have any problem, because you will have people in the effective agency who are sympathetic with what the Federal people are doing, and vice versa. I don't say it is impossible that you would get a Federal commission that might want to preempt the whole area, but if that happened, you would have to deal with it when it happened, and I just don't believe that I should presuppose that it will happen.
I just frankly lon't believe it will.
Mr. PUCINSKI. Mr. Fowler, I want to congratulate you on your very fine statement. The very point that the chairman brings up seems to be the single point of disagreement in your statement between the proposed legislation.
Now do you agree with giving the Federal Commission a cease-anddesist power?
Mr. FOWLER. Yes, sir.
Mr. PUCINSKI. But you are not for letting the Federal Government impose its own judgment on a State government where a State agency exists in the first instance.
Mr. FOWLER. That is right.
Mr. PUCINSKI. Now are you suggesting that we keep the 60 days, or what would you suggest?
Mr. FOWLER. I would have this feeling. I would have the feeling that there be some time between—some period of time, I don't care whether it is 60 days or 30 days, that would enable the State to exercise powers.
Mr. PUCINSKI. I think the point is well taken. I have seen in the years that I have been here a constant effort, constant tendency, by Federal regulatory agencies to superimpose their judgment on the States. Now I can see where this is good, where there is no State machinery, or if the State machinery is very ineffective. Or where the State machinery is merely set up to bypass the Federal statute.
But I think in a State where you have a bona fide agency operating, and doing a good job, or trying to do a good job, I think that we will have to try and set up some machinery here to make sure that the Federal Commission can't just superimpose its own judgment.
Would you think that there is any merit in a possibility of including in this law some language that would impose upon the Federal Commission a responsibility of going before a district court and filing a petition to show cause that a State agency is not performing its responsibility in a given case, and that there is a need for the Federal agency to move in?
Would this meet your fear of the Federal Government superimposing its activities on State governments?
Mr. FOWLER. I see. Talking about something like an article 78 proceeding, that kind of thing, but just Federal Government having this responsibility to do it. I have this view. I am in complete agreement with the philosophy that I feel, sir, you express, and that is, that if a State government is doing the job it is supposed to do in this areaI am going to confine my remarks to this area, because it is a little special kind of thing—that the Federal Government should stay out of the picture.
I believe that. I feel that in the area of human relations and in the area of discrimination, what we really need more than anything else is the combined efforts of local, State, and Federal authority.
I believe that the only solution to the possible disposition of government in this area to move in unwisely and maybe inappropriately, will rest on the personnel in the Federal agency, and also on the States standing up against any infringement-if and when this should come about. This is really my point.
I think that we in New York State are very jealous of our prerogatives and our responsibilities. We believe that we can work out an agreement and a modus operandi with the Federal Commission
Were there to be the infringement that we all would not like to see, we would feel a responsibility to stand up to it and say, "Now, look, this thing has gone far enough." I don't think that legislatively, this is really the point I am trying to make.
Mr. Picinski. Your State has a provision dealing with age, and I was very happy to have the chairman mention this point. As you
know, in my own legislation, I have added the word “age," and I personally feel that this is a very serious problem in America.
Mr. FOWLER. I do, too.
Mr. PUCINSKI. I have seen the Commerce Department figures showing that a man's chances of getting another job, once he lost his original job, after the age of 40, are 6 to 1 against him.
Mr. Wirtz, 2 weeks ago, reported on the serious problem of middleaged Americans. We are not talking about old workers here. We are not talking about retirees. We are talking about the man in his middle forties, who still has a young family to bring up, and who finds it more and more difficult to find a job, for no other reason than because chronologically, he has passed the magic figure of 40.
Now how does New York deal with this problem?
Mr. FOWLER. Well, I share your conviction, apparent conviction, that this is a most serious problem. I think it vitally affects the family life of every family. I think that we just haven't really even begun to recognize just how serious this whole problem is.
In New York State, we have done this, in terms of number of complaints. We have had 649 page complaints since our law went into effect.
Mr. ROOSEVELT. Which was when?
Mr. FoWLER. That was 1960. When did our age provision go into effect? It was 1960.
We have two amendments, but the first law was passed in 1958, when we first covered the ages from 45 to 60, and now it is from 40 to 65.
But 649 cases during that period, while it is not a significant number, I do think, in view of the fact that it is a kind of concept we have not advertised, as it were, our availability to help in this area, I think is significant.
The cases that we have had, generally, are extremely pathetic. You will find persons of good ability, who have good background, but are victims of an arbitrary rule.
We have one matter now, and I wonder if I could do this off the record, if you don't mind.
Mr. ROOSEVELT. Certainly. We will go off the record. (Discussion off the record.) Mr. PUCINSKI. Can we go back on the record now? Mr. Fowler, I wonder if you would care to make any comment on whether or not this tendency, and it is a growing tendency, according to Mr. Wirtz' report, at the age of 40, 45, which are now becoming the critical years of gross discrimination, whether there is any relationship between this growing tendency of discriminating because of an economic factor in hiring a middle-aged worker. The reason I ask this, I am told that some of the large insurance companies in America will give you a package covering all your health and welfare programs, at a fixed premium, up to the age of 10.
In other words, whether the worker is 22, 25, 28, 30, 35, or 39, the premium is the same for all his workers.
Once he hits 40, the cost starts escalating. Now is there, in your judgment, or in your experience, any relationship between the cost factor in the practice of not hiring middle-aged Americans ?
Mr. Fowler. Oh, I think that there certainly is a relationship there. I think that one of the things that has to be decided is whether or not
we are going to place more significance on the human spirit, and the human being developing productively to his full capacity, beyond a given age, or whether or not we are going to permit the cost factor involved in insurance costs and other costs to prevent it.
Mr. PUCINSKI. Well, I have introduced a companion measure, because I feel that this problem has to be dealt with in two directions. One is to bar discrimination, but before you can do this effectively, you have to recognize the cost factor, so I have introduced a companion measure, which would give an employer a tax credit for any difference in cost between hiring a worker age 35 and a worker aged 45, or 55. If that difference is $100 a year, or $200 a year, or whatever the figure may be, under my proposal, that employer would claim that difference as a tax credit. He would then put all workers on a parity. The factor, then, would not be economic, but rather, can he do the job, is he reliable, what is his past experience, all the other factors involved.
If you removed the economic factor as a consideration, would you think that you might have less of a problem in this question of age discrimination?
Mr. FOWLER. No question about it. I think, as a matter of fact, that the problem, to a large extent, would disappear. This would be my judgment. I don't think that most employers want to get rid of a fellow because he is 40 or 45, after all, I mean, as a human factor there. He has worked there; he is liked.
It is not an easy thing to do. But I do feel that the cost factor is the significant problem to be solved in this area.
Mr. PUCINSKI. Secretary Wirtz has proposed—and most of us on the committee have at one time or another discussed this—he has proposed, among other things, a portable pension plan, where a worker could carry his pension equity from one place to another.
Would you feel that this might also tend to reduce discrimination because of age in hiring practices?
Mr. FOWLER. I am not competent, really, to discuss the specific plans. I am very much moved by your concept of tax credit.
Mr. PUCINSKI. I will send you the bill.
Mr. FOWLER. I would like to see it. I appreciate it. I think it is a solution that from a layman's point of view makes a lot of sense.
I am really not prepared to comment on Secretary Wirtz concept, because it raises immediately some problems in my mind which I don't think I would be able to take up your time to think through.
Mr. PCIxSKI. What is the criterion for the New York commission? Could you give us just some idea of how your commission approaches this problem?
A man comes in and says, “I can't get a job,” or “I have been refused a job because I am too old." He is 47 years old, or whatever the age may be. How would you proceed from that point?
Mr. FowlFr. Sure, I would be delighted to. First of all, the case is assigned to a commissioner by the chairman and we have an investigatory staff that goes out under the commissioner's supervision and does the investigation.
So let's assume that I am the staff person who has been asked to investigate this case. I would go to the employer and tell him that we hare this complaint from Joe Doe, who said that he was refused a job as a machinist because he is 40 years old, let us say.
And in most instances, I think that the employer would probably be honest enough to say, “Look, I have nothing against him, but we don't take in fellows of this
age. And he would probably refer to the cost factor, and other similar economic factors.
Well, in such a situation, we would tell him, "Look, you will have to take him, you will have to hire him, because the law so demands. We can understand your problem, but the man's well-being, his individual rights, are more important in the concept of the legislature, obviously, than your economic unhappiness, or economic hurt."
Now that's not the problem case. The problem case is one where the employer would say “Look, I know the law, and I am willing to abide by it, and I will hire any fellow who is qualified, even if he is 42 or 43, but this fellow is not qualified, or I just don't think he is as able as some of the other people whom I interviewed."
So what will we do? We would say, “All right, let's look at your records," and we would look at his records over a period of time. If the records indicate that he always hires fellows between 25 and 35, that would appear to be some evidence, in our judgment, that well, OK, maybe this fellow knows the law, but is determined not to abide by its spirit, at least.
We would look at all of his applications, and that way, we could tell whether or not he had turned down persons of certain ages who would fall within the purview of our law.
We would find out if he had given this fellow, the complainant, the tests that he had given to all the other persons who had applied.
Finally, what we would really try to do is to persuade him--assuming we didn't have what we would consider to be a legal casewe would try to persuade him to give the fellow a chance. I mean, or approach basically would be, "Now, look, why don't you give this fellow a chance? He has a family; he has responsibilities. We are not asking you to go in hock for him, but to give him a chance and let us know what you think about him.”
You know, this sort of thing. But this would be our approach. Now we have plans to be more vigorous, frankly, than we have been before, or in the past, in this area. I would imagine that there are fewer people, fewer citizens who are aware of our responsibilities in the age area than in any other aspect of our law, and I think this is unfortunate. I think we should move forward on it.
Mr. PUCINSKI. Mr. Fowler, would there be any merit to the belief that a member of a minority group, who normally would be a victim of discrimination, really has two strikes on him if he not only is a member of this particular group, but if he is in the middle-aged or upper age bracket, because here, you might find that this age question might be the escape hatch for legitimately saying, "Well, we have nothing against this man. We have nothing against this particular race or religion, or so, but he is just too old," at the age of 12 or 44, and prior to putting age into your law, you really had no recouse, did you?
Mr. FOWLER. We had none.
Mr. ROOSEVELT. If the Congressman would yield; if she also happened to be a woman, she would have three strikes against her.
Mr. PUCINSKI. That is correct. But I am glad to hear you say, Mr. Fowler, acknowledging the fact that there is an economic factor. I