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We see no reason for the first of these exemptions. We do not believe that public schools should discriminate in the employment of their faculty, and indeed such discrimination violates the 14th amendment, and we see no reason why private schools should be given leave to discriminate.
(5) The present act excludes from its protections anyone who is a member of the Communist Party or of any other organization required to register under the Subversive Activities Control Act of 1950. We think that this provision violates the rights of free speech and assembly guaranteed by the first amendment and the due process clause of the fifth amendment. We urge that it be eliminated.
(6) The present act likewise contains a confusingly worded exemption with regard to jobs covered by personnel security programs. It is perfectly clear that the present statute would not, even without this language, interfere with the operation of any valid security program; and this provision may give rise to a contention that jobs covered by security programs are excluded from the act's coverage. While we are sure that was not the intention of Congress, we think this unnecessary and potentially troublesome provision should be dropped.
(71) The present statute provides that a charge may be filed under oath by a person claiming to be aggrieved, or by a member of the Commission. H.R. 9222 eliminates the requirement that a charge by an aggrieved person be under oath, and also permits a charge to be filed "on behalf of” an aggrieved person. This is an improvement, but we would prefer a provision, like that in the National Labor Relations Act, permitting anyone to file a charge.
(8) H.R. 9222 adds to the present act a provision giving the Commission subpena authority. That is a needed improvement. However, the provision goes on to say that the attendance of a witness or the production of evidence may not be required outside the State where the witness resides, or the evidence is kept. This restriction is not usual and we see no reason for it.
Finally, we state once more that H.R. 9222 does greatly strengthen and improve title VII of the Civil Rights Act. We welcome its introduction and urge its adoption.
I would like to say, Mr. Chairman, that after I began my testimony, Mr. Rauh came in, as I indicated he would. If Mr. Biemiller makes a comment, after he makes such a comment, I would appreciate it if Mr. Rauh would be given an opportunity to make a comment on the matter or intimidation, which is not covered by our statement.
Mr. ROOSEVELT. If it pleases the committee, I suggest that we ask this distinguished panel to make such statements as they may wish to make now, prior to questioning, so we may question you on all the statements before the committee.
Mr. BIEMILLER. Mr. Chairman, I think the statement stands for itself. I am«lelighted to learn that 90-odd groups are affiliated with the Leadership Conference on Civil Rights, and the labor movement, which is also a part of that group, are in absolute agreement on this matter.
Is you know, we have been appearing before this committee for many vears, urging the adoption of a very strong. Fair Employment Practice Act. We commend this committee for the diligence it has shown, not only at the present time, but in the past, in working on this matter, and I think at the very brief hearing that was held once before, the record clearly shows that the major reason that there is a title VII in the Civil Rights Act of 1964 was the fact that this committee had earlier reported a bill to the floor of the Congress.
During the process of adopting the Civil Rights Act of 1964, that bill was watered down rather considerably, and we are glad to see that this committee is back on the job trying to begin strengthening enforcement provisions of this very important piece of law.
Mr. ROOSEVELT. Thank you very much, Mr. Biemiller. Mr. Rauh?
Mr. Rauh. Mr. Chairman, I quite subscribe to what was said by Mr. Mitchell and Mr. Biemiller. There is one point that has arisen since the testimony was prepared that I would like to call to the committee's attention. That is, the absence of any provision in title VII or in the Powell bill against intimidation by third parties.
For example, suppose an employer in a hard-core area really wants to comply with the law, but the Klan or one of the other extremist groups threatens him if he complies with the law?
We believe that that may be covered by certain conspiracy statutes at the present time, but it is somewhat vague, and unclear as to be inadequate for a sensible enforcement of this law. We would therefore urge that a provision against third-party intimidation be added to the Powell bill.
I might say in this connection that if you look at last year's civil rights bill, the 1964 act, you will find that in the public accommodations title, such a provision is included. Section 203 of the public accommodations title provides that no person
Shall withhold, delay, or attempt to withhold or delay or deprive or attempt to deprive any person of any right or privilege securedand it gives the section numbers, but it means by this title, or B:
Intimidate, threaten or coerce, or attempt to intimidate, threaten or coerce any person with the purpose of interfering with any right or privilege secured by this title, or C, punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by this title.
In other words, we think a comparable provision to section 203 of last year's law should be inserted as an amendment, and we wouldas a matter of fact, I might state here that the NAACP legal defense and education fund, although this bill has only been in effect weeks, has already had a complaint of this very kind. In other words, Mr. Greenberg informs us that he has already received in their office a complaint of Klan intimidation of an employer who sought to comply with this law.
Therefore, we are not now proposing an academic matter. We are proposing something we think is very real, and very significant.
Mr. ROOSEVELT. Thank you very much for bringing that to our attention. We appreciate it very much.
Mr. ROOSEVELT. Thank you very much. Gentlemen, may I first, of course, thank all of you for a very excellent statement. I would like to put before you a broad practical problem. Let me put it in two parts. Obviously, the testimony already received by this committee
in opposition to these bills is primarily based upon the fact that we haven't really given an opportunity for experience under this section. Therefore, we are making a predetermination on the enforcement procedures provided by the original act itself, and that without evidence as to their lack of effectiveness, that we are not justified in proceeding
Would any of you care to make a comment on that subject ?
Mr. HARRIS. Well, while it is true that there is no Federal experience on this, or maybe 2 weeks' experience, the States have had a good deal of experience, and I think that in the States which have tried out State laws, where the Commission has had only powers of conciliation, as is the case under the present act, I think the States have found that that has not worked.
And in several instances, they have moved, they have amended their laws to give their commissions the sort of enforcement power provided by the Powell bill.
In the light of this State experience, we think the Congress would be justified in going ahead and strengthening the bill, even without waiting for the deficiencies of the present act to become further manifest. There is a long State-owned local history on it.
Mr. ROOSEVELT. Yes, you are quite right about that. The witnesses representing the State of Illinois, and the State of New York, indicated to us that without their enforcement procedures, they were convinced that the effectiveness of their States' acts would be completely destroyed, and in general, you would agree with this, would you not?
Mr. HARRIS. Yes, sir.
Mr. ROOSEVELT. You gentlemen have brought to us a number of suggestions to expand H.R. 9222, some of which I am sure you will recog. nize are somewhat controversial. If we proceed with a thorough examination of them, it is really a practical question as to whether we would not then have to hold rather longer hearings. My colleagues all seem to agree they would like to look forward to an early adjournment date. We, therefore, are confronted with a very serious time problem. Would it be wise to take H.R. 9222 as the basis of immediate action, and take the suggestions which you have made here and incorporate them in a further amendment in the next session? Or would you feel that we would have lost our golden opportunity, and we had better do it now or never?
Mr. MITCHELL. Well, I just made a quick check with my colleagues, and I think we are in agreement, as we usually are, that we would like to see it done right rather than done on a piecemeal basis. This is usually the problem in civil rights legislation. We undertake to do what is practicable, but what is practicable does not always do the job. We would agree among ourselves that we would like to see the amendments that we proposed enacted into law, even if it meant that we had to have hearings that might be a little longer, and consideration that might be a little more extensive.
Mr. ROOSEVELT. I appreciate your comment. This is the problem which the committee will have to face, because, in all honestly, I am sure you know there are other priority projects not only before this committee but before the Congress as a whole, and if we do as good and complete a job as you have suggested here, it may take us a little longer than the time we have now allotted to it.
If you have no further comments on that, Mr. Dent?
Mr. Dent. I only have two observations. One, I can see the logic of both sides of the problem on whether or not there has been enough experience in this act to proceed with major changes, and then again, I can see the logic of the idea of making the changes now, before we really build up an enforcement and administrative group, which would be operating under an act which we recognize has many shortcomings. Why not at this time, then, follow through with substantial changes that might give the Commission the weapons that they are going to find that they will have to have anyway before too long? It might be very good thinking, I believe, on the part of the Congress, to go ahead and make the changes before the machinery is set up to enforce an act that we admit is not as strong as it should be.
The second observation would be on the question raised by counsel on the third party interference, or what to do about it. Very frankly, the only reason that we were cognizant of the problem when it came to the housing situation, the public accommodations, was that we knew that there was in many instances, in most instances, a conflict between the two principals. The tenant and the broker or the owner or the leasing agent, or lessees, and, of course, on sales, the real estate operator.
Therefore, we recognized that, and I believe that the only reason that it wasn't considered in the basis of ordinary employment was the fact that we had no testimony to my memory of the situation that might have then existed, and possibly could exist under an enforcement procedure. I think that is a very valid proposal for a change, and ought to be given very serious consideration by the committee at this time.
I have had two occasions of having that very thing called to my attention, where certain merchants in the community objected strenuously to someone employing a person because they said it would "open the door” for employment. The question you covered in your first page, a rather serious restriction in the act itself, is the 100employee restriction which would later work down to 25. It is inconceivable to me that we recognize the right of an individual to be covered by social security as a worker, and then say that it is not as important for him to have the opportunity to get a job as to be covered by social security.
I think the thinking is a little befuddled in this area and ought to be considered very seriously by this committee. If we don't do anything else but reduce that number, we are, I believe, taking a great step forward in the eventual eradication of discrimination as such.
How would you propose to get into the situation of private schools, religiously oriented ? How do we dictate to a school, private school, where they have a religious orientation to the schocl curriculum ? And let's take a Baptist school, being approached by a Catholic, who wants to teach in that school, wants to work in the institution.
We have gone through this many times, on many other pieces of legislation. It appears that there is a rather deep question there a3 to where the legislature being started, and where it must stop, in the internal affairs of private religiously oriented institutions.
Now, if you give us some of your thinking on it, we might be able to find a formula that would work. Not that we are opposed to it;
it is just a question of trying to find the right answer. What would be your idea there, and how would you approach it?
Mr. HARRIS. In our statement, Congressman Dent, we didn't actually propose any change on that. If you will look at the paragraph numbered 40 on page 3, you will see we mention that there are two exclusions there. One is for people employed to teach at an educational institution. The second is that schools run by a church and whose curriculum is directed toward the propagation of a particular religion, are exempted entirely. We then say we see no reason for the first of these exemptions.
We weren't proposing to touch this total exemption of church schools, but where there is no religious connection, where there is just, say, a private prep school, we were taking the position that that should be treated just like a high school, and that there should be no discrimination in the hiring of its faculty.
Mr. DENT. I understand. I thought you meant where the employment in a religiously oriented institution was other than in the area of the education itself, or the giving of the education, or advancing of education. For instance, janitor, gardener, or persons around the institution. It is not your purpose here in this suggestion that we cover that? You are not interested in that?
Mr. Harris. No; the statement doesn't hit that. Actually, there is an inconsistency in the act at present. A church, for example, would not be permitted to discriminate in hiring a janitor, but a religious school is. Now that doesn't really make any sense, but in our statement, we haven't proposed to do anything about that. Mr. Dent. That is the connection that I was trying to make. I
DENT. thought that's what you meant. They do not exempt janitors in reJigious institutions, but they do in the schools, and the question that came to my mind is do we enter that field, or just leave it alone at the moment?
Mr. HARRIS. Well, we had proposed to leave it alone.
I want to thank you for coming, and believe that your testimony will be helpful, since this particular type of legislation, as Mr. Mitchell has stated, goes in history far back, I, too, remember many many times the gentleman before us, the former Member of Congress, Andrew Biemiller, has been out in front advocating the strengthening and in fact, the original passage of the first Fair Labor and Uniform Labor Practices Act in this country. I see that he is still working at the same old stand.
You are working from a little stronger ground, now, Andy. You have more followers with you helping you out than you did in the lonely days in the past.
Mr. BIEMILLER. Yes, sir.
This is a joint statement, I understand, bet ween the AFL-CIO and the XAACP?
Mr. MITCHELL. The Leadership Conference on Civil Rights; yes, sir.
Mr. MARTIx. Ilow many members do you have in your organization, Mr. Mitchell ?