by the defendants Berzak, Johnson and Andolsek, denying under the due process clause of the 5th Amendment, are unlawful within the meaning of 5.U.s.c. 706(2)(A)(B) and (C) and in violation of 5 U.S.C. 5596 and 42 U.S.c. 1981. Wherefore, the plaintiff prays the Court to: 1) Hold unlawful and set aside the action, findings and conclusions of the defendants that deny plaintiff back pay and a retroactive promotion to March 23, 1969. 2) Declare plaintiff to be entitled to back pay and retroactive promotion to March 23, 1969. 3) Enjoin defendants Romney, Simmons, Berzak, Mapes, Bechtold, Griffiths and Hardesty from denying plaintiff back pay and retroactive promotion to March 23, 1969. 4) Enjoin defendants Hampton, Johnson and Andolsek from administering policies that deny plaintiff back pay and retroactive promotion to March 23, 1969. 5)Award plaintiff damages adequate to compensate him for the loss of pay from March 23, 1969 to November 16, 1969, in the grade of GS-12. 6) Grant him such other and further relief as the circun stances warrant. J. FRANCIS POHLHAUS 422 First Street, S.E. ROBERT J. REINSTEIN 1715 N. Broad Street Philadelphia, Pennsylvania 19122 ATTORNEYS FOR PLAINTIFF Mr. MITCHELL. The way we would like to handle this is that I will summarize briefly the statement that I have presented, and be followed by Mr. Rauh. Mr. Meiklejohn will make a brief statement, and then the heavy artillery, we hope, will be presented by Mr. Greenberg, who has a tremendously effective record, not only in this area but in so many others in the country. In summarizing my statement, Mr. Chairman and members of the subcommittee, I am Clarence Mitchell, director of the Washington Bureau of the National Association for the Advancement of Colored People and also legislative chairman of the Leadership Conference on Civil Rights. The Leadership Conference is a coalition of 125 organizations who have been working together for more than 20 years for the passage of civil rights and related legislation. We support S. 2515, the bill to further promote equal employment opportunities for American workers. We would like to express appreciation to you, Mr. Chairman, and the other members of the subcommittee for your diligence in seeking strengthening of the existing law. I am happy to note for the record that S. 2515 is supported by organized labor as is evidenced by the testimony of the AFL-CIO presented here today. Passage of the original bill, known as title VII of the 1964 Civil Rights Act, would not have been possible without the support of labor. Today's appearance tells the Nation and the world that the working people of the United States are continuing to stand shoulder to shoulder in the battle against job discrimination. I would like to take this opportunity to express my personal objection to the misleading and divisive testimony presented by the U.S. Department of Labor here before this subcommittee on Monday, October 4. That testimony reminds me of the professional rainmaker who could produce plenty of wind, a great deal of thunder and impressive displays of lightning, but no rain. The Department of Labor attempts to create the impression that it is only organized labor that is pushing for the transfer of the Office of Contract Compliance to the EEOC. That is simply not the truth-indeed, I go further and say that it is a conscious effort to conceal the truth. I would like to point out that I have already given to one of the staff members a reproduction of a portion of the first report of the Fair Employment Practices Committee from July 1943 to December 1944. Page 7 of that report clearly points out the jurisdiction of the original FEPC, and that original FEPC had jurisdiction over Government agencies and defense contractors as well as other Government contractors. So that from the beginning it was the concept of this whole program that these operations be carried on together. Indeed, it is ridiculous to try to carry them on in any other kind of way. Anyone who knows the history of the executive orders dealing with fair employment should also know that the NAACP led the successful effort to set up agencies in the executive branch of Government to deal with employment discrimination by Government contractors and the agencies of the Federal Government, itself. We urged the issuance of the first orders establishing these agencies under the Truman administration, and we did so because Congress had killed the Fair Employment Practice Commission set up by President Roosevelt in 1941. We wanted to keep the idea of fair employment alive until we could get a national law. Always we made it clear, as we do now, that the executive order agencies were interim arrangements and that their functions should be included in the scope of authority of an agency established by legislative action. As further evidence of the counterfeit nature of the presentation made by the Department of Labor, Mr. Chairman, you may recall that the Assistant Secretary very unctiously mentioned that he had a statement by Miss Shirley Chisholm, a Member of Congress, which he purported to offer as evidence of her opposition to the transfer of the contract compliance function to EEOC. And you very helpfully read the record of her vote. I talked with Miss Chisholm yesterday at a hearing over at the House and asked for her permission, which she gave, to say to you, Mr. Chairman, that we are glad you kept the record straight, and she is unequivocally for this Senate bill which is now before you. In fact, that is the reason I mentioned that we thought the Labor Department testimony was divisive because it was clear they were not only trying to drive a wedge between organized labor and other minority groups but also trying to get us in a fight with some or our staunchest supporters in the House, one of whom is Miss Chisholm. The CHAIRMAN. It was divisive and you have clarified the situation completely. And that will be made clear if need be whenever it should rise again. Thank you. Mr. MITCHELL. Thank you, Mr. Chairman. There is nothing so mysterious, nothing so burdensome and nothing so beneficial to minority groups that would justify barring the transfer of the OFCC and Civil Service Commission functions to the Equal Employment Opportunity Commission as proposed by S. 2515. I take strong exception to those in the Department of Labor and EEOC who plead that the transfer of these functions would place a great burden on EEOC. This is pure, unadulterated poppycock and an admission of inadequacy on the part of those who say they could not do the job. Speaking for myself only, and not for the organizations I represent, I say that I am fed up and disgusted with those entrusted with the task of enforcing nondiscrimination laws who tell us what they can't do rather than what we know they can and ought to be doing. So far as I am concerned, if they think they can't do the job they ought to get out and let in successors who will do the job. Now I would like to skip over to page 7 of my testimony, Mr. Chairman, and point out that in our discussion about the importance of including the Civil Service Commission under this legislation, we have cited a couple of cases. One of them involves the reference to it begins at the bottom of page 7-an employee of the Federal Housing Administration who charged discrimination because he did not receive a promotion to a supervisory position. The supervisory position was filled by a white employee. Approximately 1 year after, after the complaint was filed, because of an agency finding that the complainant was entitled to the supervisory position he was promoted. Meanwhile, however, the white employee who had been promoted at the time the complainant should have been upgraded, moved to a higher position because of experience gained by his earlier promotion. Had the complainant been promoted at the time he was entitled to be given a supervisory position he, too, would have been eligible for the higher job given to the white employee. The complinant sought back pay for the period during which he was improperly denied a promotion and also credit for the time he would have spent on the supervisory job if he had been treated fairly in the first instance. The agency denied these remedies. We contend this illustrates the chain reaction of some of the failures in these agencies to give fair employment treatment to the employees. We have taken that case into the Federal District Court for the District of Columbia. I have given to the staff, Mr. Chairman, a copy of the bill of complaint. I will leave another here in case it is needed. We find that the civil service in giving remedies is just a farce. They do less than what the agencies, themselves, will do sometimes in handling these matters. Also over on page 9 of my testimony, I have an illustration of a terribly flagrant case, in which a Negro who was employed as a staff member in the fair employment section of the Social Security Agency was eligible for promotion and had qualifications which were superior to those of a white employee. This Negro employee was denied that promotion, and because he tried to get a remedy, he has been barred from other jobs which even Civil Service Commission has said he has the best of qualifications for, and white people have been put in the place that he should have, which shows the kinds of happenings that many of us observe in these agencies. Under the present system of letting Civil Service Commission be a kind of a drumhead court in handling these cases the decision usually favors the agency rather than the employee. So we earnestly hope you will act, Mr. Chairman, as we know you will, and I yield now to Mr. Rauh, who in turn will yield to Mr. Heiklejohn. The CHAIRMAN. Thank you very much, Mr. Mitchell. Mr. RAUH. STATEMENT OF JOSEPH L. RAUH, JR., COUNSEL TO THE Mr. RAUH. Mr. Chairman, my name is Joseph L. Rauh, Jr. I testify today as counsel to the Leadership Conference on Civil Rights and also as vice chairman of Americans for Democratic Action. As Mr. Mitchell stated, the Leadership Conference unanimously, overwhelmingly, and strongly endorses S. 2515, the Equal Employment Opportunities Enforcement Act of 1971. Each Congress since the 87th has met the challenge of Civil Rights of its time. We ask this 92d Congress to meet its challenge with equal determination. The 88th Congress adopted the Civil Rights Act of 1964. The 89th Congress adopted the Voting Rights Act of 1965. The 90th Congress adopted the Civil Rights Act of 1968, including the housing provisions. The 91st Congress adopted the Voting Rights Act Amendments of 1970, extending the Voting Rights Act of 1965. The 92d Congress should, and we hope will, adopt S. 2515. This is the Civil Rights bill America needs today. S. 2515 carries out the congressional promise of 1964 to end discrimination in employment. We hope and trust that this Congress, like the last four, will meet its obligations to those who have been discriminated against over the years. Title VII of the 1964 Civil Rights Act, which S. 2515 would amend, was, as Father Hesburgh made clear, a compromise. An Equal Employment Opportunities Commission was created, but it was given no real authority. As a result, the EEOC has had very limited success. I am not speaking now of the private suits authorized by Title VII to which Mr. Greenberg will address himself. I'm speaking of what the EEOC, with no powers, has been able to accomplish, and the truth of the matter is that discrimination runs rampant today against Negroes, Chicanos, Puerto Ricans, and maybe even worse, and certainly as bad, against women. I find one statistic that you, Mr. Chairman, used, really incredible in American life today. And that is the statistic that the average American women who works full time earns only $60.50 for each $100 earned by the average American man. That means that the average man gets two-fifths more than the average woman, and this at a time when allegedly this sort of thing has been stopped. Title VII just hasn't worked through conciliation, and something has to be done. There are two ways you can go. One way is through administrative enforcement, through cease-and-desist powers, the time-honored method, the method that every other agency uses; and the other way is by just saying that the Commission can go to court. The latter route makes little sense. The Justice Department, with outstanding lawyers, has had the right to go to court from the first. Very little happened. There is no change of substance when the Commission gets the right to court itself. You simply move a few lawyers from one place to another. You don't deal with the basic problem. So we say that when there are two ways to go and only one makes a real change, only one has a real opportunity to work, only one is time-honored, in operation that there can be no question that you either go the cease-and-desist route or you really don't pretend you are doing anything about enforcement. In our judgment, the Erlenborn bill passed by the House is worse than nothing. We go one step beyond Father Hesburgh who said it was about the same as the existing situation. We say the Erlenborn bill is a step backwards. We cannot believe that this Congress will do anything except take the important step of cease-and-desist-powers. There are other great advances in your bill, Mr. Chairman. State and local governments ought to be covered. Small employers of eight or more ought to be covered. Teachers ought to be covered. In heaven's name, what reason can there be for discrimination against a teacher any more than against anybody else? This thing made no sense before. It was part of a compromise. As one of those who was there when the compromises were made, title VII was the best we could get in 1964 but it is not up to the demands of 1971. I also share with the other panelists the belief that the consolidation of all antidiscrimination functions in EEOC is important. I think Reverend Fauntroy's fine statement on discrimination in the Federal Government ought to be noted by everyone. I thought that was one of the best statements on Federal discrimination that I have ever heard. I have only one other point. I would rather Mr. Meiklejohn and Mr. Greenberg make the major statements. But I do want to refer to one problem because it is going to face the committee and the Senate. |