Mr. CAREY. In answer to your first question, Senator, I thought through generally the structure, restructuring that might be involved. Basically this is an internal matter for the Commission and unless and until I am confirmed I would not be privy to what is going on within the Commission.

But I have given some thought to the problems which the enforcement powers present.

My basic feeling is that more and more of the responsibility has to be out in the field and that the Commission needs many, many new lawyers because after all, it is not only a litigating commission-it needs a lot of lawyers, a lot of money, lest it be criticized for not doing that which Congress wants it to do.

The CHAIRMAN. As I recall, the legislation provides for concurrence in the approving of regional attorneys. Is that your understanding? Mr. CAREY. Yes, sir.

The CHAIRMAN. Is that true, too, in the selection of lawyers, to work in the regions? That is your responsibility?

Mr. CAREY. I believe the act speaks only of regional attorneys. I would foresee no difficulty whatsoever in reaching concurrence with Chairman Brown on the selection of regional attorneys or staff attorneys.

The CHAIRMAN. Your personal background concerned with discrimination is expressed in your hometown of Evanston?

Mr. CAREY. Yes, Evanston.

The CHAIRMAN. What was your activity at the community level? Mr. CAREY. I was a member of the first Evanston Community Relations Commission in its early days, and later it was reorganized and I was a member of the human relations commission.

I drafted the human relations commission bylaws. I was responsible in large measure for the passage of what was considered to be at the time the strongest fair housing act in the State, if not in the country. I tried to act as a mediator between those who felt that human rights progress was going too slow and those who thought it was going too fast.

My position as a mediator was, let's just move human rights along. I was active in obtaining from the city council funds to operate the commission, since it was an arm of Evanston. I fought hard for funds for a black executive director and funds for a new position-for a position as an assistant to the executive director. In those efforts I was happily successful.

The CHAIRMAN. Senator Javits?

Senator JAVITS. Well, Mr. Carey has been in to see me and I have had quite an interesting talk with him before his testimony and I am very impressed with him, Mr. Chairman. He is a man who has the capacity to do this job.

Mr. Carey, do you foresee any difficulty in the recruitment of the necessary personnel on the regional or the Washington level?

Mr. CAREY. No, sir; I understand already there are hundreds, if not at least a thousand applicants for positions as attorneys for the Commission, and I would anticipate that for graduating law students legal work for the Commission would be among the most attractive areas of government.

80-501 0-72- -2

Senator JAVITS. Mr. Carey, we cannot of course hold you accountable for anything beyond your own capacity to do this job, but in your work, in finding out what the facts are, you are aware that the Commission received its authority to institute suits just a few months ago, right.

Mr. CAREY. Yes.

Senator JAVITS. Have you inquired as to how many suits they filed since?

Mr. CAREY. Well, I have not inquired, but I do know how many. I understand that two suits, major suits, have been filed, and there has been temporary injunctive relief yet obtained in a third suit.

Senator JAVITS. Do you have any idea how many cases they have which are ready for instituting suit or which are under review by the General Counsel?

Mr. CAREY. No, sir.

Senator JAVITS. You have no idea. Do you know whether it is a big backlog, a small backlog, or what?

Mr. CAREY. I think it is common knowledge that there is a big backlog.

Senator JAVITS. Is there anything you could tell us from before you are on the job in a sense, and it would be perhaps a little less tied into the hierarchy in the agency, as to whether your researches have shown where the problem is, where the holdups are, if any?

Mr. CAREY. May I regress just a second to the question on backlog? There is a big backlog, but I suspect, although I have no inside information, that the size of the backlog is due to the fact that each individual complaint is given a separate number, for example, and there may be a number of complaints against one employer which really would end up to be one case.

The size of the backlog is probably a lot less than the figures might indicate. How to handle the backlog, what the plans of the Commission are for that, this is a matter of internal workings of the Commission, which I am not privy to.

Senator JAVITS. As yet.

Mr. CAREY. As yet. I hope to be.

Senator JAVITS. I hope you will, too.

You spoke of much money being required. It is a fact, is it not, that the Senate Appropriations Committee has recommended almost a doubling of the budget? Is that correct? You are aware of that? Mr. CAREY. I am aware-I don't know whether the budget has been doubled. I am aware that members of the Commission are happy that quite a bit of additional money has been earmarked by the Senate.

I would think that this is one area where we ought not to skimp. We need a lot of lawyers and a lot of money. But I do understand there has been a substantial increase recommended by the Senate.

Senator JAVITS. Now, could you give us or have you thought through so you could give us any guideline which you would use in determining, as General Counsel, what cases you would want to see instituted?

You are not as autonomous in this job as the General Counsel of the National Labor Relations Board. But you do have more authority than just a lawyer retained by an agency. So it is important for us to have some idea, if you have one, as to how you would look at cases

which you would select for action, as this is always a big problem in an agency.

Mr. CAREY. Yes, I think there are a number of considerations which must be reviewed with respect to any alleged violation of the act. Without meaning to suggest that a small company ought to be given a pass, one consideration would be the size of the employer, another consideration would be the impact on the public interest. By that I mean the importance of the case in the overall enforcement of the act. Another consideration, of course, would be the seriousness of the violation-is it a willful intentional violation?

Another consideration would be overall, how many employees would benefit from the bringing of this particular lawsuit?

Those would be some of the considerations which I would bring to bear.

Senator JAVITS. You would not, however, exclude a small concern where you did feel that there was a serious case, a novel question, a case that could be a landmark, for example, or a particularly willful case, would you?

Mr. CAREY. No, sir; because oftentimes a smaller case-a case against a smaller employer-would be easier to prove in terms of the number of man-hours involved; and if the issues were important, it would probably be a good device to go after a smaller company to establish a national precedent.

Senator JAVITS. As a generality, would you not agree that if the Commission has the personnel and the ability and resources, that there is a duty to sue in every case in which there is a violation?

Mr. CAREY. As a theoretical proposition, that is true. I know of no Government agency or department of Government, including the Justice Department with its various U.S. attorneys offices, which has the manpower to prosecute every single violation. I would be less than candid if I did not make that observation.

Senator JAVITS. I think that is true.

Mr. Chairman, when we are through with the testimony of the witness, I would like to suggest that as a prelude to our action on the witness-I would not wish it to appear in the hearing about him, but I do think that we ought to inquire of the Commission why so very few cases have been instituted in the 4 months, and at least I think it would be helpful to a new General Counsel to have this accounting.

The gentleman will remember when it was argued on the floor, one of the arguments used against us which prevailed with the Senate was they could get off the ground very fast, if they had the power to sue. They have not gotten off the ground very fast.

At the appropriate time when we are through with this witness, Mr. Chairman, I will ask the Chair for that permission.

Thank you, Mr. Carey.

The CHAIRMAN. Mr. Randolph?

Senator RANDOLPH. No. I have checked, Mr. Chairman, as far as I felt it was necessary, into the qualifications of the nominee. I believe that he will bring to this position, if he is approved by the committee and by the Senate, those qualities which will enable him to do the job which is set before him. I have confidence he will do that.

Mr. CAREY. Thank you, sir.

Senator MONDALE. Evanston has been one of the national examples in the school system. You did serve as a member of the City Human Rights Commission?

Mr. CAREY. Yes, sir.

Senator MONDALE. What is your attitude toward desegregation? Mr. CAREY. Well, in response to your first question, virtually all of the mothers and fathers of schoolchildren in Evanston feel that it worked admirably. Most of the parents want their children to go to school with minority groups. I personally feel it is a very healthy thing. Second, in response to your second question, I favored the integration of the schools in Evanston, first, because as a lawyer I felt the Supreme Court had mandated that, and as a citizen I supported it because I felt that in the long run it is in the best interests of the country and the children going to school.

Senator MONDALE. Thank you very much.

The CHAIRMAN. There are no further questions.

Our best wishes go with you for fair, effective, and forceful implementation of this law. If you fail, we will be right back here climbing the mountain with "cease and desist." We wish you well.

Mr. CAREY. I will do my best. Thank you very much for your time.

(Whereupon, at 10 a.m., the committee was adjourned.)

APPENDIX

CIVIL RIGHTS ACT OF 1964 AS AMENDED

AN ACT To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Civil Rights Act of 1964".

TITLE VII-EQUAL EMPLOYMENT OPPORTUNITY1

DEFINITIONS

SEC. 701. For the purposes of this title

(a) The term "person" includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.

(b) The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5 of the United States Code), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501 (c) of the Internal Revenue Code of 1954, except that during the first year after the date of enactment of the Equal Employment Opportunity Act of 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.

(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the

1 Includes 1972 amendments made by P.L. 92-261 printed in italic.

(1)