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PART I-HISTORICAL AND LEGISLATIVE BACKGROUND
PRE-WORLD WAR II REGULATION
Adoption of the Civil Rights Act of 1964, with its Title VII equal employment opportunity provisions, culminated a drive begun many years before. It was a drive that gained fruition first in the area of government employment and much later in the area of government contract employment.
But efforts to enact federal legislation to deal with equal employment opportunity on a broad basis, some of which extended back into the 1940's, had been stymied in Congress. The only successes in legislating in this area had been achieved in the states.
Until the New Deal period of the 1930's, action by the federal government relating to employment discrimination was largely confined to government employees. The Civil Service Act of 1883, for example, sought to establish the principle of “merit employment." One of the first regulations issued under the law outlawed religious discrimination in federal employment. (The Pendleton Act [Civil Service Act], 22 Stat. 403, 1883, 5 U.S.C. ch. 12, 1958; U.S. Civil Service Commission, Rule VIII, 1883)
In 1940, a Civil Service rule forbade racial, as well as religious, discrimination in federal employment. (Executive Order 8587, 5 Fed. Reg. 445, 1940) Then, when Congress adopted the Ramspeck Act, extending the coverage of the Civil Service Act and amending the Classification Act of 1923, the principle of “equal rights for all" in classified federal employment was established. The Act declared:
"In carrying out the provisions of this title, and the provisions of the Classification Act of 1923, as amended, there shall be no discrimination against any person, or with respect to the position held by any person, on account of race, creed, or color." (Ramspeck Act, 54 Stat. 1211, 1940, Title I, 5 U.S.C. sec. 631a, 1958)
New Deal Legislation
In the 1930's during the early New Deal period, a policy of equal opportunity in employment and training financed by federal funds was established by congressional and executive action. The policy extended not only to direct federal employment and employment by government contractors, but to employment and training opportunities provided by grant-in-aid programs as well.
The principle of equal job opportunity first was enunciated by Congress in
the Unemployment Relief Act of 1933. It provided:
"That in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed." (Unemployment Relief Act of 1933, 48 Stat. 22)
Many of the laws passed under the New Deal contained similar provisions. If the laws themselves did not bar discrimination, the policy of nondiscrimination was enunciated by the executive branch. Regulations issued under the National Industrial Recovery Act and the laws providing for public low-rent housing
and defense housing programs, for example, forbade discrimination based on race, color, or religion. (National Industrial Recovery Act of 1933, Title II, 48 Stat. 200; 44 C.F.R. sec. 265-33, 1938)
Although these pronouncements amounted to unequivocal declarations by the legislative and executive branches, they were of limited effect in most instances. In practice, they amounted to little more than expressions of policy. There were no standards by which discrimination could be determined, and machinery and sanctions for enforcement were rare.
EXPERIENCE DURING WORLD WAR II
The inclusion of nondiscrimination provisions in laws providing for federally financed training programs continued after the outbreak of World War II. Despite these provisions, leaders of the Negro community contended that Negroes still were being denied federally financed training for defense jobs. They threatened a Negro march on Washington.
The First FEPC
On June 25, 1941, President Roosevelt issued Executive Order 8802 establishing a five-man Fair Employment Practice Committee. The Committee was set up as an independent agency responsible solely to the President. The executive order declared the following to be the government's policy:
"To encourage full participation in the national defense program by all citizens of the United States, regardless of race, creed, color, or national origin, in the firm belief that the democratic way of life within the nation can be defended successfully only with the help and support of all groups within its borders." (Executive Order 8802, 6 Fed. Reg. 3109, 1941)
Broad in scope, the order applied to all defense contracts, to employment by the federal government, and to vocational and training programs adminis tered by federal agencies. The FEPC was authorized to receive and investigate complaints of discrimination, to take "appropriate steps" to redress valid grievances, and to recommend to federal agencies and to the President whatever measures it deemed necessary and proper to carry out the purposes of the order.
The FEPC, nevertheless, had its weaknesses. It had a staff of only eight members, and it lacked direct enforcement powers. So it concentrated on drafting policies and conducting public hearings throughout the country.
The later transfer of the FEPC to the War Manpower Commission deprived it of its autonomy. A dispute with the Chairman of the Manpower Commission led to the resignation of several members of the FEPC, and the Committee, in effect, suspended operations early in 1943.
The Second FEPC
Later in 1943, President Roosevelt issued Executive Order 9346 establishing a new Fair Employment Practices Committee and declaring it to be the policy of the government to promote the fullest utilization of manpower and to eliminate employment discrimination. (Executive Order 9346, 8 Fed. Reg. 7183, 1943)
A broader jurisdiction than that of its predecessor was given to the new FEPC. It extended to all employment by government contractors (not merely those in defense industries), recruitment and training for war production, and employment by the federal government. Moreover, its authority with regard to
labor unions was extended to include discrimination in membership as well as in employment.
The second FEPC was much better staffed than its predecessor. Its budget permitted it to employ a staff of nearly 120 and to open 15 field offices. In its three years of existence, it processed approximately 8,000 complaints and conducted 30 public hearings. It still lacked power, however, to enforce its decisions except by negotiation, moral suasion, and the pressure of public opinion. Its authority expired at the end of June 1946.
From 1946 until 1964, the principal government efforts to eliminate racial and religious discrimination in employment were in the area of government contracts. A major step was taken by President Truman in 1951 when he issued a series of executive orders directing certain government agencies to include nondiscrimination clauses in their contracts.
The Truman Committee
On December 3, 1951, Truman issued Executive Order 10308 creating the Committee on Government Contract Compliance. It was an 11-member group composed of representatives of industry, the public, and the five principal government contracting agencies. (16 Fed. Reg. 12303, 1951)
After studying the effectiveness of the existing program, the Committee made more than 20 recommendations for improving the program. Many were aimed at the establishment of effective enforcement procedures for the nondiscrimination clause.
The Eisenhower Committee
On August 13, 1953, President Eisenhower issued an order replacing the Truman Committee with the President's Committee on Government Contractsa 15-member group composed of representatives of industry, labor, government, and the public. (Executive Order 10479, 18 Fed. Reg. 4899, 1953)
The Eisenhower Committee was given the following duties:
1. To make recommendations to contracting agencies for improving nondiscrimination provisions in government contracts.
2. To serve as a clearing house for complaints alleging violation of the nondiscrimination clauses.
3. To encourage and assist with educational programs by nongovernmental groups.
Once again, however, the Committee had no power to enforce its recommendations. It had to rely on the procurement agencies to adjust complaints, although a report on the disposition of each complaint had to be made to the Committee.
The Kennedy Committee
The policy of nondiscrimination by government contractors was given teeth under the Kennedy Administration. In Executive Order 10925 issued on March 6, 1961, President Kennedy created a new President's Committee on Equal Employment Opportunity charged with the responsibility of effectuating