Senate 6-4-64

pp. 12721-12725

TITLE VII

GENERAL

Mr. HUMPHREY. Mr. President, there are a number of proposed amendments to title VII; but the major changes relate to its enforcement procedures. The basic coverage and the substantive prohibitions of the title remain almost unchanged. The title continues to apply to employers, employment agencies, labor organizations, and joint labor-management committees in industries affecting commerce. There is no change in the provisions extending the coverage of the title over a 4-year period from employers and labor organizations with 100 or more employees or members to those with 25 or more employees or members, nor have there been any significant changes in the sections specifying what actions constitute unlawful employment practices.

The major changes in title VII have been in three areas: First, the relationship of Federal to State laws and procedures; second, the authority to bring suit; and third, the provisions for recordkeeping.

First. Relationship to State laws: As it was passed by the House, section 708 preserved the effectiveness of existing State antidiscrimination laws, and granted the Equal Employment Opportunity Commission authority, in States and communities where there were effective antidiscrimination statutes, to enter into agreements with State and local agencies. In effect, these agreements would give jurisdiction over complaints to such agencies wherever the practice

complained of also violates State or local law. This authority is preserved in section 709 (b) of the substitute.

If the practice complained of occurs in a State or locality which has a law prohibiting such practices and establishing an agency to deal with them and there is no such agreement, the individual complainant cannot file his charge with the Commission until the State or local agency has been given an opportunity to handle the problem under State or local law. However, after the agency has had 60 days to adjust the complaint, or after it terminates proceedings on it, the complainant may go to the Federal Commission. The 60-day period will be 120 days during the first year that a State or local law is in effect, Similarly, when a complaint filed by a member of the Commission alleges a practice which violates State or local law, the Commission must give the State or local agency 60 days or 120 days, in the case of a new State law-to remedy the complaint before the Commission can act.

Second. Authority to bring suit: It is in connection with the authority to bring suit that the most significant change has been made in title VII. Under the House version, if conciliation by the Commission failed, the Commission, if it determined that there was reasonable cause to believe that the respondent had violated the title, could bring suit for, relief against him in Federal court. If the Commission for any reason failed to bring suit, the individual complainant, with the consent of one member of the Commission, could bring suit in his own name and at his own expense.

The amendments of our substitute leave the investigation and conciliation functions of the Commission substantially intact. However if the Commission has not been able to achieve voluntary compliance within 30 days-this pe

riod may be extended by the Commission to 60 days-the Commission must so notify the person aggrieved, who, then may within 30 days bring his own suit in Federal court for enforcement of his rights. No permission from a Commission member is required for such a suit.

Where a suit has been brought, the court may stay proceedings for up to 60 days, pending the termination of proceedings under State or local law or further efforts at conciliation by the Commission. Since it is recognized that the maintenance of a suit may impose a great burden on a poor individual complainant, the Federal court may, on application of the complainant, appoint an attorney for him and authorize the commencement of the action, without the payment of fees. costs, or security.

The role of the Federal Government in obtaining enforcement of the title through litigation is preserved, but not through the Commission. Instead, the Attorney General is given authority to intervene, with the permission of the court, in any action brought by an individual under title VII. More important, the Attorney General is authorized by section 707 to institute suit whenever he has reasonable cause to believe that there is a pattern or practice of discrimination in violation of title VII. Therefore, in significant cases of discrimination in employment the United States will have adequate authority to initiate legal action.

Third. Recordkeeping: Section 709 (c) of the House version authorized the Commission to prescribe recordkeeping requirements for employers, employment agencies, labor organizations. and joint labor-management committees covered by the title. This authority has been limited, in the substitute, to prevent duplication of recordkeeping requirements. Where the employer, agency, organization, or committee is also subject to a State fair employment practice law, the Commission may not prescribe general recordkeeping requirements. Instead. it may require such notations on existing records or records required by law as are necessary because of the differences in methods of enforcement or of coverage between the State and the Federal law. Furthermore, to eliminate the possibility that employers who are Government contractors may have to prepare and file separate reports for two Government agencies, it is provided that where the employer files reports on his employment practices with the President's Committee on Equal Employment Oppor

tunity, the Commission shall not require the filing of additional reports. It is likely that even without such a provision, the Commission and the President's Committee would have coordinated their respective reporting requirements; but this provision offers assurance to employers on that score.

Mr. HUMPHREY.

MISCELLANEOUS CHANGES

I have stated the most significant changes in title VII. I shall now run through the title describing briefly the other principal changes which have been made:

First. In section 701-formerly 702the definition of "employer" has been clarified to provide needed certainty as to coverage of employers where the number of employees fluctuates above and below the figure requisite to application of the title. Coverage is limited to those employers who employ more than the required minimum number of employees for at least 20 weeks out of the year.

Second. In section 701(b) a statement had been added that it is the policy of the United States to insure equal employment opportunity for Federal employees. This hardly represents & change in the law, but it was thought desirable because the United States, like all governmental units, State and local, is generally excepted from the category of employers covered by the title.

Third. New provisions have been added dealing specifically with hiring halls maintained by labor unions. Section 701(a) has been amended to provide that wherever a labor organization maintains a hiring hall which supplies workers for employers covered by the title, that labor organization is deemed to affect commerce and is covered by the title. The prohibitions applicable to labor organizations have also been appropriately clarified to include discrimination in the classification and referral of workers.

Fourth. Section 704-formerly 703has been amended to limit the general exemption of religious groups to those practices relating to the employment of individuals of a particular religion to perform work connected with the employer's religious activities, and to extend the exemption to private educational institutions with respect to the employment of individuals to perform work connected with the educational activities of such institutions.

Fifth. In section 703 (e) the exemption where religion, sex, or national origin is a bona fide occupational qualification, which in the House bill is available only to employers, is extended to employment agencies, labor organizations, and joint labor-management committees.

Sixth. Section 704(f) of the House bill, providing that it should not be an unlawful employment practice for an employer to discriminate against atheists, has been deleted, largely because of its doubtful constitutionality.

Seventh. A new section 703 (g) provides that it shall not be an unlawful employment practice for a job to be denied, or a person to be fired, because of his inability to obtain a security clearance when the position involved requires such a clearance. Of course, this provision may not be used as a pretense for denying employment on the basis of race, religion, sex, or national origin. Thus, if employers normally require their employees to apply for clearances only after they are hired, such employers may not refuse all Negro job applicants on the ground that they lack a security clearance at the time they apply for a job. Actually, this provision is intended to cover the obvious situation wheer a person, for one reason or another, is simply not able to obtain a required security clearance. In such cases, the employer should not be liable under this title if he refuses to hire or discharges such a person for that reason.

The provision thus adds no new substantive exemption, but merely makes express what would have been possible even without the amendment. The title, as presently drawn, would not have prevented those covered by it from refusing or terminating employment on bona fide security grounds, where applicable, and the amendment does no more than make this clear.

Eighth. A new subsection 703(b) has been added, providing that it is not an unlawful employment practice for an employer to maintain different terms, conditions, or privileges of employment either in different locations or pursuant to a seniority, merit, or other incentive system, provided the differences are not the result of an intention to discriminate on grounds of race, religion, or national origin. For example, if an employer has two plants in different locations, and one of the plants employs substantially more Negroes than the other, it is not unlawful discrimination if the pay, conditions, or facilities are better at one plant than at the other unless it is shown that the

employer was intending to discriminate/ for or against one of the racial groups. Thus this provision makes clear that it is only discrimination on account of race, color, religion, sex, or national origin, that is forbidden by the title. Then change does not narrow application of the title, but merely clarifies its present intent and effect.

Ninth. A new subsection 703 (j) is added to deal with the problem of racial balance among employees. The proponents of this bill have carefully stated on numerous occasions that title VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group. Since doubts have persisted, subsection (j) is added to state this point expressly. This subsection does not represent any change in the substance of the title. It does state clearly and accurately what we have maintained all along about the bill's intent and meaning.

Tenth. A new subsection 703 (i) has been added permitting enterprises on or near Indian reservations to follow preferential hiring practices toward Indians. This exemption is consistent with the Federal Government's policy of encouraging Indian employment and with the special legal position of Indians.

Eleventh. Section 705 (g) (4) has been revised to make it clear that the Commission's authority to assist employers in obtaining the cooperation of their employees in effectuating the provisions of the title is not an independent source of enforcement powers. To obtain remedial action the Commission must rely on conciliation and on the enforcement authority provided elsewhere in the title.

Twelfth. A new paragraph (6) is added to section 705 (g) authorizing the Commission to refer matters to and consult with the Attorney General. This provision is made necessary by the transfer of litigating responsibilities from the Commission to the Attorney General.

Thirteenth. Several changes have been made in section 706-formerly 707.

(a) The right to file a charge "on behalf of" a person claiming to be aggrieved is deleted. This is of little practical importance, since the person aggrieved can always obtain assistance in the preparation and prosecution of a charge.

(b) The determination of reasonable cause preliminary to attempts at conciliation is to be made by the Commission rather than by two members. It I will thus be left to the Commission to

prescribe the procedure for arriving at this determination.

(c) The provision for obtaining a written agreement from the respondent as part of the conciliation effort is deleted. Since the Commission never had authority to require such an agreement it would rarely be obtained and would serve little purpose unless the respondent were willing to comply with the title anyway. If the Commission and the respondent wish to make some sort of memorandum of agreement regarding future practices, nothing in the section as amended would prohibit them from doing so.

(d) The last sentence of the subsection is revised to protect the confidentiality of conciliation procedures.

Fourteenth. Provisions preserving the confidentiality of Commission procedures have been added to sections 706(a) and 709(e). Section 706(a) provides that a charge filed with the Commission shall not be made public and provides a criminal penalty for a Commission employee who violates this rule. Section 709(e) prohibits the Commission and its employees from making public information obtained by compulsory process in the course of its investigation except in the course of litigation arising under the title.

It should be noted that this is a ban on publicizing and not on such disclosure as it necessary to the carrying out of the Commission's duties under the statute. Obviously, the proper conduct of an investigation would ordinarily require that the witnesses be informed that a charge had been filed and often that certain evidence had been received. Such disclosure would be proper. The amendment is not intended to hamper Commission investigations or proper cooperation with other State and Federal agencies, but rather is aimed at the making available to the general public of unproven charges.

Fifteenth. The provisions of section 706(b)-(e) have been thoroughly revised to reflect the changes I have already discussed with respect to the relationship of Federal and State procedures and the authority to sue. Section 706(b) provides that in a State with a nondiscrimination law the individual must first follow State procedures for 60 days (or in some cases, 120 days). However, to avoid the possible imposition of onerous State requirements for initiating a proceeding, subsection (b) provides that to comply with the requirement of prior resort to the State agency, an individual need merely send a written statement of

the facts to the State agency by registered mail. Section 706(c) provides a parallel procedure of referral to a State agency where the complaint is initiated by a member of the Commission rather than by the person aggrieved. Section 706(d) establishes a 90-day period of limitations on the filing of a charge, with appropriate provisions to extend the period in the situation in which prior resort is had to a State agency. Moreover, section 706(d) is carefully worded to protect an individual who, in good faith, unnecessarily seeks to comply with the requirement of initial resort to State or local authority. Such a person will not lose his right to seek Federal relief simply because the 90-day period for filing with the Federal Commission has elapsed while he seeks to pursue State remedies.

Section 706(e) provides for suit by the person aggrieved after conciliation has failed, and for intervention by the Attorney General at the discretion of the court. The substance of this subsection has been described already in my remarks.

Sixteenth. Section 706(f) revises the venue provision of section 707(d) of the House bill. The House bill provided for suit in either the district in which the unlawful employment practice occurred or in the district of the respondent's principal office. Section 706(f) provides that suit may be brought in any district in the State in which the practice occurred, in the district in which the relevant employment records are kept, or in the district in which the plaintiff would have been employed but for the alleged discrimination. Furthermore, in the rare case where the respondent cannot be served in any of these districts, suit may be brought in the district of his principal office.

Seventeeth. Section 706(g) is amended to require a showing of intentional violation of the title in order to obtain relief. This is a clarifying change. Since the title bars only discrimination because of race, color, religion, sex, or national origin it would seem already to require intent, and, thus, the proposed change does not involve any substantive change in the title. The express requirement of intent is designed to make it wholly clear that inadvertent or accidential discriminations will not violate the title or result in entry of court orders. It means simply that the respondent must have intended to discriminate. Other minor language changes are made in subsection (g). In the last sentence "sex," which was