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Dirksen Explanation of Titles VII and XI
EDITORS' NOTE: Following his introduction of a copy of the House bill (H. R. 7152) annotated to show the changes made by the Senate substitute, Senator Dirksen (R., Ill.) obtained unanimous consent to have an explanation of the changes made by the Senate substitute printed in the Congressional Record. The parts of the explanation relating to Titles VII and XI follow.
TITLE VII-EQUAL EMPLOYMENT OPPORTUNITY Findings and declaration of policy
Section 701: This section consisting of findings and declaration of policy is deleted in its entirety.
Section 702 (renumbered 701):
(b) Definition of "employer" is amended to provide a specific test for computing the number of employees of an employer, in determining whether the employer is covered by the bill. Because the United States is exempted from the definition of employer in the bill, the amendment provides that a policy of nondiscrimination also applies to all Federal employees.
(e) This amendment broadens the definition by which a labor organization shall be deemed to be engaged in an industry affecting commerce by adding the provision "it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer" to the criteria enumerated in H.R. 7152.
Section 703 (renumbered 702): The general exemption of a religious corporation, association or society from this title of the bill is limited by the amendment to the employment of individuals of a particular religion to perform work connected with its religious activities. A similar exemption is provided for an educational institution with respect to the employment of individuals to perform work connected with the educational activities of the institution. Discrimination because of race, color, religion, sex, or national origin Section 704 (renumbered 703):
(c) A conforming change is made in the definition of unlawful employment practices by labor organizations to include the operation of hiring halls by labor organizations. The same change is made, where appropriate, throughout the title.
(e) Proviso (1) of subsection 704 (e) provided that it shall not be an unlawful employment practice for an employer to hire employees of a particular religion, sex, or national origin where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the nor-. mal operation of that particular business or enterprise. The amendment broadens the coverage and extends the same treatment to (1) employment agencies when classifying or referring individuals for employment, (2) to labor organization when classifying its membership or classifying individuals for employment, (3) to employers, labor organizations or joint labor-management committees controlling apprenticeship or other training programs.
(f) This subsection containing the atheist exception is stricken.
New subsecton (g) provides an exception with respect to individuals who do not meet the requirements of a security program imposed by statute or Executive order.
New subsection (h) provides that an employer may apply different standards of compensation, or different terms, conditions, or privileges of employment (1) pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production, or (2) to employees. who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin.
New subsection (1) protects the employment preference for Indians who live on or near a reservation.
New subsection (1) provides that this title. does not require preferential treatment be given any individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed, in comparison with the total number or percentage of such persons in that or any other area.
Equal Employment Opportunity Commission
Section 706 (renumbered 705): This section deals with the creation and operation of the Equal Employment Opportunity Commission.
(e) This subsection contains a technical revision to state the compensation of the
Commission members in terms of the Federal Executive Pay Act of 1956.
(f) This subsection is revised to provide specifically that the Commission may establish State offices as well as regional offices, and that its principal office may be either in or near the District of Columbia.
(g) Clause (1) of this subsection is amended to expressly require the consent of State or local agencies before they can be utilized by the Commission. Clause (4) of this subsection is revised to limit the remedial action which the Commission may take to the remedial action provided by this title and to extend the provisions of the clause to labor organizations. Clause (5) is amended to make the results of studies made by the Commission available to the public instead of only to governmental and nongovernmental agencies. Clause (6) is new and provides that the Commission can make recommendations to the Attorney General with respect to intervention in a civil action brought by an aggrieved party under section 706 or for the institution of a civil action brought by the Attorney General under section 707, and advise, consult, and assist the Attorney General on such matters.
Prevention of unlawful employment practices
Section 707 (renumbered 706): This section provides for the bringing and processing of the charge of an unlawful employment practice before the Commission.
(a) This subsection is amended to provide that the charge can be brought only by the person claiming to be aggrieved or by a member of the Commission. The authority to bring a charge "on behalf of" a person claiming to be aggrieved is deleted. A provision is added that the charge shall not be made public by the Commission. A technical amendment is made changing "act" to "title."
The provision that two members of the five-man Commission may make a determination is stricken, leaving the required number of members to be determined by the customary rules of agency organization. The provision for obtaining a written agreement describing practices which the respondent agrees to refrain from committing is deleted. The general power of the Commission to obtain conciliation agreements remains, how
A requirement is added that nothing said or done during the conciliation endeavors may be made public by the Commission without consent of the parties. A criminal penalty is also added to apply to any officer or employee of the Commission who makes public any matter in violation of this subsection.
(b) and (c) These subsections providing for conciliation and court enforcement 90 days after the Commission has determined that voluntary compliance cannot be obtained, and permitting the person aggrieved to bring a civil action in court with the permission of one member of the Commission if the Commission has failed to bring a court action, are substantially modified and are replaced by new subparagraphs (b), (c), (d), and (e) to take into account the many States which have State or local FEP laws.
New subsection (b) provides that where there is such a State or local law, no charge may be filed with the Commission by the person aggrieved until 60 days (120 days during the first year after the effective date of a new State or local law) after proceedings have been commenced under the State or local law. If any requirement for the commencement of such proceedings is imposed other than the filing of a written and signed statement of facts on which the proceeding is based, the 60 days shall begin to run from the time such a statement is sent by registered mail to the appropriate State or local authorities.
New subsection (c) provides that if the charge filed by a member of the Commission instead of by the person aggrieved, and there is a State or local law prohibiting the practice alleged and providing a remedy, the Commission shall not take any action with respect to the charge before notifying the appropriate State or local officials and, upon their request, affording them a reasonable time, but not less than 60 days (120 days during the first year after the effective date of a new State or local law), to remedy the practice alleged.
New subsection (d) requires that a charge must be filled with the Commission within 90 days after the alleged unlawful employment practice occurred, except that if the person aggrieved follows State or local procedures in subsection (b), he may file the charge within 210 days after the alleged practice occurred or within 30 days after receiving notice that the State or local proceedings have been terminated, whichever is earlier. The additional 120 days is to allow him to pursue his remedy by State or local proceedings. The Commission is required to send a copy of any charge filed with it to the State or local agency.
New subsection (e) provides that if the Commission has not been able to secure voluntary compliance within 30 days (which my be extended by the Commission to 60 days if the extension is warranted) after the charge is filed with it, the Commission shall notify the person aggrieved who is then free to bring a civil action in court. Any person named in a charge filed by a member of the Commission is also given the right to bring such a civil action. There is a provision for the court to appoint an attorney for the complainant and to authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application the court may permit the Attorney General to intervene in the civil action, and, upon request, the court may stay proceedings in the civil action for not more than 60 days pending termination of State or local proceedings or the efforts of the Federal Commission to obtain voluntary compliance.
(d) (relettered (f)): This subsection provides for jurisdiction of such civil actions in the U.S. district courts. The provision for venue either in the district in which the practice is alleged to have been committed or in the district in which the respondent has his principal office is modified to again the action to be brought in the district in which the practice was alleged to have been
committed, or in which the employment records are maintained and administered, or in which the plaintiff would have worked, provided that if the respondent cannot be served in any such district, the action can be brought in the district in which the respondent has his principal office. A provision has been added making the judicial district in which the respondent has his principal office available both in case of a change of venue for the convenience of parties and witnesses under section 1404 of the Judicial Code, and for dismissal or transfer under section 1406 of the code of a case brought in the wrong district. The provision tolling the statute of limitations for the filing of a charge during military service has been deleted.
(a) (relettered (g)): This subsection dealing with the decision of the court has been modified to require that the court find the respondent has intentionally engaged in the alleged practice as a condition for the granting of relief. The mandatory requirement for affirmative action, including reinstatement and backpay, upon a finding of a violation has been revised to read "may • order such affirmative action as may be appropriate, which may include reinstatement and backpay." Two technical amenaments (the inclusion of sex and a reference to section 704(e)) were made to conform this section to other provisions.
(f) This subsection relating to the use of masters in such civil actions has been deleted, leaving the provisions of the Federal Rules of Civil Procedure governing the use of masters as controlling.
(g) This subsection is relettered (h).
(h) This paragraph, which originally provided only that the Commission was liable for costs the same as a private person, has been relettered (k) and expanded to permit the court to award the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs and make both the Commission and the United States liable for costs.
New subsection (1) provides that the Commission may commence proceedings for contempt where there has been a violation of an order issued by the court in a civil action brought by the aggrieved party.
New subsection (1) provides expressly for the regular order of appeal from the district court actions in such cases.
New section 707(a) and (b): This is a new section establishing a cause of action based on a pattern or practice of resistance to the full enjoyment of any of the rights secured by this title, provided that the pattern or practice is of such a nature and is intended to deny the full exercise of those rights. This action can be brought only by the Attorney General who must have reasonable cause to believe that the pattern or practice exists, and is of the nature and is intended to deny the exercise of those rights. He, or in his absence the Acting Attorney General, must sign the complaint which must set forth facts pertaining to such pattern or practice and request such relief, including injunctive relief against the person or persons responsible for the pattern or prac
tice of resistance, as the Attorney General deems necessary to insure the full enjoyment of the rights described. As in title II, the Attorney General may request that such an action be heard and determined by a three-judge court if he certifies that the case is of general public importance. The procedures for the invoking of such a court and its operation are the same as provided in title II.
Effect on Sate laws
Section 708: Subsection (b) which provides for the ceding of Federal jurisdiction is deleted because it has been replaced by the new provisions of section 706 which provide that where there is a State or local law prohibiting the alleged unlawful employment practice, the State or local authorities are given exclusive jurisdiction for a limited period of time.
Investigations, inspections, records, State agencies
(a) This subsection, which permits the Commission to examine and copy any evidence of a person being investigated that relates to any matter under investigation or in question, has been limited to the examination and copying of evidence which relates to unlawful employment practices covered by the title and is relevant to the charge under investigation.
(b) This subsection which provided that the Commission may utilize the services of State or local agencies and their employees on a reimbursable basis has been revised to provide that the Commission may cooperate with State and local agencies as well as utilizing the services of such agencies and employees on a reimbursable basis. A provision also has been added that the Commission may enter into agreements with such State or local agencies that it will refrain from processing a charge in any case or class of cases specified in such agreements. Such agreements may also provide that civil actions may not be brought under this title in the Federal courts and that persons or classes of persons may be relieved from the recordkeeping and other requirements of this section.
(c) This subsection requires the keeping of records and making of reports. It is retained unchanged except as it is superseded by new subsection (d).
New subsection (d) provides that the recordkeeping and reporting requirements of subsection (c) shall not apply to persons subject to a State or local fair employment practices law except that the Commission may require such notations on records as are necessary because of differences in coverage or methods of enforcement between State or local law and this bill. It also exempts employers who are subject to and in compliance with the requirements of Executive Order No. 10925 or a similar order prescribing fair employment practices for Government contractors.
New subsection (e) provides a penalty for any officer or employee of the Commission if he makes public any information obtained pursuant to authority under this section.
Section 710: The investigatory powers provided in section 710 as passed by the House would give the Commission the power to require by subpena the attendance and testimony of witnesses and the production of all documentary evidence relating to any matter under investigation. These subpenas could be signed by the Commission and the attendance of witnesses and the production of documentary evidence could be required anywhere in a State. In the case of disobedience to a subpena, the Commission could invoke the aid of any court of the United States and the court could order any person to appear and give evidence or produce documentary evidence. The Commission could also compel any person to appear and give his deposition and produce documentary evidence at the deposition. No person would be excused from attending and testifying or producing documentary evidence on the ground that the testimony or evidence, documentary or otherwise, which was required of him may tend to incriminate him or subject him to a penalty or a forfeiture. However, if he claimed his privilege against self-incrimination, he could not be prosecuted or subjected to any penalty or forfeiture on account of his testimony except that he would not be exempt from prosecution and punishment for perjury in so testifying. Any person who neglected or refused to testify or furnish documents could be punished by a fine of not less than $1,000 and not more than $5,000 or by imprisonment for not more than 1 year, or both. Any person who made any false entries in any records or neglected or failed to make entries in records or refused to submit to the Commission any evidence within his control could also be fined not less than $1,000 and not more than $5,000 or imprisoned for a term of not more than 3 years, or both. Any failure to file any report required by the Commission would subject a corporation to a fine of $100 for each and every day of a continuance of such failure. All these provisions are stricken and a revised section substituted.
The revised section 710 provides that the Commission shall have the authority to examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation by making a demand to examine or copy the evidence. If any person fails to comply with the demand the Commission may apply to the district court for an order requiring compliance. A person has 20 days after service upon him of the demand for the production of documentary evidence or testimony to file with the court a petition to modify or set aside the demand and he may not thereafter raise any other objections in a proceeding by the Commission to enforce that demand unless the court determines that he could not reasonably have been aware of the availability of the new grounds for objection.
Notices to be posted
Section 711: This section requires employers, employment agencies, and labor organi
zations to post upon their bulletin boards excerpts from this title. The provision requiring the posting of "such other relevant information which the Commission deems appropriate" was deleted and a provision providing for the posting of summaries of pertinent provisions of the title and information pertinent to the filing of a complaint is substituted for it. The fine of not less than $100 or more than $500 for each separate offense is reduced to a fine of not more than $100 for each separate offense.
Appropriations and severability clause
Sections 715 and 716: These sections dealing with the authorization of appropriations and the separability clause were deleted because they are repeated in title XI containing miscellaneous provisions applicable to all titles.
Study by the Department of Labor Section 717 (renumbered 715): This section provides for a study of the factors which might tend to result in discrimination in employment because of age and was retained except that the final date for the report was changed from June 30, 1964, to June 30, 1965.
Section 718 (renumbered 716): This section dealing with the effective date was retained intact except for technical changes in section numbers.
TITLE VIII. REGISTRATION AND VOTING STATISTICS
Section 801: New language added to this section makes applicable certain sections of the United States Code pertaining to census information required to be kept confidential. Additionally it provides that no person may be compelled to disclose his race, color, national origin, political party affiliation, how he voted or the reasons therefor. It is further provided that every person interrogated concerning this information shall be fully advised of his right to decline to furnish such information.
TITLE IX. INTERVENTION AND PROCEDURE AFTER REMOVAL IN CIVIL RIGHTS CASES
Section 902: This section has been added to title IX and is similar to section 302, deleted from title III. It authorizes intervention by the Attorney General, if he certifies the case is of general public importance, in actions commenced in any court of the United States seeking relief from denial or equal protection of laws under the 14th amendment to the Constitution on account of race, color, religion, or national origin.
TITLE XI. MISCELLANEOUS
Section 1101(a): This section provides that in cases of criminal contempt arising under this act, the accused shall, if convicted, be fined or imprisoned or both.
Where the accused is a natural person the fine shall not exceed $1,000 nor shall imprisonment exceed 6 months. The accused may be tried with or without a jury, however, if he is convicted without a jury the aggregate fine shall not exceed $300 nor shall cumulative imprisonment exceed 30 days.
If trial is by jury, the procedure shall co form to other criminal cases.
(b) That section of the Civil Rights Act of 1957 dealing with contempt penalties is amended to conform to these provisions.
Sections 1102, 1103, and 1104 are renumbered and are unchanged.
Section 1105: This section provides that if any provision of the act or the application
thereof to any person or circumstances is held invalid, the remainder of the act and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby. The words "not similarly situated" and "to other" have been added for precision and to reduce the possibility of a multiplicity of law suits under these provisions.