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"(3) to furnish to persons subject to this title such technical assistance as they may request to further their compliance with this title or an order issued thereunder;
"(4) upon the request of (1) any employer, whose employees or some of them, or (11) any labor organization, whose members or some of them, refuse or threaten to refuse to cooperate in effectuating the provisions of this title, to assist in such effectuation by conciliation or such other remedial action as is provided by this title;
"(5) to make such technical studies as are appropriate to effectuate the purposes and policies of this title and to make the results of such studies available to interested governmental and nongovernmental agencies.
"(h) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court.
"(i) The Commission shall, in any of its educational or promotional activities, cooperate with other departments and agencies in the performance of such educational and promotional activities.
"Prevention of unlawful employment
"SEC. 707. (a) (1) Whenever it is charged in writing under oath by or on behalf of a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this Act has occurred (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization (hereinafter referred to as the 'respondent') with a copy of such charge and shall make an investigation of such charge. If two or more members of the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such unlawful employment practice by informal methods of conference, conciliation, and persuasion and, if appropriate, to obtain from the respondent a written agreement describing particular practices which the respondent agrees to refrain from committing. Nothing said or done during and as a part of such endeavors may be used as evidence in a subsequent proceeding.
"(2) If within ninety days following the filing of a charge under paragraph (1) the Commission has falled to effect the elimination of an unlawful employment practice and to obtain voluntary compliance with this title, the Commission shall determine whether there is reasonable cause to believe the respondent has engaged in, or is engaging in, an unlawful employment practice and, if it so finds, shall, within ninety days, bring a civil action to prevent the respondent from engaging in such unlawful employment practice, except that the Commission shall be relieved of any obligation to bring an action
in any case in which the Commission has, by affirmative vote, determined, that the bringing of such action would not serve the public interest.
"(3) If the Commission has failed or declined to bring an action within the time required under paragraph (2), the person claiming to be aggrieved may, if one member of the Commission gives permission in writing, bring an action to obtain relief as provided in paragraph (5).
"(4) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have and shall exercise jurisdiction of actions brought under this subsection. Such actions may be brought either in the judicial district in which the unlawful employment practice is alleged to have been committed or in the Judicial district in which the respondent has his principal office. No such action under this subsection shall be based on an unlawful employment practice occurring more than six months prior to the filing of the charge with the Commission and the giving of notice thereof to the respondent, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the Armed Forces, in which event a period of military service shall not be included in computing the six-month period.
"(5) If in any action under this subsection the court finds that the respondent has engaged in or is engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and shall order the respondent to take such affirmative action, including reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), as may be appropriate. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin.
"(6) In any action under this subsection in which the pleadings present issues of fact, the court may appoint a master and the order of reference may require the master to submit with his report a recommended order. The master shall be compensated by the United States at a rate to be fixed by the court, and shall be reimbursed by the United States for necessary expenses incurred in performing his duties under this subsection. Any court before which an action is brought under this subsection shall advance such pro
ceeding on the docket and expedite its dis- pertaining to such pattern or practice, and position.
"(b) (1) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this title, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts
(3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for of (1) the members of the President's Committee on Equal Employment Opportunity, (2) the members of the Commission on Civil Rights, (3) representatives of State and local agencies engaged in furthering equal employment opportunity, (4) representatives of private agencies engaged in furthering equal employment opportunity, and (5) representatives of employers, labor organizations, and employment agencies who will be subject to this title."
Interpretative Memorandum on Title VII
EDITORS' NOTE: On April 8, 1964, Senators Clark (D., Pa.) and Case (R., N. J.) introduced into the Congressional Record an interpretative memorandum on Title VII of the House-approved H. R. 7152, for which they were floor managers in the Senate. The text of the memorandum, with portions dealing with provisions later changed in the Senate substitute deleted, follows.
Title VII covers discriminatory practices by employers engaged in industries affecting commerce, as defined in the title, by employment agencies which procure employees for such employers, and by labor organizations in industries affecting commerce. "Commerce❞ is, generally speaking, interstate commerce, but includes commerce within U.S. possessions and the District of Columbia. It is, in short, that commerce to which the regulatory power of Congress extends under the Constitution, a familiar concept which has been employed in other Federal statutes. The term "affecting commerce" is also familiar, since this is the standard of coverage employed in the National Labor Relations Act, 29 United States Code 152(6), (7), and the Labor-Management Reporting and Disclosure Act of 1959, 29 United States Code 402 (c).
Employers and labor organizations are not · covered, however, if their employees or membership fall below certain minimum figures.
An employer or labor organization is covered while its employment or membership is above the applicable minimum figure and ceases to be covered when employment or membership drops below the applicable minimum. This means that where employment fluctuates, an employer may be under a duty to avoid discriminating at some times but not at others. Since the principal purpose of the commission's processing complaints is to obtain future compliance, it may be assumed that in the case of an employer who is intermittently subject to the title the commission would seek compliance only where there was a prospect for meaningful relief.
There are specific exemptions for the Federal Government and for any State or political subdivision thereof, including gov
ernmental agencies,, such as civil service commissions establishing standards and conditions for employment, promotion, and retirement but excluding the U.S. employment services and those State and local employment services which receive Federal assistance. There are also exemptions for tax exempt, bona fide private membership clubs, religious corporations, associations and societies, and for employers with respect to the employment of aliens abroad.
Sections 704 and 705 defined the employment practices prohibited by the title. It would be an unlawful employment practice for an employer to refuse to hire or to discharge any individual or otherwise to discriminate against him with respect to compensation or terms or conditions of emplayment because of such individual's race, color, religion, sex, or national origin, or to segregate or classify employees in any way on the basis of race, color, religion, sex, or national origin in such a way as to deprive them of employment opportunities or otherwise affect adversely their employment status. Employment agencies would be forbidden to classify, to refer for employment or to refuse to refer for employment, or otherwise to discriminate against any individual because of race, color, religion, sex. or national origin. Labor organizations would be forbidden to deny membership to any individual on the basis of his race, color, religion, sex, or national origin, or to segregate or classify its membership in any way which would deprive any individual of employment opportunities or adversely affect his status as an employee or an applicant for employment on the basis of that individual's race, color, religion, sex, or national origin. In addition, labor organizations would be forbidden to cause or to attempt to cause an employer to violate the section. Finally, it would be an unlawful employment practice for employers, labor organizations, or joint labor-management committees controlling apprenticeship or other training programs to discriminate against any individual in connection with admission to apprenticeship or other training on the basis of that individual's race, color, religion, sex, or national origin.
Those are the basic prohibitions of the title, but section 704 creates certain limited exceptions from these prohibitions. First, it would not be an unlawful employment practice to hire or employ employees of a particular religion, sex, or national origin in those situations where religion, sex, or national origin is a bona fide occupational qualification for the job. This exception must not be confused with the right which all employers would have to hire and fire on the basis of general qualifications for the job, such as skill or intelligence. This exception is a limited right to discriminate on the basis of religion, sex, or national origin where the reason for the discrimination is a bona fide occupational qualification. Examples of such legitimate discrimination would be the preference of a French restaurant for a French cook, the preference of a professional baseball team for male players, and the preference of a business which seeks the patronage of members of particular religious groups for a salesman of that religion. A second exception would permit religiously affiliated educational institutions to discriminate in employment on grounds of religion.
The House also provided an exception (sec. 704(g)) for actions taken with respect to an individual who is a member of the Communist Party or another Communist organization. Since discrimination on the basis of political beliefs or affiliations is not prohibited by the title, this subsection has no substantive effect.
With the exception noted above, therefore, section 704 prohibits discrimination in employment because of race, color, religion, sex, or national origin. It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by section 704 are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin Any other criterion or qualification for employment is not affected by this title.
There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. It must be emphasized that discrimination is prohibited as to any individual. While the presence or absence of other members of the same minority group in the work force may be a relevant factor in determining whether in a given case a decision to hire or to refuse to hire was based on race, color, etc., it is only one factor, and the question is each case would
be whether that individual was discriminated against.
There is no requirement in title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance.
Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged or indeed, permitted-to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier. (However, where waiting lists for employment or training are, prior to the effective date of the title, maintained on a discriminatory basis, the use of such lists after the title takes effect may be held an unlawful subterfuge to accomplish discrimination.)
In addition to the discrimination forbidden by section 704, there are ancillary prohibitions in section 705. Section 705(a) prohibits discrimination by an employer or labor organization against persons for opposing discriminatory practices, and for bringing charges before the commission or otherwise participating in proceedings under the title. Section 705(b) prohibits discriminatory advertising by employers, employment agencies and labor organizations. There is an appropriate exception where the discrimination is based on a bona fide occupational qualification. It should be noted that the prohibition does not extend to the newspaper or other publication printing the advertisement. It runs solely to the sponsoring firm or organization.
ORGANIZATION OF THE COMMISSION
Section 706 creates an Equal Employment Opportunity Commission of five members, appointed by the President with the advice and the consent of the Senate for staggered 5-year terms. Not more than three members of the Commission shall be members of the same political party.
The Commission will have power to cooperate with and utilize regional, State, and other agencies, both public and private, and individuals. It will also be authorized to furnish technical assistance to persons subject to the title who request it to further their compliance therewith and to furnish conciliation services at the request of an employer whose employees refuse to cooperate in effectuating the provisions of the title. The Commission may also make appropriate technical studies. It may appoint
attorneys to appear for and represent the commission in court. It shall in its educational or promotional activities cooperate with other departments and agencies.
Title VII does not make it a criminal offense to commit an unlawful employment practice. The only remedy is a civil action. However, if a person who is under a court order not to discriminate should persist in doing so, he would be subject to normal judicial procedings for contempt of court, which have already been described.
The only new offense created by title VII is willful failure to post notices as required by section 711, which would be punishable by a fine up to $500.
However, certain existing criminal statutes are made applicable to the activities of the Equal Employment Opportunity Commission. Thus, 18 United States Code 111, which makes it a crime forcibly to assault, resist, impede, or interfere with certain Federal officers in the performance of their duty is by section 714 of the bill made applicable to officers, agents, and employees of the Commission.
Section 10, as applied to title VII, would also penalize unauthorized disclosure of information by an officer or employee of the Commission.
The President's Committee on Equal Employment Opportunity was created by Executive Order 10925, March 6, 1961, and its authority was extended by Executive Order 11114, June 22, 1963. It presently supervises the administration of an equal employment opportunity program with respect to employment by the Federal Government, by contractors and subcontractors on contracts with the Federal Government, and by contractors and subcontractors on construction financed with Federal financial assistance. Title VII, in its present form, has no effect on the responsibilities of the committee or on the authority possessed by the President or Federal agencies under existing law to deal with racial discrimination in the areas of Federal Government employment and Federal contracts. (See CONGRESSIONAL RECORD, February 8, 1964, p. 2482 (daily - ed.)).
The President is directed by section 718 (c) of the bill to convene one or more conferences of Government representatives ‘ang representatives of groups whose members. would be affected by the provisions of title VII, to familiarize the latter with the provisions of the title and to make plans for the fair and effective administration of the title. The members of the President's Committee will participate in such conferences, and the scope of the continued and future responsibilities of the President's Committee would be an appropriate topic for consideration at that time.
Mr. CLARK. I conclude by saying that objection to the constitutionality of title VII can be nothing other than frivolous and not worthy of serious consideration.
I turn now to the provisions of the title.
The Senator from New Jersey [Mr. CASE], who will follow me, and I have had prepared an interpretive memorandum of title VII which we are jointly submitting to our colleagues in the Senate.
I ask unanimous consent that the memorandum may be printed in full at this point in my remarks.
There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:
INTERPRETATIVE MEMORANDUM OF TITLE VII or H.R. 7152 SUBMITTED JOINTLY BY SENATOR JOSEPH S. CLARK AND SENATOR CLIFFORD P. CASE, FLOOR MANAGERS
Title VII deals with discrimination in employment. It would make it an unlawful employment practice for employers of more than 25 persons, employment agencies, or labor organizations with more than 25 members to discriminate on account of race, color, religion, sex, or national origin in connection with employment, referral for employment, membership in labor organizations, or participation in apprenticeship or other training programs. An Equal Employment Opportunity Commission would be created to enforce the title through investigation of complaints of discrimination, conciliation of disputes, and where necessary, suits in Federal court to compel compliance with the provisions of the title.
Title VII covers discriminatory practices by employers engaged in industries affecting commerce, as defined in the title, by employment agencies which procure employees for such employers, and by labor organizations in industries affecting commerce. "Commerce" is, generally speaking, interstate commerce, but includes commerce within U.S. possessions and the District of Columbia. It is, in short, that commerce to which the regulatory power of Congress extends under the Constitution, a familiar concept which has been employed in other Federal statutes. The term "affecting commerce" 18 also familiar, sinee this is the standard of coverage employed in the National Labor Relations Act, 29 United States Code 152 (6), (7), and the Labor-Management Reporting and Disclosure Act of 1959, 29 United States Code 402 (c).
Employers and labor organizations are not covered, however, if their employees or membership fall below certain minimum figures. When title VII is fully effective it will cover employers engaged in industries affecting