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commerce who have 25 or more employees, and labor organizations with 25 or more members. This coverage will not be reached until 4 years after the enactment of the title. During the first year after enactment the prohibitions of the title are not in effect. During the second year the title will cover employers and labor organizations with 100 or more employees or members, during the third year employers and labor organizations with 75 or more employees or members, and during the fourth year employers and labor organizations with 50 or more employees or members. 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 governmental 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 employ-. ment 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 employment 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 bill would also permit an employer to discriminate against an individual because of the individual's atheistic practices and beliefs. While this provision appears to us of doubtful constitutionality, it is clearly severable from the rest of the title (sec. 716), and if it is held invalid, it would not affect the broad obligation not to discriminate on religious grounds.
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 descrimination 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 in 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 oc
cupational 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.
An enforcement proceeding under title VII is initiated by the filing with the Commission of a written charge under oath by or on behalf of the person claiming to be aggrieved. A charge may also be filed by a member of the Commission where he has reasonable cause to believe that a violation of the title has occurred: Upon receipt of the charge the Commission will furnish a copy to the person accused of an unlawful employment practice and will proceed to investigate the charge. In the course of such an investigation, Commission representatives would presumably employ their investigatory authority under sections 709 and 710 in interviewing witnesses and examining records and other documents. Obviously, the Commission and its representatives must have considerable discretionary authority to determine how extensive an investigation is warranted under the circumstances of any case.
When the investigation is completed, a preliminary determination must be made as to whether there is reasonable cause to believe that an unlawful employment practice has occurred. If two or more members so determine, the Commission will endeavor to obtain compliance through voluntary methods of persuasion and conciliation. If at this stage two or more members do not conclude that such reasonable cause exists, the charge will be dropped. It should be noted that Commission procedures are intended to be flexible, and it is not necessary for this preliminary determination that all five members of the Commission pass on the case.
The conciliation proceedings are voluntary, and the respondent is not required to participate. In seeking relief through voluntary methods, the Commission must consider both the interests of the complaining party and the public interest to be served, but the principal goal should be to insure future compliance with the title.
If the complaint cannot be resolved through voluntary means, the case must be referred to the full Commission for a determination whether on all the evidence available reasonable cause exists to believe that the respondent engaged in an unlawful employment practice and whether a sult should be brought to compel compliance. If a majority of the Commission determine that reasonable cause exists, ordinarily a suit will be brought in a Federal district court in the Judicial district in which the unlawful employment practice allegedly occurred or in the Judicial district in which the respondent has his principal office. However, the Commission members may, by an affirmative vote, decide not to bring suit in a given case. Such a decision might be based on any of several considerations, such as the fact the discrimination was an isolated occurrence or related to an insubstantial matter or the difficulty of proving a particular case.
If the Commission decides not to sue, or if at any earlier stage it terminates the proceeding for any reason, the party allegedly discriminated against may, with the written permission of one member of the Commission, bring his own suit in Federal court. If he does so, he would conduct the litigation and bear his own costs, just like any other private plaintiff in a civil action.
The sult, whether brought by the Commission or by the private party, would have to be based on an unlawful employment practice occurring within 6 months prior to the filing of the charge with the Commission. (This 6-month period is tolled while the person aggrieved is in military service.) This limitation will avoid the pressing of stale claims.
Once a majority of the Commission has determined that reasonable cause exists, the Commission must bring suit within 90 days or determine not to bring suit.
The suit against the respondent, whether brought by the Commission or by the complaining party, would proceed in the usual manner for litigation in the Federal courts. It would be a trial de novo and not, in any sense, a suit for judicial review of a Commission determination. In fact, the Commission never makes any determination that respondent committed an unlawful employment practice; it merely ascertains whether or not there is reasonable cause to believe that he did.) The respondent, now the defendant, would have a full opportunity to make his defense, and the plaintiff, as in any civil case, would have the burden of proving that discrimination had occurred. The suit would ordinarily be heard by the Judge sitting without a jury in accordance with the customary practice for suits for injunctive relief.
The relief sought in such a suit would be an injunction against future acts or practices of discrimination, but the court could order appropriate affirmative relief, such as hiring or reinstatement of employees and the payment of back pay. This relief is similar to that available under the National Labor Relations Act in connection with unfair labor practices, 29 United States Code 160(b). No court order can require hiring, reinstatement, admission to membership, or payment of back pay for anyone who was not discriminated against in violation of this title. This is stated expressly in the last sentence of section 707 (e) which makes clear what is implicit throughout the whole title: that employers may hire and fire, promote and refuse to promote for any reason, good or bad, provided only that individuals may not be discriminated against becaus of race, color, religion, sex, or national origin.
If a defendant refuses to obey a court order issued under title VII, he would be subject to punishment for contempt of court. There is no special provision in title VII dealing with contempt of court proceedings, and the ordinary rules apply. A jury trial would not be available in a proceeding for civil contempt, and would be available in a proceeding for criminal contempt only if the original suit were brought by the aggrieved party rather than by the Commission and if the act complained of also constituted a crime under State or Federal law, 18 United States Code 3691.
Title VII specifically provides for the continued effectiveness of State and local laws and procedures for dealing with discrimination in employment. Where State remedies are available, an aggrieved person would always be free to take advantage of them. Furthermore, the Commission is authorized to cooperate with State and local agencies, and where it concludes that such agencies are effectively handling any class of cases, the Commission is directed by section 708(b) to enter into agreements with these agencies whereby such cases would be handled exclusively by the State agencies.
It has been suggested that this direction to the Commission is not enough, that there should be some provision automatically providing for exclusive State jurisdiction where adequate State remedies for discrimination in employment exist. Such a proposal is unworkable. Congress cannot
determine nor can we devise a formula for determining which State laws and procedures are adequate. The State fair employment practices laws differ in coverage. They differ in enforcement machinery. Several have been enacted within the past 2 or 3 years, and it would be impossible to judge their effectiveness. Other States may adopt such laws after this bill is passed, and it obviously would be impossible to predict what standards and procedures such future State laws would provide. An antidiscrimination law cannot be evaluated simply by an examina
tion of its provisions, "for the letter killeth, but the spirit giveth life." The Commission must have authority to determine in which States and in which classes of cases it will refrain from exercising its jurisdiction.
In point of fact, the task we are assigning to the Commission is so immense, there can be little doubt that the Commission will from sheer necessity avail itself to the fullest of the provisions of section 708(b).
Objection has been raised to title VII on the ground that with nondiscrimination laws in effect in 28 States, including all the major industrial States, there is little need for a Federal law. This is not a valid objection, first, because the State laws have experienced difficulty in dealing with large, multiphased operations of business in interstate commerce. Third, and most important, 22 States do not have general legislation in this area, among them States with large Negro populations. Indeed, roughly 60 percent of American Negroes live in States with no legislation against discrimination in employment, and these are precisely the people who need this protection the most. In the hearings that have been held by Senate and House committees on equal employment opportunity legislation, testimony was heard from representatives of several agencies administering State FEP laws, and all agreed that there was a definite need for Federal legislation.
INVESTIGATION, INSPECTIONS, RECORDS
The investigatory duties and powers of the Equal Employment Commission are set out in sections 709 and 710. Section 710, in turn, incorporates by reference the provisions of sections 9 and 10 of the Federal Trade Commission Act, 15 USC. 49, 50, in support of the Commission's investigatory powers.
Section 709 (a) provides that in connection with any investigation of a charge filed under section 707, the Commission or its representatives shall at all reasonable times have access, for the purposes of examination and copying, to any evidence in the possession of a person being investigated that relates to the subject of the investigation, The language of this subsection was amended in the House to bring it into line with the provisions of the Federal Trade Commission Act incorporated by reference. It is important to note that the Commission's power to conduct an investigation can be exercised only after a specific charge has been filed in writing. In this respect the Commission's investigatory power is significantly narrower than that of the Federal Trade Commission, 15 USC. 43, 46, or of the Wage and Hour Administrator, 29 U.S.C. 211, who are authorized to conduct investigations, inspect records, and issue subpenas, whether or not there has been any complaint of wrongdoing. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); Hunt Foods and Industries, Inc., v. Federal Trade Commission, 286 F. 2d 803, 806-807 (C.A. 9, 1961), cert. denied, 356 U.S. 877 (1961).
Section 709 (c) authorizes the Commission to require employers, employment agencies, and labor organizations subject to the title to make and keep records, and to make reports therefrom to the Commission. Records are also to be required in connection with the administration of apprenticeship and other training programs. Fears have been expressed that these recordkeeping and reporting requirements may prove unreasonable and onerous.
Requirements for the keeping of records are a customary and necessary part of a regulatory statute. They are particularly essential in title VII because whether or not a certain action is discriminatory will turn on the motives of the respondent, which will usually be best evidenced by his pattern of conduct on similar occasions. The provisions of section 709 (c) have been carefully drawn to prevent the imposition of unreasonable burdens on business and there are more than the customary safeguards against arbitrary action by the Commission.
The requirements to be imposed by the Commission under section 709 (c) must be "reasonable, necessary, or appropriate" for the enforcement of the title. Such requirements cannot be adopted without a public hearing at which the persons to be affected would have an opportunity to make their views known to the Commission. Most of the persons covered by the title are already required by law or by practical necessity to keep records similar to those which will be required under this title. The Wage and Hour Administrator imposes recordkeeping requirements on employers subject to the Fair Labor Standards Act with respect to the persons employed and wages, hours, and other conditions and practices of employment (29 U.S.C. 211(c)). Other employment records must be kept for Federal tax purposes (26 U.S.C. 6001), and for normal business purposes. Labor organizations are required to maintain certain records under the Labor-Management Reporting and Disclosure Act (29 U.S.C. 431, 436). Any recordkeeping requirements imposed by the Commission could be worked into existing requirements and practices so as to result in a minimum additional burden. Furthermore, the Federal Reports Act of 1942, 5 United States Code 139-139f. gives the D1rector of the Bureau of the Budget authority to coordinate the information-gathering activities of Federal agencies, and he can refuse to approve a general recordkeeping or reporting requirement which is too onerous or poorly coordinated with other requirements.
Finally, there is express provision in section 709 (c) for an application either to the Commission or directly to the courts for appropriate relief from any recordkeeping or reporting requirements which would impose an undue hardship. We know of no other statute which provides such comprehensive safeguards around an authorization to require the keeping of records.
GRANTS OF IMMUNITY
Section 710 incorporates by reference in support of the investigatory powers of the Equal Employment Opportunity Commission the provisions of sections 9 and 10 of the Federal Trade Commission Act, as amended (15 U.S.C. 49, 50), except that the provisions of section 307 of the Federal Power Commission Act (more properly cited as the Federal Power Act, 16 U.S.C. 791a) (16 U.S.C. 825f), shall apply with respect to grants of immunity. A question has been raised as to the purpose of this exception.
Section 9 of the Federal Trade Commission Act provides, in part:
"No person shall be excused from attending and testifying • • before the commission for the reason that the testimony or evidence, documentary, or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. But no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any • matter. .. concerning which he may testify, or produce evidence • ⚫ before the commission in obedience to a subpena issued by it."
This language has been held to grant immunity to a witness testifying in obedience to a subpena even though the witness does not claim the benefit of the privilege against self-incrimination. See United States v. Pardue, 294 F. 543 (S.D. Texas, 1923); United States v. Frontier Asthma Co., 69 F. Supp. 994 (W.D. N.Y., 1947); see United States v. Monia, 317 U.S. 424 (1954). In such a situation an interrogator is not placed on notice that a given line of inquiry will result in a grant of immunity to the witness.
Consequently, since the enactment of the Securities Act of 1933, it has been the usual practice for Congress, in drafting an immunity provision, to require that a witness does not obtain immunity unless he is compelled to answer after having claimed his privilege against self-incrimination. The assertion of the privilege affords the interrogator an opportunity to decide whether or not to persist with his questioning and grant immunity thereby. Section 307 of the Federal Power Act is typical of such provisions. It states:
"No person shall be excused from attending and testifying or from producing records and documents before the Commission ・・・ on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled to testify or produce evidence, documentary or otherwise, after having claimed his privilege against self-incrimination."
Provisions substantially identical to section 307 may be found in the Securities Exchange Act of 1934, 15 United States Code 78u, the Public Utility Holding Company
Act of 1935, 15 United States Code 79r, and the National Labor Relations Act, 29 United States Code 161.
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, Feb. 8, 1964, pp. 2574-2575.)
The President is directed by section 718(c) of the bill to convene one or more conferences of Government representatives and 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.