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employees opportunities to work for an employer."
Original section 704 dealt with unlawful employment practices of labor organizations. The Dirksen-Mansfield substitute adds language to make it clear that it is an unlawful employment practice not only to limit, segregate or classify its membership on account of race, color, religion, sex, or national origin, but also to classify or fail or refuse to refer for employment any individual for such reasons.
Section 704(f) of the House bill permitted discrimination or unlawful employment practices against atheists. The Dirksen-Mansfield substitute eliminates this provision.
The Dirksen-Mansfield substitute adds a new subsection to section 704. Section 704(g) provides that it is not an unlawful employment practice to refuse to hire an individual because he does not meet security requirements imposed by law or Executive order.
Section 704 (h) expressly provides that application of different conditions of employment, including compensation, based on a bona fide seniority or merit system, a picce work system, or job location system, is not an unlawful employment practice so long as the differences do not result from an intention to discriminate because of race, color, religion, sex, or national origin.
Section 704 (j) expressly provides that the title is not to be interpreted to require anyone to give preferential treatment to any individual or group because of race, color, religion, sex, or national origin, or to correct a racial or religious, and so forth, imbalance between the number of persons of a particular race, and so forth, employed by an employer and the total number of persons of that race, religion, and so forth, living in a particular community, State, or other area.
added to subsection (g) which authorizes the Commission to refer matters to the Attorney General recommending intervention in a suit brought by an aggrieved individual under the amended provisions of section 707—renumbered 706-or institution of an action under the provisions of section 707-a new section added by the substitute. This authority was unnecessary under the House bill because the Commission was itself authorized to institute actions to enforce the title. The Dirksen-Mansfield substitute takes that authority away from the Commission, and gives it to the Attorney General.
Section 707, as added by the substitute, permits the Attorney General to bring a civil action if he has reasonable cause to believe there is a pattern or practice of resistance to title VII rights. The Attorney General may request that the action be heard and determined by a three-judge court.
Section 709(e), as added by the substitute, prohibits the Commission or its employees from making public any information obtained under this section prior to the institution of any proceeding involving it. Violation is punishable by a fine of not more than $1,000 and imprisonment for not more than a year. 1
Section 710 (b) of the substitute permits the Commission to seek court orders requiring the attendance of witnesses or the production of evidence or the filing of reports as required by 709 (c) or (d), but the attendance of a witness may not be required outside the State in which he found, resides, or transacts business, and the production of evidence may not be required outside the State where such evidence is kept.
Section 710(c) of the substitute allows an individual to seek a court order relieving him from a demand of the Commission to produce documentary evidence or permit the copying of evidence.
Section 710(d) of the substitute permits any defendant to petition the court for an order modifying or setting aside the demand of the Commission in any proceeding in which the Commission seeks a court order enforcing one of its demands.
Representatives Poff (R., Va.) and Cramer (R., Fla.) cited numerous changes in the bill made by the Senate and argued that the bill should have been sent to conference on that account.
MY. POFF. Mr. Speaker, two facts need to be understood.
First, the House has no parliamentary opportunity to amend the Senate bill. Neither can the amendments adopted by the Senate be acted upon individually. Under the rule, all of the Senate amendments must be voted up or down as a package, and if they are voted up, the bill as passed by the Senate goes straight to the President for his signature. This bill should have gone to conference.
Second, in the time allotted by the rule for House deliberation, there is less than 9 seconds for each of the 435 Members. It is difficult to find, count and read the 87 changes made by the Senate and almost impossible to evaluate their individual and collective effect in context with the countless statutes and court decisions involved. Parenthetically, it should be remembered that these 87 changes were made in a House bill which House civil rights leaders said could not and should not be amended at all, and none of these amendments have ever been afforded a committee hearing by either body of Congress.
Some of these 87 amendments may be good, some may be bad. Whether the net effect is good or bad, no two people can agree. Without attempting to make a complete inventory, here are some of the changes made by the Senate which I regard as bad:
First. In the House bill, the Attorney General was given no specific right to Intervene in lawsuits brought by individuals under title 11 - publle nccommodations-and title VII-FEPC. Under the Senate amendment he is empowered to do so.
Second. In the House bill, the Attorney General was not specifically authorized to institute suit in the name of the United States on behalf of an individual under the FEPC title, but he is granted that authority under the Senate amendment.
Third. In the public accommodations title of the House bill, the At
torney General was expected to attempt conciliation through local agencies before bringing a suit against the businessman; and under the FEPC title, the Commission was required to do the same. Under the Senate amendments, the Attorney General can bring suit under both titles immediately. All he has to do is to allege that a pattern or practice of discrimination exists and the court will grant a temporary injunction which may later be made permanent if the Attorney General later produces evidence of a pattern or practice.
Fourth. In addition to originating suit or intervening in an individual's suit under the public accommodations and FEPC titles, the Attorney General may, under the Senate bill, ask the court to appoint private counsel for the complainant and waive any costs assessable against a complainant.
Fifth. Under the FEPC title of the House bill, all covered employers were required to keep records concerning job applications, hiring, firing, promotions, working conditions, pay policies, and so forth, and to make periodic reports to the Commission. Under the Senate amendment, employers in States which have State FEPC laws are to all intents and purposes exempt from Federal recordkeeping.
Sixth. Under the FEPC title of the House bill, an employer was permitted to refuse to hire an atheist. The Senate deleted this clause.
Seventh. The House bill placed a limitation of $2.5 million the first year and $10 million the second year on appropriations for the FEPC title. The Senate struck out the limitation and left an open end authorization.
Tenth. The three-judge court provision was confined to title I-votingin the House bill, and the option was granted to the defendant as well as the Attorney General. The Senate bill writes this concept into title II-public accommodations-and title VII-FEPC-for the first time. However, in these two titles, only the Attorney General has the option to demand a three
judge court. The businessman charged with discrimination has no equivalent option.
This recitation is not intended to convey the impression that all of the changes made by the Senate are objectionable. Some, like the double jcopardy amendment and the jury trial amendment-so bitterly condemned during House debate-are salutary. However, welcome as it is, the jury trial amendment itself is defective in part. It applies only to titles II through VII.
In section 302 of title III of the House bill, the Attorney General was empowered in the name of the United States to intervene in all suits brought by individuals "seeking relief from the denial of equal protection of the laws on account of race," et cetera. For some obscure reason, the Senate bill lifts this section from title III and places it in title IX. This places it outside the boundary of the jury trial amendment's application. The list of suits based on the equal protection clause is too long to itemize, but according to the Attorney General himself, it might include such subjects as legislative apportionment, commitments to mental institutions, State criminal proceedings and censorship.
Mr. Speaker, I realize that nothing said in this brief interval by proponents or opponents will change a single vote. The roll could with the same result have been called as well before the debate as after. It is regrettable that this is so, because the issue here involved is not so simple as some have pretended. It involves more than a question of justice or injustice, and votes on the rollcall cannot and by fairminded men will not be called moral or immoral. Many who acknowledge equality under law as the soul of morality will with perfect consistency reject as immorality statutory infidelity to the supreme law of the land. And this bill, in several parts, is clearly unfaithful to the Constitution of the United States.
Mr. BROWN of Ohio. Mr. Speaker, I yield 31⁄2 minutes to the gentleman from Florida Mr. CRAMER 1.
Mr. CRAMER. Mr. Speaker, I, too, wish to spend this time discussing the principal subject matter before us, and that is should this rule accepting the Senate amendments and adopting the bill be passed or should this bill go to conference. That is the issue before the House now. There were some 90 changes made in the other body, many of which
were very substantial in nature. tainly there has been no bill before this House since I have been here, for 10 years, coming out of the Committee on the Judiciary, that has more effect on the basic constitutional property, business and personal rights of the individual in America than this one before us here today, which delegates to the Federal Government to a broader or greater extent new powers. Certainly a bill of this nature and magnitude and having this effect on the life of each and every one of us should properly go to conference rather than be considered for only one hour, under a gag rule, with no right to make changes in a situation where there are some 90 amendments to the bill.
If each Member of this body, with the time limit of 1 hour on this resolution, were given an equal opportunity to discuss the matter, cach would have 9 seconds on it. If cach Member were given an equal opportunity to discuss cach of the amendments, he would have ninetenths of a second to discuss each amendment. I say that this is a farce upon the proper and orderly legislative process particularly in consideration of a bill of this significance.
Why do I say that as it relates to what the other body did? I say that this bill is stronger than the bill that passed the House. I say that is true in many respects and in the very two areas where it was expected there would be some compromises made between this body and the other body, in the areas of accommodations and the FEPC. In fact, in many instances, in those two titles, this bill is stronger than the bill that left the House. It is my belief that the majority of the Members of this House felt that the bill that left the House was too strong, to say nothing of the bill that comes back from the other body.
Now, Mr. Speaker, what am I talking about? Let us look at the FEPC provisions. The appropirations were limited in the first year to $22 million and to $10 million in the second year. That has been deleted. There is unlimited authorization for expenditures in the Senate version of the bill.
In the Community Relations Services section, I introduced an amendment in the committee that limited the personnel of the Community Relations Service to six people. The House approved it. What was the reason for that? Because they did not want the Community Relations Services on a Federal level to take
over the proper functions of the community relations services which are now acting, I hope, effectively, for instance, in the city of St. Augustine. But instead now, when this bill becomes law, the Federal Community Relations Service is going to have unlimited personnel and it is going to take over the proper function of the local community relations services. And yet, as to the essential function, if this bill is going to be effective, if community relations are going to be favorable at all, it will be because the State and local communities are willing to accept this bill and to enter into agreements and to try to reach a better understanding with the Negro communities through local community relations services.
Mr. Speaker, what else am I talking about? This bill, as it comes from the other body, gives legislative sanctionsthe House refused to give legislative sanction-to the President's regulations with regard to all Federal employees. Now, I am going to repeat that. They wrote into the bill these legislative sanctions as they affect all Federal employees. The bill as it left the House excluded Federal employees. That is a very significant change.
Returning to title VII dealing with FEPC, the House did not give the Attorney General the right to bring an action, but the Senate amendments provide for such action, and without the censent of the aggrieved parties or party, without first referring the matter to the State or local authorities where State or local FEPC laws exist, and without a finding by the Commission that discrimination in fact exists.
Thus, the Attorney General is not subject to the heralded Senate amendments
in the FEPC section, in that he does not have to acknowledge State and local FEPC laws as does the Commission. Likewise the Attorney General can, on his own, determine that discrimination exists in labor practices on the part of the employer or the labor union.
Thus, the Senate claimed to take cognizance of State and local laws on one hand but wrote this concept right out of the bill again by permitting the Attorney General to ignore such laws.
The Attorney General, thus can also bring the action without consultation with or a finding by the FEPC beforehand.
The Attorney General can request a three-judge court be empaneled to process the case, thus permitting him to forum and judgeship, under the amended FEPC.
The Attorney General can bring an action and so can an individual without consultation with the FEPC. The House bill gave the Attorney General no right to bring such an action, and gave the individual such an action only if at least one of the Commissioners authorized it.
Under the amended FEPC provision, the court can provide attorneys fees, can provide an attorney, and can waive even filing fees and ordinary court costs required to be paid in every other type of litigation.
The Senate failed to rectify the crucial weakness in the FEPC of not requiring any type of a hearing before the Commission makes its findings of discrimination, affording the party complained against no opportunity to be heard on the matter.
EDITORS' NOTE: In the debate below, Senator Clark (D., Pa.) analyzed the Dirksen substitute, explained his reasons for accepting it, and answered the charge of Senator Ellender (D., La.) that the Dirksen substitute would make the bill a purely sectional one aimed at the Southern states. Senator Clark also placed in the record a comparative analysis of the bill passed by the House and the one reported by the Senate Labor Committee.
Mr. CLARK. I would now like to make some comments about title VII, as it is proposed to be changed from the House bill by the Dirksen substitute. The compromise set forth in the substitute bill constitutes a further softening of the enforcement provisions of title VII, although the new powers given to the Attorney General do compensate to some extent for its weakening.
After a good deal of careful thought, I have concluded that the weakening changes are not so great as to make it impossible to achieve the objectives of the title, although they certainly make it more difficult.
The changes I most deplore are, first, the subordination of Federal power to the localities and the States in connection with the enforcement of equal job opportunity. The amendment deprives the Federal Fair Employment Practices Commission of any legal authority to enforce orders through the Federal courts. Instead, the individual who complains that he has been denied equal job opportunity is relegated either to a proceeding in the first instance under a State statute, if a State has a fair employment practices statute, or, in the alternative, to a local ordinance, when, as is the case in many cities-Philadelphia and Pittsburgh among them-the local fair employment practices ordinance tends to be stronger than the State act.
The difficulty is that while there are perhaps 30 States and about 50 cities which have either State legislation or municipal ordinances covering the subject of fair employment practices, they are of a wide variety of effectiveness. Some of them, such as the one in New York and the ones in Philadelphia, Pittsburgh, and Pennsylvania, are quite effective. Others are no more than token laws or ordinances, containing nothing adequate in the way of enforcement
powers. So even in States and cities having fair employment practices legislation or ordinances, the individual who complains that he has been denied equal employment opportunity can have a pretty rough time of it.
It is true that eventually, after he has applied for relief under the State law or local ordinance, he can then turn to proceedings before the Federal Fair Employment Practices Commission. But this might take a considerable period of time, if local proceedings are strung out as they could be by an unsympathetic administration. In many a case I fear that the end result will be that justice delayed is justice denied, and the unfortunate individual would never get the job to which he was entitled because the whole employment situation could well have changed in the meantime.
There is another serious defect in these amendments in my view, and that is that the door is wide open for the adoption by other States and other cities of brandnew fair employment practices legislation or ordinances for which no standards are required by the Dirksen substitute.
To take a case, which in all likelihood will not occur, although it might, the city of Jackson, Miss., could pass a fair employment ordinance a month after the bill becomes law, and then no one in Jackson, Miss.. could invoke Federal authority as an individual to enforce his right to equal job opportunity, which the Federal statute as well as the 14th amendment and the commerce clause guarantee-until he had first applied for relief under the Jackson, Miss., ordinance.
Nor is there anything in the amendment to say what needs to go into the Jackson, Miss., ordinance. It could be a shadow ordinance with no adequate enforcement procedures. One would be reasonably certain that the administration of the ordinance would not be put into the hands of individuals friendly to the cause of fair and equal employment. Under the Dirksen substitute, 120 days must elapse during the first year in this situation before any proceedings can