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be initiated under the Federal law to assure equal job opportunity.
So there is implicit in the compromise an invitation to those areas, localities, and States where we know from the evidence which has been asse bled by the Civil Rights Commission, by the Attorney General, and by numerous other agencies, that there is no such thing as equal job opportunity. Those areas would be encouraged to adopt new ordinances or statutes which would in effect usurp Jurisdiction with respect to their own citizens, and as a practical matter prevent those citizens from obtaining the equal employment opportunity which is guaranteed them by the amendments to the Constitution and which is explicitly set forth in the bill which we hope to pass, including the explicit declarations in the Dirksen amendments.
So that what might be called the greater deference to the States and localities, and the consequent impediments to the Federal jurisdiction is, to my mind, one of the serious defects in the compromise bill.
Another major defect, in my judgment, is that the Dirksen amendments deprive the Federal Equal Employment Opportunity Commission of the power to initiate suits in the Federal district courts. This power was expressly granted by the House bill. It is taken away by the Dirksen amendments, so that, in effect, the Federal Fair Employment Practices Commission has had its teeth pulled. It can, once the leadtime for proceedings under the State law or local ordinances has expired, hear a complaint. It can determine that the complaint is justified. It can engage in investigations. It can attempt conciliation. But, there its power stops, and all it can do is to report its findings and conclusions to the Attorney General who, in his infinite wisdom, may or may not, in due course, bring proceedings to enforce the equal job opportunity denied the complainant.
This, to my way of thinking, is a serious defect in the changes made in the authority of the Fair Employment Practices Commission.
This is the same power given in slightly different verbiage to the Attorney General under title II of the compromise agreement, the title dealing with public accommodations.
This is a real net gain. My difficulty in accepting this as an appropriate substitute for the powers taken away by the compromise which I have just recited, is not due to any criticism on my part of the present Attorney General of the United States or any of his able assistants. Quite the contrary. They have been zealous and assiduous in exercising the full powers of the Federal Government with respect to all phases of civil rights and the equal protection of the law.
There is, however, another side to the coin, because the compromise does provide the power for the Attorney General to enforce in the Federal courts, by action instituted by him, fair employment practices in an area or with respect to an individual establishment where, in his judgment, a pattern of discrimination has developed.
But one would indeed be blind in the reading of history if he did not appreciate that the office of the Attorney General of the United States through the entire history of the Republic has tended to be a political one, and that the extent to which any particular laws or set of laws are enforced depends largely if not entirely on the political philosophy of the particular individual nominated by the President and confirmed by the Senate who holds the office of Attorney General of the United States.
I say again that I do not mean to imply the slightest criticism of the present incumbent of that office, that I honor him for the unpopularity which he has achieved in certain areas of this country as a result of his zealous efforts to bring the full scope of Federal power to bear in support of the civil rights of all Americans regardless of their race, creed, or color, and now, if this bill should be enacted into law, regardless also of their sex.
But the fact remains that the power has been taken away from the Federal Commission which would be created by the bill-a commission expert in dealing with the employment aspects of the civil rights problem-and has been given to a political officer, who has a host of other duties and other heavy responsibilities to perform, requiring him to find in each instance a pattern of discrimination before he can invoke Federal power.
Therefore, while I am delighted that under the compromise, this authority has been vested in the Attorney General, I am nonetheless skeptical about how effective it will be in the long run. Nevertheless, I say again that this compromise, unsatisfactory to me though it is, nonetheless does not cripple the bill. Perhaps it does not ven significantly
weaken it. In my judgment, in view of the practical political situation in which we find ourselves, we shall be well advised to support the Dirksen amendment; and I intend to do so.
Mr. CASE. Mr. President, will the Senator yield?
Mr. CLARK. I yield.
Mr. CASE. I ask the Senator from Pennsylvania to yield only for the purpose of commenting on the point he has discussed. After much consideration I have concluded that although the bill would not be strengthened by the Dirksen amendment with regard to the enforcement provision changes, I believe that the reduction in effectiveness was not made between the House bill and the Dirksen substitute, but, really, between the bill of the Senator from Pennsylvania, as reported by the Committee on Labor and Public Welfare
Mr. CLARK. By a vote of 12 to 3. Mr. CASE. Yes. Between that bill and the House bill. In the Senator's bill, the full panoply of the enforcement power would rest in the Commission. The Commission would have dealt with this matter, most notably in that the Commission would have had the power, after having concluded that its efforts to negotiate and persuade had failed in a particular case, to issue orders.
The Senator is quite
Mr. CLARK. correct.
Mr. CASE. Which could be molded to the facts in a particular situation, as it had discovered them in the course of long dealing with the situation. Enforcement would have been left to the court; but in the court proceeding seeking the enforcement order, the finding of the Commission would have had at least prima facie and perhaps presumptive value.
Mr. CLARK. The Senator is correct. Also, under the Senate bill, which is S. 1937, and which is still on the calendar, there would be created an Equal Employment Opportunity Administration in the Department of Labor. The administration would bring cases before an Equal Employment Opportunity Board, a quasi-judicial administrative body, not unlike a number of other commissions which are presently operating in various fields of the Federal domain. The commission proposed to be created under the Senate bill would not only have had authority to issue an order, which would be enforcible, but also would have the services of a full-time executive or administrator, whose job it
would be to investigate complaints, initiate inquiries, and appear before the Commission in support of the cause of an individual complainant; or, in those instances where he thought intimidation had prevented the bringing of a charge by an individual, to bring the charge himself, and obtain an order from the court, which would be enforcible, not in the district court, but in the courts of appeals across the country.
How much more effective this procedure would have been than the one in the House bill will be recognized by every lawyer in the Senate and by all students of the problem who wish to see established a really effective administrative organization to assure that equal job opportunities are not denied.
Mr. CASE. The Senator is absolutely correct. I interrupted him only for the purpose of emphasizing that the big stepdown in effectiveness, so far as enforcement goes, was made in the House bill, rather than in the Dirksen amendment to the House bill. We are both unhappy about it, but we are both conscious of the fact that the difference which this involves in the feeling of those who do not want the Federal Government active in this area at all is the reason for the effort to get at the problem in a way in which the leadership amendment deals with it.
Mr. CLARK. I thank the Senator. I point out, with respect to the Senate bill, that once the board had issued the order directing compliance with fair employment practices, which order would be based on a petition by the administrator, who would be in the Department of Labor, the court of appeals called upon to enforce that order, if voluntary compliance could not be achieved, would act on the basis of the facts found by the board. It would not conduct a new trial. The procedure would be governed by the Administrative Procedure Act, familiar to all lawyers who practice in the administrative field, and the court of appeals could act without further litigation, unless objection were appropriately filled by the respondent.
Therefore, in the ordinary case, the action of the board would be conclusive, and its decision would be enforced.
Mr. President, in order not to detain the Senate unduly, I ask unanimous consent that a memorandum prepared by the very able staff assistant of the Subcommittee on Employment and Manpower, which held the hearings on the Senate bill and which brought it before
the full committee. and which later reported it to the Senate, where it was placed on the calendar, be printed in the RECORD at this point. It is entitled "Comparative Analysis of Title VII of H.R. 7152, as Passed by the House, with S. 1937, as Reported." The able staff assistant to whom I have referred is Mr. Edward D. Friedman, who has rendered valiant service and has done long and arduous and outstanding work in perfecting the Senate bill and in advising the members of the Committee on Labor and Public Welfare on the relationship between the Senate bill and the House bill.
(c) Third year: Employers with 50 or more employees.
(d) Fourth year and thereafter: Employers with 25 or more employees. organizations representing seeking to represent covered employees according to the following schedule based on number of members:
(a) First year after effective date: 100 or more members.
(b) Second year: 75 or more members. (c) Third year: 50 or more members. (d) Fourth year and thereafter: 25 or more members.
3. Employment agencies dealing with covered employers including the U.S. Employment Service and the system of State and local employment services receiving Federal assistance.
A. Number of Covered Employees and Employers Forty million employees, 700,000 employ
B. Persons Subject to the Act 1. Employers with eight or more ployees in an industry affecting commerce. 2. Government contractors and subcontractors as well as contractors and subcontractors under federally assisted programs.
8. The Federal executive branch as well as Federal independent agencies and instrumentalities.
4. Labor organizations dealing with covered employers.
5. Employment agencies dealing with covered employers including the U.S. Employment Service and any State employment service.
1. The Federal Government. 2. States and political thereof.
It should be emphasized that unlike 8. 1937, title VII of H.R. 7152 does not touch (1) the Federal executive branch and the Federal independent agencies and (2) Government contractors and subcontractors or contractors and subcontractors under Federally assisted programs as such. The executive branch and the independent agencies would remain subject to the President's Executive Order on Equal Employment Opportunity. The Government contractors would be covered by the act as employers rather than as contractors and would be subject to the general sanctions applicable to the employer group. They would not, however, be subject to the sanction of blacklisting contained in the Senate version.
It should also be noted that labor organization coverage under title VII is narrower than the broad coverage specified in S. 1937. Under the House bill coverage in these cases depends upon extent of membership in four steps leveling off at 25 or more members in the 4th year.
Also noted is the fact that under the House bill only those State and local employment services receiving Federal assistance are covered, whereas the Senate bill covers all State employment services.
4. U.S. employers employing citizens of foreign countries in foreign lands.
5. Religious corporations, associations, or Societies.
2. State and political subdivisions thereof (same as H.R. 7152).
(a) Discrimination based upon religion, sex, or national origin in cases in which religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the operation of the particular enterprise.
(b) Discrimination by an educational institution or an institution of learning based upon religion if such institution is, in whole or in substantial part, owned, supported, or managed by a particular religious corporation or if the curriculum of such institution is directed toward the propagation of a particular religion.
(c) Refusal to hire or employ any person because of his atheistic practices or beliefs.
4. The phrase "unlawful employment practice" does not include any action taken by any person subject to the act with respect to a member of the Communist Party or of any other organization required to register by order of the Subversive Activities Control Board.
1. Denial of equal employment opportunity (broadly defined) by any person because of race, color, religion, or national origin.
2. Discrimination by any person against any other person because he has taken part in an investigation or proceeding under the act or because he has otherwise supported the policies of the act.
B. Adjudication of Formal Complaints 1. If efforts to obtain voluntary compliance fail and the Commission decides that there is reasonable cause to believe a violation of the statute has taken place, the Commission initiates an action in the U.S. district court to enjoin the unlawful conduct.
2. The Commission may, however, by affirmative vote decide not to prosecute if it is satisfied that the action will not serve the public interest. In this event the charging party may bring a private action in the U.S. district court provided he obtains the written consent of one member of the Commission.
3. If in any such action the district court the Ands that the respondent violated statute, it may issue an appropriate injunction including the requirement to take such affirmative action including reinstatement or employment with or without back pay as may be appropriate.
C. Judicial Review
The decisions of the Equal Employment Opportunity Board are reviewed by the U.S. courts of appeals on application of an aggrieved party or of the Administrator or are enforced upon application of the Board.
V. FEDERAL EMPLOYEES
Title VII does not cover the Federal establishment and does not in any way refer to the President's Committee on Equal Employment Opportunity. It contemplates that equal employment opportunity in the Federal Government shall continue to be secured in the manner prescribed by the President under his executive powers.
The President is specifically authorized to take such action as may be necessary to conform fair employment practice within Federal agencies with the policies of the act and
to provide that Federal employees must exhaust remedies available to them under an appropriate Executive order prior to seeking relief under the act.
Orders of the Board in proceedings involving Federal employees are not judicially enforceable. Instead the Board may request the President to take action to obtain compliance with its orders.
VI. FEDERAL-STATE RELATIONSHIPS
1. State fair employment practice laws will operate concurrently with the Federal law.
2. The Administrator, however, is directed to enter into agreements with State or local agencies having effective fair employment practice programs under which the Administrator agrees to suspend enforcement of the Federal act in the categories covered by the agreement.
Same as above except that S. 1937 provides for the payment of matching funds to the State or local agency subscribing to such an agreement to cover 50 percent of the costs of performing the functions which would have been performed by the Administrator in the absence of such agreement.
VII. EFFECTIVE DATE
The House bill provides that its substantive provisions shall become effective 1 year after the date of enactment.
The Senate bill provides that its substantive provisions shall become effective months after the date of enactment.
Mr. CLARK. It is relevant to point out that four separate enforcement schemes for a Federal Fair Employment Practices Commission have been considered by Congress during this session, and that the weakest of the four is the one set forth in the Dirksen substitute. The strongest is in the Senate FEPC bill, S. 1937, which has just been discussed by the Senator from New Jersey and myself, the general terms of which are set forth in the comparative analysis which has been placed in the RECord. The next strongest bill is not in the House bill, which the Senate is now considering, but in H.R. 405, as it was reported by the House Committee on Education and Labor toward the end of last year.
This bill, on which voluminous hearings were conducted in the House, was given careful consideration in executive session. Although, in my opinion, it is not as strong or as good as the Senate bill, nevertheless it would have given the Fair Employment Board the power to make orders and have them enforced on its own record in the court of appeals,