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it appears should logically be considered at this point even though it did not involve the commerce clause. There the Supreme Court unanimously upheld a New York law which forbade labor organizations from denying membership or equal protection to any person because of race, creed, or color. The association was an organization of postal clerks which limited its membership to persons of the Caucasian race and native American Indians. It claimed that it was not a labor organization under the law and that if it was, the sections involved violated the due process and equal protection clauses of the 14th amendment and were in conflict with the Federal power over post offices and post roads. Both issues in question were decided against the association.

The opinion, written by Mr. Justice Reed, states that: "We have here a prohibition of discrimination in membership or union services on account of race, creed, or color. A judicial determination that such legislation violated the 14th amendment would be a distortion of the policy manifested in that amendment which was adopted to prevent State legislation designed to perpetuate discrimination on the basis of race or color. We see no constitutional basis for the contention that a State cannot protect workers from exclusion solely on the basis of race, color, or creed by an organization functioning under the protection of the State, which holds itself out to represent the general business needs of the employees."

Mr. Justice Frankfurter, in a concurring opinion, used broader and more emphatic language: "it is urged that the due process clause of the 14th amendment precludes the State of New York from prohibiting racial and religious discrimination against those seeking employment. Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of course a State may leave abstention from such discriminations to the conscience of individuals. On the other hand, a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another's hurt. To use the 14th amendment as a sword against such State power would stultify the amendment. Certainly the insistence by individuals on their private prejudices as to race, color, or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of the State to extend the area of nondiscrimination beyond that which the Constitution itself exacts."1

And in Syres v. Workers International Union, 350 U.S. 892, the Court extended the doctrine which it had enunciated under the

See also Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210; Brotherhood of R.R. Trainmen V. Howard, 343 U.S. 768.

Railway Labor Act to the National Labor Relations Act; 1.e., that a bargaining representative certified under the latter act cannot, with respect to its representation, discriminate on the ground of race or color. There the Court, on the authority of the Steele case, supra, as well as Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U.S. 210, and Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (see preceding footnote), reversed per curiam the judgment of the Court of Appeals for the Fifth Circuit in a case where the lower court had held (223 F. 2d 739) that no interpretation of the National Labor Relations Act or any other Federal law was involved in a class action by members of a Negro local union which "amalgamated" with a white local so that both would be represented by a single bargaining committee, and the all-white committee negotiated a contract providing for two lines of seniority based solely on race.

If a union acting under authority of an act of Congress has a duty not to discriminate because of race, it seems plain that the Congress has/power to prohibit such discrimination.//As the Supreme Court stated in Nebbia v. New York, 291 U.S. 502, 527, "the Constitution does not guarantee the unrestricted privilege to engage in business or conduct it as one pleases." Certainly Congress has had no hesitancy whatever in passing laws which prohibit various types of

discriminatory or retaliatory practices.//

C. Discriminatory practices expressly pro

hibited by the Fair Labor Standards Act and the National Labor Relations Act Section 15(a)(3) of the Fair Labor Standards Act makes it unlawful for any person to discharge or in any way discriminate against any employee because the latter has filed any complaint or instituted any proceeding under or related to the act, or has testified or is about to testify in such a proceeding, or has served or is about to serve on an industry committee. Many cases have been successfully prosecuted for violations of this subsection and it has not been successfully challenged. See, e.g.. Goldberg V. Bama Mfg. Corp., 302 F. 2d 152 (C.A. 5); Mitchell v. Goodyear Tire and Rubber Co., 278 F. 2d 562 (C.A. 8).

Paragraphs (3) and (4) of section 8 of the National Labor Relations Act make it an unfair labor practice either to encourage or discourage membership in a union by discrimination in regard to hire or tenure of employment or any term or condition of employment, or to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the


There are innumerable cases under these two paragraphs. No doubt was cast upon their validity even before 1941 when the Supreme Court in Phelps-Dodge Corp. v. N.L.R.B.. 313 U.S. 177, held that this is not an unconstitutional interference with the conduct of a private employer's business.

Since Congress, in the exercise of its power over interstate commerce, can make it unlawful to discriminate because of union membership and because of filing complaints or giving testimony under the foregoing labor laws, it is clear that the Congress also has power to prevent discrimination on the basis of race, color, religion, or national origin.


This recent decision, Colorado Anti-Discrimination Com'n v. Continental Air Lines, 372 U.S. 714, decided April 22, 1963, upholding the constitutionality of Colorado's antidiscrimination-in-employment statute, is of much interest in connection with the matter under consideration.

A number of States have antidiscrimination-in-employment laws, and the Colorado statute makes it an unfair employment practice for an employer "to refuse to hire, to discharge, promote, or demote, or to discriminate in matters of compensation against any person otherwise qualified because of race, creed, color, national origin, or ancestry" (Colo. Rev. Stat. Ann. (Supp. 1960) sec. 8024-6).

Petitioner, a Negro, applied for a job as a pilot with Continental Air Lines, Inc., an interstate air carrier. His application was rejected at the carrier's Denver headquarters, Pursuant to the Colorado law he then filed a complaint with the Colorado Antidiscrimination Commission which, after investigation and extensive hearings, found as a fact that the only reason he was not selected for pilot training school was because of his race. The commission ordered Continental to cease and desist from such discrimination practices and to give petitioner the first opportunity to enroll at the next course in its training school.

The State district court for Denver County set naide the commission's Andings and dismissed petitioner's complaint. It held that the State antidiscrimination law could not constitutionally be extended to cover the hiring of flight crew personnel of an interstate air carrier because to do so would constitute an undue burden upon interstate commerce in violation of the commerce clause of the Constitution, and because the field of law concerning racial discrimination in the interstate operation of carriers is preempted by the Railway Labor Act, the Civil Aeronautics Act, and Federal Executive orders.

pose a constitutionally prohibited burden on interstate commerce and that the field in question has not been so covered or preempted by Federal laws as to prevent Colorado from applying its Antidiscrimination Act under the circumstances of the case.

On appeal to the Supreme Court of Colorado, that court affirmed the judgment of dismissal but discussed only the question whether the statute as applied in this case placed an undue burden on commerce, concluding that it did (368 P. 2d 970 (1962)). The US. Supreme Court granted certiorari because of the "obvious importance of even partial invalidation of a State law designed to prevent the discriminatory denial of job opportunities." (See 372 U.S. at p. 717.)

On the merits, the Supreme Court reversed the judgment of the Colorado tribunal.

The Court held that the Colorado statute involved, as applied in this case, did not im

The Court said that under its more recent decisions any State or Federal law requiring applicants for any job to be turned away because of their color would be invalid under the due process clause of the fifth amendment and the due process and equal protection clauses of the 14th amendment.

On the question of preemption, the Court noted that the Civil Aeronautics Act of 1938, now the Federal Aviation Act of 1958, forbids air carriers to subject any particular person to "any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever," and requires "the promotion of adequate, economical, and efficient service, by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices."

While stating that the foregoing is a famillar type of regulation aimed primarily at rate discrimination injurious to shippers, competitors, and localities (like the similar provision of the Interstate Commerce Act), the Court said that it might assume for present purposes that these provisions prohibit racial discrimination against passengers and other customers and protect job applicants or employees from discrimination because of race. However, although the act gives broad authority to the administering executive agency over flight crews of carriers, much of which has been exercised by regulations, the Court was satisfied that Congress had no express or implied intent to bar State legislation in this field. Hence the Colorado statute, at least so long as any power the administering agency may have remains "dormant and unexercised," will not frustrate any part of the purpose of the Federal legis lation.

Similarly, the Court concluded that neither the Railway Labor Act nor the Executive orders show an intention to regulate air carrier discrimination on account of race so persuasively as to preempt the field and bar State legislation, and, like the Civil Aeronautics Act, they have never been used by the Federal Government for that purpose.

By concluding that the Federal Government has not preempted the field in the case of carriers by air, there seems to be implicit in the Court's decision the proposition that the Government could do so should it so desire. Otherwise there would have been no occasion to consider this question. In order to preempt a field, such field must of course be one in which the Congress may validly legislate.

If the Congress may regulate this form of discrimination in one industry-that of carriage by air-it may do the same thing in other industries, or indeed in all industries to which its power under the commerce clause extends.


The measures which are the subject of this memorandum are solidly based on the power given by the commerce clause to the Congress. This authority is very broad, extending not only to the movement of goods in commerce, but also to those related activities preceding or following such movements. The power of Congress to regulate interstate commerce extends to the regulation by law of intrastate activities which have a sub



pp. 8452-8456

EDITORS' NOTE: A report of the Association of the Bar of the City of New York, placed in the record by Senator Javits (R., N.Y.), took the position that equal employment opportunity legislation is validly founded on the Commerce Clause.

Mr. JAVITS. Mr. President, considerable debate on the pending bill has been directed toward title VII, relating to fair employment practices. Indeed, it is one of the subjects which is under debate today.

The Association of the Bar of the City of New York has a legendary reputation for public service in reporting on important national issues. Two of the Association's committees, the Committee on Federal Legislation, Fred N. Fishman, chairman; and the Committee on Labor and Social Security Legislation, William J. Isaacson, chairman, have jointly issued a report evaluating title VII of the bill before us, as well as comparing title VII with S. 1937, a similar measure reported from the Senate Committee on Labor and Public Welfare, of which I am a member.

The conclusions of these two committees and their analysis are worth while. They state in part:

stantial effect on the commerce or the exercise of the congressional power over it. Moreover, the question whether the conduct of an enterprise affects interstate commerce is a matter of practical judgment, the exercise of which is primarily vested in Congress by the Constitution.

We strongly endorse the concept of equal employment opportunity embodied in each of the proposed bills. We further believe that each of the bills establishes acceptable machinery for effectuating its purposes, although the Senate bill, with its stronger enforcement provisions and broader coverage, appears to us to provide the more effective means of implementing the basic principle involved. Both bills are, we believe, validly founded on the commerce clause.

It is thus readily apparent that antidiscrimination-in-employment legislation which would apply to virtually all types of employers could be validly enacted.

was ordered to be printed in the RECORD, as follows:

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, April 9, 1964. Memorandum to members of the Senate Committee on the Judiciary and the Senate Committee on Labor and Public Welfare:

Enclosed is a copy of the report of the Committee on Federal Legislation and the Committee on Labor and Social Security Legislation on proposed equal employment opportunity legislation. This report will be published in due course in our Federal Legislation Bulletin and sent to all Members of Congress in accordance with the association's customary practice.

We are sending this copy of the report to you in advance of such publication because we thought you might find it helpful to see it as soon as possible.

Sincerely yours,

FRED N. FISHMAN, Chairman, Committee on Federal Legislation.

WILLIAM J. ISAACSON, Chairman, Committee on Labor and Social Security Legislation.


This report deals with two bills presently before Congress to eliminate discrimination in employment opportunities. The particular measures considered are title VII of the proposed Civil Rights Act of 1963, introduced as H.R. 7152, 88th Cong.. 1st sess. (1963), as passed by the House of Representatives on February 10, 1964, and S. 1937, a proposed Equal Employment Opportunity Act, as reported out by the Senate Committee on Labor and Public Welfare.1

Mr. President, I ask unanimous consent to have the report printed in the RECORD. There being no objection, the report 8. Rept. No. 867. 88th Cong., 2d sess. (1964).

The report on the House of Representatives bill is H. Rept. No. 914. 88th Cong., 1st sess. (1963); the report on the Senate bill 18

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Both bills establish regulatory procedures for investigation and conciliation in cases of alleged discriminatory practices. Under the Senate bill, a board is empowered to issue appropriate remedial orders reviewable by the courts. Under the House bill, no administrative agency is empowered to issue re1 medial orders; the Commission established under that bill is, however, authorized to bring enforcement suits in the courts. If the Commission decides not to bring such an action, an aggrieved individual may, with the permission of one Commissioner, himself bring suit. The Senate bill applies to employers of 8 or more persons, whereas the House bill has a sliding scale of coverage, ranging from employers of (and labor organizations comprising) 100 or more persons in the first year after the effective date to 25 in the fourth year.

We strongly endorse the concept of equal employment opportunity embodied in each of the proposed bills. We further believe that each of the bills establishes acceptable machinery for effectuating its purposes, although the Senate bill, with its stronger enforcement provisions and broader coverage, appears to us to provide the more effective means of implementing the basic principle involved. Both bills are, we believe, validly founded on the commerce clause.

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Both bills are based on the power of Congress to regulate commerce and prohibit employers engaged in industries affecting interstate commerce, as well as labor organizations and employment agencies,' from discriminating in employment against qualifled persons because of their race, color, religion or national origin. In addition, the Senate bill also applies to Government contractors and Federal agencies, and the House bill also prohibits discrimination based on sex.3

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The Senate bill contains specific findings that inequality of employment opportunity resulting from discrimination against qualifled persons "forces such persons into sub

'There are minor differences in the definitions in the two bills of "labor organizations" and "employment agencies." Portions of the Senate bill's definition of "labor organization" (clauses (1) and (3) of section 3 (1)) would literally appear to cover organizations not engaged in an industry affecting commerce. However, it seems clear from the structure of the bill and from the accompanying committee report that the bill was intended to be operative only in the area of interstate commerce. The definition section of the Senate bill should be revised so as to avoid any question in this respect.

This provision, added on the floor after limited discussion, seems to have little relationship to the kinds of discrimination which are otherwise the subject of the bill. It raises separate questions which are beyond the scope of this report including the impact upon State statutes governing employment of women.

standard conditions of living, foments industrial strife and domestic unrest, deprives the United States of the fullest utilization of its capacities, and adversely affects the domestic and foreign commerce of the United States." The committee reports and statements on both bills are to the same effect and contain a substantial quantity of data as to both the accumulated impact and the continuing toll of discrimination in employment in the various segments and at the various levels of the economy. The reports indicate that nonwhites earn significantly less than whites of lesser training and are frequently compelled to accept unskilled or semiskilled jobs at low wagesJobs which are being wiped out at an accelerating pace by, automation. They find that there has been disproportionately high unemployment levels of nonwhites, who comprise 11 percent of the labor force but 22 percent of the unemployed.

In addition to the economic factors, the committee reports and statements advert to the social and moral need for the legislation. The Senate report states:

"Apart from the economic cost of this underutilization, the welfare and social costs are immense and in the decade ahead they will become truly staggering" (S. Rept. No. 867, supra, at 9-10).

The statement of additional views in the House report includes the following:

"Aside from the political and economic considerations, however, we believe in the creation of job equality because it is the right thing to do ⚫ All vestiges of inequality based solely on race must be removed in order to preserve our democratic society, to maintain our country's leadership, and to enhance mankind" (H. Rept. No. 914, supra, pt. 2, at 30).


Commerce clause

The provisions of the proposed bills are well within the boundaries of existing judicial precedents interpreting the commerce clause. See S. Rept. No. 2080, 82d Cong., 2d sess. (1952) (supporting equal employment opportunity bill). As detailed in an earliest report of the Committee on Federal Legislation on "Proposed Federal Civil Rights Laws Relating to Public Accommodations" (hereinafter called the Public Accommodations Report),' the commerce clause has repeatedly been held to give Congress plenary power to regulate employment relations in industries affecting interstate commerce. Among the benchmark cases involving regulation of labor matters are NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1936), sustaining the constitutionality of the National Labor Relations Act, and United States v. Darby, 312 U.S. 100 (1941), upholding the Fair Labor Standards Act.

Two reports of committees of N.Y.C.B.A. concerned with Federal legislation 41 (1963), 18 record of N.Y.C.B.A. 593 (1963).

In the Jones & Laughlin case, the Court summarized the congressional authority to regulate commerce as follows:

"The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement' (The Daniel Ball, 10 Wall. 557, 564); to adopt measures 'to promote its growth and insure its safety' (Mobile County v. Kimball, 102 U.S. 691, 696, 697); 'to foster, protect, control, and restrain.' Second Employers' Liability Cases, supra [223 U.S.] p. 47. See Texas & N.O.R. Co. v. Railway Clerks, supra [281 U.S. 548]. That power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it.' Second Employers' Liability Cases, p. 51; Schecter Corp. v. United States, supra [295 U.S. 495]." 301 U.S. at 36-37.

The similarity between the proposed legislation and that sustained in the Jones & Laughlin and Darby cases is obvious. Indeed, both bills are in a number of respects patterned after the National Labor Relations Act and other existing legislation in the field of labor-management relations, and the House bill's definition of "industry affecting commerce" is specifically keyed to the LaborManagement Reporting and Disclosure Act of 1959 (Landrum-Griffin Act).

It is also pertinent that in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938), the Supreme Court, in holding picketing in protest against racial discrimination in employment policies to be protected by the Norris-La Guardia Act, declared:

"The desire for fair and equitable conditions of employment on the part of persons of any race, color, or persuasion, and the removal of discriminations against them by reason of their race or religious beliefs is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft unions or any form of labor organization or association. Race discrimination by an employer may reasonably be deemed more unfair and less excusable than discrimination against workers on the ground of union affiliation." Id. at 561.

The proposed legislation is obviously aimed at the interstate commerce aspects of an evil which is moral as well as economic and which exists in areas other than commerce. Quite apart from its moral aspects, however, nondiscriminatory treatment in hiring and firing and while on the job is a significant element of the employment relationship, itself a basic component of commerce, and hence resort to the commerce clause is entirely appropriate. In any event, the fact that Congress' purposes may in part be other than economic does not affect the validity of the proposed legislation. As noted in the public accommodations report, numerous cases have upheld under the commerce clause legislation to eliminate "social" evils, some of which had substantially less economic impact on commerce than does the evil aimed at in the proposed legislation.

Other constitutional considerations

The House bill contains a declaration that the opportunity for employment without discrimination is a "right" of all persons within the jurisdiction of the United States, and that the provisions of the bill are necessary to insure the enjoyment of the "rights, privileges, and immunities" secured by the Constitution. It is not known to which sections of the Constitution the bill may have reference; the privileges and immunities clause of the 14th amendment relates only to "State action," which would not seem to be the principal focus of the declaration in the bill. That declaration may have been formulated with regard to the first Mr. Justice Harlan's dissenting opinion in the Civil Rights Cases, 109 U.S. 3, 26 (1883), where he adverted to the 13th amendment, abolishing slavery and involuntary servitude, and the first sentence of the 14th amendment, which provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside," together with the provisions of such amendments empowering Congress to enforce them by appropriate legislation. Mr. Justice Harlan cited these provisions in support of his contentions that the legislation involved in the civil rights cases was justified both to eliminate "vestiges of slavery" and to support civil rights created by the grant of citizenship in the 14th amendment. While these contentions were rejected by the majority opinion, they might meet with greater receptivity today. See hearings on S. 1732 before Senate Committee on Commerce (88th Cong., 1st sess., pt. 2, at 776, 791 (testimony of Dean Erwin N. Griswold, member of the U.S. Commission on Civil Rights, on public accommodations bill)). In any event, the operative sections of both the House and Senate bills are based solely on the commerce clause and are clearly valid ( under that provision."


1. Substantive requirements

The standard prohibitions: A Federal fair employment practices statute should include the whole battery of prohibitions found in the typical State antidiscrimination law. That is to say, it should proscribe discrimination on the ground of race, creed, color, or ( national origin, whether perpetrated by employers, employment agencies, unions, or apprenticeship committees, and it should proscribe such discrimination in every aspect of the employment and union relation, including, but not limited to, hiring compensation, promotion, layoff, discharge, and union membership. Segregated working conditions should, of course, be outlawed, as should the

Certain other constitutional questions relating to particular provisions of the House bill are discussed infra.

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• Discrimination on the basis of age, outlawed by some States, is beyond the scope of this report.

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