whole array of adjuncts to discrimination; e.g., advertisements which suggest that a racial standard will be applied to appliennta, attempts to discriminate, aiding and inciting discrimination, and reprisals against those who invoke the act or assist in its enforcement.

Both bills are ample in the foregoing respects. However, the House bill's statement of substantive protections is flawed by two inappropriate and constitutionally questionable provisions: Section 704 (1) expressly permits employers "to refuse to hire and employ any person because of said person's atheistic practices and beliefs"; and section 704(g) provides that, notwithstanding the other provisions of the bill, it is not an unfair employment practice to take "any action" against members of the Communist Party and related organizations.

Both provisions, we believe, should be eliminated from the bill. As to the provision regarding atheists, there is grave doubt as to its constitutionality, inasmuch as it would prefer persons having religious practices and beliefs over those having atheistic practices and belief. Cf. Torcaso v. Watkins, 367 U.S. 488 (1961) (declaration of belief in God as requirement for holding public office violates freedom of belief and religion). The provision with respect to Communists as drafted would license the very kind of discrimination otherwise prohibited by the bill (for example, discrimination because of race), as long as the person discriminated against is coincidentally a Communist or member of a Communist organization. This provision is not only inappropriate in a bill designed to prevent discrimination, but is of questionable constitutional validity as well. Whatever power Congress may have to regulate the activities of persons as Communists, it is difficult to perceive any reasonable relationship with a proper legislative purpose which would justify the endorsement of racial or religious discrimination against this particular group while forbidding it against all others."

7 See United States v. Schneider, 45 F. Supp. 848 (E.D. Wis. 1942) (Federal Emergency Rellef Act's denial of benefits to persons advocating Government overthrow held unconstitutional); cf. Chicago Housing Authority v. Blackman, 4 Ill. 2d 319, 122 N.E. 2d 522 (1954) and Rudder v. United States, 226 F. 2d 51 (D.C. Cir. 1955) (both, to avoid "serious constitutional questions," construed Gwinn amendment to Federal Housing Act of 1935, denying public housing to members of subversive groups, as not authorizing loyalty oaths); But see Peters v. New York City Housing Authority, 283 App. Div. 801, 128 N.Y.S. 2d 712 (2d Dep't) (Gwinn amendment justifled to avoid infiltration of housing by subversives), rev'd on other grounds, 307 N.Y. 619, 121 N.E. 2d 529 (1954). Compare Wieman v. Updegraff, 344 U.S. 183 (1952) (Oklahoma non-Communist-affiliation oath for State employees held to violate Due Process Clause). See generally Note, Unconstitu

Both the House and the Senate bills provide for the keeping of such records "relevant to" the determination of whether there has been denial of equal employment opportunities as the Commission or Administrator, respectively, shall prescribe. See H.R. 7152, section 709 (c); S. 1937, section 4(d). While there is no indication either in the bills or in the committee reports relating thereto that these provisions were intended to authorize the making of inquiries and the keeping of records dealing with the race, color, religion, or national origin of job applicants, they might be so interpreted. In this connection, it is to be noted that many States have followed New York's lead in making it unlawful for employers and others to use employment applications, or to make any inquiry "in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination as to age, race, creed, color, or national origin or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification" (N.Y. Exec. Law sec. 296 (1) (c)). As a result of this provision and of fears about adverse inferences being drawn from their use of racial notations, employers in States with fair employment practices laws, although not in terms required to do so, have generally dropped all references to race and the like from all of their forms and records.

It is believed that the needs of investigation and enforcement do not justify requiring employers to make such inquiries or keep such records in view of the substantial risk of misuse. If such data are to be collected, the antidiscrimination agency's investigators should be the ones to undertake that task. Accordingly, we suggest the addition of a proviso making clear that these provisions do not grant power to require persons subJect to the law to make such inquiries or keep such records.

Exemptions: The House bill (sec. 704 (e) (1)) provides that it shall not be an unlawful employment practice for an employer to hire persons of a particular religion, sex, or national origin "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of

tional Conditions, 73 Harv. L. Rev. 1595 (1960); Note, 69 Harv. L. Rev. 551 (1956). As to possible violation of the constitutional rights of freedom of speech and assembly, compare American Communications Ass'n v. Douds, 339 U.S. 382 (1950) (non-Communist affidavit for union officers upheld on ground that danger of industrial strikes fomented by Communists outweighed harm of encroachment on freedom of speech), with Lawson v. Housing Authority, 270 Wis. 269, 70 N.W. 2d 605, cert. denied, 350 U.S. 882 (1955) (local loyalty oath for public housing applicants, adopted pursuant to Gwinn amendment, held unconstitutional violation of freedom of speech and assembly).

that particular business or enterprise." It also exempts religious organizations from coverage (sec. 703). In addition, it permits any educational institution to hire persons of a particular religion, if such institution is "in whole or in substantial part owned, supported, controlled, or managed" by a particular religion or religious association, or if its curriculum is directed toward the propagation of a particular religion (sec. 704 (e) (2)). The only comparable provision in the Senate bill is to the effect that it shall not apply to "any religious organization with respect to employment practices or policies based upon religion" (sec. 14(b)). It is believed that the provision of the House bill with respect to bona fide occupational qualification, which appears to have been carefully and narrowly drawn, is a reasonable proviso which may be justified as allowing for the particular requirements of certain enterprises (e.g., certain foreign restaurants). The provisions of the two bills exempting religious organizations also seem unobjectionable. On the other hand, the provision of the House bill regarding exemptions for educational institutions appears to be too broad. To the extent that it could be construed to permit discrimination based on religion in the hiring of persons whose duties have no relationship to their religious beliefs and practices. It is undesirable. This is particularly true since the provision extends beyond wholly religious educational institutions to cover those with only partially religious control or purpose, as stated above. The provision of the House bill regarding bona fide occupational qualification may itself provide sufficient flexibility to cover those situations where religion is a valid employment consideration by reason of the religious nature or background of the employing institution.

The House bill also contains an exemption excluding from the definition of employer "a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of the Internal Revenue Code of 1954" (sec. 702(b)(2)). While private clubs should be permitted to pursue their special interests, it is questionable whether discrimination unrelated to those interests (for example, discrimination against Negro waiters) should be exempted.

Finally, as was noted above, both bills exempt small employers and the House bill also exempts small unions. The Senate bill, which merely exempts employers of seven or less (sec. 3(f)), is believed to be preferable to the House bill's more extensive exceptions (sec. 702 (b) and (e)). Moreover, it is questionable whether there is any valid reason for delaying for 4 years the time when the House bill first reaches the smallest employers and unions within its coverage.

2. Modes of enforcement

The question of enforcement of a fair employment practices law presents a number of classical administrative law issues.

Should the responsibility for formulating policy be entrusted to a single administrator or to a commission-type instrumentality? Should primary jurisdiction to adJudicate questions arising under the statute be given to an administrative tribunal or to the Federal district courts? What forms of relief should be available? Should the Government body entrusted with the responsibility for enforcement be empowered to act on its own initiative or only when it receives a charge from an aggrieved person? Should individual complainants have the right to go to court on their own or should they be limited to an administrative remedy?

The Senate bill's answers to these questions seem more likely than those of the House bill to promote effective enforcement of the antidiscrimination provisions (although not every particular feature of the Senate bill of this nature is preferred by every member of the committees). The most important difference between the two measures has to do with their adjudicative arrangements. On balance, it seems more desirable for an equal employment opportunity law to create a special administrative tribunal and to assign to it primary jurisdiction to decide questions arising under the law. Vindication of the national policy against discrimination established by the proposed legislation will be more readily achieved, it is believed, if it is placed in the hands of a special Federal board or commission rather than being left to local tribunals. Moreover, although the administration of a fair employment practices law may not require the expertise demanded of other specialized branches of the law, the decisions of & tribunal devoted exclusively to the problems of equal opportunity are likely to be better developed than those of a trial court.

Notwithstanding these considerations, H.R. 7152 assigns the adjudicative function to the Federal district courts. If the Equal Employment Opportunity Commission, the administrative agency created by the House bill, is unable to persuade a violator to comply with the law, and "if it determines there is reasonable cause to believe the respondent has engaged in, or is engaging in, an unlawful employment practice, [it] shall, within 90 days, bring a civil action to prevent the respondent from engaging in such unlawful employment practice, except that the Commission shall be relieved of any obligation to bring a civil action in any case in which the Commission has, by affirmative vote, determined that the bringing of a civil action would not serve the public interest" (sec. 707(b)). The House bill then provides that, "If the Commission has failed or declined to bring a civil action within the time required under subsection (b), the person claiming to be aggrieved may, if one member of the Commission gives permission in writing, bring a civil action to obtain relief" (sec. 707(c)).

The substitution of an administrative tribunal for the Federal district courts would not only have the advantages indicated

above, but, in addition, would eliminate the need for the provisions authorizing the Commission not to sue and permitting a private action when a single Commissioner grants the requisite dispensation. The Senate bill makes that substitution. When the Administrator is unable to persuade a violator to comply with the law, he may "issue and cause to be served upon such person a complaint specifying the alleged violations together with a notice of hearing before the Equal Employment Opportunity Board" (sec. 6(c)). The Board in turn "is empowered to hear and determine complaints filed under section 6" (sec. 8(a)). In this respect it is to function in essentially the same fashion as the National Labor Relations Board. ders of the Equal Employment Opportunity Board, like those of the NLRB, are to be reviewable in the courts of appeals. A person aggrieved by the arbitrary failure or refusal of the Administrator to initiate an investigation or file a complaint may petition the Board for review, and the Board may "in its discretion" grant or deny such petition (sec. 6(d)).

Or

The Senate bill seems preferable in several other respects. Efficient administration is more likely to result from its delegation of administration to a single official than from the House bill's provision for a five-man commission. Vigorous administration 18 more likely to result from the Senate bill's broad self-starting provision than from the House bill's narrower provision on this subject. We believe that a civil rights agency should have the power to move against discriminators without waiting for victims to come to it, since experience strongly suggests that relatively few victims of discrimination actually complain to antidiscrimination agencies. The Department of Labor may investigate to determine whether the Fair Labor Standards Act has been violated, and it may bring actions to compel compliance with that act without waiting for complaints. The victims of discrimination seem just as needful of this kind of attention as the victims of subpar wages; indeed, to a distressing extent, they are the very same people.

While both bills do permit action without a prior complaint by an aggrieved person, the Senate bill is regarded as more fully responsive to these considerations. Section 6(b) provides:

"The Administrator may receive written charges by or on behalf of any individual or individuals aggrieved that such a violation is occurring or has occurred, but no charge shall be a prerequisite to his investigating any such violation which may come to his attention by any appropriate means, including inspections periodically made under his authority to assure general compliance with the provisions of section 4 and the regulations promulgated thereunder."

The House bill may be more restrictive. Section 707(a) provides that, "Whenever it is charged in writing under oath by or on behalf of a person claiming to be aggrieved,

or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this act has occurred (and such charge sets forth the facts upon which it is based)," the Commission is to investigate the charge. The Commission is thus empowered to move without waiting for complaints from actual victims of discrimination if the requirement of "reasonable cause" is satisfied. The Administrator of the Wage and Hour Division is not required to have reasonable cause before he may investigate to determine whether the Fair Labor Standards Act has been violated. Section 601 of the Labor-Management Reporting and Disclosure Act empowers the Secretary of Labor to conduct a full investigation "when he believes it necessary in order to determine whether any person has violated or is about to violate any provision of this act The agency enforcing the Federal fair employment practices act should have the same self-starting powers as the Wage and Hour Administrator and the Secretary of Labor.

The remedial authority conferred by H.R. 7152 may prove adequate, but S. 1937 appears superior. Under the House bill, a district court finding a respondent guilty of a violation of the act "may enjoin the respondent from engaging in such unlawful employment practice, and shall order the respondent to take such affirmative action, including reinstatement or hiring of employees, with or without backpay • as may be appropri

ate" (sec. 707(e)). The power to award interim relief is not mentioned. Remedial orders under the Senate bill "may include cease and desist orders; monetary awards in favor of persons suffering financial loss through the denial or refusal of equal cmployment opportunity; orders directing employment, reinstatement, or promotion of employees or applicants; disqualification from obtaining from the United States or any Federal agency or under any federally assisted program, any privilege, contract, or subcontract under such contract; or such other affirmative orders as will effectuate the purposes of this act" (sec. 8(a)). In addition, section 10 of the Senate bill expressly empowers the Administrator to apply to a Federal district court "for a restraining order, temporary injunction, or other temporary relief for the restraint of such violation pending the decision of the Board."

Finally, the choice between an exclusive administrative remedy and an individual right to go to court seems best resolved in favor of the former. Most of the new agency's work is likely to be done informally; like most other administrative agencies and litigants in general, it will doubtless conclude the overwhelming majority of its cases by settlement. Settlement negotiations cannot, however, be conducted with max1mum effectiveness if the respondent doubts the agency's power to conclude matters definitively and fears the institution of A private lawsuit against him. While this is not likely to prove troublesome in many

cases, the risk seems substantial enough to take into account. Individual lawsuits can also handicap the new agency in its efforts to formulate and implement a strategy of litigation. Every lawyer knows that the development of doctrine is affected by the way in which questions are put to the courts and the order in which they get there. A new agency with a new mandate should be allowed to control these factors, to the extent that it can while processing all just claims, without the disruption of privately instituted lawsuits. Once again the Senate bill seems more responsive to controlling needs. Unlike the House bill, it makes no provision for individual lawsuits and by fair implication seems to preclude them, except to the extent allowed by other laws.

Both bills give those charged with enforcing their provisions discretion to refrain in a particular instance from enforcement thereof. See H.R. 7152, section 707(b); S. 1937, section 6(b) (both quoted above). While neither bill sets forth specific standards for determining when the legislation should not be enforced, there is nothing in either bill or in the committee reports thereon which in any way sanctions or even mentions "compensatory discrimination," which has sometimes been advocated as a means of redressing the handicap resulting from the many years of discrimination against minority groups, particularly Negroes. We do not believe that the provisions in question are to be read as countenancing such preferential treatment. Indeed, such a reading would be repugnant to the central purpose of the bills which is to eliminate discrimination and assure judgment on the merits as to each individual.

3. Impact on State and local laws

Both bills take account of the fact that more than 20 States and 50 municipalities have antidiscrimination laws on the books. It might be argued that there should be Federal supersedure in the interest of uniform regulation. However, since the Federal agency's volume of work is likely to be more than it can handle for some time to come, a choice to preserve existing local arrangements 18 appropriate. Both bills make that choice and implement it in intelligent fashion. Since the differences in implementation are relatively minor, only the House bill's provision on the subject is reproduced here. Section 708 of that measure provides:

"(a) Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title.

"(b) Where there is a State or local agency which has effective power to eliminate and prohibit discrimination in employment in cases covered by this title, and the Commission determines the agency is effectively exercising such power, the Commission shall seek written agreements with the State or local agency under which the Commission shall refrain from bringing a civil action in any cases or class of cases referred to in such agreement. No person may bring a civil action under section 707(c) in any cases or class of cases referred to in such agreement. The Commission shall rescind any such agreement when it determines such agency no longer has such power, or is no longer effectively exercising such power."

CONCLUSION

The proposed legislation is responsive to a need which has long been apparent and which lies near the center of the current crisis in race relations: the right to seek, to find and to hold a job free from discrimination. We regard the objectives and the procedures of each of the proposed bills as well within the national power and their subject as one which is singularly appropriate for national action. While we believe that the Senate bill provides the more effective means for combating discrimination, either bill is adequate for this purpose, and, accordingly, we strongly recommended that the proposed civil rights legislation include as part of its multiple attack on the problem of racial discrimination provision for equal employment opportunities along the lines of either one of these two timely bills. APRIL 2, 1964. Respectfully submitted,

Committee on Federal Legislation, Fred
N. Fishman, Chairman, Sidney H.
Asch, Eastman Birkett, George H.
Cain, Joseph Calderon, Donald J.
Cohn, Louis A. Craco, Benjamin F.
Crane, Nanette Dembitz, Arthur J.
Dillon, Barry H. Garfinkel, Elliott H.
Goodwin, Sedgwick W. Green, H. Mel-
ville Hicks, Jr., Robert M. Kaufman,
Ida Klaus, Leonard M. Leiman, George
Minkin, Gerald E. Paley, Albert J.
Rosenthal, Peter G. Schmidt, and
Henry I. Stimson.

Committee on Labor and Social Security
Legislation, William J. Isaacson, Chair-
man, Jerome H. Adler, Harold Baer, Jr.,
Aaron Benenson, Laurence G. Bodkin,
Jr., Samuel J. Cohen, Daniel G. Collins,
Kevin Thomas Duffy, Richard A. Giv-
ens, Alex J. Glauberman, Bernard D.
Gold, Arthur Mermin, Seymour W.
Miller, Francis A. O'Connell, Jr.,
Benjamin C. Roberts, Vernon A. Sam-
uels, Herbert Semmel, Jacob Sheink-
man, Michael I. Sovern, Stephen C.
Vladeck, James J. Ward, Jr., and
Harold L. Young.

Senate 1-31-64 p. 1528

Mr. CELLER. ***

THE LEGALITY OF THE PROVISIONS OF TITLE VII Section 701(b) of the bill declares that the provisions of title VII are necessary "to remove obstructions to the free flow of commerce among the States and with foreign nations" and "to insure the complete and full enjoyment by all persons of the rights, privileges, and immunities secured and protected by the Constitution of the United States." Title VII is amply supported by Congress' power to regulate commerce among the States and with foreign nations (article I, section 8, clause 3).1

Title VII covers employers engaged in industries affecting commerce, that is to say, interstate and foreign commerce and commerce within the District of Columbia and the possessions. The title also applies to employment agencies procuring employees for such employers and labor organizations engaged in such industries. In order to protect the free flow of commerce, Congress has previously legislated with respect to the practices of employees and labor unions in industries affecting such commerce, National Labor Relations Act, 29 U.S.C. 151, 152, 160;

Insofar as the title applies to commerce within the District of Columbia and the possessions of the United States, it is based on Congress' legislative authority over the District, article I, section 8, clause 17, and over the territories and possessions, article IV, section 3.

Labor-Management Reporting and Disclosure Act, 29 U.S.C. 401, 402. The power of Congress to legislate in this area is no longer subject to question, National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937); Lawson v. United States, 300 F. 2d 252, 254 (C.A. 10-1962), and the amount of commerce affected in any particular case is not a material consideration

in determining Congress' constitutional power, National Labor Relations Board v. Fainblatt, 306 U.S. 601, 606 (1939). (See also Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946), holding the Fair Labor Standards Act, 29 U.S.C. 201 et seq., applicable to the business of publishing a daily newspaper, only about one-half of 1 percent of whose circulation is outside the State of publication.)

The term "affecting commerce" has a long history of Judicial application under the National Labor Relations Act, National Labor Relations Board v. Fainblatt, supra at 606; National Labor Relations Board v. Reliance Fuel Corp., 371 U.S. 224, 226 (1963), and thus there should be little difficulty as to its meaning. As the Court said in the Polish National Alliance, etc. v. National Labor Relations Board, 322 U.S. 643, 648 (1944):

"Whether or not practices may be deemed by Congress to affect interstate commerce is not to be determined by confining Judgment to the quantitative effect of the activities immediately before the Board. Appropriate for judgment is the fact that the immediate situation is representative of many others throughout the country, the total incidence of which if left unchecked may well become far-reaching in its harm to commerce."