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EDITORS' NOTE: Discussing Title VII, Senator Carlson (D., Kan.) pointed out that it will have little impact in states with their own fair employment practices laws.

Senate

5-11-64

p. 10520

EMPLOYMENT

Title VII: This title seeks to eliminate discrimination in employment on account of race, color, religion, national origin, or sex. It covers discrimination by employers, employment agencies, and labor unions in industries affecting interstate commerce. The title establishes a Federal Equal Employment Opportunity Commission. The Federal Commission would have no authority to issue orders and would be limited to seeking voluntary compliance. Should voluntary efforts fail, the Commission could bring suit in the Federal courts and would have the burden of proving discrimination. Individual suits could be brought only if the Commission failed to sue and, even then, only if one member of the Commission gave his written consent. There would be no authority to require quota hiring to achieve racial balance or to order firing of whites to create jobs for Negroes. Union seniority would not be affected and employers would remain wholly free to hire or fire on the basis of Job qualifications.

Effect: Since Kansas already has a fair employment law barring discrimination on account of race, color, religion, national origin, or ancestry, title VII would have little impact in the State. The Kansas law is broader

than the proposed Federal law in that it covers all agencies of the State and local government, employment agencies, unions, and employers of eight or more persons. The act is administered by the Kansas Commission on Civil Rights which is authorized to investigate complaints, to offer conciliation, to hold hearings, to issue cease and desist orders, and to fashion positive relief orders, such as reinstatement with back pay. In addition, the commission is to conduct an educational program on civil rights in the Kansas schools.

In view of the extensive coverage of the Kansas law, it is doubtful that title VII would have any significant impact in the State. Since the Federal law would cover discrimination based on sex, an area not covered by Kansas law, there may be some application of title VII in this area. However, there is no available evidence to indicate that sex discrimination in employment presents any problem in Kansas.

Title VII preserves the rights and duties of individuals under State fair employment laws such as Kansas, and specifically directs the Federal Commission to seek written agreements with State fair employment agencies whereby neither the Commission nor any private party could bring an action under title VII as long as the State agency was effectively exercising its power to eliminate and prohibit discrimination covered by title VII. Thus, it is to be expected that discrimination in employment would be handled by State officials under the State law and that title VII will have but little effect within Kansas,

Discrimination Forbidden: In General

EDITORS' NOTE:

Senator Byrd (D., W.Va.) offered the following analysis of Title VII. The analysis was presented during the extended debate in the Senate and dealt with the measure passed by the House, rather than the Senate substitute that later was adopted.

Senate

6-9-64

pp. 13169-13172

TITLE VII

The avowed purpose of title VII of the bill is to eliminate, by formal and informal remedial procedures, discrimination in employment on account of race, color, religion, sex, or national origin. The title would provide for a congressionally declared national policy of nondiscrimination, based on race, color, religion, sex, or national origin in matters of promotion and employment. In order to effectuate its purposes, title VII establishes an Equal Employment Opportunity Commission which is charged with investigating complaints concerning the existence of discrimination in business establishments, labor unions, and employment agencies.

Discrimination by those who control employment and promotional opportunities is forbidden, and, therefore, the practices of employers, labor unions, and employment agencies would be regulated. The Commission would have jurisdiction over all employers in industries affecting commerce-whatever that means-which have, during the first year after the effective date, 100 or more employees, which have, during the second year after such date, 75 or more employees, which have, during the third year after such date, 50 or more employees, and which have, during and after the fourth year following such date, 25 or more employees. Excluded from this definition are (1) the United States, or a State or political subdivision thereof, and (2) a bona fide tax-exempt private membership club other than a labor organization. The exclusion of the Federal and State governments does not mean that they are free to discriminate with regard to public employment opportunities. The former is covered by

the President's Committee on Equal Employment Opportunities; the latter is covered by the equal protection clause of the 14th amendment.

The Commission would have jurisdiction over all labor organizations in industries affecting commerce, if the aggregate number of employees of such organization is 100 or more during the first year after the effective date, 75 or more during the second year after such date, 50 or more during the third year after such date, and 25 or more thereafter.

An employment agency is defined to mean any person who regularly undertakes, with or without compensation, to procure employees for an employer or to procure, for employees, opportunities to work and includes an agent of such person. The U.S. Employment Service and the system of State and local employment services receiving Federal assistance are specifically included. Other governmental agencies are not included. Religious corporations, associations, and societies are exempted from any discrimination in promotions and employment. The act would forbid employers to discriminate because of race, color, religion, sex or national origin when hiring, discharging, firing, compensating or setting terms, conditions, or privileges of employment. It would also be an unlawful employment practice for an employer to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any person of employment, opportunities, or otherwise adversely affect his status as an employee, because of his race, color, religion, sex or national origin.

Employment agencies would be forbidden to fail or refuse to refer for employment any individual because of his race, color, religion, sex or national origin; or to classify any individual on the basis of his race, color, religion, sex or national origin; refer for employment any individual because of his race,

color, religion, sex or national origin; or otherwise to discriminate against any individual because of his race, color, religion, sex, or national origin.

Labor unions would be forbidden to exclude or expel from membership, or otherwise to discriminate against any individual because of his race, color, religion, sex, or national origin; a labor organization would be forbidden to limit, segregate, or classify its membership in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities for any individual or otherwise adversely affect his status as an employee or as an applicant for employment because of his race, color, religion, sex, or national origin. Labor unions would be forbidden to cause or attempt to cause an employer to discriminate against an individual on the basis of his race, color, religion, sex, or national origin.

Additionally, the act would forbid discrimination by any employer, labor organization, or any joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs.

In contrast, it would not constitute an unlawful employment practice to hire a person of a particular religion, sex, or national origin in those limited circumstances where religion, sex, or national origin is a bona fide occupational qualification. For example, an Italian chef could be employed for an Italian restaurant. However, such an occupational qualification must be reasonably necessary to the normal operation of that particular business or enterprise. Furthermore, it would not be an unlawful employment practice for religious affiliated educational institutions to hire and employ employees of a particular religion.

The act would also exclude from coverage discrimination with respect to hiring and firing of persons who possess atheistic practices and beliefs. Members of the Communist Party, or of any other organization required to register as a Communist-front organization, could be discriminated against under the act.

It shall be an unlawful employment practice for an employer, an employment agency or for a labor organization to discriminate against any employee, individual, or member thereof, respectively, or any applicant for employment or membership, respectively, because such in

dividual has opposed any practice made an unlawful employment practice by this title, or because the individual has made a charge or has participated in any manner in any investigation or proceeding or hearing under this title.

It shall be an unlawful employment actice for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin, when religion, sex, or national origin is a bona fide occupational qualification for employment. Note that employers, labor organizations, and employment agencies are not allowed to advertise or publish notices which indicate a preference, limitation, specification, or discrimination based on race or color even if race or color might constitute a bona fide occupational qualification for employment.

Section 705 (b) clearly is unfair, unwise, and unjust, in that discrimination on the basis of religion, sex, or national origin does not constitute an unlawful employment practice, whereas discrimination on the basis of race or color, and, where such may constitute a bona fide occupational qualification for employment is not permitted. In other words, it is all right to discriminate against Italians where Mexican chefs are desired for Mexican restaurants and vice versa, but it will be unlawful to discriminate against white chefs where Negro chefs may be desired in restaurants specializing in southern dishes and vice versa.

The Equal Employment Opportunity Commission, created by section 706(a), is to be composed of five members, each of whom shall receive a salary of $20,000 a year, with the exception that the Chairman shall receive a salary of $20,500. Members shall be appointed by the President for staggered terms up to a maximum of an ultimate normal term of 5 years. The Chairman shall appoint such officers, agents, attorneys, and employees, on behalf of the Commission, as "it deems necessary" to assist in the per

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formance of its duties. In other words, the Commission is to be given carte blanche authority as to the number of such officers, agents, attorneys, and employees appointed. It goes without saying that the Commission will need an army of such persons to police and administer the act, and the language authorizing the appointment of such personnel is broad enough to permit the securing of that army, be it small or large. There is absolutely no limitation on the number, so long as personnel are deemed "necessary" to assist the Commission in performing its functions. Here we shall see the sprouting and flowering, the mushrooming, ballooning of an entirely new bureaucratic activity which, like Tennyson's brook, will go on and on forever.

The act is not without vision in its provision for regional offices for such personnel, inasmuch as the Commission may establish such regional offices "as it deems necessary" and shall establish at least one such office in each of the major geographical areas of the United States, including its territories and possessions.

The Commission is authorized to furnish to all persons subject to the title such technical assistance as they may request to further their compliance with the title or with any order issued thereunder. No limitation on the amount of such technical assistance and no guidelines are provided by the language of the act.

The Commission is given power to make whatever technical studies as may be appropriate to effectuate the purposes and policies of the title, and to make the result of such studies available to interested governmental and nongovernmental agencies. It may carry on educational and promotional activities and may cooperate with other departments and agencies in the performance of such activities. Just what is meant by such "educational or promotional activities" is not indicated, but by this time one need not be surprised because these are only a few of the plethora of ambiguous, vague, broad, and undefined terms with which this carelessly drawn, but highly controversial bill has been loaded.

Attorneys of the Commission may, at the direction of the Commission, appear for and represent the Commission "in any case" in court.

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 when a written charge has been filed by a member of the Equal Employment Opportunity Commission where he has "reasonable cause" to believe a violation of "this act" has occurred, such charge setting forth the facts upon which it is based, that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission is required to furnish such employer, employment agency, or labor organization with a copy of such charge and the Commission is required to make an investigation of the charge. If as many as two members of the Commission shall determine, after such investigation, that there is "reasonable cause" to believe that the charge is true, the Commission shall take steps to eliminate the unlawful employment practice. These steps shall take the form, first, of informal methods of conference, conciliation, and persuasion. The Commission will attempt to obtain from the employer, employment agency, or labor organization, an agreement in writing setting forth the particular practices which will be refrained from in the future.

Section 707(b) provides that, upon failure to effect the elimination of an unlawful employment practice and to obtain voluntary compliance with title VII, the Commission is required to bring a civil action, "within 90 days," to prevent further engagement in such practice. The Commission shall not be required to bring a civil action in any case in which the Commission by affirmative vote, determines that the bringing of such action "would not serve the public interest."

Section 707 (c) authorizes the person claiming to be aggrieved to bring a civil action to obtain relief, if the Commission has failed or declined to bring a civil action within the 90-day period set forth in subsection (b) and if one member of the Commission gives permission in writing to the aggrieved.

Section 707 (d) gives jurisdiction of action to the U.S. district courts and provides that such actions may be brought either in the judicial district in which the unlawful employment practice is alleged to have been committed, or in the judicial district in which the principal office of the employer, employment agency or labor organization is situated. Civil actions may be based on unlawful

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