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Discrimination Forbidden: In General

EDITORS' NOTE: Congressman Dowdy (D., Tex.) introduced an amendment specifically prohibiting discrimination against Caucasian, white, Protestant Americans. It was rejected in a voice vote.

House

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p. 2728

AMENDMENT OFFERED BY MR. DOWDY Mr. DOWDY. Mr. Chairman, I offer an amendment.

The Clerk read as follows:

Amendment offered by Mr. DOWDY: Page 68. after line 5, insert new definitions, as follows:

"(1) The word 'race' when used in this title or otherwise in this Act shall mean all races, including the Caucasian.

"(k) The word 'color' when used in this title or elsewhere in this Act shall mean all colors, including white.

"(1) The word 'religion' when used in this title or elsewhere in this Act shall include all religions, including the Protestant religions.

"(m) The phrase 'national origin' when used in this title or elsewhere in this Act shall include all countries of origin, including the United States of America."

Mr. DOWDY. Mr. Chairman, the debate on this bill has indicated some doubt, as to the meaning of the words race, color, religion, and national origin. This amendment would define the words so there could be no dispute, and would make this bill, if enacted, apply to all persons alike.

The CHAIRMAN. The question is on the amendment offered by the gentleman from Texas (Mr. DOWDY]. The amendment was rejected.

Discrimination Forbidden: Ability Tests

EDITORS' NOTE: Senator Case (R., N.J.) placed in the record a statement by the Chairman of the Illinois Fair Employment Practice Commission regarding the Motorola case. In that case, a hearing examiner found that tests used by the company to select employees unlawfully discriminated against culturally deprived groups.

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merce. Your organization has done more in publicizing merit employment than any other organization in the State, business or otherwise. I know you have future plans in this

area.

We appreciate this opportunity to tell the story of an important issue-important to your members, important to every businessman in the State of Illinois, important to every citizen in the State, and important to the cause of merit employment.

The commission operates under these basic principles:

1. The right of any employer to establish standards of employment, to establish testing and screening devices in employment, and to employ persons of their own choice, is an absolute right as long as the decision is not made on the basis of race, religion, or national origin.

2. We believe that every employer in the State wants to abide by the law, because we cannot believe that any employer would deliberately circumvent this, or any other, law. Therefore, our attitude is not one of considering employers as being devious lawbreakers bent on discrimination.

3. We believe that the procedures outlined in the Illinois Fair Employment Practices Act are fair and equitable for all parties coming before the commission, and that it is the commission's responsibility to administer this law in rigorous accord with its provisions.

4. We believe that more progress toward merit employment can be achieved through cooperation, education, and voluntarism under the auspices of this law than could ever be achieved by any autocratic procedure.

5. We believe that the protection of the individual against acts of discrimination is the most important function of this law and of the commission, and that this can be achieved without harassment, without arbitrary procedure, and with the full protection of the freedom of all citizens.

In the matter of the Motorola case, several points need to be clarified.

1. The Motorola Co. has not been ordered by the Fair Employment Practices Commission to do or not do anything.

2. The law states that the recommendation of the hearing examiner which comes out of a public hearing shall be called an

order, but this does not become an order until the Commission has determined that the hearing examiner's order is supported by substantial evidence and has made the hearing examiner's order the order of the Commission. This has not happened in the Motorola case.

3. The law provides for a private conciliation conference to be held between both parties after a complaint has been filed and an investigation made. In the second Motorola case, representatives of Motorola refused to come to a conciliation conference. In an earlier case, Motorola representatives had refused to enter into a conciliation conference because Commission rules forbid a record being made of the proceedings. Therefore, it was imperative under the law that a public hearing be held. This hearing was held on January 27, 1964, by Hearing Examiner Robert Bryant.

4. An important piece of information in this case is the test which the complainant himself took at the Motorola Co., and the score that he achieved on that test. The Motorola Co. failed to bring this forward, stating that it was not available.

5. The Motorola Co. has now appealed this hearing examiner's opinion and it is ex

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pp. 13081-13082

Mr. CLARK. I was amazed at the reference, a moment ago, to the alleged applicability of the so-called Motorola case to title VII. Will the Senator from New Jersey state why he believes the Motorola case has no possible analogy to the pending measure?

Mr. CASE. Yes. That case came up under an Illinois law, under a State statute which gives the State commission the right, after hearing such matters, to issue orders. It provides that a hearing is to be held by ad hoc examiners, who are not really officers or employees of the commission, except for those particular cases; and therefore they are not subject to regulation by the agency.

pected that the complainant's attorneys will appeal on his behalf. When petitions for appeal from both parties have been received by the commission, a date will be set for a hearing before the full commission, as the law provides. This will be done as rapidly as possible.

EDITORS' NOTE: During the Senate debate, Senators Clark (D., Pa.), Case (R., N.J.), and Humphrey (D., Minn.) maintained that the Motorola case, which arose under Illinois law, had no applicability to the provisions of Title VII.

In the Motorola case, an examiner was appointed, and held hearings, and then recommended a finding and an order. In my opinion, they went too far. I believe that is evident when they are viewed from any point of view.

6. When the commission's order is ultimately handed down, either party may appeal it directly to the courts under the Administrative Review Act of the State of Illinois.

The procedures established by the law provide full protection for both parties and the law does not, in any way, permit the commission to hand down arbitrary orders of any kind. Any orders that come from the commission must be supported by the preponderance of evidence.

More than 80 percent of the cases in which the commission nas found substantial evidence have been settled at the conciliation conference stage. The commission finds that this wise provision of the law provides for a most fruitful means of settling matters privately between men of good will. We are sorry that the respondent in this case did not take advantage of this step.

Mr. CLARK. I agree.

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Mr. CASE. However, that was only the action of the examiner, and it has no effect whatever until the Illinois commission, acting under the Illinois law, approves it. I see no possibility that the Illinois commission would approve it, under the Illinois law.

Mr. CLARK. As I understand, an appeal is being taken both to the commission and to the courts. Is that correct?

Mr. CASE. That is correct.

Mr. CLARK. Will the Senator from New Jersey point out how different this title is from the Illinois law?

Mr. CASE. Yes. Under title VII, as both the Senator from Pennsylvania and I have indicated, the Federal Commission would have no power whatever to make any order; all it could do would be to hold hearings and investigate complaints, subject to the restrictions the Senator from Pennsylvania and I have mentioned. If the Commission then found the existence of some discrimination on grounds prohibited by the act, the Commission could then endeavor by persuasion and conciliation to remove it.

CONGRESSIONAL DEBATE BY SUBJECT MATTER

If the Commission failed to do so, it could only recommend that the Attorney General, on behalf of the United States of America, institute legal action.

Mr. CLARK. And in the meantime, if there had been discrimination, it would continue, would it not, and the Commission would have no power whatever to enforce its views?

Mr. CASE. Yes, it could only make a recommendation that the Attorney General bring suit in the courts; and the Attorney General need not abide by that recommendation or request, unless he found there was a pattern or practice of discrimination, not a single act of discrimination.

Mr. CLARK. And even then the Attorney General could not act until he obtained a court order, could he?

Mr. CASE. That is true; and he would have to prove, de novo, a violation of the statute; and he would not have the benefit of any of the findings he had made or of any of those made by the investigators, but he would have to make that showing before the court would act. So there is no parallel whatever between the situation in the Motorola case and the situation under this measure.

Furthermore, I believe that everyone now understands that the Motorola case involves only the tentative action of one man, and has no effect unless and until the Illinois commission adopts-but I am sure it never will adopt them-the examiner's views and makes his findings its own.

Mr. HUMPHREY. Mr. President, will the Senator from New Jersey yield?

Mr. CASE. I yield.

Mr. HUMPHREY. The Motorola case has been selected by some of the opponents of the bill as "a horrible example"; but the fact that is not mentioned is that the so-called decision in the Motorola case is nothing but a preliminary finding, and has no binding effect. Is not that correct?

Mr. CASE. That is absolutely true. Mr. HUMPHREY. No court would reach such a finding, would it?

Mr. CASE. Of course not. In other words, the Motorola case is a so-called "red herring." so some might call it, which has been dragged across the trail, in an attempt to obscure the situation. But we have been very careful in dealing with this measure.

Mr. HUMPHREY. Indeed, we have. Mr. CASE. And the Attorney General and his office and the leadership

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concerned with civil rights organizations have all worked diligently to avoid any possibility of such abuse. I believe that by means of these provisions they have succeeded in their endeavor.

So, Mr. President, as the Senator from Pennsylvania has well said, we have here a mild title dealing with unemployment practices. We wish it were stronger; the Senator from Pennsylvania wishes it were, and so do I, and so do many others. But we still feel it is very worth while having; and we feel that if this title were to be eliminated, the heart would be cut out of an important part of the bill which the Senate has been considering for so long.

I wish to come now to a further point: When I hear it argued that a part of the bill would destroy the rights of Americans, and now it is specifically said that this title would do it, I cannot believe that those who make that statement really mean it. Is it claimed that any American has a right to discriminate on the ground of color in his employment practices? Does any opponent of this title claim the right on the part of any American to engage in such discrimination on the ground of color?

Is that what is meant when they talk about American liberty? Does American liberty consist of a bundle of rights which includes the right to discriminate on the ground of color against fellow citizens and fellow human beings? If anyone seriously makes such a claim, he does not understand what liberty is, because it seems utterly clear to me that liberty has no meaning and no value except that it is liberty shared by each of us with all the rest of us. Unless that is what liberty means to us, I suggest that liberty is not likely to survive in this world.

Several years ago, John W. Gardner, in his little book "Excellence," made the point very clear. He said:

We talk about freedom as perhaps the greatest value. We think it is an acme.

We

assume that everyone believes as we do; namely, that it is the greatest thing in the world. But

He pointed out-and, of course, it is true

that statement is not correct.

The greater number of the people in the world do not believe in individual liberty as a very important thing in life, if they believe in it at all. It is very low in their scale of values.

It is up to us to prove that liberty is a great good. We sha surely never do

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