Mr. MCCLELLAN. I am not sure whether it is true of this title, but I know it is of some of them, that the cost of such enforcement, even the attorneys' fees for the contestant, the one who brings the action or in whose name the action is brought, may, by the judgment of the court, be paid by the employer.

Mr. TOWER. That is correct. Of course, the employer must hire his own legal counsel to defend him in these matters.

Mr. MCCLELLAN. Yes. Is there any provision in the title for protection of the employer if he is unduly harassed by suits brought against him? Is there any protection for the employer against attorneys' fees and other expenses?

Mr. TOWER. There is no protection. In the bill as now written and with the language in which it is now couched, it practically invites harassment. There may be an employer who, before the passage of the bill, and even after it, has had the best record of nondiscrimination in the country; but if there are people who are out to harass him and put him at an uncomfortable competitive disadvantage if someone has a real "mad" against the company, the employer may be harassed world without end, and he has no protection at all under the pending bill.

Mr. MCCLELLAN. In other words, the employer could be harrassed at his own expense.

Mr. TOWER. An employer could be harassed at his own expense and be made to pay for it.

Mr. MCCLELLAN. Does the Senator consider this bill to be discriminatory as between employer and employee with respect to the protection it affords to each?

Is there any provision whereby either may recoup the costs by reason of the statute's being used?

Mr. TOWER. In his usual manner, the Senator has stated the issue clearly and lucidly. Quite obviously, it is a discriminatory measure that discriminates against the employer. I do not say that it necessarily discriminates in favor of prospective employees, because they conceivably could be the losers in this case, too.

Mr. MCCLELLAN. I believe we can point out one further discrimination in this bill. There is no provision which would protect an employer from, or aid an employee in the case of a closed shop, if a man applies who is not a member of the union. He might be very competent, and the employer would like to employ him, but the employer could not employ him because of a collective bargaining contract with a closed shop. Does not this bill clearly discriminate against that man who wants a job, irrespective of his color?

Mr. TOWER. Certainly it does.

Mr. MCCLELLAN. In other words, before he can get a job, he must join the union, whether he wants to do so or not. That is compulsory.

Mr. TOWER. He must pay tribute as a condition for earning his daily bread.

Mr. MCCLELLAN. Therefore, I take it, the bill would further discriminate against an employee, irrespective of his race or color, merely because he did not feel that he wanted to belong to a union.

Mr. TOWER. The Senator is absolutely correct. So a man who obtained that particular job would have no protection whatever.

Mr. MCCLELLAN. Irrespective of his color.

Mr. TOWER. Irrespective of his color, religion, sex, or national origin.

Mr. McCLELLAN. Will the Senator yield for a further question?

Mr. Chairman, racial discrimination pervades our social and economic life. It is particularly acute in the field of employment. Without equal opportunity for employment, citizens from minority groups will remain at the bottom of the economic ladder ghettoized in slum housing and segregated schools. While the unemployment rate hovers around 6 percent, the nonwhite labor force experiences over twice as much unemployment.

The comparatively low rates of employment of Negro professional and skilled workers, and the comparatively high rate of Negro unemployment, indicate the degree of employment discrimination which Negroes suffer.

In 1962, 12.3 percent of employed white men were doing professional or technical work. In the same year, only 4.4 percent of employed Negro men were engaged in such work.

In cities like Detroit and Pittsburgh the unemployment figures for Negro males hover around 17 percent, and consistently Negro workers stay unemployed longer than their white counterparts. The same sad story is reflected in the statistics on poverty. Sixty percent of all Negro families in this country still have incomes of less than $4,000 a year, compared with 25 percent of all white families.

Discouraged by job discrimination, minority group members are more likely

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to abandon vocational goals. Job discrimination is a most important factor in accounting for the high rate of school dropouts. Certainly the demoralizing effect of job discrimination is one cause of juvenile delinquency and adult crime.

Under title VII the civil rights bill sets forth a declaration of congressional policy:

The Congress hereby declares that the opportunity for employment without discrimi nation ⚫ is a right of all persons within the jurisdiction of the United States, and that it is the national policy to protect the right of the individual to be free from such discrimination.

Title VII prohibits, and makes an unlawful employment practice, discrimination by employers, labor unions, employment agencies, and by those who control apprenticeship training programs. It covers employers affecting interstate commerce who have at least 100 employees during the first year after the law becomes effective, 50 employees during the second year, and 25 thereafter. The title also covers labor organizations which are in industries affecting interstate commerce, and which have at least 100 members during the first year after the law becomes effective. Fifty members during the second year, and 25 thereafter.

the judge will hear the matter de novo.

I am disappointed that title VII is not as effective as it should be. In fact, the Equal Employment Opportunities Commission does not have as much power as some State fair employment practices commissions such as the one in New York. However, this represents an important first step in an area where the

Federal Government previously has refused to intervene.

I should also point out that title VII provides a statutory basis for the President's Committee on Equal Opportunity to insure nondiscrimination in Federal employment and in work done on contract with Federal agencies.

Mr. Humphrey:

Senate 5-25-64 p. 11848

TITLE VII. EQUAL EMPLOYMENT OPPORTUNITY

The title provides that employers, labor unions, and employment agencies whose activities affect interstate commerce would be prohibited from discrimination on the basis of race, color, religion, sex, or national origin. Such discrimination would be defined as unlawful employment practices. The enforcement of provisions dealing with unlawful employment practices would not be authorized until 1 year after the enactment of the bill. During the first year of enforcement, coverage would include employers and unions with 100 or more employees or members, and would proceed in stages over 3 years to include those with 25 or more employees or members. The title would create a bipartisan, fivemember Equal Employment Opportunity Commission, appointed by the President and confirmed by the Senate, to investigate complaints and to bring about voluntary settlement. Failing voluntary settlement, the Commission would be authorized to file civil-not criminal-suit to enforce the title. The title provides that if the Commission fails or declines to bring a civil suit within 90 days, the aggrieved person may himself file suit if he obtains the permission of one Commission member. The burden of proof that discrimination has occurred rests with the complainant. The relief available is a court order enjoining the offender from engaging further in discriminatory practices and directing the offender to take appropriate affirmative action; for example, reinstating or hiring employees, with or without back pay.

The title provides further that the Commission shall utilize and seek the cooperation of State fair employment practices agencies to enforce the title. The Commission may require employers, labor unions, and employment agencies to keep and preserve records and to make reports which will assist the Commission in carrying out the purposes of the title.

The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota systems may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular

group, and any person, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices. The title does not provide for the reinstatement or employment of a person, with or without back pay, if he was fired or refused employment or promotion for any reason other than discrimination prohibited by the title. The title contains no provisions which would jeopardize union seniority systems, nor would anything in the title permit the Government to control the internal affairs of employers or labor unions. Employers would continue to be free to establish their own job qualifications provided they do not discriminate because of race, color, religion, sex, or national origin. The title would not prohibit an employer from hiring persons of a particular religion, sex, or national origin where religion, sex, or national origin is a bona fide occupational qualification. The title would not apply to employment of aliens outside a State, nor to religious corporations, associations, or societies, nor would it affect any laws creating special rights for veterans.

Mr. Tower:

Senate 4-16-64 p. 8170

Mr. President, I should like to discuss in some detail the history and development of the so-called fair employment practices legislation.

I realize this is nomenclature. I was referring to it as the fair employment practices section. I am not being entirely accurate, because it is now referred to as the equal employment opportunity section. It contemplates the establishment of an Equal Employment Opportunity Commission.

Similar legislation which has come before Congress in the past was labeled fair employment practices legislation. I believe to refer to it by that term makes it more clearly understood by the general public.

GENERAL BACKGROUND

Equalizing job opportunities for all Americans has become one of the most critical problems in the socioeconomic pattern of American life. Prior to World War II active programs for increasing employment opportunities for members of various minority groups was largely the work of private interracial and intergroup organizations, or State public "goodwill" agencies. Most of these State agencies which were in operation prior to 1941. or which appeared shortly thereafter, had as their primary objective the determination of the extent of discrimination in the fields of housing, education, public employment, health, and civil liberty violations in general.

During this period between World War I and World War II no legislative proposals Federal, State, or local-dealing specifically with the equalization of employment opportunities in all phases of industry were enacted. Some States, however, did have laws in force prohibiting discrimination in public service employment, and various civil rights acts. A survey made in 1950 by Dr. W. Brooke Graves, of the Library of Congress, showed that there were in effect laws prohibiting discrimination in civil service in 28 States, in public employment in 26 States, on public works in 11 States, in

labor unions in 18 States, in defense and war contracts in 4 States, and in teaching positions in 19 States. There was interest in questions relating to civil rights also at the national level. For 2 decades attention was focused on the proposals for a Federal antilynching law, a violent struggle being waged in Congress on numerous occasions on this issue.

FEDERAL ACTIVITIES TO ELIMINATE UNFAIR EMPLOYMENT PRACTICES

Let us turn to consideration of some Federal activities to eliminate unfair employment practices. Beginning in July 1940, A.D., the Federal Government initiated a series of measures aimed at the major problem of integrating nearly 30 million persons of various minority groups into the war effort. Through its Labor Division, established to facilitate the utilization and training of Negro workers, the National Defense Advisory Commission reached an agreement with the AFL and CIO unions by which they accepted responsibility for removing such barriers against these workers. Later announcements indicated that a nondiscrimination policy would prevail in the defense training programs and employment in the construction of defense housing projects. Other letters and instructions of similar import were issued by various other Government agencies during the 6 months following October 1940.

In response to complaints that the foregoing measures were inadequate, President Roosevelt issued Executive Order No. 8802 on June 25, 1941. The order which authorized a Committee on Fair Employment Practices as the administrative agency stated, in part: that it was the duty of employers and of labor organizations "to provide for the full and equitable participation of all workers in defense industries, without discrimination because of race, creed, color, or national origin." The agency was empowered to receive and investigate complaints of violations of the order and take steps to redress valid grievances. It also was authorized to make recommendations to Government agencies and to the President of the United States.

The volume of work became so large that a reorganization of the committee became essential. This reorganization

came after 11 changes in the structure of the committee although the general purpose that of promoting the fullest utilization of manpower and of eliminating discriminatory employment practices— remained the same throughout. Executive Order No. 9346, issued on May 27, 1943, set up a new committee as an independent agency in the Executive Office of the President, with a full-time chairman and six other members serving without compensation. During the 5 years of its existence, the FEPC satisfactorily settled nearly 5,000 cases by peaceful negotiation, including 40 strikes caused by racial differences. During the last year of the war, FEPC held 15 public hearings and docketed 3,485 cases, settling 1,191 of them.

The activities of the wartime FEPC were brought to a close on June 28, 1946, although President Truman had issued Executive Order No. 9664 on December 20, 1945, continuing the work. Congress decreased the appropriation to such an extent that by December of 1945 all of the personnel both in the national and field offices had been placed on a leavewithout-pay status.

The Fair Employment Board established within the Civil Service Commission by Executive Order No. 9980 of President Truman was replaced in 1955 when President Eisenhower established the Committee on Government Employment Policy-Executive Order No. 10590, 20 Federal Register 409. This Committee was created at White House level to, first, advise the President periodically as to nondiscrimination practices in the Federal Government and to make recommendation for assuring uniformity therein; second, consult with and advise Government agencies on nondiscrimination policies and regulations; third, consult with and advise the Civil Service Commission on pertinent civil service regulations; and, fourth, review claims of discrimination and render advisory opinions and make necessary inquiries and investigations.

Under the Eisenhower administration the Committee on Government Contracts, under the chairmanship of Vice President Richard M. Nixon, took the place of the Truman Committee on Government Contract Compliance-Executive Order No. 10479, 18 Federal Register 4899, 1953, as amended by Executive Order No. 10482, 18 Federal Register 4944, 1953. This Committee was charged with assuring compliance by any Government contractor or subcontractor

with the Government's nondiscrimination policy and was authorized to receive complaints of alleged violations of the nondiscrimination provisions of Government contracts, to refer such complaints to the appropriate contracting agency, and to review the agency action thereon.

Under President Kennedy the functions of the Committee on Government Employment Policy and the Committee on Government Contracts were merged in the President's Committee on Equal Employment Opportunity under the chairmanship of Vice President Lyndon B. Johnson-Executive Order No. 10925, 26 Federal Register 1977 (1961). This Committee is charged with the implementation of the policy of equal opportunity for all qualified persons without regard to race, creed, color, or national origin, in regard to Government employment and to the employment practices of Government contractors and subcontractors. The authority of this Committee exceeds that of its predecessors, which had largely consultative and advisory functions. The present Committee has authority to "investigate complaints, issue recommendations and orders, and require reconsideration of final decisions by department and agency heads"-Freedom to the Free, page 131, Civil Rights Commission, 1963.

FEPC ACTIONS ON THE STATE LEVEL

Now, let us consider some FEPC activities on the State level. A survey in the spring of 1963 revealed that the recent momentum in State activity in the area of equal opportunity in employment has brought to 25 the total of State legislatures which have enacted some form of fair employment legislation. Twenty of these States have statutes containing provisions creating an agency charged with enforcement, and providing civil or criminal sanctions. These States are Alaska, California, Colorado, Connecticut, Delaware, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Washington, and Wisconsin.

Indiana, Nevada, and West Virginia have announced a fair employment policy administered by a commission with investigatory, educational, and conciliatory authority. Today, 115 million of the 179 million people recorded by the 1960 census live in States with fair employment legislation and functioning