The PRESIDING OFFICER. The amendments will be received, printed, and lie on the table; and, without objection, the amendments and explanations will be printed in the RECORD.

The amendments and explanations presented by Mr. DIRKSEN are as follows: AMENDMENT 501

On page 29, line 13, after "person" insert "(including a labor organization having a hiring hall or hiring office)".

Incorporated into the definition of "employment agency" are the hiring halls or hiring offices of labor organizations. This has been done to insure, so far as is possible against discrimination by labor organizations against members by reasons of race, color, religion, sex, or national origin.

In these instances, which by reason of agreement by and between an employer and a labor organization, the employer is not able to seek new employees from the general labor market but is obligated to secure the employees from a hiring hall or hiring office maintained by a labor organization, it is desirable that adequate protection be extended under this title to these members who may be the subject of discrimination by the labor organization to which they belong.

The "hiring hall or hiring office" of a labor organization may be, in some areas, the only available source of access to the labor market. Omission from the bill of this language may have been inadvertent. We do know that labor organizations have given support to this bill. This language I propose to insert in no way weakens or dilutes the title, but enlarges it by extending coverage to a large member of men and women in the labor market who would not otherwise be protected by this title.

AMENDMENT No. 502

On page 35, strike all of line 7 through line 10 and reletter subsection (g) accordingly.

Paragraph (f) of section 704 of this title provides: "Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to refuse to hire and employ any person because of said person's atheistic practices and beliefs."

This amendment will strike the above section from this title. To leave it in would only provide a vehicle for the first legal assault on this bill, which in view of recent court decisions would probably be successful.

The first words of the first amendment to the Constitution deal with freedom of rellgion and the cases decided under this section make it clear that the freedom of conscience enjoyed by Americans with respect to their religious beliefs ought not to be interfered with by the Congress.

The nature and extent of a man's beliefs with respect to his Creator are, and ought to be, sacred and exempt from testing as a condition of employment.

I can think of nothing so ill suited to a civil rights bill, designed to protect the rights of all persons to be free from discrimination as this section, the deletion of which I now propose.

AMENDMENT No. 503

On page 39, at the end of line 11, insert "the public." and strike line 12.

The bill empowers the Federal Commission to make such technical studies as are appropriate to effectuate the purposes and policies of title VII and to make the results of such studies available to interested governmental and nongovernmental agencies.

However, every employed person and every employer has an interest in knowing the results of studies made with respect to discriminatory employment practices and the results of such studies should therefore be available to the public.

AMENDMENT No. 504

On page 39, line 22, strike "or on behalf of"; and on lines 23 through 25 strike "or a written charge ⚫ has occurred."

This amendment provides for the filing of a charge in writing, under oath, by the party claiming to be aggrieved. The amendment precludes the bringing of this action "on behalf of" a person. This is in keeping with our historical concept of jurisprudence. We have recognized two types of court action, those brought by an individual to seek redress of a civil wrong or those brought by the Attorney General to correct a public wrong. It does not seem appropriate to deviate from this concept and to permit such filing of charges as is contemplated by the language of section 707.

AMENDMENT No. 505

On page 40, line 15, after "be" insert "made public or".

The maximum results from the voluntary approach will be achieved if the investigation and conciliation are carried on in privacy.

If voluntary compliance with this title is not achieved, the dispute will be fully exposed to public view when a court suit is illed.

AMENDMENT No. 506

On page 41, line 11, strike "may" and insert in lieu thereof "shall'; on line 11, strike "either"; and on lines 13 and 14, strike all after "committed" through "office".

Now I feel that any action brought in the Federal court under this title should be brought in the judicial district where the unlawful employment practice is alleged to have been committed.

I realize, of course, that there are some other statutes which provide for venue in districts other than the district in which the cause of action giving rise to the complaint Occurs. It becomes extremely important however, in setting up a statute giving rise

to a new cause of action to choose our langunge with both clarity and precision.

Because the failure to comply with the provisions of this title is termed "an unlawful employment practice", I consider it both desirable and practical to provide that an action brought under this title should be filed in the Federal district court for the area of its occurrence.

To allow such a case to be brought in the Judicial district in which the respondent has his principal office could, and probably would, result in a large number of suits being filed in the so-called home office districts of corporations.

In many instances the principal office of such firms are located in our large metropolitan areas. In such cities the court calendars are almost uniformly burdened with heavy case loads, upon which would be laden the additional cases it is expected would be brought under this title. The delay in justice to other litigants, and to the parties to actions under this title would be intolerable.

It could be anticipated also that there will be considerable problems involved in the transportation of witnesses and evidence from the district where the cause of action arose to a district far removed, with consequent difficulties to the maintenance of almost any business operation.

It is perhaps not inconceivable that employers, in an attempt to reduce their exposure to the hazards of litigation under this title, would increase the use of overtime by persons presently employed rather than run the risks attendant upon seeking new employees.

The expanding use of automated processes has already reduced the availability of employment opportunities for many categories of the employment market. I would hope, therefore, that in attempting to achieve a good end we do not create more problems than we solve. Accordingly, I suggest that acions under this title be brought only in the U.S. district court where the unlawful employment practice is alleged to have been committed.

AMENDMENT No. 507

On page 41. line 22, after "has" and on line 23 after "is" insert "willfully".

The word "willfully" is added to section 707 (e) to make clear the intention of Congress in respect to possible unwitting violations of title VII. Certainly it is not intended that an accidential or unintentional violation should subject an employer to the provisions of this title.

Corpus Juris Secundum defines willful and willfully in volume 94 at pages 620 through 638. On page 622 it is stated that:

"The words 'willful' and 'willfully' as ordinarily employed, mean nothing more than that the person, of whose actions or default the expressions are used, knows what he is doing, intends what he is doing, and is a free

3

agent; that is that what has been done arises from the spontaneous action of his will! Thus the terms imply a conscious act of the mind and denote an attitude of the mind and will but they import something more than a mere. exercise of the will, and include the idea of a consciousness or knowledge, that is knowledge of all of the circumstances, and when used in connection with an act forbidden by law, the terms carry the idea that, with knowledge, the will consented to, designed and directed the act. Thus the terms signify an act done knowingly permissively, voluntarily, deliberately, persistently, perversely, obstinately, or even an act performed stubbornly. The terms also signify an act done by design, with set purpose.

"The terms are also employed to denote an intentional act, an act done intentionally, or purposely, as distinguished from an accidental act, an act done by accident, or accidentally, or carelessly, thoughtlessly, heedlessly, or inadvertently, or otherwise beyond the control of the person charged."

This is precisely the situation which might exist if the words are not added to title VII. Accidental, inadvertent, heedless, unintended acts could subject an employer to charges under the present language.

In distinguishing in the use of the words in civil or criminal states it is stated on page 630 that: "the words willful and willfully are frequently used in a sense that does not imply any malice or wrong, or anything necessarily blamable or malevolent, and the words are generally used in this mild sense in civil cases "."

A greater degree of certainty will be obtained by the addition of this word of refinement and certainly a much clearer legislative intent will be provided for the use of the Commission and the courts.

AMENDMENT No. 508

On page 42, strike lines 17 through line 2 on page 43 and reletter the following subsections accordingly:

The next amendment will strike paragraph (f) of section 707 of title VII. This section provides for the appointment of a master in cases where the pleadings present issues of fact.

Traditionally in our theory of jurisprudence the decision on issues of fact are reserved to the jury and the decision of ques

1 Col. Murray v. State Board of Accountancy of Dept. of Professional and Vocational Standards, 218 p. 2d 569, 572.

U.S.-Chicago Coulterville Coal Co. v. Fidelity & Casualty Co. of New York, C.C. Mo. 130 F. 957, 962.

U.S. v. Philadelphia & R.R. Co., D.C. Pa. 223 R. 207. 210.

'Nebraska-Union Transfer Co. v. Bee Line Motor Freight, 34 N.W. 2d 363, 365.

Iowa State v. Meek, 127 N.W. 1023, 1024. Cal-Chan v. Title Insurance & Trust Co., 257 p. 2d 53.

tions of law reserved to the judge. I do not believe it is wise to alter or to dilute proven legal procedures by incorporating this section into the statutes.

Of course, I am aware that the Federal Rules of Civil Procedure (rule No. 53) provide for the appointment of masters in particular cases, but the rule states: "a reference to a master shall be the exception and not the rule • • •."

The courts have held that such references are expensive and time consuming, that they greatly increase the cost of, and postpone the end of litigation. For nearly a century litigants and members of the bar have been crying out against the burden and delay of masters hearings and certainly litigants prefer, and are entitled to, the decision of the judge of the court before whom the suit is brought. Greater confidence in the outcome of the trial and more respect for the decision of the court should reasonably be expected if masters are eliminated.

It has been stated by one of our Nation's eminent jurists that there is no more effective way of putting a case to sleep for an indefinite period than to permit it to go to a reference with a busy lawyer as referee.

To subject complainants, who have been discriminated against by unlawful employment practices to the built-in delays of this Bection is unreasonable. I therefore propose its elimination.

AMENDMENT No. 509

On page 45, line 1, strike out "(c) Every" and insert "(c) Except as provided in subsection (d), every".

On page 46, after line 5, insert the following:

"(d) The provisions of subsection (c) shall not apply to any employer, employment agency, labor organization, or joint labormanagement committee with respect to matters occurring in any State which has a fair employment practice law during any period during which such employer, employment agency, labor organization, or joint labor-management committee is subject to such law, and shall not apply to any employer during any period during which he is subject to the provisions of Executive Order 10925, issued March 6, 1961, or to any other Executive order prescribing fair employment practices for Government contractors and subcontractors."

Amend section 709 (c) to provide that the Federal Commission shall not require records different from those required by a State fair employment practices agency or the President's Committee on Equal Employment Opportunity.

This amendment is necessary to prevent the superimposition of different recordkeeping requirements by the various State and Federal agencies dealing with discrimination in employment. The preparation of business records is already burdensome, and there is little justification for allowing each agency to impose its own requirements for records.

AMENDMENT No. 510

On page 46, strike out lines 6 through 24 and insert the following:

"ENFORCEMENT

"SEC. 710. (a) If the respondent named in a charge filed under section 707 refuses to permit the Commission or its designated representatives to examine, or to copy, evidence in conformity with the provisions of section 709(a), the United States district court for the district in which such evidence 18 located shall, upon application of the Commission, have jurisdiction to issue to the respondent an order requiring him to permit the examination and copying of such evidence.

"(b) If any person falls or refuses to comply with the provisions of section 709 (c), the United States district court for the district in which such failure or refusal occurs shall, upon application of the Commission, have jurisdiction to issue to such person an order requiring him to comply with such provisions.

"(c) Any failure to obey an order of the court issued under subsection (a) or (b) may be punished by the court as a contempt thereof.

"(d) In any proceeding commenced by the Commission under subsection (a) or (b), the Commission shall be liable for costs the same as a private person.

"Upon the failure or refusal of any person to comply with section 709, the Commission may apply to the district court in the district in which such records or other evidence are located for an order requiring the production of such matter, and for fallure to obey such order, such person may be punished as for contempt of court."

The broad investigatory powers in section 710 are covered by the court rules for discovery and depositions and will be available in aid of the court proceeding for injunction and also for contempt of the court order.

The power required by the Federal Commission is the power to examine records, and that is provided by the substitute language.

call up my amendment No. 846, and ask that it be stated.

The PRESIDING OFFICER. The amendment of the Senator from South Carolina will be stated.

The LEGISLATIVE CLERK. On page 47, beginning on line 3, it is proposed to delete the following language:

The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman.

And to insert in lieu thereof the following language:

The Commission shall elect its own Chairman and Vice Chairman.

Mr. THURMOND. Mr. President, on this question, I ask for the yeas and nays. The yeas and nays were ordered. Mr. THURMOND. Mr. President, I yield myself 45 seconds.

The PRESIDING OFFICER. The Senator from South Carolina is recognized for 45 seconds.

Mr. THURMOND. Title VII of the substitute would authorize the President to appoint a chairman and a vice chairman of the Equal Employment Opportunities Commission.

It is far better administrative procedure for the chairman and the vice chairman of any commission to be elected by the commission itself, rather than to be appointed by the President. A good

example of this better administrative procedure is provided by the Interstate Commerce Commission which, since 1887, has elected its own chairman.

This amendment would provide that the Equal Employment Opportunities Commission be empowered to elect its own chairman and vice chairman.

Mr. HICKENLOOPER. Mr. President, I yield myself 1 minute.

The PRESIDING OFFICER. The Senator from Iowa is recognized for 1 minute.

Mr. HICKENLOOPER. Mr. President, I am sorry the leadership and . the assistant leadership on both sides of the aisle are not present in the Chamber at the moment, because I wish to address to them a question as to the purpose of this particular session.

Earlier this evening, and before dark, it was generally understood-and, whether officially announced or not, it was bandied about on both sides of the aisle that we were going to take a recess at 11 o'clock this evening.

Eleven o'clock has long since gone by. It is now 40 minutes past 11 o'clock.

So far as I know, there is no understanding as to how long this session is going to last, or what the purpose of its continuance may be.

If we wish to stay here all night, I can stay all night; but I do believe we should at least be given the courtesy of a warning, especially since 11 o'clock was generally understood to be the time when we would take a recess this evening.

I notice that the leadership has now returned to the Chamber. I do not like to repeat my question, particularly; but I just wonder what goes on.