Page images

Enforcement and Administration:
EEOC-Enforcement Powers, Procedures

EDITORS' NOTE: In the following statement, Congressman Celler (D., N.Y.) sought to refute charges that the EEOC would have the power to prevent a business from employing and promoting the people it wished and that EEOC would have authority to rectify existing "racial or religious imbalance."

[blocks in formation]

Let me cite some specifics. EMPLOYERS, EMPLOYEES, AND LABOR UNIONS It has been claimed that the bill would deprive employers, workers, and union members of their right to be free to control their business affairs and their membership. Specifically, the charge has been made that the Equal Employment Opportunity Commission to be established by title VII of the bill would have the power to prevent a business from employing and promoting the people it wished, and that a "Federal inspector" could then order the hiring and promotion only of employees of certain races or religious groups. This description of the bill is entirely wrong. The Equal Employment Opportunity Commission would be empowered merely to investigate specific charges of discrimination and to attempt to mediate or conciliate the dispute. It would have no authority to issue any orders to any


In the event that wholly voluntary settlement proves to be impossible, the

Commission could seek redress in the Federal courts, but it would be required to prove in the court that the particular employer involved had in fact, discriminated against one or more of his employees because of race, religion, or national origin. The employer would have ample opportunity to disprove any of the charges involved and would have the benefit of the protection of all the usual judicial procedures.

No order could be entered against an employer except by a court, and after a full and fair hearing, and any such order would be subject to appeal as is true in all court cases.

Even then, the court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end to discrimination. The statement that a Federal inspector could order the employment and promotion only of members of a specific racial or religious group is therefore patently erroneous.

Nor, as charged, would the fair employment provisions reach all employers and all businesses of any size or importance. Only businesses which affect interstate commerce would be covered, and, initially, even these businesses would be subject to the act only if they have more than 100 employees. In the later years, the act would apply to employers of 25 or more persons.

Finally, in order to provide an opportunity for adjustment and transition, the specific prohibitions on job discrimination would not become effective until 1 year after passage.

It has been asserted also that the bill would destroy worker seniority systems and employee rights vis-a-vis the union and the employer. This again is wrong. The bill would do no more than prevent a union, as it would prevent employers, from discriminating against or in favor of workers because of their race, religion, or national origin.

It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing "racial or religious imbalance" in employment by requiring the hiring of certain people without regard to their qualifications simply because they are of a given race or religion. Only actual discrimination could be stopped. And there is, of course, no provision whatever for depriving unions of the rights and benefits under existing law.

EDITORS' NOTE: Congressman Celler (D., N.Y.) explained the functions of the EEOC.

House 1-31-64 p. 1521

Title VII of the bill establishes a Federal Equal Employment Opportunity Commission designed to eliminate discriminatory employment practices by certain employers, unions, and employment agencies. The Commission is empowered to: First, receive and investigate charges of discrimination in employment affecting commerce; second, attempt through conciliation and persuasion to resolve disputes involving such charges; and third, if efforts to secure voluntary compliance are unsuccessful, seek relief in the Federal courts where the matter will be heard de novo.

The assertion that this is so is simply a total invention. Section 711 of the fair employment portion of the bill covers employment in the Federal Government and employment in firms having contracts with the Government. The Presi dent is authorized to take necessary action to insure equal employment opportunities in these areas. Contrary to the innuendos of certain critics of the bill, the President's authority is not unlimited. It is clearly confined to Government and Government contract employment. It is only just and reasonable that the Federal Government, representing and supported by all of its citizens, of whatever race or religion, insist upon fair and impartial employment procedures which allow equal opportunity to all qualified workers.

In order to enable employers, unions, and employment agencies to adjust their policies and procedures in conformity with the requirements of title VII, the provisions prohibiting discriminatory

employment practices and providing relief therefrom do not become effective until 1 year after the date of enactment of title VII. Similarly, in order to provide for an orderly transition and adjustment, coverage in the first year of the law's operation is extended to employers and unions which have 100 employees or members; in the second year, 50 employees or members; and in the third year and thereafter, 25 employees or members.

To the maximum extent possible, title VII provides for the utilization of existing State fair employment laws and procedures. Existing State laws will remain in effect except as they conflict directly with Federal law. Through cooperative efforts with State and local agencies, title VII envisions an effective and harmonious mobilization of Federal, State, and local authorities in attacking this national problem.

Approximately half of the States today have laws prohibiting discrimination in employment. Title VII would extend this protection throughout the 50 States.

EDITORS' NOTE: Congressman Abernethy (D., Miss.) charged that Title VII would reach and control "the most remote corner of our social structure and virtually all of our economic structure." In his view, the Constitution does not give the federal government such sweeping authority.

House 2-1-64 p. 1620

Mr. Abernethy:


With the passage of title VII of H.R. 7152, the proposed law, the Federal Government would assume authority over the American people in a manner unmatched in modern history outside acknowledged dictatorships. The Government of the United States would use the techniques of the lion tamers, cracking the whip and withholding rations, whenever the American businessman, labor leader, or hospital or university administrator showed any signs of exercising his free will to hire employees.

Title VII would set up a commission to assure equal employment opportunity. It would also direct the President to prevent racial discrimination among contractors and subcontractors of agencies of the Federal Government. This pretty well covers the waterfront, for the first proviso hinges on the interstate commerce clause and extends coverage to any employer, "affecting" interstate commerce, with 25 or more employees. It also covers labor unions with 25 or more members and any employment agency.

If the Government is given this sweeping power the effect upon our way of life will be profound.

Our colleague, the gentleman from Illinois [Mr. McLOSKEY], on September 25, examined this title as it would apply to labor unions. In the CONGRESSIONAL RECORD of that date, volume 109, part 13, page 18133, it is pointed out with unmistakable clarity that unions would have to recruit "racially balanced" membership. Time-honored seniority rules would be summarily nullified. In making job assignments through union hiring halls, it will not be enough to take qualified workers as they present themselves, one by


I can visualize the union of the future. if title VII is adopted. The union would have to send out a "racially balanced" staff of organizers to sign up a crew of "racially balanced" carpenters, a crew

of "racially balanced" laborers, "racially balanced" plumbers, electricians, plasterers, roofers, and so forth, before a construction job could begin.

The Constitution does not confer upon the Federal Government authority to tell a private businessman who to hire. If a department store manager wants to hire all blond sales clerks, he can hire blond sales clerks. His wife might object but the Federal Government cannot.

Title VII would change all this, if the store employed as many as 25 persons full or part time and if the business affected interstate commerce. And, what affects interstate commerce? The bill does not say, but in the Wickard case (Wickard v. Filburn, 317 U.S. 111, 215 (1942)), a farmer who produced only 239 bushels of wheat which never left his own farm was declared to be affecting interstate commerce.

In the area of Federal contractors and subcontractors we have had samples of what the future will bring if this bill is passed. "Employment." part 3 of the 1961 U.S. Commission on Civil Rights Report, page 69, describes how an employer was browbeaten into submission, as follows:

In many industries, such as the manufacture of aircraft, work performed under Government contracts constitutes a substantial

part of total business performed. Companies in these industries rely heavily on the award of Government contracts, particularly in times of economic recession.

Thus, for example, the recent $1 billion contract awarded to Lockheed Aircraft Corp. to be performed at its Marietta, Ga., plant will be a significant factor in the economic recovery of the plant and of the community. In order to obtain the contract, the company agreed to make substantial changes in its employment practices, as set forth in detail below.

The steps Lockheed had to agree to take are on page 79. Among other things, the company was forced to

Aggressively seek out more qualified minority group candidates (for many Job categories, including engineering, technical, administrative, clerical, and factory opera


Reanalyze its available salaried jobs to be certain that all eligible minority group employees have been considered for placement and upgrading:

Institute a program of familiarizing universities with employment needs and opportunities, to include hiring teachers who are members of minority groups for summer work and arranging plant tours for teachers and student counselors; and

Support the inclusion of minority group members in all its apprenticeship and other training programs including supervisory and presupervisory training classes.

I was somewhat encouraged to read in this same report that there were a few industries, such as textiles, in which the impact of Federal contracts is so negligible that the companies preferred not to bid on them rather than have to submit to the meddling into their administrative affairs by bureaucrafts from Washington. A similar situation was met in public utility companies. They could afford not to knuckle under since they are usually the sole source of supply in a given area. But with the enactment of title VII, their resistance would assuredly crumble. The definition of "interstate commerce" would get them.

Mr. Case:

EDITORS' NOTE: Senator Case (R., N.J.) argued that Title VII carefully defines the power of the EEOC and placed in the record a memorandum analyzing in detail the Commission's investigatory authority. This relates the bill prior to the Dirksen-Mansfield substitute.


pp. 7243-7246


To sum up, the most remote corner of our social structure and virtually all of our economic structure would be reached, cajoled, and controlled by this incredible proposal. Again quoting from the minority report:


If efforts to secure voluntary compliance fail, the Commission may seek relief in a Federal district court-section 707(b). If the Commission fails or declines to bring suit within a specified period, the individual claiming to be aggrieved may, with the written consent of any one member of the Commission, bring a civil action to obtain reliefsection 707(c). In either case, a full judicial trial would be held. Relief available upon suit either by the Commission or an individual would include injunctions against future violations, and orders for reinstatement and, in appropriate cases, the payment of back pay-section 707(e). In order to avoid the pressing of "stale" claims, the title provides that no suit may be brought with respect to any practice occurring

We do not believe that the American people as a whole, whether employers or employees, want to embark upon this new adventure. We do not believe that they want to make this departure in the functional aspects of the American free enterprise system. We do not believe that they want the Federal Government, through its administrators. commissioners, investigators, lawyers. and Judges, to assume this quality and quantity of control over their property and personal freedom to manage their own affairs. If this title of this legislation becomes a statute, we predict that it will be as bitterly resented and equally as abortive as was the 18th amendment, and what it will do to the political equilibrium, the social tranquillity, and the economic stability of the American society, no one can predict.


more than 6 months prior to the filing of a charge with the Commission-section 707(d).


Ample provision has been made in title VII for the utilization of existing State fair employment laws and procedures to the maximum extent possible-section 708. Present State laws would remain in effect except to the extent that they conflict directly with Federal law. Furthermore, where the Commission determines that a State or local agency has and is exercising effective power to prevent discrimination in employment in cases covered by the title, the Commission is directed to seek agreements with that agency whereby the Commission would refrain from prosecuting any such cases. The Commission is also authorized to use the services and employees of State and local agencies in the carrying out of its statutory duties, and to reimburse the agencies accordingly. Thus, the bill envisions the closest cooperation of Federal, State, and local agencies in attacking this national problem.

« PreviousContinue »