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sion in rule 53 of the Federal Rules of Civil Procedure for the appointment of masters in appropriate cases but the rule does not encourage the practice. It is not believed that cases under title VII warrant any specific provision relating to the appointment of masters. The deletion of subsection (f) will leave appointment of masters subject to rule 53.
Nineteenth. Section 706(j) gives the Commission authority to go to court to seek compliance with a court order previously issued under title VII.
Twentieth. Section 706 (1) provides for the award of attorney's fees to the prevailing party, other than the Commission and the United States. This should make it easier for a plaintiff of limited means to bring a meritorious suit. The provision for the taxing of costs against the Commission and the United States is similar to that in section 707(h) of the House bill.
Twenty-first. Section 707 is a new section, authorizing suits by the Attorney General. It has previously been described in general terms and is similar to the new section 206 in the public accommodations title. It provides that the Attorney General may institute suit on behalf of the United States when he has reasonable cause to believe that there is a pattern or practice of intentional resistance to the full enjoyment of any of the rights secured by title VII. As in title II, there is no requirement for exhaustion of administrative remedies prior to exercise of this authority by the Attorney General and there is no requirement of prior referral to Federal, State or local agencies, though the Attorney General would remain free to make such a referral if he deemed it useful. There is provision for the convening of a threejudge court at the request of the Attorney General, just as in title II, and also provisions for expeditious handling and for taxing costs against the United States.
Twenty-second. The provision in section 708(b) of the House bill for FederalState agreements is incorporated into section 709 (b) and revised to provide for general cooperation between the Commission and State agencies and for agreements dealing not only with the right to sue but with the duty to keep records and to report.
Twenty-third. The provisions for the investigative powers of the Commission have been entirely rewritten. Section 710 now provides that the Commission, if it seeks to compel compliance with its demands for documents or for the testimony of witnesses, must first go to court and secure an order for compliance. The Commission may, however, formally demand certain documents and if the person upon whom the demand is served objects to the demand, he is required to go to court within 20 days or waive objections to a subsequent court order.
Section 710 narrows the powers originally given to the Commission in the House bill and already possessed by the Federal Trade Commission and the Federal Power Commission.
Section 710 (b) of the House bill, providing that the Commission may obtain information from other agencies of the Government whenever disclosure of such information is not prohibited by law, has been omitted as unnecessary.
Twenty-fourth. Section 711 has been reworded to specify the contents of notices required to be posted. Also, section 711(b) has been amended to reduce the maximum penalty for violation from $500 to $100.
Twenty-fifth. Section 715, authorization of appropriations, and section 716, separability, of the House bill have been omitted. They are unnecessary because there are authorization and separability provisions in title XI applicable to the whole bill. The appropriations authorization clause had been inadvertently included in title VII and the deletion of the separability clause will work no substan tive change.
Twenty-sixth. Section 715-formerly 717-has been amended to extend for 1 year the deadline for the report by the Secretary of Labor on discrimination in employment because of age. It is clear that such a report could not be prepared by the date specified in the House bilt June 30, 1964.
Title XI of the House bill contained only miscellaneous technical provisions. We have added to it the so-called Mansfield-Dirksen jury trial substitute, which deals with trial procedures in cases of criminal contempt. This new section 1101(a) provides that in any criminal contempt trial under the bill against a natural person the accused may be tried
with or without a jury at the discretion of the judge, provided that in any such trial without a jury the aggregate fine shall not exceed $300 and the cumulative imprisonment shall not exceed 30 days. Furthermore, the maximum sentence, regardless of how the case is tried, shall be a fine of $1,000 and imprisonment for 6 months.
In the House bill there was a jury trial requirement only with respect to cases under the public accommodations title. This amendment extends that provision to criminal contempt cases in all titles of the bill. The 30-day limitation on the possible jail sentence reduces by 15 days the maximum sentence permitted under the Civil Rights Act of 1957, and section 1101(b) amends the earlier act so that the 30-day limit applies to it also. The 1957 act is also technically amended to make it conform to the new subsection 1101(a).
Mr. President, an objective analysis of the proposed changes to H.R. 7152 as set forth in the substitute package reveals several basic concerns which guided the labors of the negotiators. First, we were concerned that States and localities be afforded every opportunity to resolve these difficult problems of racial justice by means of their own agencies and instrumentalities. In this respect it is perfectly proper to describe the substitute package as a "States rights bill," and, I may say, a "States responsibilities bill.”
We recognized the good sense of permitting the appropriate State agencies ample time to resolve disagreements arising under titles II and IV and VII, in particular, through voluntary conciliation and mediation. We recognized that many States already have functioning antidiscrimination programs to insure equal access to places of public accommodation and equal employment opportunity. We sought merely to guarantee that these States-and other States which may establish such programs— will be given every opportunity to employ their expertise and experience without premature interference by the Federal Government. In the opinion of the Senator from Minnesota, this is good sense and good legislation. We sought to improve this bill, and I believe we did.
At the same time, we recognized the absolute necessity of providing the Federal Government with authority to act in instances where States and localities
did not choose to exercise these opportunities to solve the problem of civil rights in a voluntary and localized manner. The basic rights protected by H.R. 7152 are rights which accrue to citizens of the United States; the Federal Government has the clear obligation to see that these rights are fully protected. In instances where States are unable or unwilling to provide this protection, the Federal Government must have the authority to act. This is the formula which we sought to implement in the substitute package; I believe we were successful.
We also sought to perfect the language of the bill as passed by t House of Representatives. As the distinguished Senator from Illinois [Mr. DIRKSEN] has so correctly noted, the substitute package contains 74 printed pages as compared with 55 pages for H.R. 7152 as passed by the House. This additional language resulted from our desire to remove certain ambiguities and uncertainties which existed in the House text. Many Senators assisted in this task and many amendments offered by various Senators were included in the substitute package.
These, then, were our two guiding objectives: First, substantive changes which provided ample opportunity for State action, yet preserved the ultimate authority of the Federal Government to protect the civil rights of the citizens of this country, and second, technical changes which sought to clarify ambiguities and uncertainties in the Housepassed version of H.R. 7152.
I must again pay my highest tribute to the leadership and statesmanship displayed by the distinguished Minority Leader, Senator DIRKSEN. He will go down in history as one of the great friends of civil rights and one of the chief architects of the Civil Rights Act of 1964. He dedicated his efforts to achieving this objective and this objective only; namely, the production of an improved civil rights bill that can pass both Houses of Congress. It was my great privilege to join with him in this historic effort on behalf of human rights.
I say, most respectfully that I believe we have presented a reasonable, workable, acceptable piece of legislation. If enacted, it can provide the framework of law within which men and women of good will and of reason, dedicated to the preservation of the dignity of human rights, can meet the difficult problems of civil rights, or, should I say, adjudicate civil wrongs.
Clark Response to Questions on Title VII
EDITORS' NOTE: Early in the Senate debate on the House-approved bill (H. R. 7152), Senator Dirksen (R., Ill.) submitted a memorandum questioning a number of provisions in the bill. As one of the Senate floor managers of the bill, Senator Clark (D., Pa.) prepared answers to the questions relating to Title VII. The text of the Clark response follows, except for questions and answers dealing with provisions that later were changed or deleted by the Senate substitute.
Title VII does not make it a criminal
offense to commit an unlawful employment practice. The only remedy is a civil action. However, if a person who is under a court order not to discriminate should persist in doing so, he would be subject to normal judicial procedings for contempt of court, which have already been described.
The only new offense created by title VII is willful failure to post notices as required by section 711, which would be punishable by a fine up to $500.
However, certain existing criminal statutes are made applicable to the activities of the Equal Employment Opportunity Commission. Thus, 18 United States Code 111, which makes it a crime forcibly to assault, resist, impede, or interfere with certain Federal officers in the performance of their duty is by section 714 of the bill made applicable to officers, agents, and employees of the Commission.
Section 10, as applied to title VII, would also penalize unauthorized disclosure of information by an officer or employee of the Commission.
The President's Committee on Equal Employment Opportunity was created by Executive Order 10925, March 6. 1961, and its authority was extended by Executive Order 11114, June 22, 1963. It presently supervises the administration of an equal employment opportunity program with respect to employment by the Federal Government, by contractors and subcontractors on contracts with the Federal Government, and by contractors and subcontractors on construction financed with Federal financial assistance. Title VII, in its present form, has no effect on the responsibilities of the committee or on the authority possessed by the President
or Federal agencies under existing law to deal with racial discrimination in the areas of Federal Government employment and Federal contracts. (See CONGRESSIONAL RECORD, Feb. 8, 1964, pp. 2574-2575.)
The President is directed by section 718 (c) of the bill to convene one or more conferences of Government representatives and representatives of groups whose members would be affected by the provisions of title VII. to familiarize the latter with the provisions of the title and to make plans for the fair and effective administration of the title. The members of the President's Committee will participate in such conferences, and the scope of the continued and future responsibilities of the President's Committee would be an appropriate topic for consideration at that time.
STUDY ON DISCRIMINATION BASED ON AGE Section 717 directs the Secretary of Labor to make a full and complete study of the factors which might tend to result in discrimination because of age and of the consequences of such discrimination on the economy and on the individuals affected.
Mr. CLARK. Mr. President, those who are interested in the details will wish to refer to the memorandum. I briefly summarize title VII, as follows:
It deals with discrimination in employment, and would make it an unlawful employment practice for those who employ more than 25 persons and for employment agencies or labor organizations with more than 25 members, to discriminate on account of race, color, religion, sex, or national origin, in connection with employment, referral for employment, membership in labor organizations, or participation in apprenticeship or training or retraining programs.
The title would create an Equal Employment Opportunity Commission,
which would be charged with the duty of enforcing the title, investigation of complaints of discrimination, conciliation of disputes, and, where necessary, suits in the Federal courts, to compel compliance with the title.
There are certain obvious exemptions to the coverage, including religious organizations.
I shall not deal with the exemptions in any detail, although I shall be happy to answer any questions which any of my colleagues may desire to ask me in that regard.
The size of coverage starts with employers and labor unions having 100 or more members.
The second year coverage is increased to include those having 75 or more members; the third year 50; and the fourth year 25. The remainder of the memorandum, in my judgment, meets the desirability of having in the RECORD a detailed explanation of each section of the bill, and of those subsections the meaning of which might appear obscure to the casual reader.
I shall not extend this talk further by dealing with the details of the legislation.
Mr. President, some time ago the able minority leader, the Senator from Illinois [Mr. DIRKSEN], expressed some concern on the floor of the Senate with respect to title VII. I understand that yesterday the Senator from Illinois had available-but I was unable to obtain a copy-the detailed language of amendments which he has in mind submitting to title VII. Since I have not had the opportunity to read the text, and since in a matter as complicated as this it is important that we should refer specifically to a detailed, legal text, I shall not undertake to comment on the newspaper articles which were published this morning with respect to the burden of the amendments of the Senator from Illinois. I am confident that, to the extent they do no more than to perfect language, they will be received on this side of the aisle with an open mind. To the extent that they water down the bill-and I do not say that they do I am sure they will be opposed on this side of the aisle. I am also sure that the Senator from Illinois [Mr. DIRKSEN] will have the legislative good sense to clear any amendments which he seriously desires the Senate to adopt, with his Republican colleague, Representative McCULLOCH, of Ohio, who, as I stated earlier in these remarks, has become to some extent the "czar" of the Senate, since we are in a parliamentary situation
where we do not dare adopt any amendment which has not received the categorical approval of Representative McCULLOCH.
If we should do so, we might be forced to go to conference. If the House would not accept the Senate amendments, and if the bill went to conference—that is, if the House should let it go there, we would then be faced with the threat of a second filibuster.
I should like to respond at this time to some of the questions asked by the Senator from Illinois [Mr. DIRKSEN] when he was debating the Morse motion to refer the pending bill to the Judiciary Committee.
At that time, the Senator caused a large number of eyebrows to be raised. He suggested dire consequences if drastic amendments were not made to title VII as well as many of the other titles. One cannot be sure-at least I cannot be sure-how strongly the junior Senator from Illinois will press the position he then took. I can speak only for myself. Some of the suggestions he made appear to be immaterial and quite unimportant; some would seem to make drastic and unacceptable changes in the bill-that is, they would if they were adopted. Some would interject into the House bill some wise provisions in the Senate billthe FEPC bill which is now on the calendar-provisions which, unhappily, we are not in a parliamentary situation to approve, because of the danger which I have already indicated over on the House side.
In my opinion, as chairman of the subcommittee which conducted the hearings and brought the bill to the floor by a vote of 12 to 3 in the Committee on Labor and Public Welfare, the Senate bill is infinitely preferable to the House bill because it is a stronger bill.
But there is some doubt as to whether the House, or even the Senate, would be ready to adopt such strong medicineI would hope they would. Again, there is the problem of the parliamentary situation with respect to conference and the position which the House holds over us of primacy in determining what shall go into the final bill. Therefore, I do not believe there will be a practical opportunity to accept the suggestions of the Senator from Illinois which would strengthen title VII by increasing its coverage, and perhaps in other matters.
During his speech, the Senator from Illinois asked a number of questions. I am sure they were asked in all sincerity.
MAJOR CONGRESSIONAL STATEMENTS
Their phraseology indicates grave concern as to the feasibility and the wisdom of a large part of title VII. I have undertaken to have those questions answered in brief compass; and in my opinion they are answered rather convincingly.
I conclude from the questions and answers that most of the objections of the Senator from Illinois to title VII, as evimet denced at that time, are untenable.
Mr. President, I ask unanimous consent that a copy of the memorandum, reft giving the questions of the Senator from Clinois and the answers I have caused
to be prepared thereto, may be printed in ed full in the RECORD at this point in my remarks.
There being no objection, the memorandum was ordered to be printed in the RECORD, as follows:
RESPONSE TO DIRKSEN MEMORANDUM Question. What records are employers required to keep by title VII?
Answer. Employers will be required to keep such relevant records as the Commission prescribes after public hearing.
Question. Employers voluntarily participating in the program of the President's Commission on Equal Opportunity are apprised in detail of the records which they must keep-and the records are, I believe, more comprehensive than are those that would be required by title VII. Are we to superimpose another set of records on the employer in addition to a third set that he may be keeping for a State FEPC?
Answer. There will not be a layering of recordkeeping requirements. The President's Committee does not require that records be kept, and none of the State FEPC laws contain recordkeeping requirements.
Question. What of the conflict between State and Federal record requirements? Illinois prohibits any reference to color or rellgion in employers' records. Title VII would require this information to be kept. Are we now to force an employer to violate a State law in order to comply with a Federal statute, each of which has the same purpose?
Answer. No State has a law which would prohibit disclosure of racial or religious information on employees. Some States do have laws which prohibit disclosure on employment application forms. These laws would yield to the supremacy of the Federal law, since it is necessary to have this data to determine if a pattern of discrimination exists.
Question. Every employer is required to make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed and shall preserve such records for such periods as the Commission shall require. In the wage and hour laws we clearly set forth the records to be kept and prescribed
the periods for which they should be preserved. Why not do the same in this legislation? Is there any compelling reason why this cannot be done? I know of no such Committee, where in fact it should be done. restriction on the Senate or on the Judiciary
Answer. Congress cannot set definite recordkeeping requirements, and should not try to write them in the statute, because it is not yet known what records will be needed. The Commission should do it, after full public hearing, and subject to appropriate judicial review.
Question. Who is to determine what are essential and what are nonessential records? Without adequate statutory direction an employer may well risk severe penalties if he destroys records relevant to the determination of whether unlawful employment practices have been or are being committed. Who is to determine what is relevant, certainly not the employer unless he is willing to risk prosecution.
Answer. The Commission will make the initial determination, after public hearing, as to what records are "reasonable, necessary, or appropriate for the enforcement of this title or the regulations or orders thereunder" and will issue regulations specifying those records. Of course, these regulations are subject to appropriate court review. An employer will have ample notice of what records he must keep, because they will be specified in the regulations. He can only be punished if he willfully destroys or falls to keep records; not if he inadvertently does so. He nced not wait to be prosecuted to have a court determination of what records are rele vant, A subpena is not self-enforcing; it can be enforced only after a court has heard his arguments and disagreed with them. Of course, if he disobeys the court's order, then he would be in contempt of court.
Question. What protection is afforded to an employer from fishing expeditions by investigators in their zeal to enforce title VII? Examine section 709 (a) on page 44. The Commission or its designated representative shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. Can there be a greater grant of investigatory authority? I can recall none. Should the Commission be permitted to copy evidence? Should an employer be permitted to request a detailed list of the records to be examined by the Commission? Should the employer be permitted to go before a competent court in order to determine what records relate to any matter under investigation or in question? Or are we to allow the Commission carte blanche authority in its examination, in its copying of evidence, in its inquiry? Should this examination be limited to specified documents? How broad can such inquiry be? It will be limited only by determination of the Commission. No private rights will remain.