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Clark-Case Substitute Bill
EDITORS' NOTE: During the debate in the Senate, Senators Clark (D., Pa.) and Case (R., N. J.) introduced a bill designed to be a substitute for Title VII of the House-approved bill (H. R. 7152) and the Mansfield-DirksenHumphrey substitute for the House-approved bill. The Clark-Case bill, some provisions of which were included in the measure finally adopted, follows. Senators Clark and Case were the managers for the House-approved bill in the Senate.
2. Deletion of section 704(f) of the bill authorizing discrimination against atheists.
3. Exemption permitting preferential treatment for Indians employed on or near an Indian reservation (a new section 704 (1) at p. 9 of the substitute).
4. A new section 704(h), taken from the Dirksen amendment, provides that nothing in the act should be interpreted to require an employer to grant preferential treatment to any individual or group because of any racial imbalance in his employment pattern (at p. 9 of the substitute).
5. A new section 706 (e) gearing the salary provision of the members of the Equal.Employment Opportunity Commission to the Federal Executive Pay Act of 1956. This is in the nature of a technical or perfecting amendment (at p. 13 of the substitute).
6. Section 706(g) (4) has been extended to cover labor organizations as well as employers. This deals with the authority of the Commission to conciliate in cases where
employees or members of labor organizations refuse to go along with the requirements of the bill (at p. 14 of the substitute).
7. Section 707 has been rearranged, refined and edited with respect to some of the procedural aspects of the Commission's work (at pp. 15-17 of the substitute).
8. A new subsection 707(b) has been added which incorporates the provisions of the Dirksen amendment with respect to injunction actions by the Attorney General in cases of patterns or practices of resistance to the bill. The provisions of the Dirksen amendment dealing with such actions by the Attorney General have been incorporated in its entirety (at pp. 18-20 of the substitute).
9. The provisions of the Dirksen amendment with respect to cession agreements between the Commission and the FEP States or local agencies have been substituted for the comparable provisions appearing in section 708(b) of the bill. The Dirksen amendment is modeled after provisions in S. 1937 authorizing the Commission to agree to reimburse the States in such cases and is a decided improvement over the provisions of the House bill. The new material appears as
an amendment of section 709 (b) of H.R. 7152 (at p. 21 of the substitute).
10. The provisions of section 713(b) of H.R. 7152, covering good faith defense in cases of reliance on offered interpretations have been clarified and simplified (at p. 25 of the substitute).
11. Following the Dirksen amendment, sections 715 and 716, dealing with appropriations and separability have been eliminated. Authorizations and separability are amply covered by the overall miscellaneous provisions in title XI of H.R. 7152 (sections 1103 and 1104 at p. 54 of the House bill).
The amendments (Nos. 871 and 872) submitted by Mr. CLARK (for himself and Mr. CASE) are as follows:
AMENDMENT No. 871
Beginning with line 21 on page 27, strike out over through line 25 on page 50 and insert in lieu thereof the following:
"TITLE VII-EQUAL EMPLOYMENT OPPORTUNITY
"Findings and declaration of policy
"SEC. 701. (a) The Congress hereby declares that the opportunity for employment without discrimination of the types described in sections 704 and 705 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.
"(b) The Congress further declares that the succeeding provisions of this title are necessary for the following purposes:
"(1) To remove obstructions to the free flow of commerce among the States and with foreign nations.
"(2) To insure the complete and full enjoyment by all persons of the rights, privileges, and immunities secured and protected by the Constitution of the United States.
"SEC. 702. For the purposes of this title"(a) The term 'person' includes one or more individuals, labor union, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers.
"(b) The term 'employer' means a person engaged in an industry affecting commerce who has twenty-five or more employees, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof, (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of the Internal Revenue Code of 1954: Provided, That during the first year after the effective date prescribed in subsection (a) of section 716, persons having fewer than one hundred employees (and their agents) shall not be considered employers, and, during the second year after such date, persons having fewer
than seventy-five employees (and their agents) shall not be considered employers, and, during the third year after such date, persons having fewer than fifty employees (and their agents) shall not be considered employers: Provided further, That it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin and the President shall utilize his existing authority to effectuate this policy.
"(c) The term 'employment agency' means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency a State or political subdivision of a State, except that such term shall include the United States Employment Service and the system of State and local employment services receiving Federal assistance.
"(d) The term 'labor organization' means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
"(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) one hundred or more during the first year after the effective date prescribed in subsection (a) of section 716, (B) seventy-five or more during the second year after such date or fifty or more during the third year, or (C) twenty-five or more thereafter, and such labor organization
"(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended, or the Railway Labor Act, as amended;
"(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or
"(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employ
ees of employers within the meaning of paragraph (1) or (2); or
"(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or
"(5) is a conference, general committee, Joint or system board, or joint council, subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.
"(1) The term 'employee' means an individual employed by an employer.
"(g) The term 'commerce' means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
"(h) The term 'industry affecting commerce' means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry 'affecting commerce' within the meaning of the Labor-Management Reporting and Disclosure Act of 1959.
"(1) The term 'States' includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act.
"SEC. 703. This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, or society.
"Discrimination because of race, color,
religion, or national origin
"SEC. 704. (a) It shall be an unlawful employment practice for an employer
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin;
"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
"(b) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.
"(c) It shall be an unlawful employment practice for a labor organization—
"(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
"(2) to limit, segregate, or classify its membership in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or
"(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
"(d) It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.
"(e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees of a particular religion, sex, or national origin in those certain instances where religion, sex, national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
"(f) Nothing contained in this title shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.
"(g) As used in this title, the phrase 'unlawful employment practice' shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organi
zation by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.
"(h) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
"Other unlawful employment practices
"SEC. 705. (a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or appllcants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
"(b) It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.
"EQUAL EMPLOYMENT OPPORTUNITY
"SEC. 706. (a) There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be composed of five members, not more than three of whom shall be members of the same political party, who shall be appointed by the President by and with the advice and consent of the Senate. One of the original members shall be appointed for a term of one year, one for a term of two years, one
for a term of three years, one for a term of four years, and one for a term of five years, beginning from the date of enactment of this title, but their successors shall be appointed for terms of five years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chairman. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission, and shall appoint, in accordance with the civil service laws, such officers, agents, attorneys, and employees as it deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the Classification Act of 1949, as amended. The Vice Chairman shall act as Chairman in the absence or disability of the Chairman or in the event of a vacancy in that office.
"(b) A vacancy in the Commission shall not impair the right of the remaining members to exercise all the powers of the Commission and three members thereof shall constitute a quorum.
"(c) The Commission shall have an official seal which shall be judicially noticed.
"(d) The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken; the names, salaries, and duties of all individuals in its employ and the moneys it has disbursed; and shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for further legislation as may appear desirable.
"(e) The Federal Executive Pay Act of 1956, as amended (5 U.S.C. 2201-2209), is further amended—
"(1) by adding to section 105 thereof (5 U.S.C. 2204) the following clause:
"'(32) Chairman, Equal Employment Opportunity Commission'; and
"(2) by adding to clause (45) of section 106 (a) thereof (5 U.8.C. 2205(a)) the following: 'Equal Employment Opportunity Commission (4).'
"(1) The principal office of the Commission shall be in the District of Columbia, but it may meet or exercise any or all of its powers at any other place. The Commission may establish such regional offices as it deems necessary, and shall establish at least one such office in each of the major geographical areas of the United States, including its territories and possessions.
"(g) The Commission shall have power— "(1) to cooperate with and utilize regional, State, local, and other agencies, both public and private, and individuals;
"(2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States;