EQUAL EMPLOYMENT OPPORTUNITIES ENFORCEMENT ACT OF 1971

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP73B00296R000400110002-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 88
• Document Creation Date: December 12, 2016
• Document Release Date: November 9, 2001
• Sequence Number: 2
• Publication Date: October 28, 1971
• Content Type: REPORT

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92D CONGRESS .,SENATE
1st Session `
REPUn
No. 92-415
EQUAL EMPLOYMENT OPPORTUNITIES
ENFORCEMENT ACT OF 1971
Mr. WILLIAMS, from the Committee on Labor and Public Welfare,
submitted the following
REPORT
together with
INDIVIDUAL AND SUPPLEMENTAL VIEWS
The Committee onI)bor and Public Welfare; to which was referred .
the bill (S. 2515) to further promote equal employment opportunities
for American workers, having considered the same, reports favorably
thereon with an amendment (in the nature of a substitute) and recom-
mends that the bill as amended do pass.
The principal purpose of S. 2515 is to amend title VII of the Civil
Rights Act of 1964 to provide the Equal Employment Opportunity
Commission with a method for enforcing the rights of those workers
who have been subjected to unlawful employment practices.
The enforcement procedures provided for in S. 2515 include the
issuance of a complaint by the Commission after an investigation and
efforts to conciliate, followed by a full administrative hearing on the
record, the issuance of a cease and desist order by the Commission, and
an opportunity for review by an appropriate court of appeals.
The bill confers upon the Commission the authority to proceed with
pattern and practice cases of discrimination, and phases out the Attor-
ney General's existing authority in such cases over a 2-year period.
The Secretary of Labor's enforcement functions under Executive
Order 1.1246 as amended relating to nondiscrimination in employment
by Government contractors and Federally assisted construction con-
tractors are transferred to the Commission.
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In addition, S. 2515 expands coverage of Title VII, from those em-
ployers and labor organizations having 25 or more employees or mem-
bers to those having eight or more employees or members one year
after the date of enactment. The bill also includes coverage of em-
ployees of State and local governments with a provision that com-
plaints involving these employees will be litigated by the Attorney
General in U.S. district courts, and eliminates the exemption for em-
ployees of educational institutions.
The Civil Service Commission is given expanded authority to elim-
inate discrimination in Federal employment, and individual Federal
employees are expressly granted a right of private action to obtain
relief from. such discrimination.
The time limitations on filing charges are expanded from 90 to 180
days for a direct charge to the Commission and from 210 to 300 days
for a charge which is first brought under a State or local law. Back
pay awards are limited to two years prior to the date a charge is filed
with the Commission. The bill also authorize the appointment of up to
four additional members of the Commission.
As a result of six years experience with title VII, and in order to
accommodate the enforcement power provided for in this bill, a num-
ber of administrative changes are contained in S. 2515. They include
expanded record-keeping requirements and subpoena power, authority
for the Commission to conduct its own litigation, and additional pro-
tections for aggrieved persons.
During the 90th Congress, a bill to provide the Equal Employment
Opportunity Commission with power to issue cease and desist orders,
S. 3465, was reported by the Committee on Labor and Public Wel-
fare, but was not acted upon by the Senate. A closely comparable
easure, S. 2453, was reported by the Comittee during the 91st Con-
, e
~ I
ss, and was passed by the Senate on October 1, 1970, by a vote of
47 to 24.. This measure was not brought to a vote in the House of Rep-
resentatives, however.
On September 14, 1971, a bill with similar cease and desist provi-
sions, S. 2515, was introduced by Senator Byrd of West Virginia, for
Senator Williams and for 32 other Senators. Subsequently, on Septem-
ber 16, 1971, the House of Representatives passed H.R. 1746, a bill
which would authorize the Equal Employment Opportunity Commis-
sion to go into United States district courts on charges of discrimina-
tion, rather than to issue its own cease and desist orders. An identical
bill to H.R. 1746, S. 2617, was introduced by Senator Dominick on
September 30,1971.
The Subcommittee on Labor held hearings on these three bills on
October 4, 6 and 7, 1971. S. 2515 was reported favorably by that Sub-
committee on October 14, 1971, and was considered by the full Com-
iuittee on Labor and Public Welfare on October 19, 20, and 21, 1971,
when it was unanimously ordered reported to the Senate.
Testimony was received from a number of Federal Government
officials on these bills. The Chairman of the United States Commission
on Civil Rights, Reverend Theodore Hesburgh, testified in support of
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all of the provisions of S. 2515, including cease and desist enforce-
ment powers, consolidation of Federal equal employment opportunity
functions, and expansion of coverage to state and local government
employees. William Brown III, Chairman of the, Equal Employment
Opportunity Commission testified in support of S. 2515's cease and
desist authority with the reservation that it should also contain court
enforcement for pending cases. He endorsed expanded coverage, al-
though he was not in favor of consolidation of EEOC functions. David
Norman, Assistant Attorney General, Civil Rights Division, Depart-
ment of Justice testified in support of a court enforcement approach,
and against consolidation of functions. Laurence Silberman, Under
Secretary of Labor testified against the transfer of the Executive
Order program to the Commission, and Irving Kator, Assistant Execu-
tive Director of the Civil Service Commission presented testimony in
opposition to the transfer of that Commission's equal employment op-
portunity functions to the. Equal Employment Opportunity
Commission.
Congressman Erlenborn of Illinois testified in behalf of a court
enforcement approach and Congressman Walter Fauntroy testified
on behalf of transferring the Civil Service equal employment op-
portunity functions to the Equal Employment Opportunity
Commission.
Clarence Mitchell of the Leadership Conference on Civil Rights and
the NAACP, Ken Meiklejohn on behalf of the AFT,--CIO, Jack
Greenberg of the NAACP Legal Defense and Education Fund., Inc.,
Joseph Rauh of the Leadership Conference on Civil Rights, Lucille
Shriver of the National Federation of Business and Professional
Women's Clubs, Olga Madar, Vice President, United Auto Workers,
Esther Lawton and Daisy Fields of the Federally Employed Women
and Doris Meissner of the National Women's Political Caucus testified
in support of S. 2515, including its cease and desist enforcement func-
tions, expanded coverage, and consolidation of functions.
Statements in support of S. 2515 were also received from : Donald E.
Morrison, President, National Education Association; Reverend Dr.
Ralph David Abernathy, President, Southern Christian Leadership
Conference; Paul J. Minarchenko, Legislative Representative, Ameri-
can Federation of State, County and Municipal Employees-AFL-
CIO; Hope Eastman, Acting Director, Washington Office, Ameri-
can Civil Liberties Union; William G. Lunsford, on behalf of
Friends Committee on National Legislation; David A. Brody, Di-
rector, Washington Office, Anti-Defamation League of B'nai B'rith;
National Council of Jewish Women; Ann, Scott, Vice President-
Legislation, The National Organization for Women; Mary Jean Col-
lins-Robson, President, Chicago Chapter, NOW; The League of
Women Voters: Mrs. Sherman Ross, Chairman, Legislative Program
Committee, American Association of University Women ; Germaine
Krettek, Director, American Library Association; Edward Taylor
Anderson, Legislative Associate, Common Cause; and Julius W. Hob-
son, Washington, D.C.
Testimony in support of a court enforcement bill, S. 2617 or H.R.
1746, was also received from Gerard Smetana on behalf of the Ameri-
can Retail Federation and William Dunn on behalf of the Associated
General Contractors. In addition, statements in support of those bills
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were submitted by the National Association of Manufacturers, Cham-
ber of Commerce of the United States and the American Protestant
Hospital Association.
NEED FOR THE 13ILL
Seven years ago, in response to compelling national need and con-
cern, Congress enacted Title VII of the Civil Rights Act of 1964
(Public Law 88-352). By its action, Congress acknowledged the prev-
alence of employment discrimination in the United States and the
need for Federal legislation to deal with the problem of such discrimi-
nation. The Act also established the Equal Employment Opportunity
Commission (EEOC), whose operations were initiated on July 2,
1965. It was the intention of Congress that the EEOC should be the
primary Federal agency responsible for eliminating discriminatory
employment practices in the United States.
During the 6 years since its inception, the EEOC has made an
heroic attempt to reduce the incidence of employment discrimination
in the Nation, and to ameliorate the conditions which have led to the
persistence of these practices. During this period, however, it has been
demonstrated that employment discrimination is even more pervasive
and tenacious than the Congress had assumed it to be at the time it
passed the Act. It affects employees in both the private and the public
sectors as well as those working in large and small establishments. It
has also become clear that despite the national commitment of Con-
gress to the goal of assuring equal employment. opportunity for all our
citizens, the machinery created by the Civil Rights Act of 1964 is not
iii all. respects equal to that commitment.
The most striking deficiency of the 1964 Act is that the EEOC does
not have the authority to issue judicially enforceable orders to back
up its findings of discrimination. In prohibiting discrimination in em-
ployment based on race, religion, color, sex or national origin, the
1964 Act limited the Commission's enforcement authority to "informal
methods of conference, conciliation and persuasion."
As a consequence, unless the Department of Justice concludes that
a pattern or practice of resistance to Title VII is involved, the burden
of obtaining enforceable relief rests upon each individual victim of
discrimination, who must go into court as a private party, with the
delay and expense that entails, in order to secure the rights promised
him tinder the law. Thus, those persons whose economic disadvantage
was a prime reason for enactment of equal employment opportunity
provisions find that their only recourse in the face of unyielding
discrimination is one that is time consuming, burdensome, and all
too often, financially prohibitive.
This failure to grant the EEOC meaningful enforcement powers
has proven to be a major flaw in the operation of Title VII. While
the statutes dealing with discrimination iii housing and in education
provide appropriate enforcement powers for the agencies responsible
for the elimination of discrimination in those areas of the law, Title
VIT, as it now stands, is little more than a declaration of national
policy. Regretably, the practices and policies of discrimination in em-
ployment are so deeply ingrained that the voluntary conciliation ap-
proach has not succeeded in adequately combating the existence of
such practices.
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In 1964, employment discrimination tended to be viewed as a series
of isolated and distinguishable events, for the most part due to
ill-will on the part of some identifiable individual or organization. It
was thought that a scheme that stressed conciliation rather than com-
pulsory processes would be most appropriate for the resolution of this
essentially "human" problem, and that litigation would be necessary
only on all occasional basis. Experience has shown this view to be false.
Employment discrimination as viewed today is a far more complex
and pervasive phenomenon. Experts familiar with the subject, now
generally describe the problem in terms of "systems" and "effects"
rather than simply intentional -wrongs, and the literature on the sub-
ject is replete with discussions of, for example, the mechanics of
seniority and lines of progression, perpetuation of the present effect
of pre-act discriminatory practices through various institutional de-
vices, and testing and validation requirements.'. In short, the problem
is one whose resolution in many instances requires not only expert
assistance, but also the technical perception that the problem exists
in the first instance, and that the system complained of is unlawful.
This kind of expertise normally is not found in either the personnel
or legal arms of corporations, and the result in terms of conciliations
is often an impasse with the respondent unwilling or unable to
understand the problem in the same way that the Commission per-
ceives it.
The resulting impasse between EEOC and the employer has played
a large part in the present failure of Title VII. The employer realizes
that any attack on its policies by the EEOC presents largely an in-
effectual threat. To comply with the Commission's interpretation of a
problem, and to accord the appropriate relief, is a purely voluntary
matter with the respondent with no direct legal sanctions available to
EEOC. This absolute discretion available to respondents has not
proven conducive to the success of Title VII objectives. In cases posing
the most profound consequences, respondents have frequently ignored
the EEOC's findings, preferring rather to chance the unlikelihood that
the complainant will pursue his claim further through the costly and
time-consuming process of court enforcement. The social consequences
have been extreme.
The failure of the voluntary conciliation approach is reflected in
the present EEOC workload statistics presented by its Chairman,
William H. Brown, III. Since its inception, the Commission has re-
ceived 81,000 charges. Of this number, the Commission has been able
to achieve a totally, or even partially satisfactory conciliation in less
than half. This means that in a significant number of cases the. ag-
grieved individual was not able to achieve any satisfactory settlement
of his claim through the EEOC, and was forced to either give up his
or her claim or, if the necessary funds and time were available, to
pursue the case through the Federal courts.
t See e.g. "Developments in the Law-Employment Discrimination and Title VII of
the Civil Rights Act of 1964" 84 Harv. L. Rev. 1109 (1971) ; Cooper and Sobel, "Senior-
ity and Testing Under Fair Employment Laws : A General Approach To Objective Criteria
of Hiring and Promotion," 82 Harv. L. Rev. 1623 (1969) ; Blumrosen, "The Duty of
Fair Recruitment Under the Civil Rights Act of 1964," 22 Rutgers L. Rev. 465 (1968).
See also M. Severn, Legal Restraints on Racial Discrimination in Employment (1966), and
decisions in Griggs v. Duke Power Co., 401 U.S. 424 (1971) ; Asbestos Workers, Local
53 v. Vogler, 407 F. 2d 1047 (C.A. 5 1969) ; Quarles v. Phillip 'Morris, 279 F. Stipp. 505
(E.D. Va., 1968) ; United States v. Local 189, United Papermakers, 282 F. Stipp. 39 (E.D.
La., 1968) and cases cited therein.
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While the above-noted number of charges is disturbing by its very
size, it becomes even more significant when considered in light of the
fact that each year the number of charges filed with the Commission
continues to increase. For example, in FY 1970, 14,129 charges were
filed with EEOC; in FY 1971, this number increased to 22,920
charges; and current estimates submitted by the Commission in-
dicate that more than 32,000 charges will be filed this year. It is ob-
vious that without effective enforcement powers, the EEOC will be-
come little more than a receptacle for charges of violations of Title
VII, and that an ever-increasing number of aggrieved individuals will
be left without an adequate remedy for violations which are clearly
prohibited by the law.
The impact of this inability to obtain relief from employment dis-
crimination surfaces in another, more indicative set of facts-the eco-
nomic disparities which presently affect this Nation's minorities and
women.
In a special report released this year by the Bureau of the Census,
"The Social and Economic Status of Negroes in the United States,"
the evidence is clear that while some progress has been made toward
bettering the economic position of the Nation's black population, the
avowed goal of social and economic equality is not yet anywhere near
a reality. For example, the report shows that the median family in-
come for Negroes in 1.970 was $6,279, while the median income for
whites during the same period was $10,236. This earnings gap shows
that Negroes are still far from reaching their rightful place in
society.
Support for the above statement is provided by statistics in the
Census Bureau report which show that Negroes are concentrated in the
lower-paying, less prestigious positions in industry and are largely pre-
eluded from advancement to the higher paid, more prestigious posi-
tions. For example, while Negroes constitute about 10% of the labor
force, they account for only 3% of all jobs in the high-paying profes-
sional, technical, and managerial positions. In the nine industries with
the highest earning capabilities (printing and publishing, chemicals,
primary metals, fabricated metals, nonelectrical machinery, transpor-
tation equipment, air transportation, and instruments manufacture),
Negroes hold only 1 % of professional and managerial positions. On the
other hand, in the lowest paying laborer and service worker categories,
Negroes account for 24% of all jobs.
This economic disparity is further reinforced by statistics which
show that the unemployment rate for Negroes is considerably higher
than that for whites. Figures available for 1970 show that while 4.0%
of white males were unemployed, and the unemployment rate for all
whites was 5.4%. 9.3% of all Negroes were unemployed. Even in the
managerial and professional positions, the area with the lowest unem-
ployment rate, Negro unemployment was 2.1% while white unemploy-
ment was 1.7%.
While statistics on Spanish-speaking Americans are not nearly as
current or as complete, available data indicates that this, the second-
largest ethnic minority group in the. Nation, with approimately 7.5
ucillion members, is in a similar situation. In 1969, the median family
income for Spanish-speaking American families was $5,641. About
17% of these families had incomes of less than $3,000. Both male and
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female Spanish-speaking workers, as has already been shown to be the
case with Negroes, are also concentrated in the lower-paying occupa-
tions. Only 25% of employed Spanish-speaking males are in white-
collar jobs, compared to 41% of men for all other origins. On the other
hand, 58.8% of Spanish-speaking males are concentrated in blue-collar
occupations. The statistics for Spanish-speaking women workers in-
dicates a similar disparate distribution. Also, as with Negroes, Spanish-
speaking workers suffer a higher unemployment rate when compared
to the white population. In 1969, 6.0% of Spanish-speaking Americans
were unemployed, compared to 3.5% for the rest of the Nation.
The situation for working women is no less serious. The disparate
treatment of women in this country has been shown in a series of
studies undertaken by the Women's Bureau of the U.S. Department
of Labor. 2 These studies show that there are aproximately 30 million
employed women in the Nation, constituting about 38% of the total
work force. The number of working women has also increased very
rapidly during the last two decades-between 1947 and 1968 the num-
ber of women. in the civilian labor force increased by 75% while the
number of men during the same period increased only 16%. Despite
this large increase in the numbers of women in the work force, women
continue to be relegated to low paying positions and are precluded from
high-paying executive positions. Similarly, the rate of advancement
for women is slower than for men in similar positions.
Information supplied by the U.S. Department of Labor's Women's
Bureau shows that 70% of all employed women work in order to pro-
vide primary support for themselves or to provide a supplement to
the incomes of their husbands which may be needed to meet household
expenses. However, within established occupational categories, women
are paid less for doing the same jobs as are done by men. For example,
in 1968, the latest year for which extensive data is presently available,
the median salary for all scientists was $13,200; for women scientists
the median scary was $10,000. Similarly, the median salary for it full-
time male factory worker was $6,738 while his female counterpart
could only expect to earn $3,991. This economic disparity is further em-
phasized by figures which show that 60% of women but only 20% of
men earned less than $5,000 per year, while only 3% of women but
2817o of men earned $10,000 per year or more.
While some have looked at the entire issue of women's rights as a
frivolous divertissement, this Committee believes that discrimination
against women is no less serious than other prohibited forms of dis-
crimination, and that it is to be accorded the same degree of concern
given to any type of similarly unlawful conduct. As a further point,
recent studies have shown that there is a close correlation between dis-
crimination based on sex and racial discrimination, and that both
possess similar characteristics-3 Both categories involve large, natural
classes, membership in which is beyond the individual's control ; both
U.S. Department of Labor, Fact Sheet on the Earnings Gap (1971) ; U.S. Department
of Labor, UnderutiUization of Women Workers (1970) ; U.S. Department of Labor, Bulletin
294, 1969 Handbook on Women Workers (1969) ; U.S. Department of Labor, Changing
Patterns of Women's Lives (1970).
3 See A. Montagu, Man's Moat Dangerous Myth 181-4 (4th ed. 1964) : G. Myrdal, An
American Dilemma 1073-78 (2d ed. 1962). See also "Sex Discrimination and Equal Pro-
tection: Do We Need a Constitutional Amendment?", 84 Harv. L. Rev. 1499 (1971) :
Murphy & Eastwood, "Jane Crow and the Law : Sex Discrimination and Title VII,"
34 Geo. Wash. L. Rev. 232 (1965). .
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involve highly visible characteristics on which it has been easy to draw
gross, stereotypical distinctions. The arguments justifying' different
treatment of the sexes were also historically used to justify different
treatment of the races.
While it is true that the extreme aspects of sex-discrimination as it
existed in the early part of the twentieth century have been dispelled,
and women have now been granted the right to vote and may serve on
juries, their status in employment is still subject to blatant discrimina-
tion. In a series of decisions in recent years, the courts have voided
employment practices and policies which discriminate on the basis of
sex, and have, accordingly, set the necessary legal precedents for deal-
ing with this form of discrimination." However, despite the effort by
the courts and EI+,OC, discrimination against women continues to
be widespread; and is regarded by many as either morally or
physiologically justifiable.
The Committee realizes that enactment of this bill will not auto-
matically end employment discrimination in this country. The bill
offers no panaceas or guarantees of success. Despite several aspects of
the operation of Title VII during these last 6 years which reflect major
advancements in securing equal employment opportunity for all Amer-
icans, the results are, nonetheless, disappointing in terms of what
minorities and women have a right to expect under the provisions of
that law. Particularly disillusioning has been the Congressional estab-
lishment of the EEOC without adequate enforcement; it has, in most
respects, proved to 1)e a cruel joke to those compiainants who have in
good faith turned to the Federal government with the complaint of dis-
crimination only to find, after a lengthy investigatory and conciliatory
process, that the Government cannot compel compliance.
The accomplishment of Congress in enacting the Civil Rights Act
of 1964 is further dimmed by the fact that this is the fourth effort since
that time to enact suitable enforcement legislation. The time has come
for Congress to correct the defects in its own legislation. The promises
of equal job opportunity made in 1964 must be made realities in 1971.
MAJOR PROVISIONS or THE BILr.
CHANGES IN COVERAGE UNDER TITLE VII
The bill expands the coverage of Title VII in the following
respects :
1.. Eiq/it or more employees.-Section 701 of the Act (section 2 of the
bill) is amended to expand the coverage of title VII to include em-
ployers of eight or more persons, and labor organizations with eight
or more members. The Committee agrees with the Chairman of EEOC
that discrimination should be attacked wherever it exists, and recog-
nizes that small establishments have frequently been the most flagrant
violators of equal employment opportunity.
At present, the jurisdiction of the EEOC extends to approximately
83% of the nation's non-agricultural work force (approximately 250,-
000 employers and 37,800 labor organizations). By adding the provi-
See e.g. Phillips v. Martin-Marietta Corp. 400 U.S. 542 (1971) ; Diaz v. Pan .4merrican
Worlrt Airways, 442 F. 2d 385 (C.A. 5, 1971) ; Weeks V. Southern Bell Telephone Co., 408
F`. 2d 228 (C.A. 5, 1969) ; Bowe Y. Colgate Palmolive Co., 416 F. 2d 711 (C.A. 7, 1909)
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sions as currently proposed, the jurisdiction of the EEOC would
encompass another 8% of the present work force, or approximately
6.5 million employees and about 90,000 employers.
The need for coverage in this area is obvious. The absence of EEOC
jurisdiction over these small employers and labor organizations has
made it impossible for the Commission to compile sufficient informa-
tion in this area to pinpoint those areas where patterns or practices of
discrimination exist. As a consequence, it has not been possible to insti-
tute changes where necessary to insure compliance with the provisions
of Title VII.
The Committee is not persuaded by arguments that the increased
coverage will inundate EEOC with complaints and paperwork. In
the first instance, the proposition that the increased coverage will
overwhelm the Commission with an unmanageable number of new
cases is not convincing. This argument, which has traditionally been
presented whenever a new jurisdictional area is opened up, has proven
to be largely false in other areas of expanded Federal jurisdiction.
Also, it must be noted that although the proposed increase will result
in.coverage of more employers, these employers represent proportion-
ately fewer employees, therefore mitigating against any massive in-
flux of cases. The argument that the Commission will be overburdened
by additional paperwork is similarly alarmist. All EEOC reporting
procedures are now fully computerized, and once the initial repro-
gramming is accomplished to account for the new coverage, the Com-
mittee believes that any additional burden will not be noticeable.
However, since the Commission will be undertaking several new
areas of responsibility under the proposed legislation, the Committee
recognizes that the Commission may have some difficulty in handling
the increased caseload immediately. Therefore, the bill provides that
the expansion take place one year after enactment of the bill.
2. State and local gover-nments.-The bill would amend section 701
of the Act (section 2 of the bill) to broaden the jurisdictional cover-
age of title VII by deleting the existing exemptions for State and local
government employees. The Attorney General is given the authority
to bring civil actions involving unlawful employment practices com-
mitted by State and local governmental agencies.
The Committee believes that employees of State and local govern-
ments are entitled to the same benefits and protections in equal em-
ployment as the employees in the private sector of the economy.
There are at present approximately 10.1 million persons employed by
State and local governmental units. This figure represents an increase
of over 2 million since 1964, and all indications are that the number
of State and local employees will continue to increase more rapidly dur-
ing the next few years. Few of these employees, however, are afforded
the protection of an effective Federal forum for assuring equal em-
ployment opportunity. By amending the present, section 701 to include
State and local governmental units within the definition of an "em-
ployer" under Title VII, all State and local governmental employees
would, under the provisions of the bill, have access to the remedies
available under the Act.
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In a report released in 1969 by the U.S. Commission on Civil Rights,
"For All the People * * * By All the People," that Commission con-
cluded that:
*? * * State and local governments have failed to fulfill
their obligation to assure equal job opportunity * * * Not
only do State and local governments consciously and overtly
discriminate in hiring and promoting minority group mem-
bers, but they do not foster positive programs to deal with
discriminatory treatment on the job.
The report's findings indicate that the existence of discrimination is
perpetuated by both institutional and overt discriminatory practices,
and that past discriminatory practices are maintained through de facto
segregated job ladders, invalid selection techniques, and stereotypical
misconceptions by supervisors regarding minority group capabilities.
The study also indicates that employment discrimination in State and
local governments is more pervasive than in the private sector.
In another report issued by the U.S. Commission on Civil Rights in
1970, "Mexican Americans and the Administration of Justice in the
Southwest," the Commission found that in the five Southwestern
states with the highest concentration of Spanish-speaking Americans,
their representation in the vital area of law enforcement was signifi-
cantly disproportionate to their demographic distribution. The report
shows that in these five Southwestern states, Spanish-speaking Amer-
icans, who constitute approximately 12% of the population account for
only 5.2% of police officers and 6.11% of civilian employees associated
with law enforcement agencies.
This failure of State and local governmental agencies to accord equal
employment opportunities is particularly distressing in light of the
importance that these agencies play in the daily lives of the average
citizen. From local law enforcement to social services, each citizen in a
community is in constant contact with many local agencies. The impor-
tance of equal opportunity in these agencies is, therefore, self-evident.
In our democratic society, participatory government is a cornerstone
of good government. Discrimination by government therefore serves a
doubly destructive purpose. The exclusion of minorities from effective
participation in the bureaucracy not only promotes ignorance of minor-
ity problems in that particular community, but also creates mistrust,
alienation, and all too often hostility toward the entire process of
government,
The Constitution is imperative in its prohibition of discrimination
by State and local governments. The Fourteenth Amendment guaran-
tees equal treatment of all citizens by States and their political subdi-
visions, and the Supreme Court has reinforced this directive by hold-
ing that State action which denies equal protection of the laws to any
person, even if only indirectly, is in violation of the Fourteenth
Amendment.5 It is clear that the guarantee of equal protection
must also extend to such direct action as discriminatory employment
practices.
The Committee believes that it is an injustice to- provide employees
in the private sector with the assistance of an agency of the Federal
5 See, e.g., Shelly v. Kraemer, 334 U.S. 1 (1948) ; Burton v. Wilmington Parking Au-
thority, 365 U.S. 715 (1961).
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11
Government in redressing their grievances while at the same time deny-
ing assistance similar to State and local government employees. The
last sentence of the Fourteenth Amendment, enabling Congress
to enforce the Amendment's guarantees by appropriate legislation
is frequently overlooked, and the plain meaning of the Constitu-
tion allowed to lapse. The inclusion of State and local government em-
ployees within the jurisdiction of Title VII guarantees and protec-
tions will fulfill the Congressional duty to enact the "appropriate
legislation" to insure that all citizens are treated equally in this
country.
The Supreme Court has further indicated that at least part of the
extension of jurisdiction as contemplated by S. 2515 is a proper consti-
tutional exercise of power under the Commerce Clause. In its decision
in Maryland v. Wirtz, 392 U.S. 183 (1968), the Court upheld the exten-
sion of the Fair Labor Standards Act to certain classes of public em-
ployees as a legitimate exercise of congressional regulatory authority
under the Commerce Clause. The Court rejected the argument that
Federal regulation of the employment practices of State and local
governments is an improper infringement upon the sovereignty of the
States. Pointing out that the activities of State and local governments
can affect commerce, it held :
If a State is engaging in economic activities that are validly
regulated by the Federal Government when engaged in by
private persons, the State too may be forced to conform its
activities to Federal regulation.'
A question was raised in the Committee concerning the application
of Title VII in the case of a Governor whose cabinet appointees and
close personal aides are drawn from one political party. The Com-
mittee's intention is that nothing in this bill should be interpreted to
prohibit such appointments unless they are based on discrimination
because of race, color, religion, sex or national origin. That intention
is reflected in sections 703(h) and 706(w) of the law.
3. Employees of educational institutions.-The existing exemption
for employees of educational institutions is eliminated by an amend-
ment to section 702 (sec. 3 of the bill).
There are at present over 120,000 educational institutions, with
approximately 2.8 million teachers and professional staff mem-
bers and another 1.5 million non-professional staff members. Yet
all of these employees are, in effect, without an effective Federal rem-
edy in the area of employment discrimination.
The presence of discrimination in the Nation's educational institu-
tions is no secret. Many of the most famous and best remembered civil
rights cases have involved discrimination in education. This discrimi-
nation. however, is not limited to the students alone. Discriminatory
practices against faculty, staff, and other employees is also common.
The practices complained of parallel the same kinds of illegal actions
which are encountered in other sectors of business, and include illegal
6In rejecting the State sovereignty argument the Court cited a long series of decisions
holding that a State, when engaged In activities affecting interstate commerce, may be held
subject to Federal regulations. See United States v. California, 297 U.S. 175 (1936) ; Boamtd
of Trustees v. United States, 289 U.S. 48 (1932). See also, Pardee v. Terminal Railroad
Co_ 371 U.S. 184 (1962).
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hiring policies, testing provisions which tend to perpetuate racial im-
balances, and discriminatory promotion and certification techniques.7
As in other areas of employment, statistics for educational institu-
tions indicate that minorities and women are precluded from the more
prestigious and higher-paying positions, and are relegated to the more
menial and lower-paying jobs. While in elementary and secondary
school systems Negroes accounted for approximately 10% of the total
number of position:., in the higher-paying and more prestigious posi-
tions in institutions of higher learning, blacks constituted only 2.2% of
all positions, most of these being found in all-black or predominantly
black institutions. Women are similarly subject to discriminatory pat-
terns. Not only are they generally under-represented in institutions of
higher learning, but those few that do obtain positions are generally
paid less and advanced more slowly than their male counterparts. Sim-
ilarly, while women constitute 67% of elementary and secondary
school teachers, out of 778,000 elementary and secondary school prin-
cipals, 78% of elementary school principals are men and 94% of sec-
ondary school principals are men.
The Committee believes that it is essential that these employees be
given the same opportunity to redress their grievances as are available
to other employees in the other sectors of business. Accordingly, the
Committee has concluded that educational institutions, like other em-
ployers in the Nation, should report their activities to the Commission
and should be subject to the Act. There is nothing in the legislative
background of Title VII, nor does any national policy suggest itself,
to support the present exemption. In fact, the Committee believes that
the existence of discrimination in educational institutions is particu-
larly critical. It is difficult to imagine a more sensitive area than educa-
tional institutions, where the youth of the Nation are exposed to a mul-
titude of ideas and impressions that will strongly influence their future.
development. To permit discrimination here would, more than in any
other area, tend to promote existing misconceptions and stereotypical
categorizations which in turn would lead to future patterns of
discrimination.
4. Federal employment.-The bill adds to title VII a new section
717 (section 11 of the bill) making clear the obligation of the Fed-
eral Government to make all personnel actions free from discrimi-
nation based on race, color, sex, religion or national orgin. The Civil
Service Commission, which presently has the responsibility under
Executive Order 11478, is given the authority under this title to enforce
equal employment opportunity in the Federal government.
The Federal government, with 2.6 million employees, is the single
largest employer in the Nation. It also comprises the central policy-
making and administrative network for the Nation. Consequently, its
policies, actions, and programs strongly influence the activities of all
other enterprises, organizations and groups. Tit no area is government
action more important than in the area of civil rights.
The prohibition against discrimination by the Federal government,
based upon the due process clause of the Fifth Amendment, was judi-
- Sre e.g. Armstea.d V. Starkville School District, 325 F. Supp. 560 (N.D. Miss. 1971)
Sinngleton v. Jackson Municipal Separate School District, 419 F. 2d 1211 (C.A. 5, 1969)
Jackson V, Wheatley School District, 430 F. 2d 1359 (C.A. 8, 1970) ; Wall v. Stanley
nnMay Board a Sued Under the 378 P. 2d 275 Civil Riht ( Act for E1967) See also " quit able Relief," 70 Corpora -
tion L. Rev.
1467 (1970).
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cially recognized long before the enactment of the Civil Rights Act
of 1964 Congress itself has specifically provided for nondiscrimina-
tion in the Federal government by stating that it is "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 ..." (5 U.S.C. ? 7151). The primary responsibility
for implementing this stated National objective has been granted to the
Civil Service Commision pursuant to Executive Order 11246 (1964),
and more recently by Executive Order 11478 (1969). In his memoran-
dum accompanying Executive Order 11478, President Nixon stated
that "discrimination of any kind based on factors not relevant to
job performance must be eradicated completely from Federal
employment." This was an important step forward in the field of
equal employment opportunity for Federal employees.
Progress has been made in this field, however, much remains to be
done. Statistical evidence shows that minorities and women continue
to be denied access to a large number of government jobs, particularly
in the higher grade levels. The disparity can be clearly seen in figures
presented in a recent report released by the Civil Service Commission,
Minority Group Employment in the Federal Government (1970). On
the basis of the figures presented therein, the following listing shows
the percentage of minority group employees under the General Sched-
ule by grade level :
Negro
Spanish-
surnamed
American
Indian
Oriental
GS-1 through GS-4 ----------------------------------
21.8
3.0
1.8
.6
GS-5 through GS-8----------------------------------
13.5
2.2
.7
.8
GS-9 through GS-11 ---------------------------------
5.1
1.5
.5
1.0
GS-12 through GS-13 --------------------------------
2.7
.8
.2
.9
GS-14 through GS-15 --------------------------------
1.7
.7
.2
.8
GS-16 through GS-18 --------------------------------
1.4
.3
. 1
.2
Minorities represent 19.4% of the total employment in the Federal
government (15.0% are Negroes, 2.9% are Spanish-surnamed, 0.7%
are American Indians, and 0.8% are Oriental). Their concentration
in the lower grade levels indicates that their ability to advance to the
higher levels has been restricted.
In many areas, the pattern at regional levels is worse than the
national pattern. For example, the committee notes with special con-
cern the particularly low percentage of Federal jobs held by Spanish-
surnamed persons in areas of high residential concentration of such
persons, particularly in California and the Southwestern States, and
expects the Commission to undertake a special study of this problem
to develop programs to provide greater entry level and advancement
employment opportunities for Spanish-surnamed persons.
The position of women in the Federal government has not fared
any better. In testimony before the Senate Labor Subcommittee this
year, Mrs. Daisy B. Fields, past president of Federally Employed
Women (FEW), testified as to the distribution, by percent, of all
women employed by the Federal government (approximately 665,000
or about 34%) as represented by the following breakdown :
Percent
GS-1 through GS-6--------------------------------------------------
76.7
GS-7 through GS-12-------------------------------------------------
21.7
GS-13 and above-----------------------------------------------------
1. 1
See Bollin v. Sharpe, 347 U 4 (1954 and ses cit d herein.
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The inordinate concentration of women in the lower grade levels,
and their conspicuous absence from the higher grades is again evident.
One feature of the present equal employment opportunity Program
which deserves special scrutiny by the Civil Service Commission is the
complaint process. The procedure under the present system, intended to
provide for the informal disposition of complaints, may have denied
employees adequate opportunity for impartial investigation and reso-
lution of complaints.
Under present procedures, in most cases, each agency is still respon-
sible for investigating and judging itself. Although provision is made
for the appointment of an outside examiner, the examiner does not
have the authority to conduct an independent investigation, and his
conclusions and findings are in the nature of recommendations to the
agency head who makes the final agency determination on whether
there is, in fact, discrimination in that particular case. The only appeal
is to the Board of Appeals and Review in the Civil Service
Commission.
The testimony before the Labor Subcommittee reflected a general
lack of confidence in the effectiveness of the complaint procedure on
the part of Federal employees. Complaints have indicated skepticism
regarding the Commission's record in obtaining just resolutions of
complaints and adequate remedies. This has, in turn, discouraged per-
sons from filing complaints with the Commission for fear that doing
so will only result in antagonizing their supervisors and impairing
any future hope of advancement. The new authority given to the Civil
Service Commission in the bill is intended to enable the Commission to
reconsider its entire complaint structure and the relationships between
the employee, agency and Commission in these cases.
Another task for the Civil. Service Commission is to develop more
expertise in recogn izing and isolating the various forms of discrimina-
tion which exist in the system it administers. The Commission should
be especially careful to ensure that its directives issued to Federal
agencies address themselves to the various forms of systemic discrimi-
nation in the system. The Commission should not assume that employ-
ment discrimination in the Federal Government is solely a matter of
malicious intent on the part of individuals. It apparently has not
fully recognized that the general rules and procedures that it has
promulgated may in themselves constitute systemic barriers to minori-
ties and women. Civil Service selection and promotion techniques and
requirements are replete with artificial requirements that place a
premium on "paper" credentials. Similar requirements in the private
sectors of business have often proven of questionable value in predict-
ing job performance and have often resulted in perpetuating existing
patterns of discrimination (see e.g. Griggs v. Duke Power Co., supra
n.1). The inevitable consequence of this kind of a technique in Feder-
al employment, as it has been in the private sector, is that classes of
persons who are soeio-economically or educationally disadvantaged
suffer a very heavy burden in trying to meet such artificial qualifica-
tions.
It is in these and other areas where discrimination is institutional,
rather than merely a matter of bad faith, that corrective measures
appear to be urgently required. For example, the Committee expects
the Civil Service Commission to undertake a thorough re-examination
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of its entire testing and qualification program to ensure that the
standards enunciated in the Griggs case are fully met.
The Civil Service Commission's primary responsibility over all
personnel matters in the Government does create a built-in conflict
of interest for examining the Government's equal employment oppor-
tunity program for structural defects which may result in a lack of
true equal. employment opportunity. Yet, the Committee was per-
suaded that the Civil Service Commission is sincere in its dedication
to the principles of equal employment opportunity enunciated in
Executive Order 11478 and that the Commission has the will and de-
sire to overcome any such conflict of interest. In order to assist the
Commission in accomplishing its goals and to make clear the Con-
gressional expectation that the Commission will take those further
steps which are necessary in order to satisfy the goals of Executive
Order 11478, the Committee adopted in Section 707(b) of the bill
specific requirements under which the Commission is to function in
developing a comprehensive equal employment opportunity program.
Thus the provision in section 717(b) for applying "appropriate
remedies" is intended to strengthen the enforcement powers of the Civil
Service Commission by providing statutory authority and support for
ordering whatever remedies or actions by Federal agencies are needed
to ensure equal employment opportunity in Federal employment. Rem-
edies may be applied as a result of individual allegations of discrim-
ination, CSC investigation of equal employment opportunity pro-
grams in Federal agencies or their field installations, or from
review of agency plans of action and progress reports. Remedies may
be in terms of action required to correct a situation regarding a
single employee or group of employees or broader management ac-
tion to correct systemic discrimination and to improve equal employ-
ment opportunity program effectiveness to bring about needed
progress. The Commission is to provide Federal agencies with neces-
sary guidance and authority to effectuate necessary remedies in in-
dividual cases, including the award of back pay, reinstatement or
hiring, and immediate promotion where appropriate.
The bill also directs the Commission to require each Federal depart-
ment and agency (including appropriate units, of the District of
Columbia Government) to prepare an equal employment opportunity
affirmative plan of action at least annually. The Commission is to
review, modify, and approve each department or agency developed
with full consideration of particular problems and employment
opportunity needs of individual minority group populations within
each geographic area. These legislative directions are, of course, not
intended to limit the Commission in requiring the establishment of
affirmative equal employment opportunity plans for any agency level,
including local installations as needed; indeed, the Committee ex-
pects the Commission to require that agency plans include specific
regional plans for particularly large Federal regional installations
and other regional offices with deficient records of progress in equal
employment opportunity. The Committee recognizes that this new
emphasis on regional installation equal employment opportunities
and action plans will require a greater commitment of both agency and
Civil Service Commission personnel to planning and enforcement
activities and expects the Civil Service Commission to ensure that,
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such staffing additions will be made both at the national and regional
office levels. Finally, to lend the greatest credibility to its equal em-
ployment opportunity- efforts at a national and regional level, the
Commission should review and revise its own equal employment
action plan and implementation, particularly at its regional offices
and higher grade levels, to ensure that its own record in this field
is exemplary and thus a model for all other Federal agencies.
The bill requires the Commission to obtain, on at least a semi-annual
basis, minority group employment and such other data as are neces-
sary for effective evaluation by the Commission and the public of each
department's, agency's or unit's record of equal employment oppor-
tunity achievement and to publish at least semi-annually full statistical
and other reports (comparable to the report now published annually)
of equal employment opportunity progress. In evaluating agency
plans for approval, the Commission is also directed to study and
determine the appropriate allocation of personnel and resources com-
mitted to, and the qualifications to be established for top equal em-
ployment opportunity officials responsible for, carrying out program
responsibilities, including necessary affirmative-action as well as pro-
cessing of individual discrimination cases, on both a central office and
regional (SMSA) basis.
The Committee wishes to emphasize the significant reservoir of
expertise developed by the EEOC with respect to dealing with prob-
lems of discrimination. According, the committee strongly urges
the Civil Service Commission to take advantage of this knowledge and
experience and to work closely with EEOC in the development and
maintenance of its equal employment opportunity programs.
An important adjunct to the strengthened Civil Service Commission
responsibilities is the statutory provision of a private right of action
in the courts by Federal employees who are not satisfied with the
agency or Commission decision.
The testimony of the Civil Service Commission notwithstanding, the
committee found that an aggrieved Federal employee does not have
access to the courts. In many cases, the employee must overcome a U.S.
Government defense of sovereign immunity or failure to exhaust ad-
ministrative remedies with no certainty as to the steps required to
exhaust such remedies. Moreover, the remedial authority of the Com-
mission and the courts has also been in doubt. The provisions adopted
by the committee will enable the Commission to grant full relief to
aggrieved employees, or applicants, including back pay and immediate
advancement as appropriate. Aggrieved employees or applicants will
also have the full rights available in the courts as are granted to in-
dividuals in the private sector under title VII.
The bill (section 717(c)) enables the aggrieved Federal employee
(or applicant, for employment) to file an action in the appropriate
I T.S. district court after either a final order by his agency or a final
order of the Civil Service Commission on an appeal from an agency
decision or order in any personnel action in which the issue of dis-
crimination on the basis of race, color, religion, sex or national
origin has been raised by the aggrieved person. It is intended
that the employee have the option to go to the appropriate
district. court or the District Court for the District of Columbia
after either the final decision within his agency on his appeal from
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the personnel action complained of or after an appropirate appeal to
the Civil Service Commission or after the elapse of 180 days from
the filing of the initial complaint or appeal with the Civil Service
Commission.
CHANGES IN ENFORCEMENT PROVISIONS
Section 4 of the bill revises section 706 of the act to enable the EEOC
to process a charge of employment discrimination through the investi-
gation, conciliation, administrative hearing, and judicial review stages.
The present act, which only allows the Commission to pursue charges
through the informal methods of persuasion and conciliation, has, as
already shown, proven to be seriously defective in providing an effec-
tive Federal remedy for violations of title VII. Since the compliance
provisions of the present law, as regards the findings of the EEOC,
are purely voluntary, and respondents have not generally been very
agreeable to accepting EEOC decisions where discriminatory practices
are found, the burden of relief has been placed upon the aggrieved
individual's private right of action in the Federal courts.
This method has generally worked to the disadvantage of the ag-
grieved individuals. Since most title VII complainants are by the
very nature of their complaint disadvantaged, the burden of going to
court, initiating legal proceedings by retention of private counsel, and
the attendant time delays and legal costs involved, have effectively
precluded a very large percentage of valid title VII claims from ever
being decided. This disparity between complainants and respondents
in title VII litigation has been recognized by the courts which have
characterized such litigation as a "modern day David and Goliath
confrontation." 9 In such situations, the public has an overriding in-
terest in protecting the individual from the denial of those rights
which Congress has specifically provided.
To accomplish the stated purpose of title VII, the bill, while re-
taining the private right of action, provides, as well, for the elimina-
tion of unfair employment practices through a system of administra-
tive hearings, Commission decisions and orders, and ultimate court
review in appropriate cases-the method of enforcement which has
long been utilized by other regulatory agencies.
The need to provide some form of direct enforcement power to the
EEOC has been voiced since the inception of the Commission. There
is disagreement whether this enforcement power should be through
a Commission lawsuit in a U.S. district court, or by an administrative
proceeding followed by a cease-and-desist order with review in the
appropriate U.S. court of appeals.
The committee is unanimous in its view that some method of en-
forcement is required for title VII. An alternative measure provid-
ing for court enforcement for title VII, instead of the administrative
cease-and-desist procedure, was given full and careful consideration
in the hearings and in the full committee. That measure, however was
rejected, and the bill with administrative cease-and-desist proce2dures
was adopted. Without exception, all. spokesmen for the major civil
0 See Sanchez v. Standard Brands, Inc., 431 P P. 2d 455A(C.A. 5, 1070) ; Jen Pki Co,.
Cast Iron ipe ,
United (}as Corp., 400 F. 2d 28 (C.A. 5, 1968) ; ttwaV v.
411 F. 2d 998 (C.A. 5, 1969).
S. Rept. 92-415 O-3
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1s
rights groups strongly supported the cease-and-desist enforcement
powers.
Father Theodore Hesburgh, Chairman of the U.S. Commission on
Civil Rights, testified that cease-and-desist authority is the most effec-
tive and expeditious enforcement mechanism available for use against
employment discrimination and that experience has demonstrated
that the existence of cease-and-desist authority encourages settlement
of complaints before the enforcement state is reached.
The Committee was not persuaded that the direct court enforcement
technique would be faster and more effective than traditional adminis-
trative enforcement. The present-and ever increasing overcrowded-
caseloads of the Federal courts is a well-known fact, and, as repeatedly
emphasized by the Judicial Conference of the United States, measures
are desparately needed to expedite trials and relieve the dockets of
these courts.
Statistics appearing in the. 1970 Annual Report of the Director of
the Administrative Office of the U.S. Courts indicate that there were
16,032 trials completed in the U.S. district courts in 1970, up 11
percent over 1969 and about 60 percent more than in 1962. There was
a total of 127,240 civil and criminal cases on the dockets in 1970, and
in jurisdictions where the caseloads are the heaviest, it is not uncom-
mon for several years to elapse before a matter is reached for trial.
The Judicial Conference Report mentions specifically that civil
rights cases have accounted for a good part of the overall growth in
case filings. Between 1961 and 1970 there was an increase of more than
1,200 percent in civil rights cases filed and in the year 1970 itself, there
were 3,985 civil rights cases filed compared to 2,453 in 1969, an increase
of 63 percent.
The potential for court backlog created by requiring these cases to be
handled at the initial level in the district courts is clear from these
statistics. Moreover, Chief Justice Burger called attention to the prob-
lem of overburdening the courts with new cases in his address to the
American Bar Association in July of 1970 when he stated:
From time to time Congress adds more judges, but the total
judicial organization never quite keeps up with the caseload
Two recent statutes alone added thousands of cases relating to
commitment of narcotic addicts and the mentally ill. These
additions came when civil rights cases, the voting cases and
prisoner petitions were expanding by the thousands.
in appraising the question of enforcement by district court trials
rather than through agency hearings followed by appellate- court re-
view, the. committee was thus particularly concerned with the acute
problem of overerowding of our trial court system. It recognized that
to thrust this additional caseload on the district courts would not only
clog the already overburdened trial dockets of the courts, but might
well delay the administration of justice on a national scale unprece-
dented in our history. It is truly said that "Justice delayed is justice
denied." Such is not our objective.
Another aspect that is involved in the enforcement of Title VII
concerns the importance of administrative expertise relating to the
resolution of problems of employment discrimination. Many of the
Title VII proceedings involve complex labor relations and business
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operations issues particularly in the fashioning of the remedies for
eliminating discrimination. The Equal Employment Opportunity
Commission would be expected to develop an important reservoir of
expertise in these matters, expertise which would not readily be avail-
able to a widespread court system. It is expected that through the ad-
ministrative process the Commission will continue to define and de-
velop the approaches to handling serious problems of discrimination
that are involved in the area of employment including testing and
labor relations (including seniority systems). It is incumbent upon
this administrative agency to develop the necessary expertise, ingenu-
ity, and sensitivity that will effectuate the purposes of Title VII, pro-
vide full relief to aggrieved persons, and still maintain an appropriate
understanding of the problems faced by the employment sector.
It should also be noted that the administrative cease-and-desist ap-
proach encourages early settlement of claims, thereby further allevi-
ating the courts and providing quick relief for aggrieved individuals.
For example, in the Summary of Operations by the General Counsel
of the National Labor Relations Board (NLRB) for fiscal year 1970
and the first 6 months of 1971, figures show that in fiscal year 1970
the NLRB received a record 33,581 cases. Of these, however, 92.4
percent were dissposed of without the need for a formal hearing. Of
the 2,217 cases which were heard by hearing examiners, only 420 had
to be filed for review or enforcement in the courts of appeals, and
only about half of these were ever set for oral argument. Experience
with other Federal agencies and State fair employment agencies indi-
cates a similar trend toward relatively few incidents of actual
adjudication.
Further considerations weighing in favor of administrative cease-
and-desist powers are :
(1) This is the type of authority given to many other Federal regu-
latory agencies.1e-11
(2) It is the type of enforcement authority preferred by 32 of 37
States which have equal employment opportunity laws. 12
(3) It will insure more quickly a unified approach to the problems
of discrimination since decisions would be rendered by one agency
rather than several hundred district court judges.
(4) It will provide the needed expertise in recognizing and solv-
ing the more subtle, institutional forms of discrimination.
Following is a comparison of the procedures which are followed
when a charge is filed with the Commisson under title VII in its
present form and those that would be followed under the bill :
Under existing law.-After a charge is filed alleging that an unlaw-
ful employment practice has been committed, the Commission investi-
gates and determines whether there is reason to believe that the al-
10-11 In addition to the NLRB, other agencies having such powers include : Atomic
Energy Commission, National Transportation Board, Federal Communications Commis-
sion, Federal Power Commission, Securities and Exchange Commission, Subversive Activi-
ties Control Board, Department of Agriculture, Department of Health, Education, and
Welfare, Department of Justice, Department of Transportation, Department of Defense,
Department of Interior, Interstate Commerce Commission, Treasury Department, and De-
partment of Labor.
12 States will cease and desist authority : Alaska, Arizona, California, Colorado, Con-
necticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Kansas Kentucky, Maryland, Massa-
chusetts, Michigan, innesota, Missouri, Nebraska, New fiampshire, New Jersey, New
Mexico, New YorkOklahoma, Ohio, Oregon Pennsylvania, Rhode Island, Utah, Wash-
ington, Weat virginia, Wisconsin, and Wyoming It is interesting to note that two of the
above, Delaware and New Mexico recently amended their existing enforcement laws to
include tease-and-desist powers.
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legations in the charge are true. If the Commisison finds no reasonable
cause, it dismisses the charge, thus terminating the proceeding before
the Commission. If the Commission decides that there is reasonable
cause to believe that the allegation of the charge is true, it attempts
to eliminate the unlawful practice by means of informal methods of
conference, conciliation, and persuasion. If the Commission is unable
to achieve voluntary compliance, it notifies the person claiming to be
aggrieved, who then has a right to bring a private civil ,action against
the respondent in the district court. The Commission now has no
further authority to act to resolve the dispute.
Under the bill-1. Upon the filing of a charge, the Commission
would investigate. If, after investigation, the Commission decides that
there is no reasonable cause to believe that the charge is true, it would
dismiss the charge and notify the person claiming to be aggrieved and
the respondent (sec. 706 (b)) .
2. If the Commission fins reasonable cause, it would seek to elimi-
nate the unlawful practice by informal methods of conference, con-
ciliation, and persuasion (sec. 706 (b)) . An agreement for the elimina-
tion of the alleged unlawful practice can be entered into by the
Commission (Sec. 706 (f) and (i) ), any time between the filing of the
charge and until the record is filed in the Court of Appeals (sec.
706(i) ). (See below regarding private right of action if the aggrieved
person does not enter into the conciliation agreement.)
3. If the Commission determines that it is unable to secure an accept-
able agreement, it would issue and serve upon the respondent a com-
plaint and notice of hearing (sec. 706(f)). The administrative hear-
ing, the purpose of which is to take evidence as to whether an unlawful
practice has been committed and to adjucate the claims of the parties
named in the charge, or permitted to be joined, or allowed to inter-
vene, would be conducted in accordance with the provisions of the Ad-
ministrative Procedure Act, 5 U.S.C. ? 551, et seta., before the Commis-
sion, one of its members, or a hearing examiner appointed in
accordance with Federal law (sec. 706 (g) and (j) ). The rules of evi-
dence applicable to the district courts would be followed so far as prac-
ticable.13
4. After completion of the administrative hearing, the Commission
would issue a decision disposing of the case on the merits. The Com-
mission could find that the respondent has engaged in an unlawful
employment practice, in which case it would issue an order requiring
the respondent to cease and desist from its unlawful conduct and to
take such affirmative. action as would effectuate the policies of the
title (sec. 706(h) ). In issuing its order, the Commission, in any situa-
tion involving back pay, would be limited to an award of two years
prior to the date of the filing of the charge with the Commission.
The Commission's order may be enforced through entry of an ap-
propriate decree of a United States court of appeals.
5. If, on the basis of a preliminary investigation, the Commission
determines that prompt judicial action is necessary to preserve its
power to grant effective relief, it would be required, following the
11 See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) ; On Lee v. United States,
:343 U.S. 747 (1952) ; United States v. Costello, 221 F. 2d 668 (C.A. 2, 1955), aff'd on
other grounds 350 U.S. 359 (1956) ; American Rubber Products Corp. v. NLRB, 214 F.
2d 47 (C.A. 7, 1954).
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issuance. of a complaint, to seek preliminary or temporary relief in
-Federal district court, pending the final disposition of the charge or
appeal to the court of appeals (sec. 706(p) ).
The intent of section 706(p) is to incorporate existing law devel-
oped in private actions and "pattern or practice" suits under title VII
of the Civil Rights Act of 1964.14-15 Courts have generally regarded
petitions for preliminary relief in such cases favorably, and have
granted preliminary injunctions against the continuation of unlawful
employment practices in situations which would normally call for
such relief in proceedings under rule 65 of the Federal Rules of Civil
Procedure.
The committee believes that in determining whether or not to issue
preliminary relief, the appropriate standard for the courts to apply
was aptly stated by the Court of Appeals for the Fifth Circuit in
United States v. Hayes International Corp.:
Where, as here, the statutory rights of employees are in-
volved and an injunction is authorized by statute and the
-statutory conditions are satisfied as in the facts presented
here, the usual prerequisite of irreparable injury need not be
established and the agency to whom the enforcement of the
right has been entrusted is not required to show irreparable
injury before obtaining an injunction. Fleming v. Salem Box
Co. 38 F. Supp. 997, 998-99 (D. Ore., 1940) ; Western Electric
Co., Inc. v. Cinema Supplies, Inc., 80 F. 2d 106, cert. den. 297
U.S. 717. We take the position that in such a case, irreparable
injury should be presumed from the very fact that the statute
has been violated. Whenever a qualified Negro employee is
discriminatorily denied a chance to fill a position for which
he is qualified and has the seniority to obtain, he suffers ir-
reparable injury and so does the labor force of the country as
a whole.
Moreover, we hold as did the court in Vogler v. McCarty,
Inc., 294 F. Supp. 368, 372 (E.D.. La. 1967) affirmed 407 F.
2d 1047 (5th Cir., 1969) that where an employer has engaged
in a pattern and practice of discrimination on account of
race, et cetera, in order to insure the full enjoyment of the
rights protected by title VII of the 1954 Civil Rights Act,
affirmative and mandatory preliminary relief is required. 415
F. 2d at 1045.
The Commission may not bring an action for preliminary relief until
it has issued a complaint. However, in those cases where the need for
preliminary relief is serious-including but in no way limited to situa-
tions where aggrieved persons are transferred, fired, or otherwise
harassed for bringing other charges before the Commission-the Com-
mission is expected to act swiftly in issuing a complaint so that the
person aggrieved will not be harmed by a delay between the time his
charge is filed and the issuance of the complaint by the Commission.
It is the committee's view that this authority be broadly construed
with the view toward completely rooting out and eliminating employ-
14-15 Culpepper v. Regnoids Metals Corp., 421 F. 2d 888 (C.A. 5, 1970) ; United States
v. Hayes International Corp., 415 F. 2d 1038 (C.A. 1969) ; Hicks v, Crown. Zellerbach
Corp., 49 FRD 184 (D.C. La. 1968). See also Note, "Developments in the Law-Injunc-
tions", 78 Harv. L. Rev. 994 (1965).
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ment discrimination. The Commission is to take whatever affirmative
steps are needed to provide a full and complete remedy to the aggrieved
party or class and to obtain full and immediate compliance with the
Civil Rights Act of 1964.
If the Commission finds that no unlawful employment practice has
been committed, it would issue an order dismissing the complaint
(sec. 706(h) ).
Review of a Commission order may be obtained in an appropriate
court of appeals upon the petition of an aggrieved party within 60
days of the Commission's order (706(k)). In accordance with the
provisions of the Administrative Procedure Act, and established judi-
cial practice, the courts of appeals would review the Commission's
record as a whole and would make its determination on an examina-
tion of the record to ascertain whether there is substantialevidence to
support the agency's findings. In this regard, the committee notes that
this is not a second hearing but a review under appellate procedure.
I f no petition is filed within 60 days, the Commission's order is con-
clusive, and an enforcement decree may be obtained by the Commission
from the clerk of the court of appeals. This automatic enforcement
provision places the burden upon the respondent to seek review (as is
the case in regular civil litigation before district courts). The auto-
matic enforcement mechanism also answers the contention that ad-
ministrative proceedings necessarily involve long delays before a judi-
cial enforcement order can be obtained. It is anticipated that in the
vast majority of cases no review will be sought by any party affected
by an order, and that the Commission or other person. will be able to
obtain the enforcement decree of the court without the burden of
moving forward with an entire review proceeding.
If, however, the Commission found it desirable in a particular case
to seek enforcement before the expiration of the 60-day period pro-
vided for a review petition, it would be enabled to do so by section
706(1). This section would, among other things, permit the Commis-
sion to apply for a preliminary injunction enforcing its order pending
the entry of a final decree.
Finally, if the respondent has not appealed, and if the Commission
has not sought enforcement under section 706 (1) or (m), any person
entitled to relief under the Commission's order could, after 90 days
from service of the Commission's order,- also -obtain an enforcement
decree from the clerk of the court of appeals. (Sec. 706(n).)
The court of appeals, on application of the Commission or any
other party to the proceeding, would be authorized to grant pre-
liminary or temporary relief pending disposition of the appeal. This
power would exist both in the case of petitions for review by a party
(sec. 706(k)) or petitions for enforcement by the Commission (sec.
706(l)).
Decisions of the court of appeals would be subject to review by the
Supreme Court of the United States in accordance with 28 U.S.C.
1254 (sec. 706 (k) and Q)).
As provided by section 706(t), as redesignated by this bill, the
provisions of the Norris-LaGuardia Anti-Injunction Act (29 U.S.C.
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101-115) would not apply to such proceedings for review or enforce-
ment-or for preliminary or temporary relief.
The Committee is aware that in the cases of other administrative
agencies with quasi-judicial functions the need for obtaining a decree
of a U.S. Court of Appeals to enforce an agency order has sometimes
resulted in a substantial delay in securing compliance with the order.
All too frequently, many months elapse between the date an order
is issued by an agency and the date a decree of a U.S. Court of Appeals
is entered enforcing it.
We have had no experience with Administration cease and desist
orders issued by EEOC. Therefore the Committee does not recom-
mend, at this time, that civil penalties be imposed upon respondents
who refuse to obey Commission orders prior to the entry of a decree
of the Court of Appeals enforcing such orders. However, the Com-
mittee does wish to emphasize the need for prompt action by the
Commission to secure enforcement of its orders. In that connection,
the Committee expects the Commission will take full advantage of
the availability of preliminary relief from the Courts of Appeals,
of the summary procedures available in the Courts of Appeals, and
the provisions of Rule 38 of the Federal Rules of Appellate Procedure
which authorize the imposition of damages and double costs in the
case of frivolous appeals.
PRIVATE ACTIONS
The bill contains a provision (see. 706(q)) that if the Commission
dismisses a charge, or, within 180 days of its filing has neither issued
a complaint nor entered into a conciliation or settlement agreement
which is acceptable to the Commission and the aggrieved party, it shall
so notify the aggrieved party. Within 60 days after such notification
the person aggrieved, or, in the case of a charge filed by an officer or
employee of the Commission, the person or persons named in such
charge, shall have the right to commence it private civil action in the
appropriate U.S. district court.
The committee is aware that in recent years regulatory agencies
have been submerged in increasing workloads which strain their re-
sources to the breaking point. The EEOC is no exception to this prob-
lem. As it indicated in testimony, its caseload has increased at a rate
which surpasses its own projections. The result has been increasing
backlogs in making determinations, and the possibility of occasional
hasty decisions, made under the press of time, which have unfairly
prejudiced complaints. Accordingly, where the Commission is not
able to pursue a complaint with satisfactory speed, or enters into an
agreement which is not acceptable to the aggrieved party, the bill
provides that the individual shall have an opportunity to seek his own
remedy, even though he may have originally submitted his charge to
the Commission. It is expected that recourse to this remedy will be the
exception and not the rule, particularly once the Commission's en-
forcement procedures are fully operational. In the meantime, however,
the committee believes that the aggrieved person should be given an
opportunity to escape the administrative process when he feels his
claim has not been given adequate attention.
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The committee is concerned, however, about the interplay between
the newly created enforcement powers of the Commission and the
existing right of private action. It concluded that duplication of pro-
ceedings should be avoided. The bill therefore contains a provision
for cutoff of the Commission's jurisdiction once the private action has
been filed-except for the power to intervene-as well as a cutoff of
the right of private action once the Commission issues it complaint. or
enters into a conciliation or settlement agreement which is satisfactory
to the Commission and the aggrieved party.
If the Commission is able to reach a conciliation or settlement
agreement with the respondent, but such agreement is not acceptable
to the person aggrieved, the Commission need not proceed with the
issuance of a complaint. In such event, the private right of action
would be preserved.
The committee also concluded that the aggrieved person's right to
institute a private action should be reactivated under certain circum-
r;ta.nces if the Commission does not act promptly after issuing a com-
plaint. The bill contains a provision, in section 706(q), that permits
the aggrieved person to bring a -civil action against the respondent
if the Commission has not issued its order within 180 days after
issuing the complaint. However, during the period from 180 days to
1 year after issuance of the Commission's complaint, the aggrieved
person who files a private action must notify the Commission of such
filing, and the Commission may petition the court to stay or dismiss
the private action if the Commission shows that it has been acting
with due diligence, that it anticipates the issuance of its order within
a reasonable period of time, that the proceeding is an exceptional one,
and that extension of the Commission's jurisdiction is warranted.
The committee believes that aggrieved persons are. entitled to have
their cases processed promptly and that the Commission should de-
velop its capacity to proceed rapidly with the hearing and decision
on charges once the complaint has issued. Six months is a sufficient
period of time for the normal case to be processed from complaint to
order, and the Commission should be required to explain to the sat-
isfaction of the court why it needs additional time. Accordingly, when
a private action is filed after the 180 day period has elapsed from
the issuance of the Commission's complaint, the court ordered delay
that is provided for by this section should be the exception rather than
the rule, and would not be justified simply because backlogs and inade-
quate resources have slowed the Commission's work. The primary con-
cern should be to protect the aggrieved person's option to seek a
prompt remedy.
It should be noted, however, that it is not the intention of the com-
mittee to permit an aggrieved party to retry his case merely because
he is dissatisfied with the Commission's action. Once the Commission
has issued an order, further proceedings must be in the courts of ap-
peals pursuant to subsections 706(k)-(n).
The committee would also note that neither the above provisions re-
garding the individual's right to sue under title VII, nor any of the
other provisions of this bill, are meant to affect existing rights granted
under other laws.
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SPECIAL ENFORCEMENT PROCEDURE FOR CASES INVOLVING EMPLOYEES OF
STATE AND LOCAL GOVERNMENTS
In those cases involving a respondent which is a "government, gov-
ernmental agency, or political subdivision", and in which EEOC has
been unable to secure voluntary compliance as provided under section
706(b) and (f), the bill provides that the Commission shall refer the
case to the Attorney General for filing of a civil action against the
respondent in the appropriate U.S. district court. A person aggrieved
is given the right to intervene in such civil actions.
The committee has no doubt of the need for strong enforcement of
equal employment opportunity at all levels of government, and believes
that governmental units should lead the way in providing equal oppor-
tunity.
Accordingly, the committee bill provides for coverage of State and
local government employees and for a concommitant means of enforce-
ment to make that coverage meaningful. By placing the full weight of
the U.S. Attorney General and the authority of the U.S. district
courts behind equal employment opportunity at the State and local
government level, the committee believes that the machinery has been
provided to insure State and local leadership in the area of equal
employment opportunity.
This enforcement scheme provides the necessary power to achieve
results without the needless friction that might be created by a Federal
executive agency issuing orders to sovereign States and their locali-
ties. In short, the committee believes that the objective of equal em-
ployment opportunity can best be achieved by providing this particu-
lar means of enforcement where State or local governmental units fail
to comply with the law .
FAIRNESS ANI) DUE PROCESS
Recognizing the importance that the concept of due process plays
in the American ideal of justice, the committee wishes to emphasize
certain provisions which are included in the bill to insure that fair-
ness and due process are part of the enforcement scheme.
(a) Protection of rights of respondent.-The bill contains a number
of provisions designed to protect fully the rights of the person or per-
sons against whom the charge is filed :
1. The committee retained the requirement that charges be in writ-
ing. The Commission must serve the respondent with a notice of the
charge, which would advise the respondent of the nature of the al-
leged violation. As amended by the committee, the bill would require
such notice to be served on the respondent within 10 days. (sec. 760
(b)).
2. During the Commission's investigation of the charge, the alle-
gations would not be made public by the Commission, and it would
undertake to resolve the matter by informal means before issuing a
complaint (sec. 706 (b) ).
3. If the Commission decides to issue a complaint, it would be
served upon the respondent (sec. 706(f)), who would then have a
right to file an answer and to amend it with leave of the Commission.
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Such leave is to be granted under normal circumstances. The respond-
ent would be a party to the proceedings before the Commission, and
he would have a right to appear at any stage of these proceedings,
with or without counsel. (Sec. 706 (g).)
4. Hearings of the Commission must be on the record and under
the provisions of the Administrative Procedure Act (5 U.S.C. 551,
et seq.) (sec. 706(j)). Such proceedings provide the maximum pro-
tection of the rights of all parties to the proceedings.
5. The respondent would have the right to seek judicial review of
a Commission decision which ruled against him, and he could petition
the Supreme Court for certiorari from an unfavorable decision of the
court of appeals. ( Sec. 706 (k).)
(b) Separation of functions.-The provisions of the bill and title 5
of the United States Code refered to above, would insure that the
same persons would not both prosecute and decide cases for the
Commission. Section 554 (d) of title 5 imposes the following require-
ments on the operations of administrative agencies, such as the
Commission, whose decisions must be made after hearing and on the
record:
1. The person presiding at the reception of evidence (typically, the
hearing examiner) may not be responsible to or subject to the supervi-
sion or direction of any person engaged in the performance of investi-
gative or prosecuting functions.
2. An employee of the agency performing investigative or prosecu-
tion functions in a particular case may not participate in or advise
in the decision, recommended decision, or agency review in that or a
factually related case, except as a witness or as counsel in public
proceedings.
The net effect of these provisions would be to prevent the inter-
mingling of functions within the Commission.
(c) Protection of rights of person aggrieved-In addition to the
provisions already discussed involving the individual right to sue, the
rights of persons claiming to be aggrieved would be further protected
by the following provisions :
1. Charges may be filed by or on behalf of an aggrieved person. The
Commission is directed to make its findings on reasonable cause as
promptly as possible, and so far as practicable, within 120 days of the
filing of the charge. The committee, as noted above, considers prompt
action on charges and complaints to be a major responsibility of the
Commission in all cases. The existing 90-day time limitation on filing
a charge has been extended by 90 days (sec. 706 (e)) .
2. If the Commission finds no reasonable cause to believe that the
charge is true, or enters into a settlement which is not acceptable to
the aggrieved person, the aggrieved person would still have a right of
action against the respondent.
3. The aggrieved person would have a right to be a party to all pro-
ceedings before the Commission and to be represented by counsel of his
choosing if he desires. Particularly at the hearing stage, the guarantees
of administrative due process as provided by the Administrative Pro-
cedure Act should be scrupulously maintained. As one authority has
pointed out:
The true principle is that a party who has a sufficient inter-
est or right at stake in a determination of govenmental action
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should be entitled to an opportunity to know and to meet,
with the weapons of rebuttal evidence, cross-examination,
and argument, unfavorable evidence of adjudicative facts..."
1-K. Davis, Treatise on Adminrstrati?ve Law 412.
The right of a person to participate at the hearing stage through his
own counsel is intended to supplement or complement, but in no way to
replace, the traditional advocate role of the representatives of the Com-
mission charged with carrying forward the complaint.
Provisions of present law requiring that the person aggrieved be
notified of his rights have been retained. Especially in light of the
further safeguards in this bill, the Commission is expected, at the
commencement and at other appropriate stages of the proceedings, to
.fully notify the aggrieved person in clear and understandable fashion
of the various procedural rights and steps open to him. Too often a
person files a charge but then blunders along lost in the bureaucratic
process. The committee believes that further steps should be taken.
including perhaps followup notification, to ensure that an aggrieved
person knows at apropriate times the status of the case and his rights
under the law.
(d) "Commlissiover's eomi.plaivt" provision-The provision permit-
ting a member of the Commission to file a charge of unlawful employ-
ment -practice as contained in the present section 706 was amended by
the committee to provide for such charges to be made by an officer or
e.mnloyee of the Commission upon the request of any person claiming
to be aggrieved. The original bill had continued the Commissioner's
charge but would have barred the Commissioner filing the charge from
participating in a hearing except as a witness. The committee con-
cluded that this provision might cause some appearance of conflict of
interest if Commissioners were to hear charges placed by a colleague;
moreover the Commission's caseload might not permit the routine dis-
qualification of Commissioners who had placed charges.
Placing the authority to make a charge at a lower level of the Com-
mission, however, would accomplish the same purposes while avoiding
these problems.
The. purpose of this provision is to enable aggrieved persons to
have charges processed under circumstances where they are unwilling
to come forward publicly for fear of economic or physical reprisals, In
this connection the committee wishes to make clear that the device
of a Commission charge may be used to maintain the confidential
identity of the persons aggrieved and that no disclosure need be made
of the identity of the person aggrieved at any stage of the proceeding
unless it is voluntary or in such circumstances where the person ag-
grieved is required to be a witness.
This section is not intended in any way to restrict the filing of class
complaints. The committee agrees with the courts that title VII actions
are by their very nature class complains,1? and that any restriction on
such actions would greatly undermine the effectiveness of title VII.
18 Oatis v. Crown Zellerbach Corp., 398 F. 2d 496 (C.A.5, 1908). Cf. Jenkins v. United
Gas Corp., 400 F. 2d 28 (C.A. 5, 1968) ; Blue Bell Boots v. EEOC, 418 F. 2d 355 (C.A. 6,
1969) ; Lcal 104, Sheet Metal Workers v. EEOC, 303 F. Supp. 528 (N.D. Calif. 1969).
Similarly, labor organizations may also petition for relief on behalf of their members.
Chemical Workers v. Planters Manufacturing Co., 259 F. Supp. 365 (N.D. Miss. 1965) ;
Pulp Sulphite and Paper Mill Workers, Local 186 v. Minnesota Mining.& Manufacturing
Co., 304 F. Supp. 1284 (N.D. Ind; 1969).
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CONSOLIDATION OF ANTI-DISCRIMINATION ENFORCEMENT ACTIVITIES
(a) Transfer of "Pattern or Practice" Cases to EEOC.-The au-
thority to bring "pattern or practice" suits directly in the district
courts, as provided by section 707 of the present law, is amended by
section 5 of the bill which transfers the present section 707 functions
from the Attorney General to the Commission.
While the broad-scale actions against any "pattern or practice" of
discrimination that have been brought by the Justice Department
under section 707 of the Civil Rights Act of 1964, have been an in-
tegral and important part of the overall Federal effort to combat dis-
crimination, the committee believes that with the enactment of legis-
lation providing the Commission with effective power to enforce title
VII, the further retention of section 707 power in the Department of
Justice is not necessary. With the adoption of this bill, which includes
the transfer to the Commission of the functions of the Office of Federal
Contract Compliance (OFCC) and the functions of the Department
of Justice, the Federal Government, through. the procedures -of the
Commission, will be able to pursue a unified program of attack upon
all elements of employment discrimination.
Employees would benefit by having to look to only one agency to
obtain relief; employers similarly would be free from the burden of
multiple investigations examining their employment policies-and per-
sonnel records in response to similar or identical complaints filed with
different agencies.--
Similarly, the. duplication of effort that would inevitably result from
similar pursuits of identical complaints, with the appurtenant double
expense and unnecessary waste of scarce legal talent, is something the
committee wishes to avoid by effecting the transfer.
In providing for the transfer of the authority under section 707, the
committee has, however, retained jurisdiction in the Department of
Justice for the first 2 years after enactment of the bill to bring "pat-
tern or practice" suits where necessary. The committee believes that
this will safeguard the important "pattern or practice" power, while
at the same time providing for a smooth and efficient transfer of that
authority.
The committee recognizes that with the institution of the new en-
forcement powers, the Commission will have to undertake extensive
internal reorganization, and will have to cope, with its present back-
log and the press of incoming cases at the same time. In light of this,
the Commission may not be able to fully utilize the "pattern or prac-
tice" function immediately. It is expected, however, that the two
agencies will exercise concurrent jurisdiction over "pattern or prac-
tice" enforcement (luring the first 2 years of operation under the
new law, since the committee intends that the Commission's adminis-
trative cease-and-desist enforcement authority will not be used exclu-
sively to resolve individual complaints but will also include the elimi-
nation of "patterns or practices" of discrimination wherever its inves-
l7 For an example of a situation where several Government agencies were all involved in
essentially the same complaint, see Local 189. United Papermakers and Paperworkers,
AFL-010 v. United States. 416 F.2d 980 (C. A. 5 1969), cert. denied 397 U.S. 919 (1970),
aff'g 282 F. Supp. 39 (E.D. La. 1968) and 301 F. Supp. 906 (Il. D. La. 1969). In this
particular case, conclusions as to the legality of a seniority system used by the respondent
were reached by the EEOC, the OFCC, and the Department of Justice, with separate in-
vestigations and litigation employed by each agency independent of the other.
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tigation of a charge discloses the existence of such employment
situations.
In this regard, the committee believes that it is incumbent upon the
Attorney General and the Commission to cooperate and consult when-
ever necessary to insure the maximum use of these legal tools to end
employment discrimination, as well as to avoid duplication of effort
and conflicting approaches to the implementation of the statute.
The committee also believes that the future transfer of the "pattern
or practice' authority should not be a burden upon the already meager
resources of the Commission. Accordingly, the committee has pro-
vided that along with the transfer of the functions, there would also
be a transfer of the funds and personnel positions previously budgeted
for this work in the Department of Justice.
(b) Transfer of Contract Compliance activities to EEOC.-Sec-
tion 715 of the bill transfers the powers and duties of the Secretary
of Labor under Executive Order 11246 (as amended by Executive
Order 11375) to the Equal Employment Opportunity Commission.
Executive Order 11246 enunciates the policy of the Government
of the United States ". . . to provide equal opportunity in Federal
employment for all qualified persons, to prohibit discrimination in
employment because of race, color, religion, sex, or natural origin, and
to promote the full realization of equal employment opportunity
through a positive, continuing program in each executive department
and agency ..." (E.O. 11246 ? 101 as amended). The Executive order
program is presently administered within the Department of Labor
by the Office of Federal Contract Compliance, a division of the Em-
ployment Standards Administration. Under the Executive Order,
government contractors and subcontractors are required to agree to
the following contract provision :
The contractor will not discriminate against any employee
or applicant for employment because of race, color, religion,
sex or national origin. The contractor will take affirmative
action to ensure that applicants are employed, and that em-
ployees are treated during employment, without regard to
their race, color, religion, sex, or national origin.
The Secretary of Labor has overall responsibility for administra-
tion of the Executive Order, including ultimate authority over the
contracting agencies in the implementation of both the nondiscrimi-
nation and the affirmative action provisions of the contract clause.
The bill transfers all of the functions of the Secretary of Labor
under the Executive Order to EEOC without modifying in any way
those functions or relieving, in any way, government contracting
agencies or government contractors of their obligations thereunder.
This transfer was considered by the Committee last year during its
deliberation on S. 2453. In the report on S. 2453, the bases for then
not transferring the program included a concern that the Commission
might be overburdened and that a complete consolidation of all agen-
cies was not necessarily appropriate at that time. The report, however,
made clear that the credibility of the executive order program was
very much suspect and so stated :
However, the committee also believes that an adequate job
of providing equal employment opportunity has not, and is
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not, being provided through the Federal Procurement func-
tion. There has been far too much non-public discussion and
negotiation and far too few understandable results.. In many
instances the I)epartment's claim that something major hap-
pened, when measured against the demonstration that some-
thing actually happened, is grossly lacking in the clarity that
the public and minorities can understand.
The United States Commission on Civil Rights, in October 1970,
recommended transferring of "the Contract Compliance responsi-
bilities of OFCC" to EEOC in order to achieve a consolidation of
equal employment oportunity functions into a single, independent
agency. This recommendation was reconfirmed by the Commission in
April 1971, and again in testimony before the Committee on S. 2515,
by Father Theodore Hesburgh, Chairman of the Civil Rights
Commission.
During testimony on this bill, the Department of Labor vigorously
opposed the transfer citing legal standards, substantive results, and
procurement considerations as support of its position.
The Committee was not persuaded that any of the three reasons
warrant maintenance of the programs with the Secretary of Labor.
The question of whether differing legal standards apply to EEOC
and OFCC has been the subject of much discussion both before and
since the hearings. Suffice it to say that the courts are developing the
body of case law rationalizing the relationship between Title VII and
the Executive Order program.'
The Committee intends that the standards applicable under Title
VII shall govern all proceedings under that Title. Furthermore, the
Committee intends that EEOC shall exercise the same authority under
the Executive Order as has governed OFCC, being limited by the
standards applicable to Executive Order 11246. The Committee be-
lieves that both these functions, though somewhat different in nature,
can be fulfilled effectively by EEOC. Of course, in neither case, can
an employer be required to violate Title VII.
The procurement. considerations are minimal. The Secretary of
Labor has acted in essentially a directive or supervisory role vis-a-vis
the procurement agencies-no change is contemplated by this trans-
fer. The Committee expects that the main burden of obtaining com-
pliance with the executive order will still rest with the contracting
agencies.
The question raised last year was whether the program has had sub-
slantive results. I nfortunately, the paucity of credible achievement
cited last year is still the rule. The successes described in the testi-
mony suffer from an inability of the program managers to furnish re-
liable data to support their claim. The program looks good on paper,
but despite many opportunities very minimal information was furn-
ished to the Committee that would support the contention that sig-
nificant results have been achieved. To the contrary, in the history of
the Contract Compliance Program, until two days after introduction
of this bill, no sanction had ever been imposed for violation of the
1 Contractors Ass'n. of Eastern Penna. v. Secretary of Labor, 442 F.2d 1959 (3d Cir.
1971), cert. denied U.S. -- (197]). See also the cases cited at for. 17, Supra.
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Executive Order. Since then, only one small contractor (10 employees)
has been subjected to sanctions.
In 1969, then Secretary of Labor Shultz, testifying before this
Committee asked for time for the new administration to get its House
in order. The Department's testimony this year suggested that real suc-
cess is just around the corner.
The rights of minorities and women are too important to continue
this important function in an agency that has not really been able to
achieve the promised results. The contract compliance program is an
important and viable tool in the government's efforts to achieve equal
employment opportunity. It should have a chance to operate in a fresh
atmosphere with an agency that has Equal Employment Opportuni-
ties as its sole priority.
Section 709 is revised to provide a more effective system for requir-
inz records to be kept, to permit the Commission to arrange for appro-
priate operating agreements with State and local fair employment
practice agencies, to provide a scheme for avoiding duplication of rec-
ords, and for agreements to share information with Federal, State,
and local agencies.
The committee believes strongly that adequate records are essential
to the proper and effective administration of this Title. However, it is
also mindful of the increasing burdens that employers and unions are
faced with under the proliferation of statutes and regulations which
affect them. Therefore, the committee urges the Commission to under-
take serious efforts to ease the paperwork requirements under this act
consistent with maximum efforts to secure complete compliance with
the law.
The bill contains two provisions (Secs. 705 (a) and 713 (d) ) designed
to help the Commission deal promptly with the huge volume of cases
expected to come before it for decision upon the enactment of this bill.
These provisions authorize the President, at the request of the Chair-
man of the Commission, to appoint up to four additional members of
the Commission by and with the advice and consent of the Senate,
and permit the Commission itself to sit in panels of three members.
As has already been noted in this report, the number of charges filed
with the EEOC during the past several years has exceeded all expec-
tations at the time the Civil Rights Act of 1964 was enacted. Further-
more, the volume of charges continues to increase, with over 32,000
charges expected to be filed during the current fiscal year.
While it is impossible to state with assurance at this time what the
workload of the Commission will be, the Committee believes that
authorization for additional Commissioners and the use of three-
member panels should provide sufficient flexibility for the Commission
to manage its caseload expeditiously.
The provisions of this bill would be effective upon enactment. How-
ever, under the terms of the bill's amendment to section 701 of the
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Civil Rights Act of 1964, the expansion of title VII's coverage to
employers with eight or more employees, and to unions with eight or
more members, would not be operative until 1 year after enactment.
In accordance with the requirements of section 252 of the Legislative
Reorganization Act of 1970, the Commission has prepared an estimate
of the projected costs for the new areas of enforcement activity for
which the bill provides. It is the committee's view that the accompany-
ing figures represent a reasonable estimate of the minimum additional
budgetary requirements for administration of these new undertakings:
1972
1973
1974
1975
1976
Cease and desist operations under present jurisdictional limits-
9,431
11,912
12, 081
12, 123
12
151
Extension of jurisdiction to State and local government em-
ployees____ -------------- ---------_-_---_-___-_____-_
2,100
3,000
3,000
3,000
,
3,000
Extension of jurisdiction to 8 or more employees-_-_ --------------
(1)
1,234
2,115
4,034
4,243
Total ----------------
12,031
17, 046
18, 096
20, 057
20, 294
The bill also contains provisions for the transfer of two activities
presently administered by different agencies of the Government. As
the transfer of these activities also involves transfer of funds and
personnel positions allocated to those agencies, the cost estimates for
these activities are based upon cost projections by the agencies pres-
ently administering those operations :
Fiscal year-
1972 1973 1974 1975 1976
OFCCfunctions ------------- --------------------------- ._ 2,594 2,600 2,600 2,600 2,600
Pattern or practice enforcement----------------------------- 1,800 1,800 1,800 1,800 1,800
The figures provided in both the above tables are based on projec-
tions of anticipated case loads and estimates of the level of enforce-
ment activity which will be needed. Because of the uncertain nature of
these factors it is impossible to attempt any realistic projection beyond
FY 1976.
TABULATION OF VOTES IN COMMITTEE,
Pursuant to section 133(b) of the Legislative Reorganization Act
of 1946, as amended, the following tabulation of votes in committee is
provided.
1. Senator Donminick's substitute amendment to strike from the bill
the transfer to EEOC of authority to bring "pattern or practice"
cases (defeated 14 to 1) :
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NAYS-14
Mr. Williams Mr. Javits
Mr. Randolph Mr. Schweiker
Mr. Pell Mr. Packwood
Mr. Nelson Mr. Taft
Mr. Mondale Mr. Stafford
Mr. Eagleton
Mr. Cranston
Mr. Hughes
Mr. Stevenson
2. Senator Eagleton's amendment to delay the transfer of the "pat.
tern or practice" authority for two years, to provide for the concur.
rent jurisdiction in the EEOC of such pattern or practice cases, and
to make sure transfer subject to the President's exercise of authority
under the Reorganization Act (adopted 13 to 2) :
Mr. Williams Mr. Javits
Mr. Randolph Mr. Schweiker
Mr. Pell Mr. Packwood
Mr. Nelson Mr. Stafford
Mr. Mondale
Mr. Eagleton
Mr. Cranston
Mr. Hughes
Mr. Stevenson
Mr. Dominick
Mr. Taft
3. Senator Dominick's amendment to substitute court enforcement
for administrative cease-and-desist authority (defeated 15 to 2) :
Mr. Dominick
Mr. Beall
NAYS-15
Mr. Williams Mr. Javits
Mr. Randolph Mr. Schweiker
Mr. Pell Mr. Packwood
Mr. Kennedy Mr. Taft
Mr. Nelson Mr. Stafford
Mr. Mondale
Mr. Eagleton
Mr. Cranston
Mr. Hughes
Mr. Stevenson
4. Senator Williams' motion that the committee favorably report
S. 2515, as amended (adopted 17 to 0) :
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Mr. Williams
Mr. Randolph
Mr. Pell
Mr. Kennedy
Mr. Nelson
Mr. Mondale
Mr. Eagleton
Mr. Cranston
Mr. Hughes
Mr. Stevenson
Mr. Javits
Mr. Dominick
Mr. Schweiker
Mr. Packwood
Mr. Taft
Mr. Beall
Mr. Stafford
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SECTION-BY-SECTION ANALYSIS
SECTION 2
This section amends certain definitions in section 701 of the Civil
Rights Act of 1964.
Section 701 (a).-This subsection defines "person" to include State
and local governments, governmental agencies and political sub-
divisions.
Section 701(b) .-This subsection would extend coverage of employ-
ers to those with 8 or more employees one year after enactment. The
standard for determining the number of employees of an employer,
that is, "employees for each working day in each of 20 or more calendar
weeks in the current or preceding calendar year," would apply to
employers of 25 or more employees during the first year as well as the
final coverage of eight or more employees. This subsection would
broaden the meaning of "employer" to include State and local govern-
ments and the District of Columbia departments or agencies (except
those subject by statute to procedures of the Federal competitive
service as defined in 5 U.S.C. 2102, who are covered by section 717, as
are all Federal employees).
Section 701(c).-This subsection eliminates the exemption for
agencies of the United States, States or political subdivisions of
States from the definition of "employment agency" in order to conform
with the expanded coverage of State and local governments in section
701 (a) and. (b). State employment services, previously covered by
reference to the United States Employment Service, continue to be
covered as part of the State or local government coverage. Employees
of the United States Employment Service, as Federal employees, are
covered by the new section 717 of the act.
Section 701 (e).-This subsection is revised to include coverage of
labor organizations with 8 or more members one year after enactment.
Section 702 is amended to eliminate the exemption for employment
of individuals engaged in educational activities of non-religious edu-
cational institutions. It continues the exemption for employment of
aliens outside the United States and for a religious corporation, asso-
ciation, educational institution or society with respect to employment
of individuals of a particular religion to perform work connected with
religious activities.
SECTION 4(a)
This section amends sections 706 (a)-(e) of the Civil Rights Act of
1964 entitled "Prevention of Unlawful Employment Practices."
Section 706(a).-This subsection would empower the Commission
to prevent persons from engaging in unlawful employment practices
(35)
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under sections 703 and 704 of title VII of the Civil Rights Act of 1964.
Section 706(l)).--This subsection prescribes the procedures to be
followed when a charge of an unlawful employment practice is filed
with the Commission. The Commission must serve a notice of the
charge on the respondent within ten days, investigate the charge and
make its determination on whether there is reasonable cause to believe
that the charge is true. It is not the intent of the committee that fail-
ure to give notice within ten days should prejudice the rights of an
aggrieved party. If it finds no reasonable cause, the Commission must
dismiss the charge; if it finds reasonable cause, it must attempt to
conciliate the case. The subsection makes a number of changes in
existing haw:
1. 1lnder present law, a charge may be filed only by a person
aggrieved under oath or by a member of the Commission where he has
reasonable cause to believe a violation has occurred. This subsection is
amended to permit a charge to be filed by or on behalf of a, person
aggrieved or by an officer or employee of the Commission upon the
request of a person claiming to be aggrieved.
2. The Commission would be required to make its determination
on reasonable cause as promptly as possible and, "so far as practicable,"
within 120 days from the filing of the charge or from the date upon
which the Commission is authorized to act on the charge under
section 706 (c) or (d). The Commission is required in its determination
of reasonable cause to accord substantial weight to final findings and
orders made by State or local authorities under State and local laws.
3. This subsection and section 8(c) of the bill add appropriate
provisions to carry out the intent of the present statute to provide
full coverage for joint labor-management committees controlling
apprenticeship or other training or retraining, including on-the-job
training programs. While these joint labor-management committees
are prohibited under section 703(d) of the present act from discrimi-
nating, they were not expressly included in the prohibition against
discriminatory advertising or retaliation against persons participating
in Commission proceedings (sec. 704(a) and (b)) or in the procedures
for filing charges in section 706(a).
Section, 706((.).--This provision retains the present requirement
that the Commission defer for a period of 60 days to State or local
agencies functioning under appropriate anti-discrimination laws
(or 120 days during the first year after the effective date of such law).
The only change in the present law is to delete the phrase "no charge
may be filed" with the Commission by an aggrieved person in such State
or locality. The present statute is somewhat ambiguous respecting Com-
mission action on charges filed prior to resort to the State or local
agency. The new language clarifies the present statute by permitting the
charge to be filed but prohibiting the Commission from taking action
with respect thereto until the prescribed period has elapsed.
Section 706(d).-This subsection requires deferral to State or
local anti-discrimination agencies in the case of charges filed by an
officer or employee of the Commission.
Section 706 (e.).--This subsection prescribes the time limits for the
filing of a charge. Under the present statute, the charge must be
filed within 90 days after the alleged unlawful employment practice
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37
occurred. In cases where the Commission defers to a State or local
agency, the charge must presently be filed within 210 days of the
occurrence of the alleged unlawful practice, or within 30 days after
the person aggrieved receives notice that the State or local agency has
terminated its proceedings, whichever is earlier. This subsection
would permit charges to be filed within 180 days of the alleged unlaw-
ful practice-a limitation period similar to that contained in the
Labor-Management Relations Act, as amended (29 U.S.C. 160(b) ).
Where the Commission defers to a State or local agency, the time
limit is extended to 300 days after the occurrence of the alleged
unlawful practice or 30 days after receipt of notice that the State or
local agency has terminated its proceedings. This subsection also
requires that notice of the charge be served on the respondent within
ten days after its having been filed.
Sections 706 (f) through 706 (p).-These subsections, which are new,
set forth the procedure to be followed where the Commission, after
finding reasonable cause to believe that the allegations of the charge
are true, is unable to conciliate the case. The hearing and review re-
quirements are similar to those found in most statutes governing ad-
ministrative agencies.
Section 706(f).-Under this subsection, if the Commission is un-
able to secure a conciliation agreement pursuant to section 706 (b) that
is acceptable to the Commission, it would promptly issue and serve
upon the respondent a complaint and notice of hearing if the respond-
ent is not a government, governmental agency or political subdivi-
sion. In the latter case, if conciliation fails, the Commission will take
no further action and refer the case to the Attorney General for filing
a civil action in the district courts. Such civil actions are to be gov-
erned by sections 706 (q) through (w), as applicable. The Commis-
sion's determination that it is unable to secure such an agreement
would not be reviewable in court. Conciliation agreements entered into
by the Commission would be enforceable in court in accordance with
the provisions of section 706 (1). If an officer or employee of the Com-
mission files a charge, he shall not participate in a hearing in any
complaint arising out of such charge, except as a witness.
Section 706(g).-This subsection prescribes certain statutory pro-
cedural requirements after a complaint is issued by the Commission.
The respondent would be provided an opportunity to file an answer to
the complaint, and to amend its answer upon a showing of reasonable-
ness and fairness. The respondent and the aggrieved person are full
parties and are. permitted to appear at any stage of the proceeding.
The Commission could also, in its discretion, grant to other persons the
right to intervene, to file briefs, or to make oral argument, as it deems
appropriate. Testimony at hearings must be under oath and reduced
to writing and proceedings shall, so far as practicable, be conducted
in accordance with the rules of evidence in the district courts of the
United States. This last provision is similar to that contained in the
Labor-Management Relations Act (29 U.S.C. 160(b) ). As specified in
section 706(j), all hearings must be conducted in accordance with the
Administrative Procedure Act. The only persons, in addition to mem-
bers of the Commission, who may preside at hearings are hearing
examiners appointed under section 3105 of title 5 of the United States
Code.
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Section 706(h).-The subsection provides that if the Commission,
following a hearing, finds that the respondent has engaged in an unlaw-
ful employment practice, it shall state its findings of fact and- issue
an order to be served on the parties, requiring that the respondent
cease and desist from its unlawful conduct and take such affirmative
action, including reinstatement or hiring of employees, with or with-
out back pay as will effectuate the policies of the Act. Interim earnings
or amounts earnable with reasonable diligence by the aggrieved per-
sons would operate to reduce the back pay otherwise allowable. If any
event back pay liability is limited to two years prior to the filing of a
charge with the Commission. The order could also require that the re-
spondent make reports from time to time to the Commission. If the
Commission finds no unlawful employment practice, it would state
such findings and issue an order dismissing the complaint. The pro-
vision is intended to give the Commission wide discretion in fashion-
ing the most complete relief possible to eliminate all of the conse-
quences of the unlawful employment practice caused by, or attribut-
able to, the respondent.
Section 706(i).-This subsection would make clear the authority
of the, Commission, any time after a charge has been, filed until the
record is filed inn court, to end proceedings by agreement with the
respondent for the elimination of the alleged unlawful employment
practice. Agreements entered into under this section or section 706(f)
would be enforceable in the appropriate court of appeals under section
706 (1) through (n). The Commission would also be able, upon rea-
sonable notice, to modify or set aside, in whole or in part, any finding
or order made or issued by it. The right of the aggrieved person to file
a civil action is preserved in section 706(q) (2) in those cases where
the aggrieved person is not a party to the agreement.
Section 706(3).-This subsection requires that findings of fact and
orders made or issued under subsection (h) or (i) be on the record in
accordance with the Administrative Procedure Act.
Section: 7'06(k).-This subsection would permit a party aggrieved
by a final order of the Commission-the respondent or the person or
persons on whose behalf the charge. was filed-to seek review of such
order in a U.S. court of appeals within 60 days after the service of the
Commission's order. The subsection specifies the procedures to be
followed after a petition for review is filed, including :
(1) The clerk of the court transmits a copy of the petition to
the Commission and to any other party to the proceeding before
the Commission ;
(2) The Commission files in court the record in the proceedings
pursuant to 28 U.S.C. 2112 at which time the court of appeals
has exclusive jurisdiction;
(3) The Court of Appeals is authorized to grant such temporary
relief, restraining order, or other orders as it deems just and proper
and may enter a decree enforcing, modifying and enforcing as so
modified. or setting aside, in whole or in part the order of the Com-
mission. The findings of fact by the Commission are conclusive if
they are supported by substantial evidence on the record con-
sidered a.s a whole ;
m may
(4) Any party to the. proceedings before the Commission leave
intervene in the court of appeals and a party may apply for
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to adduce additional evidence before the Commission, which
could then modify its original findings. Modified findings would
also be conclusive if supported by substantial evidence on the
record considered as a whole ;
(5) Objections not urged before the Commission, its member,
or agent, will not be considered by the court unless the failure or
neglect to urge such objection is excused because of extraordinary
circumstances ;
(6) Commencement of proceedings under this subsection would
not stay the Commission's order unless ordered by the court; and
(7) The courts of appeals are required to hear petitions
expeditiously. This requirement is intended to emphasize to the
courts of appeals the need for promptly acting on petitions in
order to have speedy resolution of these cases.
Section 706(l).-This subsection would authorize the Commission
to petition a U.S. court of appeals for enforcement of its order. The
prescribed procedures in the case of petitions for enforcement under
this subsection are similar to section 706(k) except that no time limit
is specified for the enforcement petition other than that provided by
section 706(m) regarding the self-enforcement procedure. The Com-
mission would . be authorized to seek an order from the court for
temporary or preliminary enforcement of its order pending complete
review by the court of appeals.
Section 706(m).-Under this subsection, if there is no petition for
review filed within 60 days as provided in section 706 (k), the Commis-
sion's findings of fact and order would become conclusive in connec-
tion with any petition for enforcement filed pursuant to section 706 (1).
If the Commission petitions for an enforcement order thereafter, the
clerk of the court of appeals would enter a decree enforcing the order
of the Commission and transmit copies to the Commission, the re-
spondent, and any other parties to the proceeding before the
Commission.
Section 706(n).-This subsection provides that any person entitled
to relief under a Commission order could obtain enforcement of the
order if within 90 days after service of the Commission's order there
has been no petition for review filed under subsection (k) or no petition
for enforcement filed by the Commission under subsections (1) or (m).
The procedures and provisions of subsection (m) would apply to such
petition for enforcement.
Section 706(o).-This subsection provides that the Attorney Gen-
eral would conduct all litigation to which the Commission is a party
in the Supreme Court of the United States pursuant to this title. All
other litigation, except that relating to governments, governmental
agencies, and political subdivisions which is conducted by the Attorney
General, including litigation arising under sections 706 (k), (1), (m),
(n), (p), (q), or 707, litigation arising in connection with the Com-
mission's record-keeping requirements under section 709, the enforce-
ment of the Commission's authority to conduct investigations under
section 710, and private litigation in which the Commission is involved
as amicus curiae, as well as judicial proceedings in which the Com-
mission intervenes, shall be conducted by attorneys appointed by the
Commission.
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Section 706(p).-Under this subsection, if, after a charge is filed
under section 706(b), the Commission concludes on the basis of a pre-
liminary investigation that prompt judicial action is necessary to pre-
serve its power to grant effective relief in the proceeding, it must bring
an action for appropriate preliminary or temporary relief in the
United States district court in the judicial district in which the unlaw-
ful employment practice is alleged to have been committed, where the
person would have been employed but for the alleged unlawful prac-
tice, or if the respondent is not to be found in any of these districts, in
the judicial district where the respondent has its principal office.
The subsection further provides that for purposes of 28 U.S.C. 1404
and 1406 (which permit the court to transfer an action to another ju-
dicial district where the action might have been brought) the district
in which the respondent has his principal office is to be considered a
judicial district where the action might have been brought.
This subsection, in addition, would make rule 65 of the Federal
Rules of Civil Procedure, except paragraph (a) (2) thereof, applic-
able to proceedings under section 706(p). Rule 65 prescribes proced
ural requirements for the granting of temporary restraining orders
and preliminary injunctions. Paragraph (a) (2) of rule 65 permits
the court to advance the trial of the merits and to consolidate the trial
on the merits with the hearing on the application for injunction. This
provision would be inapplicable to proceedings under section 706(p).
Any relief ordered by the court under this subsection would be per-
mitted to run until such time as a court of appeals has assumed juris-
diction of a review or enforcement petition.
Section 706(q).-This subsection preserves the private right of
action by an aggrieved person. Under this subsection, the aggrieved
person may bring such an action within 60 days after being notified
by the Commission that it has dismissed the charge, or when 180 days
have elapsed from the filing of the charge without the Commission
having issued a complaint under section 706(f) or the Attorney
General having filed a civil action under section 706(f) or without
the Commission having entered into an agreement under section 706
(f) or (i) to which the person aggrieved is a party.
The subsection would also divest the Commission of jurisdiction
over any pending proceedings upon the filing of a private action.
Conversely, the right of an aggrieved party to bring a private action
would terminate once the Commission issued a complaint under sub-
section 706 (f) , or the Attorney General filed a civil action under sub-
section 706(f), or the Commission entered into a conciliation agree-
ment under subsection 706 (f) or (i) to which the person aggrieved is
a party. If the Commission does not issue an order within 180 days
after it issues a complaint or within 60 days after receipt of notice in
the case of an agreement under subsection (i) to which the person ag-
grieved is not a party, the aggrieved person may also institute a civil
action. If.such action is instituted within one year of the issuance of
the Commission's complaint, the Commission may request that it be
stayed or dismissed upon a showing that it has been acting with due
diligence, that it anticipates issuance of an order within a reasonable
time on the complaint, that the case or proceeding is exceptional and
that extension of exclusive jurisdiction of the Commission is warranted.
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41
SECTION 4 (b) AND (d)
These sections redesignate the paragraph numbers of subsections
706(e) through (k) of the Civil Rights Act of 1964 as subsections
706((1) through (w), and also redesignate other paragraph numbers
to be consistent with the changes made in section 706.
Section 4(c).-This section adds a sentence to subsection 706(r)
which clarifies the power of the district courts to grant temporary
relief in civil actions brought under title VII.
This section amends section 707, concerning the Attorney General's
"pattern or practice" action, to provide for a transfer of this function
to the Commission two years after the enactment of the bill. The bill
further provides for concurrent "pattern or practice" jurisdiction for
the Commission from the date of enactment until the transfer is
complete. The transfer is subject to change in accordance with a
Presidential reorganization plan if not vetoed by Congress. The
section would provide that currently pending proceedings would con-
tinue without abatement, that all court orders and decrees remain in
effect, and that upon the transfer the Commission would be substituted
as a party for the United States of America or the Attorney General
as appropriate. The Commission would have authority to investigate
and act on pattern or practice charges except that any action would
follow the procedures of section 706.
This section amends section 709 of the Civil Rights Act of 1964,
entitled "Investigations, Inspections, Records, State Agencies."
Section 709(a).-This subsection, which gives the Commission the
right to examine and copy documents in connection with its investi-
gation of a charge, would remain unchanged.
Section 709(b).-This subsection would authorize the Commission
to cooperate with State and local fair employment practice agencies
in order to carry out the purposes of the title, and to enter into agree-
ments with such agencies, under which the Commission would refrain
from processing certain types of charges or relieve persons from the
recordkeeping requirements. This subsection would make two changes
in the present statute. Under this subsection, the Commission could,
within the limitations of funds appropriated for the purpose, also
engage in and contribute to the cost of research and other projects
undertaken by these State and local agencies and pay these agencies
in advance for services rendered to. the Commission. The subsection
also deletes the reference to private civil actions under section 706 (e)
of the present statute.
Section 709(c).-This subsection, like the present statute, would
require employers, employment agencies, labor organizations, and joint
labor-management apprenticeship committees subject to the title to
make and keep certain records and to make reports therefrom to the
Commission. Under the present statute, a party required to keep
records could seek an exemption from these requirements on the
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ground of undue hardship either by applying to the Commission or
bringing a civil action in the district court. This subsection would re-
quire the party seeking the exemption first to make an application to
the Commission and only if the Commission denies the request could
the party bring an action in the district court. This subsection would
also authorize the Commission to apply for a court order compelling
compliance with the recordkeeping and reporting obligations set
forth in the subsection.
Section 709(d).-This subsection would eliminate the present ex-
emption from recordkeeping requirements for those employers in
States and political subdivisions with fair employment practice laws or
for employers subject to Federal executive order or agency recordkeep-
ing requirements. Under this subsection, the Commission would con-
sult with interested State and other Federal agencies in order to co-
ordinate the Federal recordkeeping requirements under section 709 (c)
with those adopted by such agencies. The subsection further provides
that the Commission furnish to such agencies information pertaining
to State and local fair employment agencies, on condition that the in-
formation would not be made public prior to the institution of State
or local proceedings.
Section 709(e).-Under this subsection, the Commission or the
Attorney Genera I would have the authority to direct the person hav-
ing custody of any record or paper required by section 709(c) to be
preserved or maintained to make such record or paper available for
inspection or copying by the Commission or the Attorney General.
The district court of the judicial district where the demand is made or
the papers are located would have jurisdiction by appropriate process
to compel the production of such record or paper. The subsection fur-
ther provides that the members of the Commission and its repre-
sentatives or the Attorney General and his representatives, could not
unless ordered by the court, disclose any record or paper produced
except to Congress or a congressional committee, to other government
agencies, or in the presentation of cases before a court or a grand jury.
SECTION 7
This section would amend section 710 of the Civil Rights Act of
1964 to make section 11 of the National Labor Relations Act (29
U.S.C. 161), except for one provision thereof, applicable to Commis-
sion investigations. This section would require the Commission or a
member thereof, upon application of a party, to issue a subpoena re-
quiring the attendance and testimony of a witness or the production of
any evidence in a proceeding. The person served with the subpoena
could petition the Commission to revoke the subpoena within 5 days.
On application of the Commission, an appropriate district court could
order a person to obey a subpoena and failure to comply with the court
order would be punishable in contempt proceedings.
Under this section, the Commission would not be authorized to
issue a subpoena on the application of a private party before it issues
a complaint and notice of hearing. This provision, which is in accord
with the actual practice of the National Labor Relations Board,
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would give the Commission exclusive authority to conduct the pre-
hearing investigation.
Section 11 of the National Labor Relations Act also contains pro-
visions relating to privileges of witnesses, immunity from prosecu-
tion, fees, process, service, and return, and information and assistance
from other agencies.
SECTION 8 (a) AND (b)
These subsections would amend sections 703(a) (2) and 703(c) (2)
of the present statute to make it clear that discrimination against
applicants for employment and applicants for membership in labor
organizations is an unlawful employment practice. This subsection
would merely be declaratory of present la %v.
These subsections would amend section 704 (a) and (b) of the pres-
ent statute to make clear that joint labor-management apprenticeship
committees are covered by those provisions which relate to discrimi-
natory advertising and retaliation against individuals participating in
Commission proceedings.
SECTION 8 (d)
This subsection would amend section 705(a) of the present statute
to provide for the appointment of up to four new Commission mem-
bers at airy time after one year from the effective date of the act at
the request of the Chairman, and at the discretion of the President
with the advice and consent of the Senate. Not more than the least
number of members sufficient to constitute a majority may be of the
same political party.
Further, this subsection would amend section 705 (a) of the present
statute to permit a member of the Commission to serve until his suc-
cNssor is appointed but not for more than 60 days when Congress is in
session unless the successor has been nominated and the nomination
submitted to the Senate, or after. the adjournment sine die of the ses-
sion of the Senate in which such nomination was submitted.
The rest of the subsection is substantially the same as present sec-
tion 705 (a) and would make the Chairman of the Commission, on
behalf of the Commission, responsible for the administrative opera-
tions of the Commission and for the appointment of officers, agents,
attorneys, hearing examiners and other employees of the Commission
in accordance with Federal law.
SECTION 8 (e)
This subsection would amend section 705 (g) (1) of the present act
to permit the Commission to accept uncompensated services. It is in-
tended to permit the Commission to utilize these services for such pur-
poses as education, publicity, and the collection of data. It would not
be expected to accept such services in connection with the prosecution
or decision of cases before it except in extraordinary situations.
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SECTION 8 (f)
This subsection would eliminate the provision in present section
705 (g) authorizing the Commission to request the Attorney General
to intervene in private civil actions and instead permit the Commission
itself to intervene in such civil actions as provided in section 706 (q).
SECTION 8 (g)
This subsection would, subject to certain exceptions, permit the
Commission to delegate any of its functions, duties and powers to such
persons as it may designate by regulation. A number of other agencies
have broad authority to delegate functions; for example, the Securities
and Exchange Commission (15 U.S.C. 78d-1), the Interstate Com-
merce Commission (49 U.S.C. 17(5) ), and the Federal Communica-
tions Commission (47 TT.S.C. 155(d) ). The exceptions are as follows:
(1) The Commission could not delegate its powers to make
decisions on the merits after administrative hearings under sec-
tion 706(h) or to modify or set aside its findings or make new
findings under section 706(i), (k), and (1). However, like the
National Labor Relations Board (29 U.S.C. 153(b)), the Com-
mission would be authorized to delegate this power or any of its
other powers to groups of three or more members of the Commis-
sion ;
(2) The Commission could not delegate its authority under
section 713(c) to make rules of general applicability. A similar
limitation is imposed on the Securities and Exchange Commission
(15 U.S.C. 78d-1(a)) ;
(3) The Commission could not delegate its authority under
section 709(b) to make agreements with States under which the
Commission agrees to refrain from processing certain charges or
to relieve certain persons from the recordkeeping requirements;
and
(4) The Commission could not provide for the conduct of ad-
ministrative hearings except by members of the Commission or
by hearing officers appointed in accord with 5 U.S.C. 556.
SECTION 8 (h)
This subsection would afford additional protection to officers, agents,
and employees of the Commission in the performance of their official
duties by making 18 U.S.C. 1114 applicable to them.
SECTION 9 (a), (b), AND (C)
These subsections would make certain modifications in the position
of the Chairman of the Commission and the members of the Commis-
sion in the executive pay scale, so as to place them in a position of
parity with officials in comparable positions in agencies having sub-
stantially equivalent powers such as the National Labor Relations
Board, the Federal Trade Commission and the Federal Power
Commission.
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Section 715.-This section transfers all of the powers and duties of
the Secretary of Labor under Executive Order 11246 (as amended by
Executive order 11375) to the Equal Employment Opportunity Com-
mission. Executive Order 11246 enunciates the policy of the Govern-
ment of the United States ".... to provide equal opportunity in Federal
employment for all qualified persons, to prohibit discrimination in
employment because of race, color, religion, sex, or national origin, and
to promote the full realization of equal employment opportunity
through a positive, continuing program in each executive department
and agency. . ." (E.O. 11246 ? 101 as amended). The Executive order
program is presently administered within the Department of Labor
by the Office of Federal Contract Compliance, a division of the Em-
ployment Standards Administration. The section contemplates the
transfer of all of the. OFCC program functions related to Executive
Order 11246, as amended. This section does not relieve any of the
Government procurement agencies of their responsibilities under the
executive order.
The present section 715 relating to a special study by the Secretary
of Labor is repealed by the substitution of the new provisions. That
study has been completed and the section has no more effect.
Section 717(a).-This Tsubsection would make clear that personnel
actions of the U.S. Government affecting employees or applicants for
employment shall be made free from any discrimination based on race,
color, religion, sex, or national origin. All employees subject to the
executive branch and Civil Service Commission control or, protection
are covered by this section.
Section 717(b).-Under this subsection, the Civil Service Commis-
sion is given the authority to enforce the provisions of subsection (a)
through appropriate remedies. These remedies may include back pay
for applicants, as well as employees, denied promotion opportunities,
reinstatement, hire, immediate promotion and any other remedy
needed to fully recompense the employee for his loss, both financially
and professionally. The Civil Service Commission is also given au-
thority to issue rules and regulations necessary to carry out its respon-
sibilities under this section. The Civil Service Commission also shall
annually review national and regional equal employment opportunity
plans and be responsible for review and evaluation of all agency equal
employment opportunity programs. Finally, agency and executive
department heads and officers of the District of Columbia shall comply
with such rules and regulations, submit an annual equal employment
opportunity plan and notify any employee or applicant of any final
action taken on any complaint of discrimination filed by him.
Sections 717(c)' and (d).-The provisions of sections 706(q)
through (w) concerning private civil actions by aggrieved persons
are made applicable to aggrieved Federal employees or applicants.
They could file a civil action within 30 days of notice of final action
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on a complaint made pursuant to section 717(b), or after 180 days
from the filing of an initial charge, or an appeal with the Commission.
The authority given to the Commission or the limitations placed upon
the Commission under sections 706(q) through (w) would apply to
the Civil Service Commission or the agencies, as appropriate, in con-
nection with a civil action brought under section 717(c). So, for ex-
ample, if the Civil Service Commission or agency does not issue an
order within 180 days after a complaint or appeal is filed, the aggrieved
person may also institute a civil action. If such action is instituted
within one year of the filing of the complaint or appeal, the Civil
Service Commission or agency may request that the action be stayed
or dismissed upon a showing that it has been acting with due diligence,
that it anticipates issuance of an order within a reasonable time on the
complaint or appeal, that the case or proceeding is exceptional and
that extension of exclusive jurisdiction of the Civil Service Commis-
sion or agency is warranted.
Section 717(e).-This subsection provides that nothing in this act
relieves any Goverimie:nt agency or official of his existing nondiscrimi-
nation obligations under the Constitution, other statutes, or his or its
responsibilities under Executive Order 11478 relating to equal employ-
ment opportunity iii the Federal Government.
Section 716 is amended to provide for consultation of the Attorney
General, the Chairman of the Civil Service Commission, and the Chair-
man of the Equal Employment Opportunity Commission regarding
riles, regulations and policy in the performance of their responsi-
bilities under this act. It does not in any way limit each of the officials
in independently carrying out their respective obligations under this
title.
This section provides that the amended provisions of section 706
concerning the cease and desist enforcement powers would not apply
to charges filed with the Commission prior to the effective date of
this act. In addition, those new or amended sections of title VII not
specifically stated in this section to be inapplicable to current charges,
such as the amendments to sections 705, 707, 709, 710, 713, and 715
would cover existing charges.
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CHANGES IN EXISTING LAW
In compliance with subsection 4 of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill are
shown as follows (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law in which
no change is proposed is shown in roman) :
CIVIL RIGHTS ACT OF 1964
AN ACT To enforce the constitutional right to vote, to confer jurisdiction upon
the district courts of the United States to provide injunctive relief against
discrimination in public accommodations, to authorize the Attorney General
to institute suits to protect constitutional rights in public facilities and public
educaton, to extend the Commission on Civil Rights, to prevent discrimination
in federally assisted programs, to establish a Commission on Equal Employ-
ment Opportunity, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That this Act may
be cited as the "Civil Rights Act of 1964".
TITLE VII-EQUAL EMPLOYMENT OPPORTUNITY
DEFINITIONS
SEc. 701. For the purposes of this title-
(a) The term `?'person" includes one or more individuals, govern-
ments, governmental agencies, political subdivisions, labor unions,
partnerships, associations, corporations, legal representatives, mutual
companies, joint-stock companies, trusts, unincorporated organiza-
tions, trustees, trustees in bankruptcy, or receivers.
(b) The term "employer" means a person engaged in an industry
affecting commerce who has [twenty-five] eight or more employees
for each working day in each of twenty or more calendar weeks in the
current or preceding calendar year, 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, an Indian tribe, or
[a State or political subdivision thereof.] any department or agency, o of
the District of Columbia subject by statute to procedures of the com-
petitirve service (as defined in section 2102 of title 5 of the United States
Code), or (2) a bona fide private membership club (other than a labor
organization) which is exempt from taxation under section of
the Internal Revenue Code of [1954: Provided, That] 1954, pt
that during the first year after the [effective date prescribed in sub-
section (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, having fewer than seventy-five
(47)
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employees (and their agents) shall not be considered employers and,
during the third year after such date] date jo f enactment of the 'quad
Employment Opportunities Enforcement Act of 1971, persons having
fewer than [fifty] twenty-five employees (and their agents) shall not
be considered employers.
(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 of 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 affectin commerce if (1) it maintains or operates a hiring
hall or hiring oce which procures employees for an employer or
procures for employees opportunities to work for an employer, or (2)
the number of its members (or, where it is a labor organization com-
posed of other labor organizations or their representatives, if the
aggregate number of the members of such other labor organization)
is (A) [one hundred] twenty-five 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] date of enactment
of the Equal Employment Opportunities Enforcement Act of 1971, or
(B) eight or more thereafter, and such labor organization-
(1) is the certified representative of employees under the pro-
visions 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 employees
or 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 or joint council subordinate to a national or international labor
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organization, which includes a labor organization engaged in an
industry affecting commerce within the meaning of any of the
preceding paragraphs of this subsection.
(f) The term "employee" means an individual employed by an
em loyer.
(g) The term "commerce" means trade, traffic, commerce, trans-
portation, 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.]
1959, and further includes any governmental industry, business, or
activity.
(i) The term "State" 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. 702. This title shall not apply to an employer with respect to
the employment of aliens outside any State, or to a religious corpora-
tion, association, educational institution, or- society with respect to the
employment of individuals of a particular religion to perform work
connected with the carrying on by such corporation, association,
educational institution, or society of its religious activities [or to an
educational institution with respect to the employment of individuals
to perform work connected with the educational activities of such
institution].
DISCRIMINATION BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN
SEC. 703. (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 employ-
ment, because of such individual's race, color, religion, sex, or
national origin; or
--- (2) to limit segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to de-
prive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such indi-
vidual's race, color, religion, sex, or national origin.
(b) It shall be an unlawful- employment practice for an employ-
ment? agency. to fail or refuse to refer for employment, or otherwise
to discriminate against, any individual because of- his race, color,
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religion, sex, or national origin, or to classify or refer for employ-
ment 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, or applicants
for membership or to classify or fail or refuse to refer for employ-
ment any individual, 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-jo
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, for an employment agency to classify, or refer for
employment any individual, for a labor organization to classify its
membership or to classify or refer for employment any individual, or
for an employer, labor organization, or joint labor-management com-
mittee controlling apprenticeship or other training or retraining pro-
grams to admit or employ an individual in any such program, on the
basis of his religion, sex, or national origin in those certain instances
where religion, sex, or national origin is a bona fide occupational quali-
fication 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 institu-
tion or institution of learning to hire and employ employees of a par-
ticular 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 seciety, or if the
curriculum of such school, college, university, or other educational
institution or institution of learning is directed toward the propaga-
tion of a particular religion.
(f) As used in this title, the phrase "unlawful employment prac-
tice" 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 orga-
nization required to register as a Communist-action or Communist..
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front organization by final order of the Subversive Activities Control
Board pursuant to the Subversive Activities Control Act of 1.9.50.
(g) Notwithstanding any other provision of this title, it shall not
be an unlawful employment practice for an employer to fail or refuse
to hire and employ any individual for any position, for an employer
to discharge any individual from any position, or for an employment
agency to fail or refuse to refer any individual, for employment in any
position, or for a labor organization to fail or refuse to refer any
individual for employment in any position, if-
(1) the occupancy of such position, or access to the premises
in or upon which any part of the duties of such position is per-
formed or is to be performed, is subject to any requirement im-
posed in the interest of the national security of the United States
under any security program in effect pursuant to or administered
under any statute of the United States or any Executive order
of the President; and
(2) such individual has not fulfilled or has ceased to fulfill that
requirement.
(h) Notwithstanding any other provision of this title, it shall not
be an unlawful employment practice. for an employer to apply different
standards of compensation, or different terms, conditions, or privileges
of employment pursuant to a bona fide seniority or merit system, or
a system which measures earnings by quantity or quality of production
or to employees who work in different locations, provided that such
differences are not the result of an intention to discriminate because
of race, color, religion, sex, or national origin, nor shall it be an unlaw-
ful employment practice for an employer to give and to act upon the
results of any professionally developed ability test provided that such
test, its administration or action upon the results is not designed, in-
tended or used to discriminate because of race, color, religion, sex or
national origin. It shall not bean unlawful employment practice under
this title for any employer to differentiate upon the basis of sex in
determining the amount of the wages or compensation paid or to be
paid to employees of such employer if such differentiation is author-
ized by the provisions of section 6 (d) of the Fair Labor Standards Act
of 1938, as amended (29 U.S.C. 206(d) ).
(i) 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 lie
is an Indian living on or near a reservation.
(j) 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 treat-
ment to any individual or to any group because of the race, color, reli-
gion, sex, or national origin of such individual or group on account of
an imbalance which may exist with respect to the total number or per-
centage 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 member-
ship or classified by any labor organization, or admitted to, or em-
ployed in, any apprenticeship or other training program, in compari-
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son 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. 704. (a) It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or applicants
for employment, for an employment agency or joint labor-management
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate against any
member thereof or applicant for membership, because lie 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] employment agency or
joint labor-management committee controlling apprenticeship or other
training or retraining including on-the-job training programs, to print
or publish or cause to be printed or published any notice or advertise-
ment relating to employment by such an employee or membership
in or any classification or referral for employment by such a labor
organization, or relating to any classification or referral for employ-
ment by such an employment agency, or relating to admission to, or
employment in, any program established to provide apprenticeship or
other training by such a joint labor-management committee 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 religgion, sex, or national origin when
religion, sex, or national origin, is a bona fide occupational qualifica-
l ion for employlIlent.
1?QUAL Ell PL OY1 f1 '.c T OPFORTIT ITY COMMISSION
Sr;c. 705. (a) There is hereby created a Commission to be known
omas
the Equal Employment Opportunity Commission, which shall be -
posed of five members, unless additional members are appointed as
hereinafter provided in, this subsection, [not more than three of
whom] not snore than the least number of members sufficient to con-
stitute a majority of the members of the Commission shall be members
of the same political party, [who] members of the Commission shall
be appointed by the President by and with the advice and consent of
the [senate] Senate. Any individual chosen to fill a vacancy shall be
appointed only for the unexpired tern?, of the member whom he shall
succeed, and all members of the Commission shall continue to serve
-until their successors are appointed and qualified, except that no such
In embers of the Commission shall continue to serve (1) for more than
sixty days uihen, the Congress is in session unless a nomination to fill
such, rva.cancy shall :have been submitted to the Senate, or (2) after
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the adjournment sine die of the session of the Senate in which such
nomination was submitted. [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 Com-
mission for the administrative operations of the Commission, and
shall appoint, in accordance with the [civil service laws, such officers,
agents, attorneys,] provisions of title 5, United States Code, governing
appointments in the competitive service, such o cers, agents, attorneys,
hearing examiners, and employees as [it] he 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] provisions of
chapter 51 and subchapter III of chapter 53 of title 5, United States
Code, relating to classy fication and General Schedule pay rates : Pro-
vided, That assignment, removal, and compensation of hearing ex-
aminers shall be in accordance with sections 3105, 33/x/, 5362, and 7521
of title 5, United States Code. At any time after one year from the
effective date of this Act, the Chairman of the Commission, if he de-
termines that the appointment of additional members of the Commis-
sion would help to effectuate the purposes of this Act, may request the
President to appoint up to four additional members of the Commis-
sion. Upon receiving such a request, the President may appoint up to
four additional members of the Commission by and with the advice
and consent of the Senate. Such additional members shall be appointed
for a term of five years. Upon the expiration of the term of appoint-
ment of any such additional member no further appointment to the
same position shall be made, and the total number of members of the
Commission shall be reduced accordingly unless the Chairman of the
Commission determines that the appointment of one or more addi-
tional members of the Commission continues to be necessary to better
effectuate the purposes of this Act and so advises the President.
(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 judi-
cially 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 recom-
mendations 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 :
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V(32) Chairman, Equal Employment Opportunity Commis-
sion": and
[(2) by adding to clause (45) of section 106(a) thereof (5
U.S.C. 2205(a)) the following: "Equal Employment Opportu-
nity Commission (4)."]
(1) Section 5314 of title 5 of the United States Code is amended
by adding at the end thereof the following new clause.
"(58) Chairman, Equal Employment Opportunity Commis-
sion."
(2) Clause (72) of section 5315 of such title is amended to read
as follows.
"(72) Members, Equal Employment Opportunity Commission
(8}."
(3) Clause (111) of section 5316 of such title is repealed.
(f) The principal office of the Commission shall be in or near the
District of Columbia, but it may meet or exercise any or all its powers
at any other place. The Commission may establish such regional or
State offices as it deems necessary to accomplish the purpose of this
title.
(g) The Commission shall have power-
(1) to cooperate with and, with their consent, utilize regional,
State, local, and other agencies, both public and private, and
[individuals;] individuals, and to accept voluntary and uncom-
pensated services, notwithstanding the provisions of section
3679(b) of the Revised Statutes (31 U.S.C. 665(b) ).
(2) to pay 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;
(3) to furnish to persons subject to this title such technical
assistance as they may request to further their compliance with
this title or an order issued thereunder;
(4) upon the request of (i) any employer, whose employees
or some of them, or (ii) any labor organization, whose members
or some of them, refuse or threaten to refuse to cooperate in
effectuating the provisions of this title, to assist in such effectua-
tion by conciliation or such other remedial action as is provided
by this title ;
(5) to make such technical studies as are appropriate to
effectuate the purposes and policies of this title and to make the
results of such studies available to the public;
[(6) to refer matters to the Attorney General with recommen-
dations for intervention in a civil action brought by an aggrieved
party under section 706, or for the institution of a civil action
by the Attorney General under section 707, and to advise, consult,
and assist the Attorney General on such matters.]
(6) to intervene in a civil action brought by an aggrieved party
under section 706.
(h) Attorneys appointed under this section may, at the direction
of the Commission, appear for and represent the Commission in any
case in court.
(i) The Commission shall, in any of its educational or promotional
activities, cooperate with other departments and agencies in the per-
formance of such educational and promotional activities.
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(j) All officers, agents, attorneys, and employees of the Commission
shall be subject to the provisions of section 9 of the Act of August 2,
1939, as amended (the Hatch Act), notwithstanding any exemption
contained in such section.
SEc. 706. [(a) Whenever it is charged in writing under oath by a
person claiming to be aggrieved, or a written charge has been filed
by a member of the Commission where he has reasonable cause to
believe a violation of this title has occurred (and such charge sets
forth the facts upon which it is based) that an employer, employment
agency, or labor organization has engaged in an unlawful employment
practice, the Commission shall furnish such employer, employment
agency, or labor organization (hereinafter referred to as the "respond-
ent") with a copy of such charge and shall make an inv o tinnpf"
such charge, provided that such charge s na not be made public by
t h e the Commission shall determine, after such inves-
tigation, that there is reasonable cause to believe that the charge is
true, the Commission shall endeavor to eliminate any such alleged
unlawful employment practi by informal methods of conference,
conciliation, and persuasion. Nothing said or done during and as a
part of such endeavors may to made public by the Commission with-
out the written consent of the parties, or used as evidence in a subse-
quent proceedingny officer or employee of the Commission, who
shall make publi in any manner whatever any information in violation
of this subsection shall, be deemed guilty of a misdemeanor and upon
conviction thereof shall be fined not more than $1,000 or imprisoned
not more than one year.]
SEc. 706. (a) The Commission is empowered, as hereinafter pro-
vided, to prevent any person from engaging in any unlawful employ-
ment practice as set forth in section 703 or 704 of this title.
[(a)] (b) Whenever [it is charged in writing under oath by a]
a charge is filed by or on, behalf of a person claiming to be aggrieved,
or [a written charge has been filed] by [a member] an officer or
employee of the Commission [where he has reasonable cause to believe
a violation of this title has occurred (and such charge sets forth the
facts upon which it is based)] upon the request of any person claim-
ing to be aggrieved, alleging that an employer, employment agency,
[or] labor [organization] organization, or joint labor-management,
committee controlling apprenticeship or other training or retraining,
including on-the-job training programs, has engaged in an unlawful
employment practice, the Commission shall [furnish] serve a notice
of the charge (including the date, place and circumstances of the
alleged unlawful employment practice) on such employer, employ-
ment agency, [or] labor [organization] organization, or joint labor-
management committee (hereinafter referred to as the "respondent")
[with a copy of such charge and shall make an investigation of such
charge, provided that such charge] within ten days and shall make
an inv tigati t ere_of ? Charges shall be in writing and shall contain
such information and be in such form as the Commission requires.
Charges shall not be made public by the Commission. If the Com-
mission [shall determine,] determines after such investigation [,
that there is not reasonable cause to believe that the charge is true,
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it shall dismiss the charge and promptly notify the person claiming
to be aggrieved and the respondent ..of, its action. In determining
whether reasonable cause exists, the Commission shall accord substan
tial weight to final findings and orders made by State or local authori-
ties in proceedings commenced under State or local law pursuant to
the requirements of subsections (c) and (d). If the Commission deter-
mines after such investigation that there is reasonable cause to believe
that the charge is true, the Commission shall endeavor to. eliminate,
any such alleged unlawful employment practice by informal methods
of conference, conciliation, and persuasion. Nothing said or done dur-
ing and as a part, of such informal endeavors may be made public by
the [Commission] Commission, its officers or employees, or used as
evidence in a subsequent proceeding without the written consent of
the [parties, or used as evidence in a subsequent proceeding] persons
concerned. Any [officer or employee of the Commission,] person who
[shall make] makes public [in any manner whatever any] informa-
tion in violation of this subsection [shall be deemed guilty of a mis-
demeanor and upon conviction thereof] shall be fined not more than
$1,000 or imprisoned for not more than one [year.] year, or both. .he..
Commission shall make its determination on reasonable cause as
promptly as possible and, so far as practicable, not later than one
hundred and twenty days from the filing of the charge or, where
applicable under subsection (c) or (d), from the date upon which the
Commission is authorized to take action with respect to the change.
[(b)] (c) In the case of [an alleged] a charge filed by or on behalf
of a person claiming to be aggrieved alleging an unlawful employment
practice occurring, in a [State,] State or political subdivision of a
[State,] State which has a State or local law prohibiting the unlawful.
employment practice alleged and establishing or authorizing a State
or local authority to grant or seek relief from such practice or to insti-
tute criminal proceedings with respect thereto upon receiving notice
[thereof, no charge may be filed under subsection (a) by the person
aggrieved] thereof the Commission shall take no action with respect
to the investigation of such charge before the expiration of sixty days
after proceedings have been commenced under the State or local law,
unless such proceedings have been earlier [terminated, provided
that] terminated, except that such sixty-day period shall be extended
to one hundred and twenty days during the first year after the effec-
tive (late of such State or local law. If any requirement for the com-
mencement of such proceedings is imposed by a State or local author-
ity other than a requirement of the filing of a written and signed
statement of the facts upon which the proceeding is based, the pro-
ceeding shall be deemed to have been commenced for the purposes of
this subsection ,it the time such statement is sent by registered or
certified mail to the appropriate State or local authority.
[(c)] (d) In the case of any charged filed by [a member] an
o.cer or employee of the Commission alleging an unlawful employ-
ment practice occurring in a State or political subdivision of a
State[,] which has a State or local law prohibiting the practice al-
leged and establishing or authorizing a State or local authority to
grant or seek relief from such practice or to institute criminal pro-
ceedings with respect thereto upon receiving notice thereof[,] the
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Commission shall, before taking any action with respect to such
charge, notify the appropriate State or local officials and, upon re-
quest, afford them a reasonable time, but not less than sixty days
(provided that such sixty-day period shall be extended to one hun-
dred and twenty days during the first year after the effective rdayl
date of such State or local [law) ,] law), unless a shorter period is
requested, to act under such State or local law to remedy the practice
alleged.
{ (d) ] (e) A charge under [subsection (a) ] this section shall be filed
within [ninety] one hundred and eighty days after the alleged un-
lawful employment practice [occurred,] occurred and notice of the
charge (including the date. place and circumstances of the alleged
unlawful employment practice) shall be served upon the person
against whom such charge is made within ten days thereafter, except
that in [the] a case of an unlawful employment practice with respect
to which the person aggrieved has [followed the procedure set
out in subsection (b),] initially instituted proceedings with a State
or local agency with authority to grant or seek relief from such prac-
tice or to institute criminal proceedings with respect thereto upon
receiving notice thereof, such charge shall be filed by or on behalf of
the person aggrieved within [two hundred and ten] three hundred
days after the alleged unlawful employment practice occurred, or
within thirty days after receiving notice that the State or local agency
has terminated the proceedings under the State or local law, which-
ever is earlier, and a copy of such charge shall be filed by the Commis-
sion with the State or local agency.
[(e) If within thirty days after a charge is filed with the Commis-
sion or within thirty days after expiration of any period of reference
under subsection (c) (except that in either case such period may be
extended to not more than sixty days upon a determination by the
Commission that further efforts to secure voluntary compliance are
warranted), the Commission has been unable to obtain voluntary
compliance with this title, the Commission shall so notify the person
aggrieved and a civil action may, within thirty days thereafter, be
brought against the respondent named in the charge (1) by the person
claiming to be aggrieved, or (2) if such charge was filed by a member
of the Commission, by any person whom the charge alleges was
aggrieved by the alleged unlawful employment practice. Upon
application by the complainant and in such circumstances as the court
may deem just, the court. may appoint an attorney for such com-
plainant and may authorize thce commencement of the action without
the payment of fees, costs, or security. Upon timely application, the
court may, in its discretion, permit the Attorney General to intervene
in such civil action if he certifies that the case is of general public
importance. Upon request, the court may, in its discretion, stay fur-
ther proceedings for not more than sixty days pending the termina-
tion of State or local proceedings described in subsection (b) or the
efforts of the Commission to obtain voluntary compliance.]
(f) If the C, ommission determines of ter attempting to secure volun-
tary compliance under subsection (b) that it is unable to secure from
the respondent a conciliation agreement acceptable to the Commission
which determination shall not, be reviewable in any court, the Com-
mission shall issue and cause to be served upon any respondent not a
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government, governmental agency, or political subdivision a com-
plaint stating the facts upon which the allegation of the unlawful em-
ployment practice is based, together with a notice of hearing before
the Commission, or a member or agent thereof, at a place therein fixed
not less than five days after the serving of such complaint. In the case
of a respondent -which is a government, governmental agency, or po-
litical subdivision, the Commission shall take no further action and
shall refer the case to the Attorney General who may bring a civil
action against such respondent in the appropriate United States dis-
trict court. The person or persons aggrieved shall have the right to
intervene in such civil action. The provisions of section 706(q)
through (w), as applicable, shall govern civil actions brought here-
under. Related proceedings may be consolidated for hearing. Any
officer or employee of the Commission who filed a charge in any case
shall not participate in a hearing on any complaint arising out of such
charge, except as a witness.
(g) A respondent shall have the right to file an answer to the com-
plaint against him and with the leave of the Commission, which shall
be granted whenever it is reasonable and fair to do so, may amend his
answer at any time. Respondents and the person, or persons aggrieved
shall be parties and may appear at any stage of the proceedings, with
or without counsel. The Commission may grant other persons a right to
intervene or to file briefs or make oral arguments as amicus curiae or
for other purposes, as it considers appropriate. All testimony shall be
taken under oath and shall be reduced to writing. Any such proceeding
shall, so far as practicable, be conducted in accordance with the rules
of evidence applicable in the district courts of the United States under
the Rules of Civil Procedure for the district courts of the United
States.
(h) If the Commission finds that the respondent has engaged in an
unlawful employment practice, the Commission shall state its findings
of fact and shall issue and cause to be served on the respondent and
the person or persons aggrieved by such unlawful practice an order
requiring the respondent to cease and desist from such unlawful em-
ployment practice and to take such affirmative action, including rein-
statement or hiring of employees, with or without back pay (payable
by the employer, employment agency, or labor organizations, as the
case may be, responsible for the unlawful employment practice), as
will effectuate the policies of this title, except that (1) back pay lia-
bility shall not exceed that which has accrued more than two years
prior to the filing of a charge with the Commission, and (2) interim
earnings or amounts earnable with reasonable diligence by the ag-
grieved person or persons shall operate to 'reduce the back pay other-
wise allowable. Such order may further require such respondent to
make reports froin time to time showing the extent to which he has
complied with the order. If the Commission finds that the respondent
has not engaged in any unlawful employment practice, the Commis-
sion shall state its findings of fact and shall issue and cause to be served
on the respondent and the person or persons alleged in the complaint
to be aggrieved an order dismissing the complaint.
(i) After a charge has been filed and until the record has been filed in
court as hereinafter provided, the proceeding may at any time be ended
by agreement between the commission and the respondent for the elim-
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ination of the alleged unlawful employment practice and the Commis.
sion may at any time, upon reasonable notice, modify or set aside, in
whole or in part, any finding or order made or issued by it. An agree-
ment approved by the Commission shall be enforceable under subsec-
tions (1) through (n) and the provisions of those subsections shall be
applicable to the extent appropriate to a proceeding to enforce an
agreement.
(j) Findings of fact and orders made or issued under subsections
(h) or (i) of this section shall be determined on the record. Sections
554, 555, 556, and 557 of title 5 of the United States Code shall apply
to such proceedings.
(k) Any party aggrieved by a final order of the Commission grant-
ing or denying in whole or in part the relief sought may obtain a review
of such order in any United States court of appeals for the circuit in
which the unlawful employment practice in question is alleged to have
occurred or in which such party resides or transacts business, or in the
Court of Appeals for the District of Columbia Circuit, by filing in such
court within sixty days after the service of such order, a written peti-
tion praying that the order of the Commission be modified or set aside.
A copy o f such petition shall be forthwith transmitted b y the clerk o f
the court to the Commission and to any other party to the proceeding
before the Commission, and thereupon the Commission shall file in the
court the record in the proceeding as provided in section 2112 of title
28, United States Code. Upon the filing of the petition the court shall
have jurisdiction of the proceeding and of the question determined
therein, and shall have power to grant to the petitioner or any other
party, including the Commmission, such temporary relief or restraining
order as it deems just and proper, and to make and enter upon the
pleadings, testimony, and proceedings set forth in such record a decree
a rming, modifying, or setting aside, in whole or in part, the order of
t e Commission and enforcing the same to the extent that such order
is affirmed or modified. Any party to the proceeding before the Com-
mission shall be permitted to intervene in the court of appeals. The
commencement of proceedings under this subsection shall not, unless
ordered by the court, operate as a stay of the, order of the Commission.
No objection that has not been urged before the Commission, its mem-
ber, or agent shall be considered by the court, unless the failure or
neglect to urge such objection shall be excused because of extraordinary
circumstances. The findings of the Commission with respect to ques-
tions of fact, if supported by substantial evidence on the record con-
sidered as a whole, shall be conclusive. If any party shall apply to the
court for leave to adduce additional evidence and shall show to the
satisfaction of the court that such additional evidence is material and
that there were reasonable grounds for the failure to adduce such evi-
dence in the hearing before the Commission, its member, or its agent,
the court may order such additional evidence to be taken before the
Commission, its member, or its agent, and to be made a part of the
record. The Commission may modify its findings as to the facts, or
make new findings, by reason of additional evidence so taken and filed,
and it shall file such modified or new findings, which findings with
respect to questions of fact, if supported by substantial evidence on the
record considered as a whole, shall be conclusive, and its recommenda-
tions, if any, for the modification or setting aside of its original order.
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Upon the filing of the record with it, the jurisdiction of the court shall
be exclusive and its judgment and decree shall be final, except that the
same shall be subject to review by the Supreme Court of the United
States, as provided in section 1254 of title 28, United States Code:;
Petitions filed under this subsection shall be heard expeditiously.
(1) The Coi m.i,5sion may petition any United States court of appeals
for the circuit in which the unlawful employment practice in question
occurred or in which the respondent resides or transacts business, for
the enforcement of its order and for appropriate temporary relief or
restraining order, by filing in such court a written petition praying
that its order be enforced and for appropriate temporary relief or
restraining order. The Commission shall file in court with its petition
the record in the proceeding as provided in section 21.12 of title 28,
United States Code. A copy of such petition shall be forthwith trans-
mitted by the clerk of the court to the parties to the proceeding before
the Commission. Upon the filing of such petition, the court shall have
jurisdiction of the proceeding and of the question determined there-
in and shall have power to grant to the Commission, or any other
party, such temporary relief, restraining order, or other order as it
deems just and proper, and to make and enter upon the pleadings,
testimony, and proceedings set forth in such record a decree affirming,
modifying, or setting aside in whole or in part, the order of the Com-
mission and enforcing the same to the extent that such order is affirmed
or modified. Any party to the proceeding before the Commission shall
be permitted to' intervene in the court of appeals. No objection that
has not been urged before the Commission, its members, or agent shall
be considered by the court, unless the failure or neglect to urge such
objection shall be excused because of extraordinary circumstances.
The findings of the Commission with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole,
shall be conclusive. If any party shall apply to the court for leave to
adduce additional evidence and shall show to the satisfaction of the
court that such additional evidence is material and that there were
reasonable grounds for the failure to adduce such evidence in the
hearing before the Commission, its member, or its agent, the court
may order suchh, additional evidence to be taken before the Commission,
its member, or its agent, and to be made a part of the record. The
Commission may modify its findings as to the facts, or make new
findings, by reason of additional evidence so taken and filed, and it
shall file such, modified or new findings which findings with respect to
questions of fact, if supported by substantial evidence on the record
considered as a whole, shall be conclusive, and its recommendations,
if any, for the modification or setting aside of its original order. Upon
the filing of the record with it the jurisdiction of the court shall be ex-
clusive and its judgment and decree shall be final, except that the
same shall be subject to review by the Supreme Court of the United
States as provided in section 1254 of title 28, United States Code.
Petitions fled under this subsection shall be heard expenditiously.
(m) If no petition for review, as provided in subsection (k), is filed
within sixty days after service of the Commission's order the Commis-
sion's findings of fact and order shall be conclusive in connection with
any petition for enforcement which is Bled by the Commission under
.Subsection (1) after the expiration of such sixty-day period. The clerk
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of the court of appeals in which such petition for enforcement is filed
shall forthwith enter a decree enforcing the order of the Commission
and shall transmit a copy of such decree to the Commission, the re-
spondent named in the petition, and to any other parties to the proceed-
ing before the Commission.
(n) If within ninety days after service of the Commission's order.
no petition for review has been filed as provided in subsection (k), and
the Commission has not sought enforcement of its order as provided in
subsection (1), any person entitled to relief under the Commission's
order may petition for a decree enforcing the order in the United
States court of appeals for the circuit in which the unlawful employ-
ment practice in question occurred, or in which a respondent named in
the order resides or transacts business. The provisions of subsection
(m) shall apply to such petitions for enforcement.
(o) The Attorney General shall conduct all litigation to which the
Commission is a party in the Supreme Court of the United States pur-
suant to this title. All other litigation affecting the Commission, or to
which it i8 a party, shall be conducted by attorneys appointed by the
Commission.
(p) Whenever a charge is filed with the Commission pursuant to
subsection (b) and the Commission concludes on the basis of a prelimi-
nary investigation that prompt judicial action is necessary to preserve
the power of the Commission to grantt effective relief in the proceeding,
the Commission shall, after it issues a complaint, bring an action for
appropriate temporary or preliminary relief pending its final disposi-
tion of such charge, or until the fling of a petition under subsections
(k), (1), (m), or (n) of this section, as the case may be, in the United
States district court for any judicial district in the State in which the
unlawful employment practice concerned is alleged to have been com-
mitted, or the judicial district in which the aggrieved person would
have been employed but for the alleged unlawful employment prac-
tice, but, if the respondent is not found within any such judicial district,
such an action may be brought in the judicial district in which the re-
spondent has his principal o fce. For purposes of sections 1404 and
1406 of title 28, United States Code, the judicial district in which the
respondent has his principal office shall in all cases be considered a ju-
dicial district in which such an action, might have been brought. Upon
the bringing of any such action, the district court shall have jurisdic-
tion to grant such injunctive relief or temporary restraining order as it
deems just and proper, notwithstanding any other provision of law.
Rule 65 of the Federal Rules of Civil Procedure, except paragraph
(a) (2) thereof, shall govern proceedings under his subsection.
(q) (1) If a charge filed with the Commission pursuant to subsection
(b) is dismissed by the Commission, or if within one hundred and
eighty days from the filing of such charge or the expiration of any pe-
riod of reference under subsection (c) or (d), whichever is later, the
Commission has not issued a complaint under subsection (f). the At-
torney General has not filed a civil action under subsection (f) or the
Commission entered into an agreement under subsection (f) or (i)
to which the person 'aggrieved in a party, the Commission shall so no-
tify the person aggrieved and within. sixty days after the giving of
such notice a civil action may be brought against the respondert, named
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in the charge (1) by the person claiming to be aggrieved, or (2) if such
charge was filed by an officer or employee of the Commission, by any
person whom the charge alleges was aggrieved by the alleged unlaw-
ful employment practice. Upon application by the Complainant and
in such circumstances as the court may deem just, t 7e tour may ap-
point an attorney for such complainant and may aulhoraze the com-
~nen jay v f the action without the payment of fees, costs, or security.
Upon the commencement of such civil action, the Commission, or the
Attorney General in a case involving a government, governmental
agency or political subdivision, shall take no further action with re-
spect thereto, except that, upon timely application, the court in its dis-
cretion may permit the Corn mib:sioan, or the Attorney General in a case
involving a gover?ni ent, governmental agency or rolitical subdivision,
to intervene in such civil action if the Commission, or the Attorney
General in a case involving a government, governmental agency or
political subdivision, certifies that the case is of general public impor-
tance. Upon request, the court may, in its discretion, stay further pro-
ceedings for not more than sixty days pending termination of State or
local proceedings described in subsection (c) or (d) or the efforts of
the Commission to obtain voluntary compliance.
(2) The right of an aggrieved person to bring a civil action under
paragraph (1) of this subsection shall terminate once the Commission
has issued a complaint under subsection (f) or the Attorney General
has fled a civil action. under subsection. (f) or the Commission has
entered into an, agreement under .subsection (f) or (i) to which the
person aggrieved is a party, except that (1) if after issuing a complaint
the Commission enters into an agreenz_ent, under subsection (i) without
the agreement of the person aggrieved or has not issued an, order under
subsection (h) within a period of one hundred and eighty days of the
issuance of the complaint., the Commission shall so notify the person
aggrieved and a civil action may be brought against the respondent
named in the charge at any time prior to the Commission's issuance of
an order under subsection (h) or. in the case of an agreement under
subsection (i) to vahich the person aggrieved is not a party. 'within
sixty days after receiving notice thereof from the Commission. and (2)
that where the,-e has been, no agreement under subsection (i), if th.e
person aggrieved files a civil action against the respondent during the
period from one hundred and eighty days to one year after the issuance
of the complaint, such, person shall, notify the Commission of such
action and the Commission may petition the court not to proceed nrith,
the suit. The court mail dismiss or stay any such action upon a shourng
that the Commission has been, acting with due diligence on the. com.-
plain.t, that the Coinmi.ssion anticipates the issuance of an order under
subsection (h) within a. reasonable period of time, that the case is ex-
eeptional, and that extension of the Commission's jurisdiction is
warranted,
[(f)](r) Each United States district court, and each United States
court of a place subject to the jurisdiction of the TTliited States shall
have jurisdiction of actions brought under this title. Such an action
may be brought in any judicial district in the State in which the
unlawful employment practice is alleged to have been committed, in
the judicial district in which the employment records relevant to such
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practice are maintained and administered, or in the judicial district in
which the plaintiff would have worked but for the alleged unlawful
employment practice, but if the respondent is not found within any
such district, such an action may be brought within the judicial district
in which the respondent has his principal. office. For purposes of sec-,
tions 1404 and 1406 of title 28 of the United States Code, the judicial
district in which the respondent has his principal office shall in all
cases be considered a district in which the action might have been
brought. Upon the bringing of any such action, the district court shall
have jurisdiction to grant such temporary or preliminary relief as it
deems just and proper.
[(g)](s) If the court finds that the respondent has intentionally en-
gaged in or is intentionally engaging in an unlawful employment prac-
tice charged in the complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and order such affirm-
ative action as may be appropriate, which may include reinstatement
or hiring of employees, with or without back pay (payable by the
employer, employment agency, or labor organization, as the case may
be, responsible for the unlawful employment practice). Interim
earnings or amounts earnable with reasonable diligence by the per-
son or persons discriminated against shall operate to reduce the bath
pay otherwise allowable. No order or the court shall require the
admission or reinstatement of an individual as a member of a union
or the hiring, reinstatement, or promotion of an individual as an
employee, or the payment to him of any back pay, if such individual
was refused admission, suspended, or expelled or was refused employ-
ment or advancement or was suspended or discharged for any rea-
son other than discrimination on account of race, color, religion, sex,
or national origin or in violation of section 704(a).
[(h)] (t) The provisions of the Act entitled "An Act to amend the
Judicial Code and to define and limit the jurisdiction of courts sitting
in equity, and for other purposes," approved March 23, 1932 (29
IT.S.?. 101-115), shall not apply with respect to civil actions brought
under this section. .
[(i)] (u) In any case in which an employer, employment agency,
or labor organization fails to comply with an order of a court issued
in a civil action brought under subsection [(e),] (q), the Commission
may commence proceedings to compel compliance with such order.
[(j)] (v) Any civil action brought under subsection [(e)] (q) and
any proceedings brought under subsection [(i)] (u) shall be subject.
to appeal as provided in sections 1.291 and 1292, title 28, United States
Code.
[(k)] (w) In any action or proceeding under this title the court, in
its discretion, may allow the prevailing party, other than the Com-
mission or the United States, a reasonable attorney's fee as part of
the costs, and the Commission and the United States shall be liable
for costs the same as a private person.
Sr, c. 707. (a) Whenever the Attorney General has reasonable cause
to believe that any person or group of persons is engaged in a pattern
or practice of resistance to the full enjoyment, of any of the rights
secured by this title, and that the pattern or practice is of such a nature
and is intended to deny the full exercise of the rights herein described,
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the Attorney General may bring a civil action in the appropriate
district court of the United States by filing with it a complaint
(1) signed by him (or in his absence the Acting Attorney General),
(2) setting forth facts pertaining to such pattern or practice, and
(3) requesting such relief, including an application for a permanent
or temporary in.junction, restraining order or other order against the
person or persons responsible for such pattern or pactice, as he deems
necessary to insure the full enjoyment of the rights herein described.
(b) The district courts of the United States shall have and shall
exercise jurisdiction of proceedings instituted pursuant to this sec-
tion, and in any such proceeding the Attorney General may file with
the clerk of such court a request that it court of three judges be con-
vened to hear and determine the case. Such request by the Attorney
General shall be accompanied by a certificate that, in his opinion, the
case is of general public importance. A copy of the certificate and
request for a three-judge court shall be immediately furnished by such
clerk to the chief judge of the circuit (or in his absence, the presiding
circuit judge of the circuit) in which the case is pending. Upon receipt
of such request it shall be the duty of the chief judge of the circuit or
the presiding circuit judge, as the case may be, to designate imme-
diately three judges in such circuit, of whom at least one shall be a
circuit judge and another of whom shall be a district judge of the court
in which the proceeding was instituted, to hear and determine such
case, and it shall be the duty of the judges so designated to assign the
case for hearing at the earliest practicable date, to participate in the
hearing and determination thereof, and to cause the case to be in every
way expedited. An appeal from the final judgment of such court will
lie to the Supreme Court.
In the event the Attorney General fails to file such a request in any
such proceeding, it shall be the duty of the chief judge of the district
(or in his absence, the acting chief judge) in which the case is pending
immediately to designate a judge in such district to hear and deter-
mine the case. In the event that no judge in the district is available
to hear and determine the case, the chief judge of the district, or the
acting chief judge, as the case may be, shall certify this fact to the
chief judge of the. circuit (or in his absence, the acting chief judge)
who shall then designate a district or circuit judge of the circuit to
hear and determine the case.
It shall be the duty of the judge designated pursuant to this section
to assign the case for hearing at the earliest practicable date and to
cause the case to be in every way expedited.
(c) Effective two years a f ter the date of enactment of the Equal Em-
polyment Oppoptunities Enforcement Act of 1971, the functions of the
Attorney General under this section shall be transferred to the Com-
mission, together with such personnel, property, records, and unex-
pended balances of appropriations, allocations, and other funds em-
ployed, used, held, available, or to be made available in connection with
such functions unless the President submits and neither house of Con-
gress vetoes a reorganization plan submitted pursuant to chapter 9,
of title 5, United States Code, inconsistent 'with the provisions of this
subsection. The Commission shall carry out such functions in accord-
ance with the provisions of subsections (d) and (e) of this section.
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(d) Upon the transfer of functions provided for in subsection. (c)
Of this section, in all suits commenced pursuant to this section prior to
the date of such transfer, proceedings shall continue without abate-
ment, all court orders and decrees shall remain in effect, and the Com-
mission shall be substituted as a arty for the United States of Amer-
ica. The Attorney General or Acting Attorney General, as appropriate.
(e) Subsequent to the date of enactment of the Equal Employment
Opportunities Enforcement Act of 1971, the Commission shall have
authority to investigate and act on a charge of a pattern or practice of
discrimination, whether filed by or on behalf of a person claiming to
be aggrieved or by an officer or employee of the Commission. All such
actions shall be conducted in. accordance with the procedures set forth
in section 706, including the provisions for enforcement and appellate
review contained in subsections (k), (1), (m), and (n) thereof.
EFFECT ON STATE LAWS
SEC. 708. Nothing in this title shall be deemed to exempt or relieve
any person from any liability, duty, penalty, or punishment provided
by any present or future law of any State or political subdivision
of a State, other than any such law which purports to require or
permit the doing of any act which would be an unlawful employment
practice under this title.
INVESTIGATIONS, INSPECTIONS, RECORDS, STATE AGENCIES
SEC. 709. (a) In connection with any investigation of a charge filed
under section 706, the Commission or its designated representative
shall at all reasonable times have access to, for the purposes of exam-
ination, and the right to copy any evidence of any person being investi-
gated or proceeded against that relates to unlawful employment
practices covered by this title and is relevant to the charge under
investigation.
(b) The Commission may cooperate with State and local agencies
charged with the administration of State fair employment practices
laws and, with the consent of such agencies, may for the purpose of
carrying out its functions and duties under this title and within the
limitation of funds appropriated specifically for such purpose, engage
in and contribute to the cost of research and other projects of mutual
interest undertaken by such agencies, and utilize the services of such
agencies and their employees and, notwithstanding any other provi-
sion of law, [may] pay by advance or [reimburse] reimbursement such
agencies and their employees for services rendered to assist the Commis-
sion in carrying out this title. In furtherance of such cooperative efforts,
the Commission may enter into written agreements with such State or
local agencies and such agreements may include provisions under which
the Commission shall refrain from processing a charge in any cases
or class of cases specified in such agreement [and under which no
person may bring, a civil action under section 706 in any cases or class
of cases so specified, or under which the Commission shall relieve
any person or class of] or under which the Commission shall relieve
any person or class of persons in such State or locality from require-
ments imposed under this section. The Commission shall rescind any
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such agreement whenever it determines that the agreement no longer
serves the interest of effective enforcement of this title.
(c) [Except as provided in subsection (d), every] Every employer,
employment agency, and labor organization subject to this title shall
(1) make and keep such records relevant to the determinations of
whether unlawful employment practices have been or are being com-
mitted, (2) preserve such records for such periods, and (3) make such
reports therefrom, as the Commission shall prescribe by regulation
or order, after public hearing, as reasonable, necessary, or appropriate
for the enforcement of this title or the regulations or orders there-
under. The Commission shall, by regulation, require each employer,
labor organization, and joint labor-management committee subject to
this title which controls an apprenticeship or other training program
to maintain such records as are reasonably necessary to carry out the
purpose of this title, including, but not limited to, a list of applicants
who wish to participate in such program, including the chronological
order in which [such,] applications were received, and [shall] to fur-
nish to the Commission, upon request, a detailed description of
the manner in which persons are selected to participate in the
apprenticeship or other training program. Any employer, employ-
ment agency, labor organization, or joint labor-management
committee which believes that the application to it of any regulation
or order issued under this section would result in undue hardship may
[ (1) ] apply to the Commission for an exemption from the application
of such regulation or order, [or (2)] and, if such application for an
exemption is denied, bring a civil action in the United States district
court for the district where such records are kept. If the Commission or
the court, as the case may be, finds that the application of the regu-
lation or order to the employer, employment agency, or labor orga-
nization in question would impose an undue hardship, the Commission
or the court, as the case may be, may grant appropriate relief. If any
person required to comply with the provisions of this subsection fails or
refuses to do so, the United States district court for the district in which
such person is found, resides, or transacts business, shall, upon applica-
tion of the Commission, or the Attorney General in a case involving a
government, governmental agency or political subdivision, have juris-
diction, to issue to such person an order requiring him to comply.
[(d) The provisions of subsection (c) shall not appy to any em-
ployer, cmploynient agency, labor organization, or joint labor-man-
agement committee with respect to matters occurring in any State or
political subdivision thereof which has a fair employment practice law
during any period in which such employer, employment agency, labor
organization, or joint labor-management committee is subject to such
law, except that the Commission may require such notations on rec-
ords which such employer, employment agency, labor organization, or
joint labor-management committee keeps or is required to keep as are
necessary because of differences in coverage or methods of enforce-
ment between the State or local law and the provisions of this title.
Where an employer is required by Executive Order 10925, issued
March 6, 1961, or by any other Executive order prescribing fair em-
ployment practices for Government contractors, and subcontractors,
or by rules or regulations issued thereunder, to file reports relating to
his employment practices with any Federal agency or committee, and
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he is substantially in compliance with such requirements, the Commis-
sion shall not require him to file additional reports pursuant to sub-
section (c) of this section.]
(d) In prescribing requirements pursuant to subsection (c) of this
section, the Commission shall consult with other interested State and
Federal agencies and shall endeavor to coordinate its requirements with
those adopted by such agencies. The Commission shall furnish upon
request and without cost to any State or local agene charged with the
administration of a fair employnaen t practice law inf ormation obtained
pursuant to subsection (c) of this section from any employer, employ-
ment agency, labor organization., or joint labor-management committee
subject to the jurisdiction. of such agency. Such information shall be
furnished on condition that it not be made public by the recipient
agency prior to the institution of a proceeding under State or local
law involving such information. If this condition is violated by a
recipient agency, the Commission may decline to honor subsequent
requests pursuant to this subsection.
(e) Any record or paper required by section 709(c) of this title to
be preserved or maintained shall be made available for inspection,
reproduction, and copying by the Commission or its representative,
or by the Attorney General or his representative, upon demand in
writing directed to the person having custody, possession, or control
of such record or paper. Unless otherwise ordered by a court of the
United States, neither the members of the Commission or its repre-
sentative, nor the Attorney General, or his representative shall dis-
close any record or paper produced pursuant to this title, or any re-
production or copy, except to Congress or any committee thereof,
or to a governmental agency, or in the presentation of any case or
proceeding before any court or grand jury. The United States dis-
trict court for the district in which a demand is made or in which a
record or paper so demanded is located, shall have jurisdiction to com-
pel by appropriate process the production of such record or paper.
[(e)] (f) It shall be unlawful for any officer or employee of the
Commission to make public in any manner whatever any information
obtained by the Commission pursuant to its authority under this
section prior to the institution of any proceeding under this title
involving such information. Any officer or employee of the Commission
who shall make public in any manner whatever any information in
violation of this subsection shall be guilty of a misdemeanor and upon
conviction thereof, shall be fined not more than $1,000, or imprisoned
not more than one year.
INVESTIGATORY POWERS
[SEC. 710. (a) For the purposes of any investigation of a charge
filed under the authority contained in section 706, the Commission
shall have authority to examine witnesses under oath and to require
the production of documentary evidence relevant or material to the
charge under investigation.
[(b) If the respondent named in a charge filed under section 706
fails or refuses to comply with a demand of the Commission for per-
mission to examine or to copy evidence in conformity with the pro-
visions of section 709(a), or if any person required to comply with
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the provisions of section 709 (c) or (d) fails or refuses to do so, or
if any person fails or refuses to comply with a demand by the Com-
mission to give testimony under oath, the United States district court
for the district in which such person is found, resides, or transacts
business, shall, upon application of the Commission, have jurisdiction
to issue to such person an order requiring him to comply with the
provisions of section 709 (c) or (d) or to comply with the demand
of the Commission, but the attendance of a witness may not be
required outside the State where he is found, resides, or transacts
business and the production of evidence may not be required outside
the State where such evidence is kept.
[ (c) Within twenty days after the service upon any person charged
under section 706 of a demand by the Commission for the production
of documentary evidence or for permission to examine or to copy
evidence in conformity with the provisions of section 709(a), such
person may file in the district court of the United States for the
judicial district in which he resides, is found, or transacts business, and
serve upon the Commission a petition for an order of such court
modifying or setting aside such demand. The time allowed for com-
pliance with the demand in whole or in part as deemed proper and
ordered by the court shall not run during the pendency of such petition
in the court, Such petition shall specify each ground upon which the
petitioner relies in seeking such relief, and may be based upon any
failure of such demand to comply with the provisions of this title or
with the limitations generally applicable to compulsory process or
upon any constitutional or other legal right or privilege of such
person. No objection which is not raised by such a petition may be
urged in the defense to a proceeding initiated by the Commission under
subsection (b) for enforcement of such a demand unless such proceed-
ing is commenced by the Commission prior to the expiration of the
twenty-day period, or unless the court determines that the defendant
could not reasonably have been aware of the availability of such
ground of objection.
[(d) In any proceeding brought by the Commission under sub-
section (b), except as provided in subsection (c) of this section, the
defendant may petition the court for an order modifying or setting
aside the demand of the Commission.]
SEC. 710. For the purpose of all hearings and investigations con-
ducted by the Commission or its duly authorized agents or agencies,
section 11 of the National Labor Relations Act (49 Stat. 455; 29 U.S.C.
161) shall apply. No subpoena shall be issued on the application of
any party to proceedings before the Commission until after the Com-
mission has issued and caused to be served upon the respondent a com-
plaint and notice of hearing under subsection (f) of section '706.
Src. 711. (a) Every employer, employment agency, and labor orga-
nization, as the case may be, shall post and keep posted in conspic-
uous places upon its premises where notices to employees, applicants
for employment, and. members are customarily posted a notice to be
prepared or approved by the Commission setting forth excerpts from
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or, summaries of, the pertinent provisions of this title and informa-
tion pertinent to the filing of a complaint.
(b) A willful violation of this section shall be punishable by a finw
of not more than $100 for each separate offense.
VETERANS' PREFERENCE
SEC. 712. Nothing contained in this title shall be construed to repeal
or modify any Federal, State, territorial, or local law creating special
rights or preference for veterans.
SEC. 713. (a) The Commission shall have authority from time to
time to issue, amend, or rescind suitable procedural regulations to
carry out the provisions of this title. Regulations issued under this
section shall be in conformity with the standards and limitations of
the Administrative Procedure Act.
(b) In any action or proceeding based on any alleged unlawful
employment practice, no person shall be subject to any liability or
punishment for or on account of (1) the commission by such person
of an unlawful employment practice if lie pleads and proves that the
act or omission complained of was in good faith, in conformity with.
and in reliance on any written interpretation or opinion of the Com-
mission, or (2) the failure of such person to publish and file any
information required by any provision of this title if he pleads and
proves that he failed to publish and file such information in good faith.
in conformity with the instructions of the Commission issued under
this title regarding the filing of such information. Such a defense,
if established, shall be a bar to the action or proceeding, notwithstand-
ing that (A) after such act or omission, such interpretation or opinion
is modified or rescinded or is determined by judicial authority to be
invalid or of no legal effect, or (B) after publishing or filing the de-
scription and annual reports, such publication or filing is determined
by judicial authority not to be in conformity with the requirements
of this title.
(c) Except for the powers granted to the Commission under subsec-
tion (h) of section 706, the power to modify or set aside its findings, or
make new findings, under subsections (i), (k), and (1) of section 706,
the rulemaking po ire rr as defi=ned hi subchapter II of chapter 5 of title 5.
United States Code, with reference to general rules as distinguished
from rules of specific applicability, and the power to enter into or re-
scind agreements with State and local agencies, as provided in subsec-
tion (b) of section 709, under which the Commission agrees to refrain
from processilig a charge iv army cases or class of cases or under which
the Commission a rees to relieve any person or class of persons in such
State or locality from requirements imposed by section 709, the Com-
mission may delegate any of its functions, duties, and powers to such
person or persons as the Commission may designate by regulation, in-
cluding functions, duties, and powers with respect to hearing, deter-
mining, ordering, certifying, reporting or otherwise acting as to any
work, business, or matter. Nothing in this subsection authorizes the
Commission to provide for persons other than those referred to in
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clauses (N) and (3) of subsection (b) of section 556 of title 5 of the
United States Code to conduct any hearing to which that section
applies.
(d) The Commission is authorized to delegate to any group of three
or more members of the Commission any or all of the powers which it
may itself exercise.
SEC. 714. The provisions of section 111, and 1114 title 18, United
States Code, shall apply to officers, agents, and employees of the Com-
mission in the performance of their official duties.
[SEC. 715. The Secretary of Labor shall make a full and complete
study of the factors which might tend to result in discrimination in
employment because of age and of the consequences of such discrimi-
nation on the economy and individuals affected. The Secretary of
Labor shall make a report to the Congress not later than June 30, 1965,
containing the results of such study and shall include in such report
such recommendations for legislation to prevent arbitrary discrimina-
tion in employment because of age as he determines advisable.]
SEC. 715. All authority, functions, and responsibilities vested in the
Necretary of Labor pursuant to Executive Order 11246, as amended,
relating to nondiscrimination in employment by Government con-
tractors and subcontractors and nondiscrim,iation in federally assisted
construction contracts are transferred to the Equal Employment Op-
portunity Commm,ission, together with such personnel, property, records.
and unexpended balances of appropriations, allocations, and other
funds enr-ployed, used, held, available or to be made available in con-
nection with the furnctions transferred to the Commission hereby as
mail be necessary to enable the Commission to carry out its functions
pursuant to this section, and the C, ommzission shall hereof ter carry out
all such authority, function.,% and responsibilities pursuant to such
order.
Sr( % 716.(a) This title shall become effective one year after the
date of its enactment.
(b) Nothwithstanding subsection (a), sections of this title other
than sections 703, 704, 706, and 707 shall become effective immediately.
(c) The President shall, as soon as feasible after the enactment of
this title, convene one or more conferences for the purpose of enabling
t he leaders of groups whose members will be affected by this title to
become familiar with the rights afforded and obligations imposed by
its provisions, and for the purpose of making plans which will result
in the fair and effective administration of this title when all of its
provisions become effective. The President shall invite the participa-
tion in such conference or conferences of (1) the members of the
president's Committee on Equal Employment Opportunity, (2) the
members of the Commission on Civil Rights, (3) representatives of
State and local agencies engaged in furthering equal employment
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opportunity, (4) representatives of private agencies engaged in fur-
thering equal employment opportunity, and (5) representatives of
employers, labor organizations, and employment agencies who will be
subject to this title.
(d) In the performance of their responsibilities under this Act,
the Attorney General, the Chairman of the Civil Service Commission
and the Chairman of the Equal Employment Opportunity Commis-
sion shall consult regarding their rules, regulations and policies.
NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT
SEC. 717. (a) All personnel actions affecting employees or appli-
cants for employment (except with regard to aliens employed outside
the limits of the United States) in military departments as defined in
section 102 of Title 5 United States Code, in executive agencies (other
than the General Accounting Office) as defined in section 105 of Title 5,
United States Code (including employees and applicants for employ-
ment who are paid from non-appropriated funds), in the United
States Postal Service and the Postal Rate Commission in those unit
of the Government of the District of Columbia having positions in the
competitive service, and in the legislative and judicial branches of the
Federal Government having positions in the competitive service, shall
be made free from any discrimination based on race, color, religion,
sex, or national origin.
(b) The Civil Service Commission shall have authority to en ores.
the provisions of s section (a) through appropriate remedies, Zn"ctud-
ing reinstatemen o hiring of employees with or without back pay, as
will -effectuate e policies of this section, and shall issue such rules,
regulations, orders and instructions as it deems necessary and appro-
priate to carry out its responsibilities under this section.. The Civil
Service Commission shall-
(1) be responsible for the aannual review and a p,. royal of a
national and regional equal ems oy~ljpo ,ity Zan which
each de artment and e and appropriate unit referred
to in sec ion a) shall submit in order to maintain an affimative
program of equal employment opportunity for all such employees
and applicants for employment;
(2) be responsible for the review and evaluation f the operation
of all agency equal employment oppor u programs, periodi-
cally obtaining and publishing (on at least a semiannual basis)
progress reports from each such departmnt, agency, or unit; and
(3) consult with and solicit the recommendations of interested
individuals, groups, and organizations relating to equal employ-
ment opportunity.
The head of each such department, agency or unit shall comply with
such rules, regulations, orders, and instructions which shall include a
provision that an employee or applicant for employment shall be noti-
fied of any final action. taken on any complaint of discrimination filed
by his thereunder. The plan submitted by each departmen t, agency and
unit shall include, but not be limited to-
(1) provision for the establishment of training and education
programs designed to provide a maximum opportunity for em-
ployees to advance so as to perform at their highest potential; and
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(2) a description of the qualifications in terns of training and
experience relating to equal opportunity for the principal and
operating o fflcials of each such department, agency, or unit respon-
sible for carrying out the equal employment opportunity program
and of the allocation- of personnel and resources proposed by such
department, agency, or unit to carry out its equal employment
opportunity program.
(c) Within. thirty days of receipt of notice of final action taken by a
department, agency, or unit referred to in subsection 717(a), or by the
Civil Service Commission upon an appeal from a decision or order of
such department, agency, or unit, on a complaint of discrimination
based on race, color, religion, sex- or national origin, brought pursuant
to subsection ((i) of this section, Executive Order 11478 or any succeed-
ing Executive orders, or after 180 days from the filing of the initial
charge with the department, agency, or unit or with the Civil Service
Commission on appeal from a decision or order of such department,
agency, or unit until such. time as final action may be taken by a depart-
i
f
ment, agency or unit, an employee or~=applicant or employment,
section 706(q). in which civil action t e e o t - epactment, agency,
(d) The provisions of section 706(q) through (w), as applicable,
shall govern civil actions brought hereunder.
(e) Nothing contained in this Act shall relieve any Government
agency or official of its or his primary responsibility to assure nondi8-
crimination in employment as required by the Constitution and stat-
utes or of its or his responsibilrities under Executive Order 11478 re-
lating to equal employment opportunity in the Federal Government.
Sec. 1.3 of 5. 2515 reads as follows: The amendments made by this
Act to section. 706 of the Civil Rights Act of 1964 shall not be appli-
~able to charges fled with the Commission prior to the enactment of
'this Act.)
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ADMINISTRATIVE PROCEDURE ACT OF 1946, AS CODIFIED IN TITLE 5,
UNITED STATES CODE, EXCERPTS
551. Definitions
For the purpose of this subchapter-
(1) "agency" means each authority of the Government of the
United States, whether or not it is within or subject to review
by another agency, but does not include-
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of
the United States;
(D) the government of the District of Columbia; or
except as to the requirements of section 552 of this title-
(E) agencies composed of representatives of the parties
or of representatives of organizations of the parties to the
disputes determined by them;
F) courts-martial and military commissions;
(G) military authority exercised in the field in time of
war or in occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743,
and 1744, of title 12; chapter 2 of title 41; or sections 1622,
1884, 1891-1902, and former section 1641(b) (2), of title 50,
appendix;
(2) "person" includes an individual, partnership, corporation,
association, or public or private organization other than an agency;
(3) "party" includes a person or agency named or admitted
as a party, or properly seeking and entitled as of right to be ad-
mitted as a party, in an agency proceeding, and a person or
agency admitted by an agency as a party for limited purposes;
(4) "rule" means the whole or a part of an agency statement
of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an
agency and includes the approval or prescription for the future
of rates, wages, corporate or financial structures or reorganiza-
tions thereof, prices, facilities, appliances, services or allow-
ances therefor or of valuations, costs, or accounting, or practices
bearing on any of the foregoing;
(5) "rule making" means agency process for formulating,
amending, or repealing a rule;
(6) "order" means the whole or a part of a final disposition,
whether affirmative, negative, injunctive, or declaratory in form,
of an agency in a matter other than rule making but including
licensing;
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(7) "adjudication" means agency process for the formulation
of an order;
(8) "license" includes the whole or a part of an agency permit,
certificate, approval, registration, charter, membership, statutory
exemption or other form of permission;
(9) "licensing" includes agency process respecting the grant,
renewal, denial, revocation, suspension, annulment, withdrawal,
limitation, amendment, modification, or conditioning of a license;
(10) "sanction" includes the whole or a part of an agency.-
(A) rohibition, requirement, limitation, or other condi-
tion affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding or prop-
erty;
(E) assessment of damages, reimbursement, restitution,
compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) "relief" includes the whole or a part of an agency-
(A) grant of money, assistance, license, authority, exemp-
tion, exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege,
exemption, or exception; or
(C) taking of other action on the application or petition
of, and beneficial to, a person;
(12) "agency proceeding" means an agency process as defined
by paragraphs (5), (7), and (9) of this section and
(13) "agency action" includes the whole or a part of an agency
rule, order, license, sanction, relief or the equivalent, or denial
thereof, or failure to act.
? 553. Rule making
(a) This section applies, according to the provisions thereof, ex-
cept to the extent that there is involved-
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to
public property, loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be published in
the Federal Register, unless persons subject thereto are named and
either personally served or otherwise have actual notice thereof in
accordance with law. The notice shall include-
(1) a statement of the time, place, and nature of public rule
making proceedings;
(2) reference to the legal authority under which the rule is
proposed; and
(3) either the terms or substance of the proposed rule or a
description of the subjects and issues involved.
Except when notice or hearing is required by statute this subsection
does not apply-
(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice; or
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(B) when the agency for good cause finds (and incorporates
the finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracti-
cable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give
interested persons an opportunity to participate in the rule making
through submission of written data, views, or arguments with or with-
out opportunity for oral presentation. After consideration of the
relevant matter presented, the agency shall incorporate in the rules
adopted a concise general statement of their basis and purpose.
When rules are required by statute to be made on the record after
opportunity for an agency hearing, sections 556 and 557 of this
title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall
be made not less than 30 days before its effective date, except-
(1) a substantive rule which grants or recognizes an exemp-
tion or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found
and published with the rule.
(e) Each agency shall give an interested person the right to petition
for the issuance, amendment, or repeal of a rule.
? 554. Adjudications
(a) This section applies, according to the provisions thereof, in every
case of adjudication required by statute to be determined on the
record after opportunity for an agency hearing, except to the extent
that there is involved-
(1) a matter subject to a subsequent trial of the law and the
facts de novo in a court;
(2) the selection or tenure of an employee, except a hearing
examiner appointed under section 3105 of this title;
(3) proceedings in which decisions rest solely on inspections,
tests, or elections;
(4) the conduct of military or foreign affairs functions;
(5) cases in which an agency is acting as an agent for a court;
or
(6) the certification of worker representatives.
(b) Persons entitled to notice of an agency hearing shall be timely
informed of-
(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the hearing
is to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties, other parties to the
proceeding shall give prompt notice of issues controverted in fact or
law; and in other instances agencies may by rule require responsive
pleading. In fixing the time and place for hearings, due regard shall
be had for the convenience and necessity of the parties or their repre-
sentatives.
(c) The agency shall give all interested parties opportunity for-
(1) the submission and consideration of facts, arguments,
offers of settlement, or proposals of adjustment when time, the
nature of the proceeding, and the public interest permit; and
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(2) to the extent that the parties are unable so to determine a
controversy by consent, hearing and decision on notice and in
accordance with sections 556 and 557 of this title.
(d) The employee who presides at the reception of evidence pursu-
ant to section 556 of this title shall make the recommended decision or
initial decision required by section 557 of this title, unless he becomes
unavailable to the agency. Except to the extent required for the dis-
position of ex parte matters as authorized by law, such an employee
may not-
(1) consult a person or party on a fact in issue, unless on notice
and opportunity for all parties to participate; or
(2) be responsible to or subject to the supervision or direction
of an employee or agent engaged in the performance of investiga-
tive or prosecuting functions for an agency.
An employee or agent engaged in the performance of investigative or
prosecuting functions for an agency in a case may not, in that or a
factually related case, participate or advise in the decision, recom-
mended decision, or agency review pursuant to section 557 of this
title, except as witness or counsel in public proceedings. This sub-
section does not apply-
(A) in determining applications for initial licenses;
(B) to proceedings involving the validity or application of
rates, facilities, or practices of public utilities or carriers; or
(C) to the agency or a member or members of the body com-
prising the agency.
(e) The agency, with like effect as in the case of other orders, and
in its sound discretion, may issue a declaratory order to terminate a
controversy or remove uncertainty.
? 555. Ancillary matters
(a) This section applies, according to the provisions thereof, except
as otherwise provided by this subchapter.
(b) A person compelled to appear in person before an agency or
representative thereof is entitled to be accompanied, represented, and
advised by counsel or, if permitted by the agency, by other qualified
representative. A party is entitled to appear in person or by or with
counsel or other duly qualified representative in an agency proceed-
ing. So far as the orderly conduct of public business permits, an
interested person may appear before an agency or its responsible
employees for the presentation, adjustment, or determination of an
issue, request, or controversy in a proceeding, whether interlocutory,
summary, or otherwise, or in connection with an agency function.
With due regard for the convenience and necessity of the parties
or their representatives and within a reasonable time, each agency
shall proceed to conclude a matter presented to it. This subsection
does not grant or deny a person who is not a lawyer the right to
appear for or represent others before an agency or in an agency
proceedings.
(c) Process, requirement of a report, inspection, or other investi-
gative act or demand may not be issued made, or enforced except as
authorized by law. A person compelled to submit data or evidence is
entitled to retain or, on payment of lawfully prescribe costs, procure
a copy or transcript thereof, except that in a nonpublic investigatory
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proceeding the witness may for good cause be limited to inspection of
the official transcript of his testimony.
(d) Agency subpenas authorized by law shall be issued to a party
on request and, when required by rules of procedure, on a statement
or showing of general relevance and reasonable scope of the evidence
sought. On contest, the court shall sustain the subpena or similar
process or demand to the extent that it found to be in accordance
with law. In a proceeding for enforcement, the court shall issue an
order requiring the appearance of the witness or the production of
the evidence or data within a reasonable time under penalty of
punishment for contempt in case of contumacious failure to comply.
(e) Prompt notice shall be given of the denial in whole or in part
of a written application, petition, or other request of an interested
person made in connection with any agency proceeding. Except in
affirming a prior denial or when the denial is self-explanatory, the
notice shall be accompanied by a brief statement of the grounds for
denial.
? 556. Hearings; presiding employees; powers and duties; burden
of proof ; evidence; record as basis of decision
(a) This section applies, according to the provisions thereof, to
hearings required by section 553 or 554 of this title to be conducted
in accordance with this section.
(b) There shall preside at the taking of evidence-
(1) the agency;
(2) one or more members of the body which comprises the
agency; or
(3) one or more hearing examiners appointed under section
3105 of this title.
This subchapter does not supersede the conduct of specified classes of
proceedings, in whole or in part, by or before boards or other em-
ployees specially provided for by or designated under statute. The
functions of presiding employees and of employees participating in
decisions in accordance with section 557 of this title shall be con-
ducted in an impartial manner. A presiding or participating em-
ployee may at any time disqualify himself. On the filing in good faith
of a timely, and sufficient affidavit of personal bias or other dis-
qualification of a presiding or participating employee, the agency shall
determine the matter as a part of the record and decision in the case.
(c) Subject to published rules of the agency and within its powers,
employees presiding at hearings may-
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant evidence;
(4) take depositions or have depositions taken when the, ends
of justice would be served;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or simplication of the
issues by consent of the parties;
(7) dispose of procedural requests or similar matters;
(8) make or recommend decisions in accordance with section
557 of this title; and
(9) take other action authorized by agency rule consistent with
this subchapter.
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(d) Except as otherwise provided by statute, the proponent of a
rule or order has the burden of proof. Any oral or documentary evi-
dence may be received, but the agency as a matter of policy shall
provide for the exclusion of irrelevant, immaterial, or unduly repeti-
tious evidence. A sanction may not be imposed or rule or order
issued except on consideration of the whole record or those parts
thereof cited by a party and supported by and in accordance with the
reliable, probative, and substantial evidence. A party is entitled to
present his case or defense by oral or documentary evidence, to
submit rebuttal evidence, and to conduct such cross-examination as
may be required for a full and true disclosure of the facts. In rule
making or determining claims for money or benefits or applications
for initial licenses an agency may, when a party will not be prejudiced
thereby, adopt procedures for the submission of all or part of the
evidence in written form.
(e) The transcript of testimony and exhibits, together with all
papers and requests filed in the proceeding, constitutes the exclusive
record for decision in accordance with section 557 of this title and, on
payment of lawfully prescribed costs, shall be made available to the
Parties. When an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is entitled, on
timely request, to an opportunity to show the contrary.
? 557. Initial decisions; conclusiveness; review by agency; submis-
sions by parties; contents of decisions; record
(a) This section applies, according to the provisions thereof, when
a hearing is required to be conducted in accordance with section 556
of this title.
(b) When the agency did not preside at the reception of the evi-
dence, the presiding employee or, in cases not subject to section 554
(d) of this title, an employee qualified to preside at hearings pursuant
to section 556 of this title, shall initially decide the case unless the
agency requires, either in specific cases or by general rule, the entire
record to be certified to it for decision. When the presiding employee
makes an initial decision, that decision then becomes the decision of
the agency without further proceedings unless there is an appeal to,
or review on motion of, the agency within time provided by rule.
On appeal from or review of the initial decision, the agency has all
the powers which it would have in making the initial decision except
as it may limit the issues on notice or by rule. When the agency
makes the decision without having presided at the reception of the
evidence, the presiding employee or an employee qualified to preside
at hearings pursuant to section 556 of this title shall first recommend
a decision, except that in rule making or determining applications for
initial licenses----
(1) instead thereof the agency may issue a tentative decision
or one of its responsible employees may recommend a decision;
or
(2) this procedure may be omitted in a case in which the
agency finds on the record that due and timely execution of its
functions imperatively and unavoidably so requires.
(c) Before a recommended, initial, or tentative decision, or a deci-
sion on agency review of the decision of subordinate employees, the
parties are entitled to a reasonable opportunity to submit for the con-
sideration of the employees participating in the decisions-
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(1) proposed findings and conclusions; or
(2) exceptions to the decisions or recommended decisions of
subordinate employees or to tentative agency decisions; and
(3) supporting reasons for the exceptions or proposed findings
or conclusions.
The record shall show the ruling on each finding, conclusion, or
exception presented. All decisions, including initial, recommended,
and tentative decisions, are a part of the record and shall include a
statement of-
(A) findings and conclusions, and the reasons or basis there-
for, on all the material issues of fact, law, or discretion presented
on the record; and
(B) the appropriate rule, order, sanction, relief, or denial
thereof.
? 558, Imposition of sanctions; determination of applications
for licenses; suspension, revocation, and expiration of
licenses
(a) This section applies, according to the provisions thereof, to the
exercise of a power or authority.
(b) A sanction may not be imposed or a substantive rule or order
issued except within jurisdiction delegated to the agency and as
authorized by law.
(c) When application is made for a license required by -law, the
agency, with due regard for the rights and privileges of all the inter-
ested parties or adversely affected persons and within a reasonable
time, shall set and complete proceedings required to be conducted in
accordance with sections 556 and. 557 of this title or other proceedings
required by law and shall make its decision. Except in cases of willful-
ness or those in which public health, interest, or safety requires other-
wise, the withdrawal, suspension, revocation, or annulment of a license
is lawful only if, before the institution of agency proceedings therefor,
the licensee has been given-
(1) notice by the agency in writing of the facts or conduct
which may warrant the action; and
(2) opportunity to demonstrate or achieve compliance- with all
lawful requirements.
When the licensee has made timely and sufficient application for a
renewal or a new license in accordance with agency rules, a license
with reference to an activity of a continuing nature does not expire
until the application has been finally determined by the agency.
? 559. Effect on other laws; effect of subsequent statute
This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)
(E), 5362, and 7521, and the provisions of section 5335(a) (B) of this
title that relate to hearing examiners, do not limit or repeal additional
requirements imposed by statute or otherwise recognized by law.
Except as otherwise required by law, requirements or privileges relat-
ing to evidence or procedure apply equally to agencies and persons.
Each agency is granted the authority necessary to comply with the
requirements of this subchapter through the issuance of rules or other-
wise. Subsequent statute may not be held to supersede or modify this
subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2) (E), 5362, or
7521, or the provisions of section 5335(a)(B) of this title that relate to
hearing examiners, except to the extent that it does so expressly.
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NATIONAL LABOR RELATIONS ACT OF 1935, AS AMENDED, SECTION 11,
29 U.S.C. 161
Sec. 11. Investigatory powers of Board
For the purpose of all hearings and investigations, which, in the
opinion of the Board, are necessary and proper for the exercise of the
powers vested in it by sections 9 and 10 of this title-
DOCUMENTARY EVIDENCE; SUMMONING WITNESSES AND TAKING
TESTIMONY
(1) The Board, or its duly authorized agents or agencies, 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. The Board, or any member thereof, shall upon application
of any party to such proceedings, forthwith issue to such party
subpenas requiring- the attendance and testimony of witnesses or the
production of any evidence in such proceeding or investigation re-
quested in such application. Within five days after the service of a
subpena on any person requiring the production of any evidence in his
possession or under his control, such person may petition the Board to
revoke, and the Board shall revoke, such subpena if in its opinion the
evidence whose production is required does not relate to any matter
under investigation, or any matter in question in such proceedings, or
if in its opinion such subpena does not describe with sufficient particu-
larity the evidence whose production is required. Any member of the
Board or any agent or agency designated by the Board for such pur-
poses, may administer oaths and affirmations, examine witnesses, and
receive evidence. Such attendance of witnesses and the production
of such evidence may be required from any place in the United States
or any Territory or possession thereof, at any designated place of
hearing.
COURT AID IN COMPELLING PRODUCTION OF EVIDENCE AND
ATTENDANCE OF WITNESSES
(2) In case of contumacy or refusal to obey a subpena issued to any
person, any district court of the United States or the United States
courts of any Territory or possession, within the jurisdiction of which
the inquiry is carried on or within the jurisdiction of which said person
guilty of contumacy or refusal to obey is found or resides or transacts
business, upon application by the Board shall have jurisdiction to
issue to such person an order requiring such person to appear before
the Board, its member, agent, or agency, there to produce evidence
if so ordered, or there to give testimony touching the matter under
investigation or in question; and any failure to obey such order of the
court may be punished by said court as a contempt thereof.
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PRIVILEGE OF WITNESSES; IMMUNITY FROM PROSECUTION
(3) No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or other
evidence in obedience to the subpena of the Board, on the ground that
the testimony or evidence required of him may tend to incriminate him
or subject him to a penalty or forfeiture; but no individual shall be
prosecuted or subjected to any penalty or forfeiture for or on account
of any transaction, matter, or thing concerning which he is compelled,
after having claimed his privilege against self-incrimination, to testify
or produce evidence, except that such individual so testifying shall
not be exempt from prosecution and punishment for perjury committed
in so testifying.
PROCESS, SERVICE AND RETURN; FEES OF WITNESSES
(4) Complaints, orders, and other process and papers of the Board,
its member, agent, or agency, may be served either personally or by
registered mail or by telegraph or by leaving a copy thereof at the
principal office or place of business of the person required to be
served. The verified return by the individual so serving the same
setting forth the manner of such service shall be proof of the same,
and the return post office receipt or telegraph receipt therefor when
registered and mailed or telegraphed as aforesaid shall be proof of
service of the same. Witnesses summoned before the Board, its mem-
ber, agent, or agency, shall be paid the same fees and mileage that
are paid witnesses in the courts of the United States, and witnesses
whose depositions are taken and the persons taking the same shall
severally be entitled to the same fees as are paid for like services in
the courts of the United States.
PROCESS, WHERE SERVED
(5) All process of any court to which application may be made
tinder this, subchapter may be served in the judicial district wherein
the defendant or other person required to be served resides or may
be found.
INFORMATION AND ASSISTANCE FROM DEPARTMENTS
(6) The several departments and agencies of the Government,
when directed by the President, shall furnish the Board, upon its'
request, all records, papers, and information in their possession re-
lating to any matter before the Board. July 5, 1935, c. 372, ? 11, 49
Stat. 455; June 25, 1936, c. 804, 49 Stat. 1921; June 23, 1947, c. 120,
Title I, ? 101, 61 Stat. 150.
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APPENDIX C
FEDERAL RULES OF CIVIL PROCEDURE
Rule 65. Injunctions
(a) PRELIMINARY INJUNCTION.
(1) Notice.-No preliminary injunction shall be issued without
notice to the adverse party.
(2) Consolidation of Hearing With Trial on Merits.-Before or after
the commencement of the hearing of an application for a preliminary
injunction, the court may order the trial of the action on the merits
to be advanced and consolidated with the hearing of the application.
Even when this consolidation is not ordered, any evidence received
upon an application for a preliminary injunction which would be
admissible upon the trial on the merits becomes part of the record on
the trial and need not be repeated upon the trial. This subdivision
(a) (2) shall be so construed and applied as to save to the parties any
rights they may have to trial by jury.
(b) TEMPORARY RESTRAINING ORDER; NOTICE; HEARING; DURA-
TION.-A temporary restraining order may be granted without written
or oral notice to the adverse party or his attorney only if (1) it clearly
appears from specific facts shown by affidavit or by the verified com-
plaint that immediate and irreparable injury, loss, or damage will
result to the applicant before the adverse party or his attorney can
be heard in opposition, and (2) the applicant's attorney certifies to the
court in writing the efforts, if any, which have been made to give the
notice and the reasons supporting his claim that notice should not
be required. Every temporary restraining order granted without
notice shall be indorsed with the date and hour of issuance; shall be
filed forthwith in the clerk's office and entered of record; shall define
the injury and state why it is irreparable and why the order was
granted without notice; and shall expire by its terms within such time
after entry, not to exceed 10 days as the court fixes, unless within the
time so fixed the order, for good cause shown, is extended for a like
period or unless the party against whom the order is directed consents
that it may be extended for a longer period. The reasons for the exten-
sion shall be entered of record. In case-a temporary restraining order is
granted without notice, the motion for a preliminary injunction shall
be set down for hearing at the earliest possible time and takes prece-
dence of all matters except older matters of the same character; and
when the motion comes on for hearing the party who obtained the
temporary restraining order shall proceed with the application for a
preliminary injunction and, if he does not do so, the court shall dis-
solve the temporary restraining order. On 2 days' notice to the party
who obtained the temporary restraining order without notice or on
such shorter notice to that party as the court may prescribe, the ad-
verse party may appear and move its dissolution or modification and
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in that event the court shall proceed to hear and determine such
motion as expeditously as the ends of justice require.
(C) SECURITY. No restraining order or preliminary injunction shall
issue except upon the giving of security by the applicant, in such sum
as the court deems proper, for the payment of! uch costs and damages
as may be incurred or suffered by any party who is found to have been
wrongfully enjoined or restrained. No such security shall be required
of the United States or of an officer or agency thereof.
The provisions of Rule 65.1 apply to a surety upon a bond or under-
taking under this rule. As amended Feb. 28, 1966, effective July 1,
1966.
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Since enactment as part of the Civil Rights Act of 1964, Title VII
has stood as a national commitment to the elimination of all forms of
employment discrimination. Unfortunately, such a commitment has
remained only a statement which, because of the lack of enforcement
machinery, has not been translated into concrete realities for those in
the nation's workforce who have been denied employment benefits
because of their race, color, religion, sex or national origin. The issue
is no longer whether we need enforcement powers for Title VII, but
rather what form and scope of enforcement is needed to best protect
the rights of all parties involved. To accomplish this end the Senate
is given two types of enforcement machinery to choose from-vesting
If)EOC with cease and desist powers or giving EEOC the authority
to sue directly in Federal Courts.
It is overly simplistic to argue as many have, that protection of em-
ployees rights can best he achieved by vesting the present, pro-employee
Commission with as much enforcement power as possible. The vicissi-
tudes of Presidentially appointed Boards is legend. The administrative
Board possessing enforcement powers most similar to the cease and
desist powers advocated by the majority, the National Labor Relations
Board, provides the best example of this. Critics charge that the
NLRB, in reacting to political winds rather than stare decisis, have
fluctuated from pro-management decisions during the Eisenhower
Administration to pro-labor positions during the Johnson and Ken-
nedy Administration. Determination of employment civil rights de-
serves and requires. non-partisan judgment. This judgment is best
afforded by Federal court. judges who, shielded from political in u
euce by life tenure, are more likely to withstand political pressures
and render their decisions in a climate tempered by judicial reflection
and supported by historical judicial independence.
Likewise simplistic reasoning has classified proponents of court en-
l'orcement as being pro-respondent or anti-employees' rights. Nothing
could be less correct.. Both procedures seek to achieve the same end-
the fair redress of employees' grievances. Although T opposed the cease
and desist provisions, I voted to report S. 2515, as amended, out of
committee, favorably as I was most encouraged by the potential relief
its compromise amendments offered federal employees. As the report
indicates, these employees are the most frustrated in achieving equal
employment opportunity. I authored in amendment with Senator
Cranston which was adopted that provided the approximately 2.6 mil-
lion civil service and postal workers with court redress of their employ-
ment discrimination grievances. The amendment creates machinery
suggested by Clarence Mitchell, Director, Washington Bureau,
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NAACP, whereby an aggrieved civil service or postal employee has
the option after exhausting his agency remedies, of either instituting
a civil suit in Federal district court or continuing through the Civil
Service Board of Appeals and Reviews to district court, if necessary.
Curiously enough, the majority seems pleased with court enforce-
ment procedures for 2.6 million federal employees, but continues to
urge cease and desist procedures for private employees.
OBJECTIVE CONSIDERATION OF TIIE MERITS IS NECESSARY
Once the simplistic classifications and emotional rhetoric has been
cleared away, one can objectively examine the potentials of the con-
tending procedures. To determine whether court enforcement or cease
and desist machinery best protects the rights of all parties involved in
the proceedings the following issues should be carefully considered.
S. 2515 IMPAIRS TIIE RESPONDENT'S DUE PROCESS RIGHTS
Whereas the court approach preserves the traditional separation of
powers which we as a nation so highly cherish, the cease and desist
procedure seriously threatens the respondent's due process rights by
joining the prosecutorial function with the adjudicatory function.
Under a cease and desist proceeding the EEOC would investigate the
charge, issue the complaint, prosecute the complaint, adjudicate the
iuerits of the case, and seek enforcement of its decisions in the United
States Circuit Courts of Appeals. Elemental concepts of fairness and
clue process require an impartiality in the adjudicatory function which
could not be attained under S. 2515.
What is necessary is aggressive and active advocacy of equal em-
ployment opportunity at the investigatory and prosecutory level.
Court enforcement would utilize this advocacy up through concilia-
tion. If conciliation proves unsuccessful the EEOC would petition
the Federal District Courts for redress of the employees' grievances.
Thus, the final adjudication would be an impartial judicial decision
tree from accusation of institutional bias.
COURT ENFORCEMENT UTILIZES TIIE ASSETS OF BOTH TIIE EEOC AND
THE JUDICIARY
The court approach combines the expertise of the EEOC in inves-
tigating, prosecessmg, and conciliating unfair employment cases with
the expertise and independence of the Federal courts. The Federal
courts have developed considerable expertise and a reputation of fair-
ness in enforcing equal opportunity laws in all other areas of civil
rights, including public accommodations, voting, education, and hous-
ing. They have developed specific. expertise through vigorous protec-
tion of Title VII rights. In fiscal 1970 alone, the EEOC filed amicus
briefs in 167 of the more important Title VII enforcement cases in
the federal courts. The EEOC recognized the important role the courts
have played when it concluded in its most recent (5th) Annual Report
that :
The Commission feels that the course of litigation over the
past year (fiscal year 1970) has been encouraged and that the
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law has developed in a liberal fashion appropriate to a hu-
manitarian and remedial statute. The implementation of Title
VII gives hope for the future of all Americans.
COURT ENFORCEMENT PROVIDES AN EXPEDITIOUS AND FINAL REMEDY
Effective protection of the rights of both the employer and the
employee demands a speedy resolution of the dispute. Facts indicate
that the court enforcement procedure is more expeditious as it in-
volves a one step enforcement procedure whereas the cease and desist
order requires two steps. A district court order is immediately self-
enforcing as it is backed by court contempt proceedings. A commis-
sion cease and desist order must be brought to the Court of Appeals
before it achieves similar sanction power. Additionally, there is a defi-
nite advantage in having the judge who enters the original order be
the person who will hear any subsequent enforcement proceedings. A
judge who is enforcing his own orders rather than those of some com-
mission will be determined that such orders are properly enforced.
To a large extent, speedy resolution of an unfair employment prac-
tice will be determined by the respective caseloads of the EEOC and
the district courts. Chairman Brown of the EEOC testified that as of
June 30, 1971, the Commission had a backlog of 32,000 cases with an
anticipated fiscal year 1971 caseload of 32,000 additional cases. Also
S. 2515 would expand coverage from the present employers with 25 or
more employees to those with 8 or more employees, thereby adding
approximately 6.5 million potential aggrieved. Additionally, the
EEOC will be responsible for conciliating disputes of an additional
10.1 million State and local government employees pursuant to the
adopted Eagleton-Taft amendment. While the present EEOC com-
plaint disposition requires from 18 to 24 months, the median time inter-
val from issue to trial for non jury trials in U.S. district courts in
1970 was ten months according to the Annual Report of the Director
of the Administrative Office of the U.S. Courts. Congressman Erlen-
born testified before the Labor Subcommittee that of the 29 District
Courts which would receive the brunt of the unfair employment prac-
tice cases from the top ten states in terms of EEOC recommended
investigation, 21 courts had a medium time of 12 months or less for
non jury trials and 8 courts had a medium time of 6 months or less
for a non jury trial.
In addition, a further impediment to timely action under the admin-
istrative approach is that only the Commission in Washington and not
any of the field attorneys could issue cease and desist orders. The
judicial approach offers potential remedies through 398 judges on the
bench in 93 existing federal district courts.
Hopefully, the above discussion will serve to better clarify an issue
which in the recent past has been the subject of much rhetoric and little
objectivity.
TRANSFER OF "PATTERN AND PRACTICE" UNJUSTIFIED
In addition to the previously discussed major issue, I am concerned
by the provision of S. 2515 which transfers "pattern and practice"
suits from the jurisdiction of the Justice Department to the EEOC.
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The majority has presented no compelling reason for the transfer other
than for unification sake--a suspect phobia if not supported by addi-
tional factors. Both the Justice Department and Chairman Brown
are satisfied with the present administration of "pattern and practice"
suits. Vesting E EOC with cease and desist powers over what has been
a successful litigation process simply compounds the confusion.
PETER B. DOMINICK.
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SUPPLEMENTAL VIEWS OF MR. TAFT
In general I support S. 2515 and believe it can do much- to improve
progress on opening job opportunities. I do intend to introduce an
amendment on the Senate floor to provide autonomy for the Office of
General Counsel from the Equal Employment Opportunity Commis-
sion. I believe this approach will insure procedural fairness in the
administrative operation of the Commission and eliminate some seri-
ous objections to broadened Commission authority. This amendment
was discussed in Committee favorably, but was not pressed at the
time because of a desire to perfect it in form.
ROBERT TAFT, Jr.
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