PAGENO="0001" NOMINATION t~1 I / ) tft ~O( `fl~ ~ HEARING BEFORE THE COMMITTEE ON LABOR AND PUBLIC WELFARE UNITED STATES SENATE NINETY-FOURTH CONGRESS FIRST SESSION ON ABNER WOODRUFF SIBAL, OF VIRGINIA, TO BE GENERAL COUNSEL OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION JULY 16, 1975 Printed for the use of the Committee on Labor and Public Welfare ~j? QB10~ U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 1975 ~ 7~/3~/y7r~7 PAGENO="0002" COMMITTEE ON LABOR AND PUBLIC WELFARE HARRISON A. WILLIAMS, JR., New Jersey, Chairman JENNINGS RANDOLPH, West Virginia CLAIBORNE PELL, Rhode Island EDWARD M. KENNEDY, Massachusetts GAYLORD NELSON, Wisconsin WALTER F. MONDALE, Minnesota THOMAS F. EAGLETON, Missouri ALAN CRANSTON, California WILLIAM D. HATHAWAY, Maine JACOB K. JAVITS, New York RICHARD S. SCHWEIKE R, Pennsylvania ROBERT TAFT, JR., Ohio J. GLENN BEALL, JR., Maryland ROBERT T. STAFFORD, Vermont PAUL LAXALT, Nevada DONALD ELI5BURG, General Counsel MARJORIE M. WHITTAKER, Chief Clerk JAY B. CUTLER, Minority Counsel (II) PAGENO="0003" NOMINATION WEDNESDAY, JULY 16, 1975 TJ.S. SENATE, COMMITTEE ON LABOR AND Pul3LIc WELFARE, Washington, D.C. The Committee met, pursuant to notice, at 9:08 a.m., in Room 4232, Dirksen Senate Office Building, Senator Harrison A. Williams, Jr., Chairman, presiding. Present: Senators Williams, Pell, Javits, Schweiker, and Taft. Committee staff present: Donald Elisburg, general counsel; George Sape, associate labor counsel; and Don Zimmerman, minority labor counsel. The CHAIRMAN. Today's Senate Labor and Public Welfare Com- mittee is meeting to hear and examine the nomination of Mr. Sibal submitted by the President for an important Federal post, that of General Counsel of the Equal Employment Opportunity Commission. A. copy of Mr. Sibal's biography and other pertinent information will be inserted in the record at this point. [The biography of Mr. Sibal, and an excerpt from Public Law 92-261, establishing the `Office of General Counsel follow:] (1) PAGENO="0004" 2 SIBAL, ABNER W. RESUME Born, April 11, 1921, New York City Partner, Wells & Sibal 1225 Connecticut Avenue, N.W. Washington, D.C. 20036 (659-4830) Residence - 9019 Old Dominion Drive McLean, Virginia 22101 (759-3789) Family - Married to former Mary Ellen Igou Two children, Susan Nabmias (Mrs. Albert) 27, and John, 22. Education - Wesleyan, AB. 1943 St. John's LLB. 1949 Military - Enlisted August 1942, commissioned 1944, discharged 1946. France, Germany, The Philippines. Professional - Member, Connecticut & District of Columbia Bars; Formerly: Partner Sibal, Hefferan & Rimer, Norwalk and Wilton, Connecticut; and Gadsby & Hannah, Washington, D.C.; Prosecuting Attorney, Norwalk; Corporation Counsel, Norwalk; and Chairman, Connecticut Commission on Corporation Law. Member, American, Connecticut and D.C. Bar Associations. Political - Member, Connecticut State Senate, 1957-61; Minority Leader, 1959-61; Member 87th and 88th Congress, member Committee on Interstate & Foreign Commerce, Subcommittees on Transpor- tation & Aeronautics and Communications and Power; Congressional delegate to U.N. International Communications Convention, Geneva; Member, Republican Congressional Campaign Committee; Member, Platform Committee Republican National Convention, 1964; PAGENO="0005" .3 (Excerpt from Public Law 92-261-Equal Employment Opportuiiity Act of 1972) Sec. 8(e)(1) * * * * * * * * * * "(b)(1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 706 and 707 of this title. The General Counsel shall have such other duties as the Commission may prescribe or as may be provided by law and shall concur with the Chairman of the Commission on the appointment and supervision of regional attorneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position and perform the functions specified in this subsection until a successor is appointed and qualified. "(2) Attorneys appointed under this section may, at the direction of the Com- mission, appear for and represent the Commission in any case in court, provided that the Attorney General shall conduct all litigation to which the Commission a a party in the Supreme Court pursuant to this title." * * * * * * * (The complete text of Title VII of the Civil Rights Act of 1964 as amended through March 24, 1972, appears as an appendix to this hearing.) PAGENO="0006" 4 The CHAIRMAN. I think a statement here from the chairman is in order on this very important nomination that is before our committee. When we adopted the Equal Employment Opportunity Enforce- ment Act of 1972, which gave the Commission the power to bring enforcement actions directly in the Federal district courts, we also elevated the position of General Counsel of the EEOC. Tjnder the provisions of that act, the General Counsel is now ap- pointed by the President, with the advice and consent of the Senate. for a term of 4 years. This action reflects the important and vital role that the Congress has assigned to that position at the EEOC. Prior to 1972, the Commission did not have the power to enforce its own findings of employment discrimination. When the Commission's informal efforts at conciliation failed, it could either recommend the case to the Department of justice for enforcement, or turn it back to the individual who had brought the charge for private enforcement. Neither alternative fully served the Government's vital interest in eliminating employment discrimination. Accordingly, in 1972, we adopted major amendments to title VII of the Civil Rights Act of 1904 which authorized the EEOC to sue directly in Federal district court to seek enforcement of violations of equal employment opportunity law. The responsibility for initiating and maintaining these lawsuits has specifically been assigned to the General Counsel in section 705 (b) of that act. Since March 1972, the General Counsel has brought approximately 700 cases to the Commission for action, of which 464 have actually been filed in court. The Office of General Counsel has an authorized strength of 260 lawyers. Of these, approximately 200 are trial lawyer positions. Given the 464 cases actually filed, this accounts for significantly less than two cases per lawyer over the last 3 years. `While I am sympathetic to the need for careful and complete case development, I do feel that a greater effort must be made to increase the General Counsel's enforcement activities. By authorizing significant increases in the General Counsel's budget and staff, Congress has manifested its desire that the Commission move quickly and decisively with its new enforcement powers. It was, therefore, disappointing to me that the Office of General Counsel did not file its first lawsuit until 7 months after adoption of the enforcement powers. I know that you were not at the Commission at this time, but I do want to stress to you the importance that I assign to effective enforce- ment of the law. And for enforcement to have the desired impact, there has to be a widely felt governmental presence and the knowledge that violations will be pursued to the full extend of the law. Also, in this same vein, I would like to stress that the Commission's enforcement activities should provide relief to as many aggrieved individuals as possible, given the Commission's resources. Accordingly, I hope that as General Counsel, you will insure that all of the Commission's enforcement is not concentrated only on bring- ing the large and expansive class action lawsuits. The single person who is discriminated against, or the small group of employees of a small employer are equally deserving of the Gov- ernment's protection. PAGENO="0007" 5 The Office of General Counsel will certainly be pivotal during the next months as many crucial issues relating to the development of equal employment opportunity law will be before the courts. Not only procedural issues, but significant questions as to the scope of title VII, are arising in the Federal courts with increasing frequency. The General Counsel, working in close cooperation with the new Chairman of the Commission and the other Commissioners, will have to provide the legal guidance and operational unity to the Commis- sion's legal efforts during this crucial developmental period. I hope, Mr. Sibal, that with your able leadership, and by working closely with the legal staff of the agency, many of whom I know are experienced and able civil rights lawyers, you will bring title VII to the full prominence that it deserves. You will, thereby, also fulfill the congressional mandate embodied in both the Civil Rights Act of 1964 and the Equal Employment Op. portunity Act of 1972, to eliminate employment discrimination. Senator JAVITS. I have known Mr. Sibal for years as a Congressman and as a lawyer, and I have talked, with him at great length. I am satisfied, unless something comes out of the hearings, that he will make an excellent General Counsel for this deeply troubled agency, EEOC, the position to which he has been nominated. Thank you, Mr. Chairman. The CHAIRMAN. Senator Schweiker? Senator SCHWEIKER. Thank you very much, Mr. Chairman. Once again, I am in the very unique position of knowing quite well the nominee. I went to the House with Congressman Sibal and know his background and expertise and philosophy. I would say the administration really could not have picked a better man for this position. I, too, am concerned with the thing the chairman has said. I think he has raised some very valid concerns that we are all concerned about. I think, in picking Mr. Sibal, we picked the best man to solve these problems. I really have nothing further to say except I am glad to see Abner willing to undertake it and do it. I know he will do it well, and it needs to be done well. I will end my speech on that note. The CHAIRMAN. Senator Taft? Senator TAFT. Mr. Chairman, I also had the privilege of serving with the nominee in the House of Representatives, particularly with him on items relating to civil rights, the Civil Rights Act of 1964. I think he is extremely well qualified to undertake what I consider~ to be a very difficult task as I have previously discussed with him. I think it is a major challenge and I share the expressed feelings that he 1S a man well qualified to undertake these challenges, and I wish him every good wish. I would urge him to stay in touch with all of us on the committee, to call on us in any way that we can try to back him up in order to bring this agency to the fulfillment of the role which it was designed to carry out. In some ways, many of us are disappointed in the past record, and we, as a committee, want to help him succeed. The CHAIRMAN. Thank you very much, Senator Taft. We have had no requests for opportunities to testify at this hearing, so you are going it alone.' PAGENO="0008" 6 I would like to know how you perceive the role of the General Coun- sel at the EEOC and what relationship do you see that office having to the chairman of the agency, the other Commissioners and other policy level members of that agency? STATEMENT OF ABNER W. SIBAL, NOMINEE FOR GENERAL COUN~ SEL, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Mr. SIBAL. Mr. Chairman, I would view the job of General Counsel as being one that cannot function properly except in close cooperation with the chairman and the other Commissioners. As a matter of fact, before I agreed to accept the very flattering nomination that the President offered, I indicated it would be very essential, I thought, for me to have a long talk with the chairman, who was then the chairman designate, which we did. I think I can fairly say we oth recognize that it is very important that we have a working relationship which is smooth and one of understanding of each other's problems and one that recognizes that the Commission has a major problem ahead, as your opening statement clearly outlined. I view the job as being one of great responsibility in terms of bring- ing credibility to the agency, in terms of enforcing in a very profes- sional way title VII, in terms of moving the caseload expeditiously although carefully, in terms of picking the cases that need to be tried and preparing them in a way which will develop the case law in title VII clearly, which is a service, in my view, not only to the people who feel discrimInated against and are discriminated against in many areas, but also to the employers who are entitled to know where they stand and entitled to know what the results are and what the law is. I feel that a responsibility to both segments to proceed in a very direct way to bringing this very important title into focus in a way that is generally understood. The CHAIRMAN. I should have mentioned that, informally, I have been called on by friends and other professional associates of yours in support of your nomination. I should have mentioned that earlier. I wonder if, in your law practice, you had any direct experience in handling cases under title VII? Mr. SIBAL. I was involved in one major case, which I resigned from, still a pending case, which I resigned from at the time I agreed to accept the nomination, about the first of May. I have been involved only in an advisory capacity with some clients in such things as affirmative action programs and general requirements, advising companies as to what the law requires them to do in terms of minority hiring and sex and so forth. The CHAIRMAN. You say you have withdrawn? Mr. SIBAL. I withdrew long before my nomination reached the Sen- ate, Senator. The minute I knew I would be probably before you some day, I withdrew from the case. The CHAIRMAN. I mentioned the methods of enforcement specifically the class action approach in the individual cases. I wonder if you have any views on the nature of title VII enforce- ment? It is a difficult question to ask, but I would like to get a feel for PAGENO="0009" 7 your approach, how you would select the best method of enforcing both the large class action situations and the individual actions. Mr. SIBAL. I do not want to prejudge this because, obviously, I have to learn a lot about the job. But, fundamentally, I believe the approach would be one wherein the case, be it an individual action or a large potential class action, should be judged in the General Counsel's Office on the basis of the evidence as it appears to us, the basis which we can win the case and cause a result which will have an effect throughout the whole national community in bringing into compliance more and more companies with the law. I am not sure that I agree, in general, with what some people feel is a good approach, which is to sue the big company, whatever the case, and perhaps ignore a very strong case based on the ability of the staff to handle everything or inability to handle everything perhaps. In other words, I feel it is very important where there is a clear act of violation of title VII, to bring that case, and not necessarily put it on the bottom of the priority list because the effect directly is on a fewer number of employees. It seems to me when you get cases in the law books which support interpretations that the agency is putting on title VII, that is the effect you want in terms of influencing the whole national community to comply rather than single out a company which may be a very mar- ginal case and risk losing the case just because it is big. I want to amend that and say, obviously, if there is an effect, if there is a violation to the large company, it certainly should be litigated. The CHAIRMAN. Now, let me turn to your views on the kind of prep- aration of cases that you feel are necessary at the Commission. As you know, this committee has been concerned for some time that there is not adequate case development during investigative stage. How do you see the relationship between the pretrial operations of the Commission and the Office of General Counsel, and what do you think should be the proper role of the various units within the Com- pliance Division in relation to the Office of General Counsel? Mr. SIBAL. Senator, I hesitate to comment on the latter part of your question. I honestly do not feel well enough informed about the func- tions of the various compliance units within the Commission. I do feel, however, that based on what experience I have had and conversations I have had with other people that I have had a good deal of experience both within and without the Commission, that it will be very important for me to work with Chairman Perry and other people in the compliance section to bring what apparently, at least, was a difficult gap between the people who did the early investigatory work and the General Counsel's Office. The CHAIRMAN. I have often wondered just how much opportunity a nominee has before he comes to the hearing process to understand the system as it is working. Have you had an opportunity to be at the Commission, to consult with its members, and to get a feel for operations as they are? Mr. SII~AL. Well, I did go over and visit with Mrs. Cooper, who is Acting General Counsel, and with some of the other senior staff people. But I hesitate to say that I had enough time to really feel comfortable in passing judgment on certain things. PAGENO="0010" 8 Obviously, that takes some time. I do not think you can really feel confident unless you are in the job. The CHAIRMAN. Unless you come here in an acting capacity, I can see there would be some difficulty in getting the full orientation, and understanding of the structure as it is. Mr. SIBAL. Even an orientation is something that you have to take as a basis for feeling your way on the job rather than, in my judg- ment, forming opinions that are very strong. The CHAIRMAN. Is there anything in the law that you know of that makes it inappropriate for the General Counsel to participate in this early relationship on the development of cases, to have early communication with other units of the Commission-is the.re anything in the law that blocks you off? It is not like some agencies where the `General Counsel is in a degree blocked off. Is that true of the EEOC? Mr. `SIBAL. I do not see why. Obviously, the way the `Commission is set up, in terms of assign- ment of responsibilities, the Chairman, of course, has the primary responsibility in this area, and the ultimate responsibility. But, on the other hand, the statute is somewhat unusual in that the General ,Counsel does have certain assigned responsibilities. But I do not see how the agency can work properly if we emphasize that division- The CHAIRMAN. It might be interesting to review the legislative history of the development of the General Counsel's office and enforce- ment procedures as we finally arrived at it in law. Some of us did not start off with this as the most desired method of enforcement. This is what we have. `Some wanted to follow `more of the National Labor Relations Act- NLRB-approach. We do not have that. We feel that as embodied in the current approach and in the court enforcement authority, `and as you are structured in the total picture within the Equal Employment Opportunity `Commission, there are no bars to this close association with the `Commission to insure full en- forcement from ground up in these cases. Mr. SIBAL. I do not feel so. As a matter of fact, as I started to say, to have a completely separate group of people with very little communication with the lawyer ulti- mately who has to try the case, investigate the case, is inherently diffi- cult and inherently repetitious, and I would imagine that it would cause misunderstandings and frictions and all the other kinds of prob- lenis that exist when people do not understand quite what their various responsibilities are. I think that coordination is very important. As a matter of fact, that was something that Chairman Perry and I discussed some months ago, and he is in agreement. `The CHAIRMAN. I have nothing further. Senator Pell? Senator PELL. I `have talked with the nominee and am supporting him. The CHAIRMAN. We wish you well. We hope that your nomination can be reached in our full committee executive meeting today. Thank you. PAGENO="0011" 9 I would like to give anyone an opportunity to speak for or in opposition. Nobody has indicated they desire to speak. That concludes our hearing. [Whereupon, at 10:05 a.m., the committee adjourned.] PAGENO="0012" APPENDIX CIVIL RIGHTS ACT OF 19M AS AMENDED 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* education, 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, part- nerships, 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 fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or pre- ceding 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 any depart- ment or agency of the District of Columbia. subject by statute to procedures of the competitive 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 501 (c) of the Internal Revenue Code of 1954, except that during the first year after the date of enactment of the Equal Employment Opportunity Act of 1972, persons having fewer than 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. * (d) The term "labor organization" means a labor organization en- gaged 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 1 Includes 1972 amendments made by P.L. 92-261 printed in italic. (a.). (10) PAGENO="0013" 11 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, jornt or system board, or joint council so engaged which is subordinate to a national or international labor organization. (e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hail or hiring office which procures employees for an employer or procures for em- ployees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is (A) twenty-five or more during the first year after the date of enactment of the Equal Employ- ment Opportunity Act of 1972, or (B) fifteen 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 ]abor 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 of employers within the meaning of paragraph (1) or (2); or (4) has been chartered by a labor organization representing or actively, seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or (5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection. (f) The term "employee" means an individual employed by an employer, except that the term `employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the excercise of the constitutional or legal powers of the office. The exemption set~forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. (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 2 PAGENO="0014" 12 the Labor-Management Reporting and Disclosure Act of 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. (j) The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's, religious observance or practice without undue hardship on the conduct of the employer's business. EXEMPTION 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 activities. 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 deprive any individual of employment opportunities or otherwise ad- versely 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, 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, be- cause of such individual's race, color, religion, sex, or national origin; or 3 PAGENO="0015" 13 (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 employwent practice for any employer, labor organization, or join ~ labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or* national origin in admission to, or employment in, any program established to provide apprenticeship or other training. (e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, 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 any 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 society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. (f) As used in this title, the phrase "unlawful employment practice" shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organiza- tion required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950. (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 imposed in the interest of the national security of the United States under any security program in effect pursuant to or admin- istered under any statute of the United States or any Executive order of the President; and (2) such individual has not fuffilled or has ceased to fulfill that requirement. 4 PAGENO="0016" 14 (h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply differ- ent standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bonà 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 unlawful 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, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employ- ment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compen- sation paid or to be paid to employees of such employer if such differentiation is authorized 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 he 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- 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 disciiminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retra%n'tng, 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 he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. * (b) It shall be an unlawful employment practice for an employer, lnbor organization, employment agency, or joint labor-management committee controlling apprenticeship or other training or retrain'bng, in- 5 PAGENO="0017" 15 eluding on-the-job training programs, to print or publish or cause to be printed or published any notice or advertisement relating to employ- ment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment 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 religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SEC. 705. (a) There is hereby created a Commission to be known as the Equal Employment Opportunity Commission, which shall be com- posed of five members, not more than three of whom shall be members of the same political party. Members of the Commission shall be ap- pointed by the President by and with the advice and consent of the Senate for a term of five years. Any individual chosen to fill a vacancy shall be appointed only for the unexpired term 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 member of the Commission shall continue to serve (1) for more than sixty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted. The President shall designate one member to serve as Chairman of the Commission, and one member to serve as Vice Chair- man. The Chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission, and except as provided in subsection (b), shall appoint, in accordance with the pro- visions of title 5, United States Code, governing appointments in the competitive service, such officers, agents, attorneys, hearing examiners, and employees as he deems necessary to assist it in the performance of its functions and to fix their compensation in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification and General Schedule pay rates: Provided, That assignment, removal, and compensation of hearing examiners shall be in accordance with sections 3105, 3344, 5362, and 7521 of title 5, United States Code. (b)(1) There shall be a General Counsel of the Commission appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel shall have responsibility for the conduct of litigation as provided in sections 706 and 707 of this title. The General Counsel shall have such other duties as the Commission may prescribe or as may be provided by law and shall concur with the Chairman of the Commission on the appointment and supervision of regional attorneys. The General Counsel of the Commission on the effective date of this Act shall continue in such position and perform the functions specified in this subsection until a successor is appointed and qualified. 6 PAGENO="0018" 16 (~) Attorneys appointed under this section may, at the direction of the Commission, appear for and represent the Commission in any case in court, provided that the Attorney General shall conduct all litigation to which the Commission is a party in the Supreme Court pursuant to this title. (c) 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. (d) The Commission shall have an official seal which shall be judicially noticed. (e) The Commission shall at the close of each fiscal year report to the Congress and to the President concerning the action it has taken; the names, salaries, and duties of all individuals in its employ and the moneys it has disbursed; and shall make such further reports on the cause of and means of eliminating discrimination and such recommendations for further legislation as may appear desirable. (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; (2) to pay to witnesses whose depositions are taken or who are summoned before the Commission or any of its agents the same witness and mileage fees as are paid to witnesses in the courts of the United States; (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 intervene in a civil action brought under section 706 by an aggrieved party against a respondent other than a government, governmental agency, or political subdivision. (h) The Commission shall, in any of its educational or promotional activities, cooperate with other departments and agencies in the performance of such educational and promotional activities. (i) 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. 7 PAGENO="0019" 17 PREVENTION OF UNLAWFUL EMPLOYMENT PRACTICES SEc. 706. (a) The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment prac- tice as set forth in section 703 or 704 of this title. (b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor 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 serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the "respondent") within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commis- sion requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, 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 substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d). If the Commission determines 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 persua- sion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The 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 author- ized to take action with respect to the charge. (c) In the case of an alleged unlawful employment practice occur- ring in a State, or political subdivision of a 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 institute criminal proceedings with respect thereto upon. receiving notice thereof, no charge may be filed under subsection (a) by the person aggrieved 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 such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts 8 PAGENO="0020" 18 upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority. (d) In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibit- ing the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged. (e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice 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 a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice 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 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, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. (f) (1) 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) or (d), the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, 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 district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. 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 fifing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not~fled a civil action in a 9 PAGENO="0021" 19 case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political sub- division, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved, or (B) if such charge was filed by a member of the Com- mission, 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 complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsections (c) or (d) of this section or further efforts of the Com- mission to obtain voluntary compliance. (2) Whenever a charge isflled with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited. (3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have juris- diction of actions brought under this title. Such an action may be brought in any 2udicial 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 practice are maintained and administered, or in the judicial district in which the aggrieved person 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 sections 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. (4) 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 determine 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 10 PAGENO="0022" 20 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. (5) It shall be the duty of the judge designated pursuant to this sub- section to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure. (g) If the court finds that the respondent has intentionally engaged `in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstate- ment 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), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of 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 employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 704(a). (h) 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 U.S.C. 101-115), shall not apply with respect to civil actions brought under this section. (i) 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 this section, the Commission may commence proceedings to compel compliance with such order. (j) Any civil action brought under this section and any proceed- ings brought under subsection (i) shall be subject to appeal as pro- vided in sections 1291 and 1292, title 28, United States Code. (k) In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission 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. SEC. 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, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a 11 PAGENO="0023" 21 complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or prac- tice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, 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 a 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. 1n 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 after the date of enactment of the Ectual Employ- ment Opportunity Act of 1972, the functions of the Attorney General under this section shall be transferred to the Commission, together with such personnel, property, records, and unexpended balances of appropriations, allocations, and other funds employed, used, held, available, or to be made available in connection with such functions unless the President submits, and neither House of Congress vetoes, a reorganization plan 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 accordance with subsections (d) and (e) of this section. (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 abatement, all 12 PAGENO="0024" 22 court orders and decrees shall remain in effect, and the Commission shall be substituted as a party for the United States of Amerisa, the Attorney General, or the Acting Attorney General, as appropriate. (e) Subsequent to the date of enactment of the Equal Employment Opportunity Act of 1972, the Commission shall have authority to in- vestigate 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 a member of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 706 of this Act. 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 pro- vided by any present or future law of any State or political subdi- vision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employ- ment 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 investigated or proceeded against that relates to unlawful employ- ment 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 in- terest undertaken by such agencies, and utilize the services of such agencies and their employees, and, notwithstanding any other pro- vision of law, pay by advance or reimbursement such agencies and their employees for services rendered to assist the Commission 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 agreements or under which the Commission shall relieve any person or class of persons in such State or locality from requirements imposed under this section. The Commission shall rescind any such agreement whenever it determines that the agreement no longer serves the interest of effective enforce- ment of this title. (c) Every employer, employment agency, and labor organizationsub- ject to this title shall (1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, (2) preserve such records for such periods, and (3) make such reports therefrom, as the Commission shall pre- scribe by regulation or order, after public hearing, as reasonable, 13 PAGENO="0025" 23 necessary, or appropriate for the enforcement of this title or the regulations or orders thereunder. The Commission shall, by regula- tion, require each employer, labor organization, and joint labor- management committee subject to this title which controls an ap- prenticeship or other training program to maintain such records as are reasonably necessary to carry out the purpose of this title, in- cluding, but not limited to, a list of applicants who wish to participate in such program, including the chronological order in which applica- tions were received, and to furnish 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, employment 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 apply to the Commission for an exemption from the application of such regulation or order, 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 applica- tion of the regulation or order to the employer, employment agency, or labor organization in question would impose an undue hardship, the Commission or the court, as the case may be, may grant appro- priate 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 isfound, resides, or transacts business, shall, upon application of the Commission, or the Attorney General in a case involving a government, governmental agency or political subdivision, have jurisdiction to issue to such person an order requiring him to comply. (d) In prescribing requirements pursuant to subsection (c) of this sec- tion, 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 shallfurnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained purs'uant to sub- section (c) of this section from any employer, employment agency, labor organization, or joint labor-management committee subject to the jurisdic- tion of such agency. Such information shall befti~rnished on condition that it not be made public by the recipicnt age'4cy 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) It shall be unlawful for any officer or employee of the Commis- sion 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. For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, sectioi~ 11 of 14 PAGENO="0026" 24 the National Labor Relations Act (49 Stat. 455; 29 U.S.C. 161) shall apply. NOTICES TO BE POSTED SEC. 711. (a) Every employer, employment agency, and labor orga- mzation, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, applicants for employment, and members are customarily posted a notice to be pre- pared or approved by the Commission setting forth excerpts from, or summaries of, the pertinent provisions of this title and information pertinent to the filing of a complaint. (b) A willful violation of this section shall be punishable by a fine of not more than $100 for each separate offense. VETERANS' PREFERENCE SEC. 712. Nothing contained in this title shall be construed to re- peal or modify any Federal, State, territorial, or local law creating special rights or preference for veterans. RULES AND REGULATIONS 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 the 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 he 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 descrip- tion and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the requirements of this title. FORCIBLY RESISTING THE COMMISSION OR ITS REPRESENTATIVES SEC. 714. The provisions of sections 111 and 1114 title 18, United States Code, shall apply to officers, agents, and employees of the Commission in the performance of their official duties. Notwithstanding the provisions of sections 111 and 1114 of title 18, United States Code, whoever in violation of the provisions of section 1114 of such title kills a person while engaged in or on account of the performance of his official 15 PAGENO="0027" 25 functions under this Act shall be punished by imprisonment for any term of years or for life. EQUAL EMPLOYMENT OPPORTUNITY COORDINATING COUNCIL SEC. 715. There shall be established art Equal Employment Opportunity Coordinating Council (hereinafter referred to in this section as the Council) composed of the Secretary of Labor, the Chairman of the Equal Employment Opportunity Commission, the Attorney General, the Chair- man of the United States Civil Service Commission, and the Chairman of the United States Civil Rights Commission, or their respective delegates. The Council shall have the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication and incon- sistency among the operations, functions and jurisdictions of the various departments, agencies and branches of the Federal government responsible for the implementation and enforcement of equal employment opportunity legislation, orders, and policies. On or before July 1 of each year, the Council shall transmit to the President and to the Congress a report of its activities, together with such recommendations for legislative or ad- ministrative changes as it concludes are desirable to further promote the purposes of this section. EFFECTIVE DATE SEC. 716. (a) This title shall become effective one year after the date of its enactment. (b) Notwithstanding 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 the 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 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. NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT SEC. 717. (a) All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section lOfd 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 employment who are paid from nonappropriatedfunds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of 16 PAGENO="0028" 26 the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. (b) Except as otherwise provided in this subsection, the Civil Service Commission shall have authority to enforce the provisions of subsection (a) through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section, and shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Civil Service Commission shall- (1) be responsible for the annual review and approval of a national and regional equal employment opportunity plan which each de- partment and agency and each appropriate unit referred to in subsection (a) of this section shall submit in order to maintain art affirmative program of equal employment opportunity for all such employees and applicants for employment; (2) be responsible for the review and evaluation of the operation of all agency equal employment opportunity programs, periodically obtaining and p'ubl'ishing (on at least a semiannual basis) progress reports from each such department, 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 notified of any final action taken on any complaint of discrimination flied by him thereunder. The plan submitted by each department, 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 employees to advance so as to perform at their highest potential; and (2) a description of the qualifications in terms of training and experience relating to equal employment opportunity for the principal and operating officials of each such department, agency, or unit responsible for carrying out the equal emplo~jment opportunity program and of the allocation of personnel and resources proposed by such department, agency, or unit to carry out its equal employ- ment opportunity program. With respect to employment in the Library of Congress, authorities granted in this subsection to the Civil Service Commission shall be exercised by the Librarian of Congress. (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 appealfrom 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 (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Servwe Commission on appealfrom a decision or order of such department, agency, or unit until such time as final action may be taken by a department, 17 PAGENO="0029" 27 agency, or unit, an employee or applicant for employment; if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 706', in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. (d) The provisions of section 706(f) through (k), 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 nbndiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employ- ment opportunity in the Federal Government. SPECIAL PROVISIONS WITH RESPECT TO DENIAL, TERMINATION, AND SUSPENSION OF GOVERNMENT CONTRACTS SEC. 718. No Government contract, or portion thereqf, with any em- ployer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government for the same facility within the past twelve months without first according such er~ployer full hearing and adjudication under the provisions of title 5, United States Code, section 554, and the following pertinent sections: Provided, That if such en~ployer has deviated substantially from such previously agreed to affirmative action plan, this section shall not apply: Provided further, * That for the purposes of this section an affirmative action plan shall be deemed to have been accepted by the Government at the time the appropriate compliance agency has accepted such plan unless within forty-five days thereafter the Office of Federal Contract Compliance has disapproved such plan. PROVISIONS OF EQUAL EMPLOYMENT OPPORTUNITY ACT OF. 1972 WHICH RELATE TO BUT DO NOT AMEND THE CIVIL RIGHTS ACT OF 1964 SEC. 9. (a). Section 5314 of titleS of the United States Code is amended by adding at the end thereof the following new clause: "(58) Chairman, Equal Employment Opportunity Commission." (b) Clause (72) of section 5315 of such title is amended to read as follows: "(72) Members, Equal Employment Opportunity Commission (4)." (c) Clause (111) of section 5316 of such title is repealed. (d) Section 5316 of such title is amended by adding at the end thereof the following new clause: "(131) General Counsel of the Equal Employment Opportunity Commission." SEC. 12. Section 5108(c) of title 5, United States Code, is amended (1) striking out the word "and" at the end of paragrapk (9); (2) striking out the period at the end of parag?aph (10) and in- serting in lieu thereof a semicolon and the word "and"; and (3) by a&ling immediately ,after paragraph (10) the last time it appears therm i4 ~leJollowing~ new ~aragra~ph: 18 PAGENO="0030" 28 "(11) the Uhairmart of the Equal Employment Opportunity Corn- mission, subject to the standards and procedures prescribed by this - chapter, may place an additional ten positions in the Eqy~al Employ- ment Opportunity Commission in GS-16, 05-17, and 05-18 for the purposes of carrying out title VII of the Civil Rights Act of 1964." SEC. 14. The amendments made by this Act to section 706 of the Cisil Rights Act of 1964 shall be applicable with respect to char9es pending with the Commission on the date of enactment of this Act and all charges filed thereafter. 0