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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
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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)
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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)
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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;
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.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.)
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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.
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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.'
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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
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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.
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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.
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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.]
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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)
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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
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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
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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
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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
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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
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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,
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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:
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"(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