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ercise such control of the company's use and validation of employee selection procedures, as are warranted by the circumstances and by the controlling law.
Accordingly, the judgment is vacated, and these cases are remanded to the District Court for proceedings consistent with this opinion.
It is so ordered. MR. JUSTICE POWELL did not participate in the consideration or decision of these cases.
CHART A.-RESULTS OF VALIDATION STUDY
1. Caustic operator, lime kiln operators.
and oilers.. 4. Technical services: B mill shift testmen, additive men, general labora
tory testmen, general laboratory assistant, A mill testmen, sample
men.. 5. B paper mill: Machine tenders and back tenders. 6. B paper mill: Stock room operator, stock room 1st helper. 7. B paper mill: 3d hands, 4th hands and 5th hands. 8. Wood yard: Chopper unloader, chipper operator, No. 2 chain opera9. Pulp mill:Stock room operator, stock room 1st helpers. 10. Powerplant: Powerplant operator, powerplant 1st helper, powerplant 2d
Note: The job groups are identified in chart B. N indicates the number of employees tested. A single (double) asterisk indicates the "Phi" coefficient of correlation, shown on the chart, is statistically significant at a 95 percent (99 percent) level of confidence. The other coefficients are not statistically significant.
CHART B.-ALBEMARLE'S SKILLED LINES OF PROGRESSION NOTE:—The numbered job groups are those examined in the validation study summarized in Chart A. Testing is no longer required for entry into the Woodyard Department.
PULP MILL DEPARTMENT
GROUP #1 Digester Operator C. E. Recovery Operator
Caustic Operator (Cooker)
1 f Stock Room Operator Ist Helper No. 6
Lime Kiln Operator 个
个 Stock Room 1st Helper *Evaporator Operator |GROUP
1st Helper No. 5 Stock Room 2nd Helper
2nd Fleiper Utility Helper
By Products Operator
个 Loader (Start)
POWER PLANT DEPARTMENT
Power Plant Operator
B PAPER MILL DEPARTMENT
Line of Progression
Stock Room Operator
Stock Room 1st Helper
î Fourth Hand
Mr. HAWKINS. We have as our first witness Mr. Eric Schnapper, assistant counsel for the NAACP Legal Defense and Educational Fund, Inc., New York, N.Y.
Mr. Schnapper, it is certainly a pleasure for the committee to have you as the lead-off witness today. We appreciate the time that you have taken to come here, and we also want to commend you for the excellent job that you have done with the Legal Defense and Educational Fund.
I am quite sure that the hearing will be made much better in every way by virtue of the fact that you are able to insert your remarks in the record.
We have, I think, a prepared statement from you which will be entered in the record in its entirety at this point without objection.
[The prepared statement referred to follows:] PREPARED STATEMENT OF ERIC SCHNAPPER, Esq., ASSISTANT COUNSEL, N.A.A.C.P.
LEGAL DEFENSE FUND My name is Eric Schnapper and I am Assistant Counsel at the N.A.A.C.P. Legal Defense & Educational Fund, Inc. I was one of the attorneys who represented Joseph Moody in the Supreme Court. I would like to direct my remarks to the impact of the decision in Moody v. Albemarle Paper Co. on the federal regulations regarding discrimination against federal employees.
A certain amount of historical background is essential to an understanding of the problems that exist today regarding the Civil Service Commission's handling of complaints of discrimination. In 1971 and 1972 the House Committee on Education and Labor and the Senate Committee on Labor and Public Welfare conducted extensive hearings into the administrative regulations and procedures for handling such complaints. Both Committees concluded that the. Civil Service Regulations were completely ineffective to remedy problems of employment discrimination in the federal government. The Civil Service Commission procedures were replete with provisions which the government used to throw out thousands of complaints a year on technicalities. In virtually all the remaining cases the employee lost, either because of restrictive provisions in the regulations or because the decision on his or her case was made by the same officials who were charged with discrimination. If the Roanoke Rapids paper had been owned by the United States in 1972 and had Joseph Moody filed an administrative complaint of discrimination, he would not only have lost his case, he would not even have gotten a hearing.
When Congress learned all this in 1972, legislation was proposed to strip the Civil Service Commission of all responsibility for discrimination problems, and transfer that authority to the E.E.O.C. While the matter was before the Senate Committee, however, an understanding was reached to give the Commission another chance. The Commission agreed to reform its patently defective procedures if Congress would leave the matter in its hands for the time being. Accordingly the Equal Employment Opportunity Act of 1972 did not strip the Commission of responsibilty in this area, and the Act was signed into law on March 24, 1972.
What has the Commission done about the defective regulations and procedures to carry out its 1972 understanding with Congress? The answer is simplenothing. The regulations have remained virtually unaltered. The procedures are essentially the same. Thousands of complaints are still being rejected on technicalities, and over 90% of the rest are still being rejected on the merits. Most importantly today, as in 1972, if Mr. Moody worked for the federal government and filed a complaint like that involved in Moody v. Albermarle Paper Co., his complaint would still be thrown out without any hearing or investigation.
I would like to review the course of the litigation in Moody which led to last month's Supreme Court decision to highlight the defects in the existing civil Service regulations and to illustrate the ways in which those regulations must be changed to conform to the standard set by Moody and Title VII generally.
1. Before filing his lawsuit Moody was entitled under section 706(b) of Title VII to the assistance of an independent party, the E.E.O.C., to attempt to. persuade his employer to cease discriminating. The E.E.O.C.'s persuasive power is augmented by the fact that the Commission itself is authorized to sue the employer if he persists in illegal conduct. See § 706 (f) (1). On the other hand,
1 See H.R. Rep. No. 92–238; S. Rep. No. 92–415.
if Moody had wanted to sue right away, he could have done so under 42 U.S.C. 1981.
Under the regulations Moody would have had none of these rights. He would be obligated, before filing a complaint, to go see an E.E.O. Counselor who is not an unbiased third party, but works for the same supervisors accused of bias. The Counselor has no independent authority which he can use to compel his supervisors to cease discrimination; on the contrary, the Counselor is vulnerable to pressure by those supervisors to try to persuade the aggrieved employee to drop his complaint. Even where a supervisor stands up to his boss, the regulations seem to preclude the supervisor from giving any meaningful "remedial" action. And this "counseling process", which is at best futile, is mandatory, unlike the more valuable Title VII counseling.
2. Once Moody had gone to E.E.O.C. in vain, he was entitled to file a complaint in court alleging any form of discrimination "like or related” to that of which he had complained to the E.E.O.C. This rule was critical to Mr. Moody, for he had complained to E.E.O.C. about racial discrimination in promotions and work conditions, but his lawsuit was primarily concerned with testing and the seniority system. Under Title VII all forms of racial discrimination are considered like and related.
Under Civil Service Commission practice, however, an employee can only file a complaint involving a allegations identical to those raised with the E.E.O. Counselor. An employee who complains to a Counselor about discrimination in vacation pay cannot file a written complaint about discrimination in sick pay, training, overtime, promotion, etc. In addition, since the description of the scope of the discussion with the Counselor is left to the Counselor himself, there is a danger that the employee's rights will be impaired by an inadvertent or deliberate omission in the Counselor's report. Thus, if Moody had filed an administrative complaint adequate in a Title VII lawsuit, it would have been rejected under the Regulations.
3. Section 706(e) provides that an aggrieved employee may file a charge with E.E.O.C. up to 180 days after the discrimination complained of. In addition, where the discriminatory practice is alleged to be of a continuing nature, a complaint may be filed any time when that practice is in operation or up to 180 days thereafter. Mr. Moody complained to E.E.O.C. of just such a continuing violation of the law, and was allowed to file a charge with the Commission and a lawsuit in court even though the discriminatory policy, while still in force, had not specifically been applied to him within 180 days.
Had Moody filed such a complaint with a federal agency under the Civil Service Regulation, it would have been rejected. Section 713.24 requires that charges be brought to the E.E.O. Counselor within 30 days of the personnel action complained of, and the Commission does not recognize the "continuing violation" rule universally applied by the courts.
4. Moody's lawsuit, of course, was brought not just for himself, but was a class action for all other minority employees at the Roanoke Mill. Most of the 300 other Black employees at the mill had not filed charges with the E.E.O.C., but the Supreme Court unanimously held that Moody could sue for all such employees. Slip opinion, p. 7, n. 8.
The Civil Service Regulations, however, were deliberately drafted to prohibit such class actions. If Moody had included such a claim in an administrative complaint, the government would have refused to process it. If, in considering Moody's case, an investigator or hearing examiner had found similar discrimination against hundreds of other employees, the investigator or hearing examiner would have been forbidden to do anything to stop that discrimination. Had Moody written to the Commission under section 713.251 making a "general allegation” of discrimination under that provision, his allegation would have been rejected because it was obviously related to his individual complaint.
5. Mr. Moody was represented in court by the law firm of Chambers, Stein, Ferguson and Lanning, which is probably the best firm of attorneys in the country specializing in Title VII litigation. Moody himself was unable to pay these lawyers a fee: his own income was very modest and the firm's work would have cost hundreds of thousands of dollars. The Chambers firm was willing to represent Moody for free because section 706 (k) required that, if Mondy won, the defendants would have to pay a reasonable attorney's fee to them. Had Chambers not been available, Moody could have had an attorney appointed for him by the local district court pursuant to section 706 (f) (1).
25 C.F.R. $ 713.