4. No bidder will be awarded a contract unless his affirmative action program contains goals falling within the range set forth in paragraph 1 above, provided, however, that participation by the bidder in multi-employer programs approved by the Office of Federal Contract Compliance will be accepted as satisfying the requirements of this Notice in lieu of submission of goals with respect to the trades covered by such multi-employer program. In the event that such multiemployer program is applicable, the bidder need not set forth goals in paragraph 2 above for the trades covered by the program.

5. For the purpose of this Notice, the term minority means Negro, Oriental, American Indian and Spanish Surnamed American. Spanish Surnamed American includes all persons of Mexican, Puerto Rican, Cuban or Spanish origin or ancestry.

6. The purpose of the contractor's commitment to specific goals as to minority manpower utilization is to meet his affirmative action obligations under the equal opportunity clause of the contract. This commitment is not intended and shall not be used to discriminate against any qualified applicant or employee. Whenever it comes to the bidder's attention that the goals are being used in a discriminatory manner, he must report it to the Area Coordinator of the Office of Federal Contract Compliance of the U.S. Department of Labor in order that appropriate sanction proceedings may be instituted.

7. Nothing contained in this Notice shall relieve the contractor from compliance with the provisions of Executive Order 11246 and the Equal Opportunity Clause of the contract with respect to matters not covered in this Notice, such as equal opportunity in employment in trades not specified in this Notice.

8. The bidder agrees to keep such records and to file such reports relating to the provisions of this Order as shall be required by the contracting or administering agency.

Senator ERVIN. Counsel will call the first witness.

Mr. EDMISTEN. Mr. Chairman, the first witness is the Honorable Jacob K. Javits, U.S. Senator from the State of New York.

Senator ERVIN. Senator Javits, I am delighted to welcome you to the subcommittee, and I welcome any observations you may make in a field in which you have long been very much interested.

STATEMENTS OF HON. JACOB K. JAVITS, U.S. SENATOR FROM THE STATE OF NEW YORK, AND HON. EDWARD W. BROOKE, U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

Senator JAVITS. Thank you, Mr. Chairman.

Mr. Chairman, I have the honor to make a statement here this morning on behalf of eight Senators and myself, a total of nine, on the subject of the hearings. One of the Senators concerned-I will give the list-Senators Bayh, Brooke, Case, Goodell, Griffin, Harris, Hart, and Kennedy.

Senator Brooke is here and has an added statement of his own. Whatever would suit the convenience of the Chair would be agreeable to me. Senator Brooke could follow me or I would be very happy if he sat beside me and then perhaps questions could be addressed to us both.

Would that please the Chair?

Senator ERVIN. Yes, Senator Brooke, you might come up and take a seat.

Senator JAVITS. I shall make this statement and then a few observations and let Senator Brooke go ahead and then perhaps any questions of the Chair can be addressed to both of us, as he is a party to this statement.

Mr. Chairman, on behalf of the nine Senators I make the following statement.

We welcome this opportunity to reiterate our support for Executive Order 11246 and the Department of Labor's decision, based on the opinion of the Attorney General, to implement the Philadelphia Plan, notwithstanding the adverse ruling on the plan by the Comptroller General.

Despite the passage of the Civil Rights Act of 1964, equal employment opportunity remains far from a reality in America today. Notwithstanding the efforts which have been made by the Federal Government and private litigants, historic patterns of discrimination persist among employers and among unions even though many trade unionists have been the victims of discrimination themselves in the past.

A vigorous program of action by the Federal Government is, therefore, still essential to assure to members of minority groups the full participation in our economic system to which they are morally and legally entitled.

That Federal program must include, if it is to be effective, a firm policy of requiring all Federal contractors to insure that equality of employment opportunity exists for their employees, as well as the type of remedy made available through individual suits under title VII of the Civil Rights Act of 1964.

We are thus directly in accord with the principles underlying Executive Order 11246, which requires each Government contractor to agree that he “will not discriminiate against any employee because of race, color, religion, sex, or national origin" and also that he "will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin."

The contract compliance program governed by Executive Order 11246 antedates the Civil Rights Act of 1964 and has received the recognition and support of Congress, through appropriations to the Office of Federal Contract Compliance, and its predecessor, the President's Committee on Equal Employment Opportunity for many years. In addition, it is to be noted that the Senate itself, during the debate on title VII of the bill that became the Civil Rights Act of 1964, rejected an amendment offered by Senator Tower that would have made title VII the exclusive remedy for ending discriminatory employment practices.

Had the amendment been adopted, the contract compliance program would, of course, have ended. The vote on the amendment, in effect, approved continuance of the contract compliance program as separate and apart from the program under title VII.

It is thus far too late in the day to maintain, as some are now doing, that title VII of the Civil Rights Act of 1964 preempts the Executive order program, or that the President may not require more, in the way of "affirmative action" by Federal contractors as a condition of doing business with the Government, than title VII requires of operations in the private sector.

We recognize of course, that under no circumstances may the Federal Government require anyone to violate title VII of the Civil Rights Act of 1964, or any other law duly enacted by Congress. Insofar as the Philadelphia Plan is concerned, however, the Attorney General, who has the primary governmental responsibility for enforcing title

VII, has expressly ruled that the plan does not require any contractor to violate title VII. That is also what the plan, itself, states on its face.

As we understand the Philadelphia Plan, and the Attorney General's opinion sustaining its legality, the goals which it establishes are to be used only as criteria to establish performance of the contractor's duty to take affirmative action to provide equal employment opportunity.

If the goals are met, adequate performance will be assumed, absent other proof to the contrary. On the other hand, failure to meet the goals will not be presumed to establish nonperformance if the contractor can demonstrate that he attempted, in good faith, to meet the goals. Such good faith does not include practicing "reverse discrimination," which is expressly forbidden by the plan.

What the Philadelphia Plan really does, in our view, then is to anticipate the result which should ensue from a good faith affirmative action program. If the result is achieved, compliance will be assumed; if the result is not achieved, it is still open to the contractor to show why not. If, for example, the contractor can show that to meet the goal he would have had to practice reverse discrimination, his failure to meet the goal could not be used as a ground for terminating his contract.

One virtue of the Philadelphia Plan in its revised form which deserves special emphasis is that it will remove a great deal of the uncertainty and confusion which have so far plagued the contract compliance program. Indeed, goals which the plan establishes are the result of earlier criticism of the plan by the Comptroller General on the ground that it is not specific enough to enable contractors to frame their bids intelligently. In the past, many contractors have voiced legitimate complaints that they simply did not know what was expected of them under the program.

Little or no coordination seems to have existed among the different contracting agencies, the OFCC, the EECC, and State and local agencies concerned with equal employment opportunity. The result was bound to produce frustration among minority groups, and overlap, duplication, and confusion for businessmen and union officials who found themselves caught in the crossfire. The Philadelphia Plan, coupled with the interagency liaison and coordinating procedures which have recently been established, offers real promise of ending this anomalous situation, and at the same time, of demonstrating that the contract compliance program is more than the paper pledge it has been up to now in far too many cases.

We cannot stress too strongly the need for the Federal Government to demonstrate this kind of unqualified commitment to the goal of equal employment opportunity to those millions of black and brown Americans to whom it has been denied for so long. As recent events in Chicago and Pittsburgh have shown, those who have suffered the brunt of exclusionary and discriminatory employment practices are willing to wait no longer to see the pattern of the past changed. The Philadelphia Plan is a way to meet these legitimate demands, and it certainly will prove far more satisfactory than the sort of "street demonstrations" we have witnessed in Chicago and Pittsburgh.

In sum, we believe that it is incorrect to characterize the Philadelphia Plan as a "quota system" and that the Labor Department was right in relying on the Attorney General's opinion sustaining the legality of the plan. We believe, also, that if there are any questions concerning the legality of the plan, or its implementation, they should be settled in the courts, which have the final authority to determine the application of title VII of the Civil Rights Act of 1964 to Executive Order 11246.

Now, for myself, Mr. Chairman, just one word and I shall not take more than 2 or 3 minutes. I have noted the arguments of the Chair made in the opening statement. The Chair is a very distinguished lawyer. The Chair and I and others have crossed swords many times before. It is not derogation of my respect for the chairman as a lawyer that I have found it necessary to disagree with him. I feel the same way here.

It seems to me, Mr. Chairman, that the legal decision depends upon one essential fulcrum point which I think with all respect was not appropriately dealt with in the chairman's opening remarks, and that is we are dealing here with a contractor with the Federal Government. There is no vested right to deal with the Federal Government. Therefore, by a long line of cases, the Federal Government may set legitimate conditions.

The Philadelphia Plan is an affirmative condition, and the real question therefore is not whether it was contemplated by title VII, but whether or not the Federal Government has a right to set it as an affirmative condition for its own contractor. I believe that the Civil Rights Act of 1964 allows the Federal Government to do this because the plan has the escape valve of requiring mandatorily that the contractor not violate the law in order to accomplish what the Federal Government seeks him to accomplish. It requires him to see if he can accomplish it within the law, and if he cannot, then he still may be in perfectly good compliance with his contract obligation by showing that he tried to comply the best way he could, and one point of fact which I would like to call to the Chair's attention is that the actually promulgated order itself contains criteria for measuring good faith. Finally, I would like to call attention to the opinion of the Attorney General upon which naturally I rely very heavily, though I have expressed my own judgment on the law, too.

The opinion of the Attorney General makes it clear that the Attorney General is not foreclosed nor is the Government foreclosed from dealing with even a Federal contractor, in terms of any violation of law, if in the way that he administers his commitment, et cetera, in his effort to attain affirmative action, he should violate the law. The Attorney General accommodates that possibility, and indeed it must be accommodated.

Therefore, it seems to me there is no irreconcilable difference except as to legal theory between the Comptroller General and the Attorney General, and I finally submit that appropriately this question should be decided in the courts, and I respectfully submit that it would be a grave mistake for the Congress to endeavor to legislate in the field. Thank you, Mr. Chairman.

Senator ERVIN. I certainly agree with you. I think all controversies should be decided in the courts. But how can a person who seeks to

get a contract with the Federal Government get into court when the Office of Federal Contract Compliance refuses to give him a contract? Senator JAVITS. Well, that is true. He cannot get into court on that line, but he can get into court if having undertaken to attain certain goals he does not attain them in the eyes of the Government, and then is reduced to having some difficulty with his contract. Then he certainly can get into court. That will result, if I may say, without any question adjudicating the question in the courts, and I deeply believe that in a matter of this kind, this is the proper forum.

I might say this, Senator. This is susceptible of an amendment to a bill. In my judgment it will result in a struggle over a question which I think the Federal Government as characterized by the Attorney General, the President and the Secretary of Labor is right on, and though I do not believe that it ought to be decided there, I do not shrink from it at all. I think we can win it.

Senator ERVIN. The procedure, as I understand it, is that the Office of Federal Contract Compliance normally does not grant a contract. It does not allow the contract to be granted to a contractor unless the contractor binds himself in advance to meet what it calls a goal, and what other people and I call a quota. You are certainly correct.

As I understand the law, the Federal Government cannot be compelled to give a contract to anyone. So I would like to learn how a person who desires a contract with the Federal Government can ever get into court when the Federal Government and the Office of Federal Contract Compliance turn thumbs down on his bid because it does not comply with their goals or their quotas or whatever one may call them.

Senator JAVITS. Senator Ervin, I think I have answered that question, but I will answer it again. Such a litigant could not get into court, but a litigant could get into court who has undertaken such a goal, fails in the judgment of the Government to meet it, and then is required to go into court to assert his rights under the contract. That question will then be decided.

I respectfully submit that considering the enormous issue which is here involved, which may involve and does involve in my judgment an enormous question of domestic tranquility, a question as to whether the United States shall endeavor or not endeavor to deal with what could be a highly inflammable situation, that the balance in terms of my own view as a Senator, and I think it is the view of my colleagues for whom I have read the statement, is that matter of denial of the person who does not get the contract at all, of the opportunity to get into court, is not nearly as great a matter as what we would lose if we failed to set a more precise standard for Federal contractors in this highly inflammable field. There you have got a question of governmental judgment.

Senator ERVIN. In my mind, the way this is operated, according to the reports made to me by businessmen-most of whom will not testify because they simply say, "If we come in and make public complaint, the Office of Federal Contract Compliance will see that we never get a contract"—is that contractors are denied contracts unless they agree in advance to the demands of the Office of Federal Contract Compliance. They do not get a contract if they do not agree and consequently they have no remedy whatsoever against what may be an arbitrary action. They cannot get into court.