Mr. DENT. The hearing will come to order. The General Subcommittee on Labor will now proceed with hearings on equal employment opportunity legislation, H.R. 1746 and similar bills.

This morning, we are privileged to have with us as a witness, David L. Norman, Deputy Assistant Attorney General, Civil Rights Division, Department of Justice.

Before proceeding with the witness, I would like to put a statement into the record, since this is the beginning hearing of this new

session.

Notwithstanding that equal employment opportunity was established as a principal of national policy in the 1964 Civil Rights Act, it has remained a rather hollow right due especially to the lack of enforcement power in the Equal Employment Opportunity Commission. Minority groups and women continue to be denied equal opportunity in employment. A redeclaration and implementation of national policy on equal employment opportunity is of paramount importance at this time, and at this stage of U.S. history.

Time and experience have reinforced strongly held views on my own part and on the part of many others of the necessity of establishing the EEOC as a quasi-judicial agency, with power to obtain meaningful enforcement of its orders. H.R. 1746 is an effort to implement in a meaningful way the national policy of equal employment opportunity without discrimination because of race, color, religion, national origin,

or sex.

Last year, we were disappointed when we failed to get a bill on the House floor. That is why we are determined to move early in this Congress to report a bill. We feel rather confident that the Congress will support the recommendations of this committee.

Generally, H.R. 1746 would amend title VII of the Civil Rights Act of 1964, to establish enforcement procedures for the EEOC and extend the Commission's jurisdiction to Federal, State, county, and municipal employees.

The primary purpose of this year's hearing is to focus on two provisions which were not in last year's committee bill: (1) transfer to the EEOC the functions of the Attorney General with respect to practice or pattern suits; and (2) transfer to the EEOC the functions of the Office of Federal Contract Compliance with respect to nondiscrimination in employment by Government contractors and subcontractors and in federally assisted construction contracts.

May I remind our witnesses, as stated in our letter of invitation, we welcome your comments on any other provisions of this bill or any other legislation before this committee.

At this time, it gives me personal pleasure to introduce for the purposes of the hearing this morning, David L. Norman, the Deputy Assistant Attorney General.

STATEMENT OF HON. DAVID L. NORMAN, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE; ACCOMPANIED BY DAVID L. ROSE, CHIEF, EMPLOYMENT SECTION,CIVIL RIGHTS DIVISION; AND DAVID B. MARBLESTONE, DIRECTOR, OFFICE OF LEGISLATION AND SPECIAL PROJECTS, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

Mr. NORMAN. Mr. Chairman, and members of the subcommittee, on behalf of the Department of Justice and the administration, I again want to thank you for inviting us here to testify regarding two provisions of H.R. 1746.

With leave of the subcommittee, inasmuch as I read with a magnifying instrument, I would prefer to file with the subcommittee my prepared remarks and to summarize now what our position is.

I have with me on my right Mr. David Rose who is the chief of the employment section of the civil rights division, and on my left Mr. David Marblestone, who is the director of our office of legislation and special projects.

All three of us are long time attorneys in the civil rights division. These two gentlemen are particularly conversant in the details of our title VII practice, and I would therefore beg leave, if the need arises, that I might call on one or the other of them for specific details.

Mr. DENT. You may proceed in any fashion that suits your purposes, so that we may get the most benefit from your testimony. Your written statement will be made a part of the record.

(The document referred to follows:)

PREPARED STATEMENT OF DEPUTY ASSISTANT ATTORNEY GENERAL DAVID L. NORMAN, CIVIL RIGHTS DIVISION

Mr. Chairman and members of the subcommittee, thank you for affording our Department the opportunity to testify regarding the proposed amendments to title VII of the Civil Rights Act of 1964.

In accord with your letters of invitation, my statement will deal primarily with the proposal to alter the authority of the Department of Justice to seek relief against patterns or practices of violation of Title VII.

1. At present, section 707 of Title VII authorizes the Attorney General to bring a civil action in a United States district court when he finds that an employer, labor organization or employment agency is engaged in a pattern or practice of resistance to the rights secured by Title VII.

Under section 5 of H.R. 1746, the section 707 authority of the Department of Justice would be eliminated. The bill provides that the functions of the Attorney General under section 707, as well as the personnel and other resources allocated to those functions, would be transferred to the Equal Employment Opportunity Commission. Such a change would take place upon enactment of the legislation. Section 5 provides that all suits commenced under section 707 prior to enactment of the new Act would continue to be litigated. However, EEOC would be substituted for the Attorney General as the party plaintiff.

With respect to matters arising after the effective date of the Act, a different course would be followed. That is, a charge of a "pattern or practice of discrimination" would be dealt with in the same manner as other charges brought before EEOC and could become the subject of administrative proceedings resulting in a cease-and-desist order.

Let me state, at this point, that the Department of Justice opposes the proposed amendment regarding pattern or practice authority. In view of the purpose of this hearing, I do not plan to discuss in detail the matter of enforcement power for EEOC. The position of our Department was set forth during the December 1969 hearings of this Subcommittee. We adhere to the views expressed then

specifically, that instead of granting cease-and-desist authority it would be more desirable to empower EEOC to bring civil actions in the federal district courts. Still, in our view, quite apart from its connection with the granting of cease and desist authority, adoption of the proposal to amend section 707 would be harmful from the standpoint of achieving equal employment opportunity.

This amendment does not involve the mere transfer from one agency to another of the authority to bring pattern or practice suits. With the limited exception of suits pending at the time of enactment of the amendment, it would result in elimination of the judicial remedies now provided by section 707. Thus, the only means of federal enforcement under Title VII would be administrative proceedings as authorized by section 706.

The purpose of Title VII is to provide for elimination of discrimination, based on race, color, religion, sex or national origin, in employment practices. It is apparent now, as it was in 1964 when Title VII was adopted, that such discrimination exists in many parts of the United States.

In view of the nature and extent of the problem of denial of equal employment opportunity and the fact that the section 707 authority of the Department of Justice has been a valuable remedy, we submit that elimination of that authority would be highly inadvisable.

Creation of the administrative machinery contemplated by H.R. 1746 would be a substantial undertaking. Whatever the long-range effects of such procedures, time would be required before they are operating at full effectiveness. I will not presume to predict the length of such organizational and "break-in" period, but it seems certain that it will occur. To avoid an unfortunate lapse in Title VII enforcement, the authority to bring pattern or practice lawsuits should be continued.

In our view, the pattern or practice relief authorized by section 707 provides a method for attacking broad scale, structural and procedural problems which cannot be matched by administrative remedies. Whatever the merits of the administrative procedure-investigation, hearings before a hearing examiner, review before a Commissioner, or ultimate court enforcement-may be with respect to individual charges of discrimination, they appear to be wholly inappropriate for the deeply ingrained and pervasive policies and practices which are the subject of many of our pattern and practice lawsuits.

Let us look at the pattern or practice remedy. It permits an adjudication of all of the employment practices of a corporation, union, or group of unions promptly, with relief addressed to the practices or policies which are either discriminatory in themselves or which perpetuate the effects of past discrimination. Section 707 (b) requires the courts to expedite these cases in every way, and the courts have recognized the urgency which this Act of Congress requires.1

The kinds of lawsuits we have filed in the last two years reflect problems which can be met successfully in a pattern or practice case, but which would be very difficult if they were dealt with in an administrative process. For purposes of illustration, let me make reference to two of the suits which have been filed within the last two years: Cannon Mills, filed April 8, 1969; and the Seattle Building Trades suit, filed October 31, 1969.

The Cannon Mills suit alleged a pattern and practice in hiring, transferring and promotions with respect to employment practices, and discriminatory rental and assignment of company-owned housing. The suit pertains to all of Cannon's plants which employ approximately 24,000 persons.

The consent decree which was entered on February 24, 1971 changed the standards for transfer and promotion for the affected class of black employees, a class including approximately 90 per cent of the black employees, and provides that they may transfer without loss of seniority to the better-paying, traditionally white jobs. It also provides the objective criteria for hiring and promotion which are set forth in a detailed job description catalogue.

The system of rental of housing was totally reformed.

In short, the decree calls for reformation of the entire system of hiring, transfer and promotion; and at the same time deals with the problem of housing segregation.

The cease and desist authority is geared toward individual complaints and complainants. We find it difficult to understand how pervasive practices of

1 United States v. Gustin-Bacon Division, Certain-Teed Prod. Corp., et al., 425 F. 2d 539 (C.A. 10, 1970) certiorari denied, - U.S. (3 [CCH] E.P.D. 18005): and United States v. Local 1, Ironworkers, — F. 2d - (C.A. 7, 1970) (3 [CCH] E.P.D. 18098).

hiring, transfer and promotion which have discriminatory impact can be suecessfully met in the complaint-oriented administrative procedures, even apart from the question as to whether housing problems such as those at Cannon Mills could be addressed in an administrative proceeding under Title VII.

The second suit which illustrates my point is the Seattle Building Trades case, styled United States v. Ironworkers, Local 86, et al., 315 F. Sup. 1202 (W.D. Wash., 1970). That suit was filed on October 31, 1969. After discovery, trial on the merits was held in February and March of 1970, and on June 16, 1970, effective relief was granted by the district court. The relief took effect on June 30, so that although the defendants' appeal is still pending in the court of appeals, the victims of discrimination are now employed and are obtaining the benefits of the lawsuit. That suit involved the referral and membership practices of the five largest building trades in the Seattle area, and the apprenticeship selection standards and practices of three affiliated joint apprenticeship training committees.

The Court's decree not only grants specific relief for 135 individual victims of discrimination but also provided for the reformation of procedures with respect to referral, membership and selection of apprentices. Again, we question whether this kind of area-wide suit against eight separate defendants could be handled in an administrative proceeding. Based on the history of the National Labor Relations Board, we feel quite certain that effective relief could not have been obtained administratively in the short period of time in which the court was able to address itself to this problem, hold a full scale hearing and grant effective and enforceable relief.

Since Title VII took effect in July 1965, the Civil Rights Division of the Department has filed some 59 suits on the basis of section 707. We have obtained favorable injunctions or consent decrees in 32 of them. An additional seven have been tried and are awaiting decision, and four more are pending in the courts of appeal. Our suits are selected with care, our objectives being to pursue cases involving important points of law or cases which, due to the nature of the defendants, will have substantial impact. Principles established in our suits, at the trial or the appellate level, have been useful to private litigants and to other federal agencies.

The courts understand that Title VII of the Civil Rights Act of 1964 represents "a clear mandate from Congress that no longer will the United States tolerate this form of discrimination" and that it is therefore "the duty of the courts to make sure that the Act works." Culpepper v. Reynolds Metals, 421 F.2d 888, 891 (5th Cir., 1964).

In the courts of appeals, our record has been one of repeated success, with 6 courts of appeals rendering decisions in favor of interpretation of the Act in a manner which maximizes the rights of victims of discrimination.2

In fact, we have prevailed in each of the pattern or practice lawsuits which has come to final decision.

We submit that our record fully warrants continuation of our Title VII enforcement program.

It is not a solution to say that the Employment Section of the Civil Rights Division would continue but as part of EEOC. While the personnel of the Employment Section deal almost entirely with Title VII matters, the section is not a separable entity. Rather, it is an integral part of a Division and a Department. The section works with the other sections, the appeals unit, and the Deputy Assistant Attorneys General-persons who devete a portion of their time to Title VII matters.

The Civil Rights Division has access to the investigative resources of the Federal Bureau of Investigation-resources which have proved invaluable in ascertaining the facts and marshalling them for evidence in pattern or practice cases. Moreover, the United States Attorneys, who are the field representatives and chief federal law enforcement officers in every judicial district in the nation, have a knowledge of local situations which is irreplaceable; and they are in a position to render counsel and assistance which cannot be obtained from any other source.

2 Local 189, United Papermakers v. United States, 416 F. 2d 980 (5th Cir., 1969), certio rari denied. 397 U.S. 919: United States v. Sheet Metal Workers, Local 36, 416 F. 2d 123 (8th Cir., 1969): United States v. Electrical Workers Local 38, 428 F. 2d 144, certiorari denied U.S. — (3 [CCHI E.P.D. 8049): United States v. Dillon Supply Co., 429 F. 2d 800 (C.A. 4, 1970); United States v. Gustin-Bacon Div.. Certain-Teed Prod. Corp., et al, 426 F. 2d 539 (C.A. 10, 1970), certiorari denied. U.S. — (3 [CCH] E.P.D. 1008): United States v. Local 1, Ironworkers, F. 2d (3 [CCH] E.P.D. 18098 (C.A. 7. 1971); Volger v. Local 53, Asbestos Workers, 407 F. 2d 1047 (C.A. 5, 1969).

Section 707 as presently written, requires the personal signature of the Attorney General (or in his absence, the Acting Attorney General). This requirement not only means that there will be most careful consideration and preparation before each suit is filed, but also carries to the opposing parties and the courts the sure knowledge that the entire weight of the Department of Justice is behind any pattern or practice lawsuit.

For the reasons I have outlined, we urge the Subcommittee to provide for continuing the pattern or practice authority and for retaining that authority in the Department of Justice. Perhaps, in time, alteration of the pattern or practice authority will be appropriate, but to do so at this point in history would we think be a step backward, a step which need not and should not be taken.

2. With regard to the proposal to transfer the Office of Federal Contract Compliance from the Department of Labor to the Equal Employment Opportunity Commission, we defer to the agencies directly involved for a discussion of the relevant considerations. However, the Department of Justice agrees with the view of the Labor Department and EEOC that such a transfer would be undesirable.

3. I wish to turn now to the matter of extending Title VII to the employment practices of state and local governments. In view of the applicability of the Equal Protection Clause of the Fourteenth Amendment to such governments, the question here is not one of prescribing new duties, but rather of determining what federal remedies would be appropriate.

The significance of covering public employment depends largely on the means provided for enforcement of Title VII. I have expressed our preference for a combination of (1) section 707 authority in the Department of Justice and (2) authority of EEOC to bring lawsuits. We believe that making such federal judicial remedies applicable to state and local government employment would be beneficial.

Studies of the United States Commission on Civil Rights suggest the widespread existence of discriminatory employment practices by state and local governments. If that is the case, the reliance on private litigation under the Fourteenth Amendment or on existing state remedies has not proved adequate, and the scope of present federal remedies is limited.

Discrimination in public employment at the state, county and municipal levels is especially detrimental when it occurs in such highly visible organizations as police and fire departments.

In terms of job opportunities, state and local governments are important because of the vast and continually increasing number of persons that must be employed and also because of the great variety of the positions that must be filled.

We favor extending Title VII to public employment if the means of enforcement are those which we have urged. However, should Title VII be amended to grant EEOC cease and desist authority, we do not believe that state and local governments should be made subject to that authority. In our view, it would be inconsistent with our system of division of governmental powers to subject state and local authorities to the cease and desist power of a federal commission.

Thus, in the event the Subcommittee retains the basic approach to administrative enforcement provided in H.R. 1746, we would suggest that, as to state and local governments, Title VII should be enforced by means of lawsuits by the Attorney General, rather than by administrative proceedings of EEOC. Our experience in implementing Title VII, as well as other civil rights laws, should enable us to deal effectively with the problems of discrimination in public employment.

Mr. Chairman, I have completed my prepared statement and I would be happy to receive any questions which you or members of the Subcommittee may have. Mr. NORMAN. Thank you, Mr. Chairman.

I would like to have copies distributed so that the members of the subcommittee would have it before them.

I want to speak principally today about that portion of section 5 of H.R. 1746 which would seek to transfer the pattern and practice authority from the Department of Justice to EEOC.

It is not simply a transfer, it is essentially taking the Department of Justice out of the equal employment enforcement business.