SEC. 3. The committee shall report its findings, together with its recommendations for legislation as it deems advisable, to the Senate at the earliest practicable date, but not later than January 31, 1970.

SEC. 4. Expenses of the committee under this resolution, which shall not ex·ceed $210,000, shall be paid from the contingent fund of the Senate upon vouchers approved by the chairman of the committee.

Senator KENNEDY. I will read just a part of it:

We are "to make a full and complete study and investigation of administrative practices and procedures within the departments and agencies of the United States, in the exercise of their rulemaking, licensing, investigatory, law enforcement and adjudicatory functions, including a study of the effectiveness of the Administrative Procedure Act*** with a view to determining whether additional legislation is required to provide for the fair, impartial, and effective performance of such functions."

Let me point out that in the past the committee has considered three matters very relevant to today's hearing. One is the concept of the ombudsman. While the name has become somewhat overused, the challenge is a constant and pressing one. How can we better assure the individual citizen, the "little man," the member of "the public” in whose name "the public interest" is invoked, that his needs and wants and well-being will be represented within the councils of Government? Much of the Administrative Procedure Act sounds the same theme: How can we assure that rules, regulations, and decisions that affect all citizens-rich or poor-all businessmen-large or small, are made through procedures which are as fair, logical, and open as possible? And finally, this subcommittee is the source of the Freedom of Information Act, an act which establishes the principle that all information inside the Government is public information unless Congress has permitted an exception and unless there is a compelling reason in a particular case to invoke the exception.

Some of these same questions and goals were set forth in a questionnaire which I recently directed to various members and officials of many Federal departments and agencies, and a group of agency practitioners. I will place the entire questionnaire into the record at this point.

(The questionnaire referred to by Senator Kennedy for inclusion in the record follows:)

QUESTIONNAIRE

I. CITIZEN INVOLVEMENT IN THE ADMINISTRATIVE PROCESS

A. To what extent, if any, and in what manner is there an input into the agency's decision-making process from private citizens and citizen groups? Does the agency encourage such inputs? How? Could these inputs be greater? How? B. Does the agency have any citizen or industry advisory groups? If so, describe briefly their functions and composition. Do these groups become involved in any way in the policy-making or decision-making process? What attempts are made to solicit views of affected groups that otherwise might not become involved in the administrative process on their own initiative?

C. What procedures are used to take account of the views and consider the needs of the poor as they might be affected by the agency's decision-making? What procedures could be used?

D. How does the agency respond to individual citizen complaints about persons, entities, or activities subject to its regulation? Describe what happens to an individual complaint from the time it is received until there is final agency action on it. What is the role of the complaining party during the agency's

deliberation on his complaint? Are there adequate sanctions available to deter future activities of a type which has led to past valid complaints? Explain. How frequently are they invoked?

E. Do those who are affected by the agency's activities know enough about it? How is citizen and industry awareness of the agency's functions, processes and decisions promoted? How can the outward flow of information be improved? To what extent are agency records, proceedings, meetings, or opinions withheld from public view? What are the reasons for such withholding?

F. What efforts are made to make information about the agency, and access to the agency's information and complaint services, available outside Washington, D.C.? Assuming adequate funding, what procedures could be used?

II. PROCEDURES FOR PROMOTING MORE RESPONSIVE AGENCY DECISION-MAKING

A. Do you believe that the agency's decision-making procedures operate with reasonable speed, considering the interests and issues involved? Assuming that faster processing and decision-making are desirable, how could they be achieved? B. What specialized human and mechanical resources such as systems analysts, computers and computer operators, testing facilities, etc., are available within the agency? Has the agency developed means of securing such resources from other government agencies or outside sources? Does the superior availability of such resources to the regulated enterprises result in agency procedures which rely on facts and information provided by them?

C. What procedures or mechanisms does the agency have for consulting and coordinating with other government agencies with overlapping, interrelated or conflicting responsibilities?

D. What procedures does the agency have for assessing the quality and efficiency of its own performance? How often and in what manner does the agency review the continuing relevance of its mission, goals, priorities, procedures, and structure? In what ways could such review be stimulated? Would modern techniques of cost-benefis analysis and P.P.B.S." be helpful? If so, how could they be applied? If not, why not? Are there gaps in the agency's statutory authority? What procedures are used to develop legislative recommendations within the agency for filling such gaps?

E. Answer only where applicable: Do you feel that agency staff has too much, not enough, or about the right amount of impact on agency decision-making processes? Explain. How could this level of impact be changed? Is agency staff adequately responsive to the needs of individual agency members? Would agency members perform better if they had larger personal staffs? Would the quality of agency staff work be improved or reduced if employees were given incentives to rotate periodically to other government agencies? Is staff quality adequate to handle the complex and sophisticated issues presented to the agency? If not, how could staff capability be enhanced? To what extent have employees of regulated or affected industries been selected as agency staff or members, and to what extent have staff and members subsequently become employed in such industries? Do you feel such selections and hiring contribute to or detract from the agency's work? What limits, if any, should be placed on such selections and hiring?

III. THIS QUESTIONNAIRE

How long did it take you to complete Sections I and II? Do you think the questions raised useful and relevant issues about the agency's practices, procedures, and problems? What questions would you have left out? What additional areas should have been covered? Would you have been able to answer more freely if the responses were anonymous?

Senator KENNEDY. These then are some of the concerns on which we have focused and which we will be developing in these hearings. Specifically, our emphasis this week is on three areas:

1. What role can the choice of administrative procedures play in an agency's ability to carry out a policy established by law or regulation? 2. How best can the views of affected members of the public be given weight when a decision to choose or change such procedures is made by Government officials?

3. Do Government information practices provide the public with a clear and accurate understanding of Government decisions and policies?

We will be raising these questions in the context of a most vital area of national life-the right of every American to get and hold a job, to have a job that matches his qualifications, and to receive advancement and promotions on the merits of his work, regardless of his race, religion, or national origin.

It was not until 1964 that Congress developed comprehensive legislation assuring the right of equal employment throughout U.S. industry and commerce. But long before, beginning in 1941, during the administration of Franklin Delano Roosevelt, the executive branch had recognized the principle that those who do business with the Government and thus profit from funds contributed by all the people, should not be allowed to perpetuate discrimination and segregation in American industry. That principle remained more a hope than a reality throughout the forties and fifties. In 1961, however, within 50 days of his inauguration, President Kennedy issued a new Executive order strengthening the Federal equal employment opportunity effort. "It is the plain and positive obligation of the U.S. Government," his order said, "to promote and insure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government or on Government contracts." His order required every Federal contractor to pledge "affirmative action" to insure equal employment opportunities. In 1963 he expanded his order to cover federally assisted contracts, including highway construction. In 1965 President Johnson reissued the order with its enforcement machinery restructured and its provisions refined. That last order, Executive Order 11246, and the background and history it represents, constitutes the principal roadmap before us today. It sets the pattern and the theme. It creates the machinery and the sanctions with which we are principally concerned

now.

I should point out that the current administration has recognized the importance of jobs, and especially jobs for the deprived and the discriminated against, as a key to relief of many of our social ills. As President Nixon said in his recent address before the National Alliance of Businessmen, "*** when we think about the welfare of this country and the welfare of an individual, in the best sense, that means a job *** because with that job comes dignity ***"

Our purpose here, today and tomorrow, is a constructive one. Two recent decisions within the executive branch have caused a great deal of doubt and misunderstanding regarding the present commitment of the Federal Government to laws and regulations promulgated by past Congresses and Presidents. This was so, as much because of the way the decisions were made as because of what the decisions were. For progress in the civil rights area is largely a matter of voluntary compliance.

If individuals and corporations know exactly what the rules and regulations are, and know that enforcement will be strong and consistent, then most of them will comply in good faith without being individually forced to comply. However, if the procedures are such

that decisions are irregular or unclear, if it appears that procedures designed to lead to sanctions never really arrive there, if it seems that ex parte appeals can achieve a departure from, or change of, established practices, then there is every incentive for one who is not especially motivated toward compliance to resist as long and as vehemently as possible.

In this set of hearings we will be focusing on the procedures of two Departments, Defense and Transportation, each of which has extremely important commercial relationships with major industries and thus has important responsibilities for promoting equal employment opportunity in those industries. But the questions that have been raised concerning these Departments, and the answers we will receive, are relevant to related responsibilities of other Departments as well. We are very mindful of the reports that new procedures may be adopted by the Department of Health, Education, and Welfare in meeting its responsibility for preventing Federal funds from contributing to the perpetuation of segregated education. It is too early to predict what kind of changes might be made. But what we can contribute here is a sense of the need both to pay attention to how the changes are made and to make sure that procedural changes do not destroy the substantive programs. Certainly many of us will be keeping a constant vigil in this area.

It is my hope that the present hearings will serve to resolve many of the doubts that the recent decisions have generated. In fact, I believe that the Cabinet members who will appear welcome this opportunity to state their commitments and their plans on the record. I think these hearings will help them and all of us to see that if procedures are followed which give a full chance for affected groups to be heard, which give full weight to the internal government mechanisms established to protect the public interest, and which produce full and clear information about what is being done, then those who are regulated, and those for whose benefit regulation occurs, can have confidence and faith in the regular enforcement of Government policies.

Our first vitness this morning is the Honorable Clifford L. Alexander, the Chairman of the Equal Employment Opportunity Commission.

We welcome you here, Mr. Alexander.

STATEMENT OF CLIFFORD L. ALEXANDER, JR., CHAIRMAN, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ACCOMPANIED BY DAN STEINER, GENERAL COUNSEL, AND VINCENT COHEN, DEPUTY DIRECTOR OF RESEARCH

Mr. ALEXANDER. Mr. Chairman and Senator Dirksen, on my right is our general counsel, Mr. Dan Steiner, and on my left our Director of Research, Mr. Vincent Cohen.

Mr. Chairman and Senator Dirksen, you have convened this hearing to explore the effectiveness and efficiency of government practices and procedures for insuring equal opportunity in employment among Gov

ernment contractors.

The adequacy of tools must, of course, be measured against the magnitude of the task. I would like, therefore, to give you my perspective

as Chairman of the Equal Employment Opportunity Commission on job discrimination as it exists today. The Commission's jurisdiction extends, as you know, to employers of 25 or more, whether or not they are Government contractors, as well as to unions, employment agencies, and joint apprenticeship programs.

I see from the witness list that you will be hearing from other agencies with specific responsibilities under Executive Order 11246 for compliance by Government contractors with provisions of that order, and I will not comment on its requirements or administration. What I shall say about discrimination from my vantage point as Chairman of EEOC applies to contractors and noncontractors alike.

I believe we must recognize three basic characteristics of discrimination: it is pervasive in the American way of business; it is too often unrecognized for what it is; and, most importantly, it can be rooted out through appropriate and determined action.

It has become fashionable of late to talk of "disadvantage" as the reason why minorities find themselves unemployed or confined to the bottom of the job hierarchy. The assumption is that minorities are largely unable to compete effectively because education and training opportunities have been previously denied them. But it is not "disadvantage" that makes the annual earnings of the black college graduate $1,040 less at the median than the white who never attended college. It is discrimination.

The data our Commission collected in 1966 from all employers of 100 or more, including most Government contractors, showed that of 17 million male employees, one out of nine was an official or manager; but among 12 million Negro male employees, only one out of 100 was so employed; and among Spanish surnamed American males, only one out of 40. Among all male blue-collar employees, one in three was a foreman or craftsman; but only one in 10 blacks, and one in five Spanish surnamed Americans. For minority women the situation is even worse since sex discrimination compounds their lack of opportunity.

There are those who would deny that broad-scale discrimination is largely responsible for the exclusion of minorities, or their compression into lower paying jobs. But they ignore both what the processes of law define as discrimination, and the availability of qualified minorities that the Commission has tried to demonstrate through a series of public hearings and industry meetings.

When employers claim they "see no qualified minority applicants" it is often because their recruitment does not extend into the minority community as it has always extended into the Anglo community. In many instances, where the effect of such limited recruiting is to perpetuate a virtually all-white workforce, the employer would be in violation of title VII-not to mention the Executive order-despite the most glowing policy statement in his employee manual or diligent use of the "equal opportunity employer" slug in his classified ads in the daily paper.

Similarly, where minority job applicants are screened out disproportionately by tests that have not been validated as predictive of or related to actual job performance, the employer violates the law no less than if he is still had a "whites only" sign in his personnel office.