TESTIMONY OF HON. MAURICE J. TOBIN, SECRETARY OF LABOR, ACCOMPANIED BY WILLIAM T. EVANS, SOLICITOR'S OFFICE, AND KENNETH MEIKELJOHN, ASSISTANT SOLICITOR, DEPARTMENT OF LABOR

Mr. TOBIN. Mr. Chairman and members of the committee, I am very happy to have this opportunity to testify before this committee on legislation designed to eliminate discrimination in employment on the basis of race, color, religion, or national origin.

I have a particular interest in legislation of this type because it was while I was Governor of Massachusetts that the Massachusetts Fair Employment Practice Act, a law similar to the bills now under consideration, was enacted.

Discrimination in employment because of race, color, religion or national origin is contrary to basic democratic theory that a person shall have opportunity in accordance with his individual ability and qualifications. That such discrimination exists in this country, however, is well-known to everyone-too well-known to require at this time the submission of any supporting data in the form of statistics of comparative earnings, occupational distribution and unemployment among the respective racial, religious, and national groups which comprise our population.

We cannot afford to tolerate restrictions upon the economic opportunities of individuals based upon the irrelevant and accidental factors of race, color, religion, or national origin.

With an awareness of the existence of discriminatory employment practices and of the necessity of their elimination, one of the 15 points of the Labor Department's legislative program to improve the economic status of those who work, is the enactment of a sound, fair employment practice act to end job and wage discrimination against minority groups in interstate industries.

The freedom to earn a living without being discriminated against because of race, color, religion, or national origin is as important as the more well-known civil rights and freedoms guaranteed by the bill of rights of the Constitution.

The freedom of speech, assembly, and religious worship are all precious but in order to enjoy these freedoms one must exist and the existence of most of us and of our families is dependent upon the wages and salaries which we can earn. To restrict the opportunity to earn a living on the basis of considerations beyond our control is to deprive us of a right upon which the enjoyment of all our other American freedoms depends. To deprive any person of the chance to make a living is to violate one of the most fundamental of human rights.

We cannot escape the fact that every evidence of the existence of discrimination against minority groups in this country is seized upon and shamefully distorted by exponents of competing political philosophies. Every indication of a gap between our professed principles of freedom and equality and our practices is cited as evidence that our democracy is a fraud and the existence of underprivileged and exploited groups is a necessary part of our economic system.

The enactment of legislation such as that now being considered by this committee would do much to combat this harmful propaganda

by letting it be known that it is the right of all persons in the United States to be free from discrimination in employment because of race, color, religion, or national origin and that it is the national policy to protect this freedom.

We have an obligation under the Charter of the United Nations to promote "universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language, or religion."

The enactment of fair employment practice legislation would be a step forward to the fulfillment of this international obligation.

Aside from moral and political considerations, there are compelling economic reasons for the enactment of fair employment practice legislation. Discrimination in employment subjects large segments of our population to substandard housing, inadequate diets, poor health, inadequate education, and adversely affects the general welfare.

Discrimination in employment produces a vicious chain effect in that it depresses the wages and income of the minority groups, resulting in a reduced purchasing power and potential markets for goods, which in turn results in reduced production.

Reduced production cuts down employment. The impact of discriminatory practices, therefore, is not only upon the immediate victims but upon all of us. Conversely, the elimination of discrimination in employment would insure full and efficient use of all our workers, resulting in greater purchasing power and consumer demand, leading to greater production and a higher standard of living for all. And I can state that the experience of the Labor Department indicates that discrimination has a very adverse effect upon our economy.

I consider that legislation which relies primarily upon peaceful persuasion as a method of dealing with discriminatory employment practices is the most desirable approach to this problem.

The experience of the wartime FEPC and of State agencies administering fair employment practice statutes is evidence that the most effective weapon in combating discrimination in employment is the informal method of conference, conciliation, and persuasion.

This experience also indicates, however, that for those cases in which informal methods are of no avail, appropriate sanctions must be provided. The mere fact that such sanctions may be invoked will be of considerable help in persuading employers and labor organizations voluntarily to discontinue their unfair practices.

We are fortunate that in considering this legislation at this time we have the benefit of several years of experience under similar legislation enacted by various States. In particular the States of New York, Massachusetts, Connecticut, and New Jersey have fair employment practice statutes which resemble this bill in the important respect that they place primary reliance on persuasion but also provide sanctions for use in those cases where persuasion is unsuccessful. These four States are settling a total of 1,200 cases a year, but not once have they used their powers of enforcement. Not once have they gone as far as public administrative hearing on a complaint.

As one observer of the operation of these fair employment practice statutes stated: "Embarrassment, not harassment or punishment, is the chief sanction-embarrassment over being caught not living up in deeds to the American principles of fairness we all acknowledge in words."

In discussing fair employment practice legislation too many people tend to consider it as something which will benefit only Negroes. While itis true that they are the principal victims of discrimination in employment, they are by no means the only ones.

Jews and Catholics are often discriminated against and there are a number of local prejudices on the basis of national origin.

In the Southwest, for example, Americans of Mexican background are probably the principal objects of discrimination. In this connection, it is interesting to note that the Annual Report of the New York State Commission Against Discrimination for the year 1947 shows that only 68 percent of the complaints filed during the 21/2 years that the New York statute had been in effect were based on discrimination against Negroes, 15 percent were complaints of discrimination against Jews, and the remainder, 17 percent, were because of religious or national origin reasons.

While a number of bills to prohibit discrimination in employment have been introduced in the House and referred to this committee, I shall direct my discussion to H. R. 4453. The other bills differ but little from H. R. 4453 but the latter happens to contain several provisions which I consider improvement over bills introduced earlier in this session of Congress.

H. R. 4453 approaches the problem in the manner which I have already described as being, in my opinion, the best approach-namely, primary reliance on peaceful persuasion by which most complaints can be settled "on the threshold." The powers of enforcement, however, are in the background available for use whenever necessary.

The bill by defining "employer" to mean a person having in his employ 50 or more persons, and "labor organizations" to mean any organization having 50 or more members employed by any employer covered by the bill, wisely prevents the Commission from being burdened by an excessive number of small cases. At the same time its coverage is broad enough to reach a majority of the persons sought to be protected by the bill.

H. R. 4453, by limiting the exemption of State and local governments to their capacity as employers, closes a possible loophole which previous bills had contained by virtue of their broad exemption of State and local governments from all provisions of such bills.

The effect of the limited exemption in H. R. 4453 will be to prevent the possibility of employers evading the prohibition against the use of employment agencies which discriminate by utilizing State and local government-maintained employment offices which operate in a discriminatory fashion.

Section 5 of the bill defines the unlawful employment practices which the bill is designed to eliminate in a manner which leaves no room for ambiguities. Its prohibitions are directed not only against the employer but also against his sources of labor supply. such as employment agencies, training schools, and labor organizations.

The use of such sources which engage in discriminatory practices is made an unfair labor practice. Labor organizations are barred from discriminating against individuals on the basis of race, color, religion, or national origin by limiting or classifying its membership, or otherwise adversely affecting their status as employees and applicants for employment.

While the number of labor organizations which engage in discriminatory practices is limited, there are some that do, and such discrimination should no more be tolerated in labor unions than in any other phase of American life.

An important and desirable provision of the bill is the authority given to the Commission, in section 6, to create local, State, or regional advisory conciliation councils to enable local settlement of disputes. Such local councils have proved very effective in those States having FEPC laws, particularly in connection with the educational and public relations activities of the State agencies.

Another provision of H. R. 4453 not found in earlier bills is the authority given the Commission, in section 7 (a), to cede jurisdiction to the State and local fair employment practice agencies in, I assume, cases which are borderline so far as interstate commerce is concerned, provided the State statute or local ordinance conforms to national policy.

I think that this is a desirable provision in that it will enable the Commission to utilize in appropriate cases the experience in this field already acquired by State agencies. It will also clarify the relations between Federal and State agencies operating in the same field.

Section 7 of the bill outlines the procedure to be used by the Commission in preventing unlawful employment practices. The Commission is directed to endeavor to eliminate such practices by "informal methods of conference, conciliation, and persuasion."

Only in the event of failure of such informal methods may the administrative proceedings leading up to the issuance of a cease-anddesist order be utilized. The bill specifically provides that such proceedings conform to the standards and limitations of the Administrative Procedure Act. Affirmative action which the Commission may take includes reinstatement or hiring of employees, with or without back pay.

The bill, in section 8, provides for judicial review and endorsement in accordance with section 10 of the Administrative Procedure Act. Under this provision orders of the Commission are legally enforceable only after they have received judicial approval.

H. R. 4453 varies from the previous bills in connection with its application to Federal employees in that it takes into consideration Executive Order 9980 and Civil Service Commission regulations regarding fair employment practices within the Federal Establishment.

The bill provides that before seeking relief under its provisions an employee must exhaust the administrative remedies prescribed in the Executive order and regulations. The bill, therefore, does not undertake to supersede the existing fair-employment-practice program established by the Federal Government to eliminate discriminatory employment practices in Federal employment, but supplements it by affording aggrieved employees additional remedies.

Another desirable change found in H. R. 4453 is in section 10 (b), which empowers the President to establish regulations to prevent the committing or continuing of unlawful employment practices by Government contractors.

This provision is made applicable to any contract exceeding $10,000, whereas former bills made its coverage dependent upon the number of persons employed on such contracts.

This change is advantageous in that it conforms the application of this bill to the coverage provided in the Walsh-Healey Public Contracts Act, thus providing uniform application of minimum wage, overtime, and child-labor standards and fair employment practices to employees on Government contracts.

As I stated before, Massachusetts, New York, Connecticut, and New Jersey have had fair employment statutes for several years. Statutes containing no enforcement provisions have been in effect in Indiana and Wisconsin for about the same length of time. During current sessions of State legislatures, 21 FEPC bills have been introduced, and four States-Washington, Oregon, New Mexico, and Rhode Island-have enacted such bills into laws.

Such legislative activity in this respect is a heartening indication of an awareness of the existence of this problem and of a purpose to take all possible steps to eliminate it.

Discrimination in employment, however, is not a State or local problem alone. It crosses Štate lines. Wage discrimination against a minority group in a State has a depressing effect, not only in that State but subjects employers in other States, which may have fair employment practice laws, to unfair competition.

Discrimination in employment is a national problem which affects our whole economy and requires action by the Federal Government. Ever since the termination of the Fair Employment Practice Committee in 1946, President Truman has strongly urged the enactment of permament fair employment practice legislation.

On December 5, 1946, he established the President's Committee on Civil Rights to study and report on the whole problem of federally secured civil rights.

In his Economic Report, submitted to Congress on January 6, 1947, the President stated that discrimination in employment or wages, against certain classes of workers, including certain racial and religious groups, must be ended.

Again, in his state of the Union message to the second session of the Eightieth Congress on January 7, 1948, the President referred to the denial to certain of our citizens of equal opportunity for jobs and economical advancement and stated that discrimination based on race, color, religion, or national origin is, and I quote the President, "totally contrary to American ideals of democracy."

On February 2, 1948, the President delivered a special message to Congress outlining a 10-point program with respect to civil rights, based upon the report of the President's Committee on Civil Rights.

One of these 10 points was the enactment of a Federal Fair Employment Practice Act prohibiting all forms of discrimination in employment based on race, color, creed, or national origin.

On July 27, 1948, in his address to the special session of the Eightieth Congress, the President again asked enactment of permanent legislation with respect to fair employment practices.

In his state of the Union address to the present Congress on January 5 of this year, the President stated:

The driving force behind our progress is our faith in our democratic institutions. This faith is embodied in the promise of equal rights and equal opportunities which the founders of our Republic proclaimed to their countrymen and to the whole world.