reflects only our best judgment of what the demand will be and the manner in which we can utilize available resources to meet

that demand.

I appreciate the support of this Committee over the past several years. Your sensitivity to the reforms we sought to implement and your responsiveness during appropriations hearings made our task an easier and, ultimately, more successful one..

I trust that your support continues.

Senator KENNEDY. Finally, let me just ask you generally about affirmative action and the importance of trying to establish some goals and some timetables. I think all of us are troubled by trying to reach any mathematical formula or quota, but what we are trying to achieve is a program that establishes some goals or some timetable.

Could you speak to the importance of that, as a general matter? Mr. SMITH. Well, of course, under our 713 authority, the Equal Employment Opportunity Commission has published guidelines to protect employers from reverse discrimination charges. We have always advocated, in a free market system, voluntary compliance and voluntary affirmative action in the private sector. Historically, that is what the statute says and that is what we have always advocated.

Our role at the EEOC has merely been to advocate voluntary activity. Now, it is true that suits have been filed in other areas by, in the Labor Department and the like. The courts themselves have developed various standards for affirmative action and have, through statistical evaluations that have been judicially created, developed a standard. Those have been judicially-created standards which have become embodied in the jurisprudence, which EEOC must adhere to.

Now, in connection with our Federal affirmative action program, of course, Congress itself mandated affirmative action in the Federal Government. After making a finding that discrimination existed in the Federal Government, Congress mandated that the Commission create guidelines for affirmative action.

So, I think that we have really no discretion in the matter of affirmative action in the Federal Government, as we are funded to carry out this program, Congress has mandated, by a specific statutory provision, 717 of the statute, that affirmative action be applied not voluntarily, but as a mandatory act in the Federal Government system.

Senator KENNEDY. I have some other questions that I will submit. I want to thank you very much for your testimony and for your response to questions. You've been very helpful.

The CHAIRMAN. Thank you, Senator Kennedy.

What proportion of alleged instances of sexual harassment do you estimate result directly in civil lawsuits rather than in formal complaints filed at the EEOC?

Mr. SMITH. It is hard for me to say, sir. I am sure that because the country is so vast, it is very difficult to estimate. I would have to call, for example, the legal defense funds, the NAACP, private attorneys, or the American Bar Association for the relevant information.

The CHAIRMAN. There is no effort being made to do a statistical analysis of that?

Mr. SMITH. Not at this time. However, it is conceivable that groups who are here today may have amassed information indicating other alternative avenues for relief. You see, prior to the sexual harassment guidelines, it is my sense that local courts and State courts probably did receive charges or causes of action filed under various categories. For example, lawsuits could have been filed under the category of assault or battery, or, on the criminal side. It might have been filed as a tort for assault or battery on the civil side

The CHAIRMAN. But you do not know?

Mr. SMITH. I do not know.

The CHAIRMAN. One of the purposes of these hearings is to get the iceberg out in the open and to find out just how widespread and pervasive these problems are.

Mr. SMITH. Yes.

The CHAIRMAN. Let me ask you this. Do you understand the guidelines to state a subjective as opposed to a reasonable-man standard for determining whether the conduct is intimidating, hostile, or offensive?

Mr. SMITH. I am not quite sure I understand your question. The Chairman. Well, are you using a subjective standard or are you using a reasonable-man standard-what a reasonable person would do under the circumstances?

Mr. SMITH. I think our guidelines do use a reasonable person's standard. We, in fact, use the term reasonable in the guidelines in connection with subsection (c). For example, harassment on the basis of sex is a violation of 703. "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when," and then we go to subsection (3), "when such conduct has the purpose or effect of unreasonably interfering with an individual's work perform

The CHAIRMAN. Under law, they call it the reasonable-man standard, but let us call it the reasonable-person standard for the purposes of this hearing. You believe that would be the standard that would be applied by the EEOC under that particular provision?

Mr. SMITH. Yes.

The CHAIRMAN. OK. Suppose an employee is confronted with a strike and then, on the picket line, they utter intemporate or abusive language to women who were crossing the picket line. Would the employer be liable under title VII if it does nothing to stop abusive language, or has that case not arisen?

Mr. SMITH. We do not have that case, to my knowledge. It is awfully hard, when you run an agency, to know what is out there. The CHAIRMAN. I understand.

Mr. SMITH. But I can say that I have to go back to the definition that we have adopted. In section (a) we say, "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment."

Now, the question is whether or not we are dealing here with a supervisor or whether we are dealing with coworkers.

The CHAIRMAN. Well, you are dealing with coworkers on the picket line. Those who are striking and picketing and those who are crossing the picket line are coworkers.

Mr. SMITH. Well, that is true. My general counsel has advised me that perhaps there is no employer control over the employees if they are out on the picket line.

The CHAIRMAN. So, that might be the determining factor?

Mr. SMITH. It could be, yes. It is possible that the employer would have no liability under such circumstances, since I doubt very seriously that supervisors would be on the picket line.

The CHAIRMAN. Are you saying that it is possible that the employer might have liability under those circumstances?

Mr. SMITH. It is not likely.

The CHAIRMAN. That is one of the things that a number of us are concerned about. Are these guidelines too broad and general, or should there be some more specifics so that employers know what the extent of their liability actually is?

Mr. SMITH. May I respond to that statement?

The CHAIRMAN. Of course.

Mr. SMITH. I think that is why we are taking such precautions in evaluating the kinds of cases that are coming through the front door at the present time, because I think that there is a sense in some areas that we will not be responsible in evaluating the facts. We have committed ourselves to fact-specific cases, and therefore we are making every effort to carve out very specific cases and resolution of those cases.

The CHAIRMAN. One of the major concerns that we as lawmakers and I think you as an administrator, have is whether the law is carried out the way it was intended by the person at the end of the line. What method, if any, does the Commission have to see that field staff are interpreting appropriately and making judgments based on the Commission's intent?

Mr. SMITH. Well, the first thing is that those cases, when they come through the front door, ought to be forwarded, after investigation, to headquarters because we have established a process.

The CHAIRMAN. Where they are negotiating-I think the statement has been made that approximately 50 percent of these are resolved through negotiation at the beginning. What are you doing to make sure that the field staff are making appropriate interpretations and judgments?

Mr. SMITH. One of the things that we are doing is that we are providing instructions to the staff through our compliance manual; that is being prepared now so that they will have that data.

The CHAIRMAN. Well, maybe they have this instruction, but what if they, through this rapid charge process, are just arbitrarily making decisions that really are not appropriate under the decisions made by the Commission itself?

Mr. SMITH. Well, I think our field offices have audits of the charges as one measure of evaluation, to make sure that the front end is doing what is appropriate. We have a process where difficult and sensitive cases can be forwarded to the Office of Policy Implementation so that they may be evaluated at a higher level.

The CHAIRMAN. When was the last audit?

Mr. SMITH. I am sorry?

The CHAIRMAN. When was the last audit conducted?

Mr. SMITH. We have audits on a regular basis.

The CHAIRMAN. I see. Who conducts those?

Mr. SMITH. The Office of Field Services.

The CHAIRMAN. I see. Does the auditor, himself or herself, conduct any?

Mr. SMITH. Yes; they go and look at the actual files; I mean, they go and talk with the staff; they talk to the district director, and they go right to the EOS, the equal opportunity specialist, right on the front line.

The CHAIRMAN. I think this is an appropriate question. What assurance do employers have, or will they have, that they are going to be treated fairly by the EEOC field staff and by the Commission?

You see, we are hearing some complaints here that there is some arbitrariness by the field staff in this rapid charge system. Now, maybe that is true and maybe it is not; I do not know. But we are getting complaints on that. Now, what assurance, really, do the employers have that they are going to be treated fairly by the field staff or by the Commission?

Mr. SMITH. Well, certainly, they have my commitment that they will be treated fairly. I think I can say unequivocally that our staff will be instructed that in the area of sexual harassment charges, as in all other charges, employers should be treated fairly and that grieving parties ought to be treated fairly.

When we look at the language of the regulation, it has in it the coworker's defense. For example, it is not a per se violation rule, as has been written in some of the trade press. The sexual harassment charges have to be proven very factually; there is no per se violation. In fact, if an employer can show that he or she took immediate and appropriate corrective action, a case can be no cause at the front end-no cause at all, and no fault. That is something that I think ought to be focused on by employers who may listen to the words sexual harassment but who have not carefully read the guidelines, that is, what defenses have been built into the guidelines on their behalf.

The CHAIRMAN. One reason I have asked that question is that we have asked for any audit that has been made. There may be a violation of the Anti-Deficiency Act. But you do not know of any violations at all? Do any of you?

Mr. SMITH. I am sorry. The audit issues as far as that is concerned are two different things.

The CHAIRMAN. OK.

Mr. SMITH. Our field services audit is a management audit; that is, it audits programs. Our Office of Audits is the arm which audits

The CHAIRMAN. That is a different matter?

76-638 0-81--26

Mr. SMITH. Yes.

The CHAIRMAN. OK. Has the EEOC developed a voluntary affirmative action program with goals and timetables?

Mr. SMITH. For itself?

The CHAIRMAN. Yes.

Mr. SMITH. Yes, we have.

The CHAIRMAN. What assurance will

Mr. SMITH. As a matter of fact, I think it was 3 days after the President appointed me Acting Chairman that I signed, pursuant to requirements, our affirmative action program.

The CHAIRMAN. Specifically, with regard to these regulations that you have issued, do you think that they will actually create more employment opportunities for women, or will they be a deterrent to the creation of more employment opportunities for women? Mr. SMITH. It is my belief that the purpose of these guidelines is to deter the lack of opportunity for women, or perhaps for men, since these guidelines are not restricted to-

The CHAIRMAN. The regulations apply either way.

Mr. SMITH. It applies either way. It would deter conduct which would inhibit opportunities for advancement or assignment in the workplace. I think that if the problem is a large problem, these guidelines will certainly be beneficial to opportunities for men and women who may be subjected to sexual harassment.

The CHAIRMAN. Thank you, Mr. Smith. We appreciate having you and your staff here today, and we appreciate the efforts you have made.

Mr. SMITH. Thank you, Senator.

The CHAIRMAN. Our next panel will be Mrs. Phyllis Schlafly, Esquire, president of the Eagle Forum in Alton, Ill.; Mrs. Judith Finn, an economist from Oak Ridge, Tenn.; and Ms. Eliza Paschall, former national secretary of the National Organization for Women, from Atlanta, Ga.

We are happy to welcome you three women today, and we will be very interested in what you have to say.

Mrs. Schlafly, we are happy to have you here.

STATEMENT OF PHYLLIS SCHLAFLY, PRESIDENT, PRESIDENT, EAGLE FORUM, ALTON, ILL.; JUDITH FINN, ECONOMIST, OAK RIDGE, TENN.; AND ELIZA K. PASCHALL, FORMER NATIONAL SECRETARY, NATIONAL ORGANIZATION FOR WOMEN, ATLANTA, GA., A PANEL

Mrs. SCHLAFLY. Thank you, Mr. Chairman.

My name is Phyllis Schlafly of Alton, Ill. I will summarize my prepared testimony and ask that the full text be printed in the record.

The CHAIRMAN. Without objection, it will be so ordered, and we will appreciate any summaries that can be made. That will save us some time, thank you.

Mrs. SCHLAFLY. Sexual harassment is an important subject, but as a matter of congressional concern, harassment in private industry is totally dwarfed by the problem of harassment or intimidation of women in the armed services where women do not have the freedom to resign.