Mr. NEWMAN. The experience in this union has been that almost all of our actions have been as plaintiff. Where we have been a defendant we have looked at it and we have on a rather regular basis moved to realine and become a plaintiff where we saw there was discrimination.

Mr. HAWKINS. Keeping that in mind, you do feel that a charging party has the right to a thorough investigation of a class action charge?

Mr. NEWMAN. Yes; we certainly do.

Mr. HAWKINS. Thank you.

Mr. Stephens.

Mr. STEPHENS. I notice in the article that you referred to-the Fortune article-the author, Mr. Smith, comments that to implement the comparable worth principle may have adverse impact on unions in dealing with their male members in demanding that wage differentials be maintained. From your personal experience, is there difficulty in trying to convince the male members of a union that these differentials that historically existed can no longer exist? How does it affect your bargaining with the employer?

Mr. NEWMAN. Badly.

Mr. STEPHENS. Can you elaborate on that?

Mr. NEWMAN. Sure. Clearly, employers resist it. It is a money issue. As far as the membership is concerned it is not an easy issue in many cases. The statute requires, as we understand it, that you raise the level of the disadvantaged to bring them up to the level of the advantaged. There, nevertheless, is the employer argument that whatever you negotiate will come out of the wage package. It is a matter of concern. We have been able in our union and several others to simply argue the proposition that we have a duty to represent all employees fairly, we have a duty to eliminate job inequities, and I do not think one has to talk about this as discrimination if you do not want to. This is simply an issue of job inequities and there are job inequities in these plants.

Whether the woman, man, or anybody else receives the lower wage it is, nonetheless, a job inequity that needs to be corrected. You may have noted on that score we have recently received a decision of the NLRB in the Westinghouse case which goes to the issue of the union's right to obtain rather extensive information from an employer dealing with race and sex discrimination. While there may be problems-and I am not saying there are not within the membership-the union policy has certainly been to pursue that. We have pursued that with large companies, and the NLRB has just issued probably a landmark decision as to the right of a collective bargaining agent to obtain extensive race and sex information, and it is based upon the union's right to obtain information which it needs to engage in collective bargaining because part of its purpose is exactly that, to eliminate inequities. You do not have to put it upon a race or sex grounds. It is the same issue.

Mr. STEPHENS. I have no further questions.

Mr. HAWKINS. Thank you.

The Chair would like to at this point call on Miss Barbara Mehlsack, Associate Counsel. Ms. Mehlsack.

MS. MEHLSACK. I have a few questions. I assume you are familiar with the Christensen case.

Mr. NEWMAN. Yes.

Ms. MEHLSACK. In that case the 8th Circuit took a similar position to the Fortune article you noted, stating that title VII was not intended to abrogate laws of supply and demand; that Congress did not intend employers to be precluded from considering the market forces. Would you care to comment on the 8th Circuit's analysis? Mr. NEWMAN. I do not know what the courts will ultimately determine was intended by Congress. The thrust of my complaint here today is that EEOC has decided contrary to that court's holding that Congress did not intend to sanction discrimination in such circumstances, but then has failed to carry out its correct view of the law. I can only reiterate again what I said earlier, that Congress I presume made the decision when it used the words there shall be no discrimination in compensation, and the legislative history supports that result. I think there is no question that if Congress were talking about costs, it would have said in the legislation, except where the cost is not excessive. It did not say that; it put in a business necessity exception but it certainly made clear that cost was not the same as business necessity.

With respect to the marketplace, there is that problem that even after you do a straight job evaluation, and determine what jobs are worth, it may well happen in order to get people to fill job No. 1 you have to pay a little more than you do to get people to fill job No. 2, for whatever reason. But my point is that one does not reach this question until after you have established the principle that the jobs have to be properly evaluated.

The Christensen case did not really apply to the typical production workers' situation where you have discrimination in pay rates between one production worker and another production worker, both of whom go to the personnel office and apply for a job on the same day and the woman gets routed to a grade 1 job and the man to a grade 4 which pays more, in these circumstances I do not think you have a marketplace situation, wherein you are comparing office clericals, for example, with factory workers. Admittedly, that is a more difficult issue, however, I think it is still a violation of title VII.

Ms. MEHLSACK. But you are then talking about a situation in which there has been a denial of opportunity that the district court said we do not have in this case. A situation where there is a denial of opportunity by sex segregation was not really addressed by that opinion because they assumed there was no deliberate sex segregation. How would you react to the opinion of the court in the context in which there was a finding that there was no denial of opportunity?

Mr. NEWMAN. I think the thrust, as I read that decision, is not so much the denial of opportunity but that they do not read the act as going that far. To me they throw that extra item in. The study done by the State of Washington in terms of wage rates clearly does it on an employer basis, and where we are talking about a particular employer I think you can well make the argument that the discrimination in compensation issue applies.

Now, if you cannot get people or if the employer can get certain people for less money than others, I think that is a separate issue and a tougher issue. I am glad you raised it, because what you are really suggesting is the need for EEOC to have charted the litigation course so that that would not have been one of the early cases to be brought up, because I think had that case been built upon some others that are much simpler, such as the one I have discussed where you have the whole history of Westinghouse and GE, where they admitted having discriminatory rates, and what you look at is if there is discrimination by admission in 1945, what changes have been made then, you can build up a much better body of law.

I would really investigate that aspect, that only the governmental aspect can begin to build that. This is what happened to the Labor Department with the Equal Pay Act. They carefully selected the cases they brought first.

MS. MEHLSACK. You have mentioned Westinghouse and the GE conciliation. The IUE offered assistance to the Commission and was in fact rejected. Do you have any other instances where IUE or other unions have offered assistance and it has been refused?

Mr. NEWMAN. I did not say it was refused. They accepted it and said, "Thank you very much." The Woodworkers have had problems over filing class action charges. We have met on it and discussed it and we have not been able to file them. Certainly in Westinghouse, where they have had a charge for 5 years and done nothing with it, we filed information there. There is simply never a comeback to us as a charging party. If we give them something, fine. We really do not know what has happened. I do not think they have done anything with the Westinghouse charge. I think you can talk about backlog in a lot of ways. You can talk about taking care of five people obviously a lot more quickly than you can take care of the Westinghouse charge, but the Westinghouse charge involves a lot more people.

Ms. MEHLSACK. Did the mandate of the NAS study as to feasibility come from the EEOC or is that the NAS interpretation?

Mr. NEWMAN. I have not seen the document that EEOC gave NAS, but I have it here. The NAS documents which state what they are doing and what their charge is from EEOC. And I assume those reports have been presented to EEOC. I know they have been. Ms. MEHLSACK. I have no further questions.

Mr. NEWMAN. I can give you those reports if you want them. Mr. HAWKINS. Thank you again, Mr. Newman and Ms. Wilson. We appreciate your testimony. It has been very helpful.

Mr. HAWKINS. It is the intent of the Chair to call one additional witness this morning, then to take a recess and reassemble at 1 p.m. this afternoon. The next scheduled witness is Ms. Kathleen Blunt, associate director, Women Employed, Chicago, Ill. She is accompanied by Judith Lichtman, executive director, Women's Legal Defense Fund, Washington, D.C.

You are not strangers to us, and we are very delighted to have you as witnesses.

STATEMENT OF KATHLEEN BLUNT, ASSOCIATE DIRECTOR, WOMEN EMPLOYED, CHICAGO, ILL., ACCOMPANIED BY JUDITH LICHTMAN, EXECUTIVE DIRECTOR, WOMEN'S LEGAL DEFENSE FUND, WASHINGTON, D.C.

Ms. BLUNT. My name is Kathleen Blunt; I am the associate director of Women Employed. My testimony today represents the views of both Women Employed and the Women's Legal Defense Fund regarding the performance of the Equal Employment Opportunity Commission under the new administration. Judy Lichtman, who is with me today, is the executive director of the fund.

The Women's Legal Defense Fund is a Washington-based, probono organization of feminist attorneys who for the past 7 years has represented numerous women with a variety of legal problems including women with title VII claims. The employment arena has, in fact, become a major focus for the fund. It works closely with government officials to improve the enforcement efforts of such agencies as the EEOC.

Women Employed is an organization of working women in Chicago's downtown area. Our members work at all levels of employment in banks, insurance companies, stock brokerages, engineering firms, law offices, for the government, and in all types of corporations. Women Employed has a two-fold purpose: (1) Exposing employers' discriminatory practices and seeking appropriate remedies either through direct negotiation or where necessary by filing charges with Government agencies; and (2) monitoring those Government agencies' enforcement activities to insure that working women's rights are protected.

Women Employed has had 5 years of experience with the Chicago district office of the EEOC. Between 1973 and 1976 we assigned dozens of women in filing individual charges of discrimination. We also filed class action charges against several major Chicago corporations and financial institutions. During that period, we saw cases deteriorate in the backlog, investigations bungled and class charges totally ignored. By 1976, we found dealing with the EEOC so frustrating and unproductive that we stopped filing charges altogether.

Early in 1977 Women Employed documented EEOC's failure to even minimally protect the rights of women and minorities. And when Eleanor Holmes Norton announced her reform measures, including the rapid charge processing system, we cautiously welcomed them. We felt it made good management sense to separate new cases from old, individual charges from system iconeds. Wellstructured processes with specific time frames and an emphasis on settlement provided the most feasible way to turn around the agency's poor performance record and lagging credibility.

Our concern, however, was maintaining and protecting the rights of charging parties in the rush to efficiently close cases. Would the EEOC really make the necessary effort to find charging parties and settle cases in the backlog? In handling new cases would the EEOC fail to adequately deal with legitimate charges in order to accumulate large numbers of disposed cases? Would the EEOC be able to effectively juggle its resources between individual case processing and systemic work?

Finally, will the agency be able to handle the new jurisdictions of equal pay and age discrimination enforcement delegated to it next July 1 by President Carter's Reorganization Plan No. 1? These are the questions that Women Employed and the Women's Legal Defense Fund have focused on over the past year.

Through Women Employed's job problems counseling service, we have represented numerous women with a wide variety of discrimination charges at both the intake and fact-finding stages of EEOC's rapid charge processing system. Likewise, Women Employed has several cases in the backlog, some dating as far back as 1974, whose resolution we are now tracking through EEOC's new backlog processing system. Six months ago the organization petitioned the EEOC to issue a commissioner's charge against Continental Insurance based on extensive documentation of patterns and practices of race and sex discrimination gathered by Women Employed over the past year. That case is still pending review by the Commission. These cases have provided Women Employed with first-hand knowledge of how the new procedures work and the advantages and disadvantages to charging parties.

On a broader scale, both Women Employed and the Women's Legal Defense Fund have been active in working with EEOC officials in planning for the transfer of Equal Pay Act enforcement from the Department of Labor to the EEOC in July 1979. This has occurred through our participation in a special Equal Pay Advisory Committee made up of advocacy organizations set up by Commissioner Norton. That committee has examined a variety of structural, procedural and legal issues involved in the transfer.

Last September the EEOC established three model offices in Baltimore, Chicago and Dallas to test the new procedures. Since that time, Women Employed, acting as an advocate organization for charging parties, has worked closely with the Director of the Chicago district office, Marty Slate, pointing out problem areas we encountered and developing recommendations for improvements. In this capacity, Women Employed held its own oversight hearings, a mid-year assessment in June of this year, to evaluate the progress being made by the EEOC as well as several other enforcement agencies. Our evaluations and conclusions pertained to the Chicago office of EEOC, although we understand these systems are being instituted around the country. We were pleased that your committee staffperson, Susan Grayson, was able to attend our hearings; we provided her with our formal mid-year assessment report several months ago.

At our assessment meeting report cards were issued, and the EEOC received an overall grade of B minus. On the one hand, while specific problems still had to be addessed, particularly regarding better protecting the rights of charging parties, it is clear that the reforms made by the EEOC have already had a substantial positive impact. Women Employed believes that over the past year the EEOC has demonstrated the commitment and capability for resolving its past deficiencies in processing individual charges of discrimination. Nearly all of Women Employed's cases have been dealt with in a timely fashion; many have resulted in settlements while a few have suffered from procedureal snags in the new system.