"the claim has sufficient merit to warrant litigation," Compliance Manual $30. The limited investigation and the stringent standard for determining cause appear to be a narrow reading of the Commission's role as an investigatory agency. 5/

The Enforcement Program

The EEOC and the other federal departments, we feel, took a step forward in agreeing to the Uniform Guidelines on Employee Selection Procedures, 43 F.R. 38290 (Aug. 25, 1978). This Committee is fully aware of the long and arduous negotiations concerning this technical but critical area, see e.g., Oversight Hearings before the Subcommittee on Equal Opportunity of the House Committee on Education and Labor, 94th Cong., 2d Sess. 179-98 (1976) (Statement of Legal Defense Fund). These guidelines are reasonable and comprehensive and should provide a basis for advancing equal employment opportunity.

However, as is practically inevitable in guidelines

on technical matters, there are ambiguous provisions which require effective enforcement. This enforcement must be done in large part through litigation. These guidelines will only fully achieve their purpose after judicial decisions have emphasized what standards employees must meet and have demonstrated that those who do not meet the standards face substantial liability.

5/ The Commission has published a different standard for reasonable cause which confuses the issue, 42 F.R. 54595 (Oct. 7, 1977): "A Commission finding of no reasonable cause to believe that discrimination in violation of Title VII has occurred reflects a judgment that the evidence obtained in the Commission's investigation of the charge does not preponderate in favor of a conclusion that there is reasonable cause to believe that there is a violation of the Title."

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The Teamsters ruling establishes new and presently largely ambiguous standards of proof for plaintiffs to meet in order to remove barriers in a seniority system to equal employment opportunity. After the decision, the EEOC issued an interpretative Memorandum, EPD para. 5029 (July 8, 1977). The EEOC properly issued this interpretation. But it is only through the development of

litigation and judicial interpretation of Teamsters that we can effectively establish the standards for determining when seniority systems which limit equal opportunity are not "bona fide" and thus unlawful.

We have picked these two areas, seniority and testing, as examples where strong enforcement efforts are needed not only because they affect thousands of minorities but also because they are complicated and require substantial expertise and resources to adequately litigate. These are, of course, not the only issues and problems which fall into these categories. They are, in short, just the type of enforcement problems which the EEOC should be litigating. Unfortunately, the EEOC's record has not been good. For example, we are unaware of a single case involving the legality of a written test which the EEOC has initiated and tried on the merits. The problem we feel lies largely with the administrative process. It is through a careful analysis during the intake of charges that systemic problems such as those involving testing, seniority or the

unfair exercise of supervisory discretion become apparent.

Moreover,

it is during the investigation that these problems become clarified and should be recognized as "litigation worthy." Of course, the emphasis on narrowing the charge and limiting the investigation are antithetical to the recognition of these problems and the development of litigation. It was self-defeating to have the administrative process isolated from those responsible for litigation.

We think that the reorganization of the EEOC is a step in the right direction. The coordination of the administrative and legal staffs is essential. It is also a step forward that there is planned direction from the Office of Systemic Programs setting forth issues, identifying industries and establishing other criteria to designate particular charges for special review. There is nothing specific which we can say about the systemic program at this point because it has not really been in effect. However, in fairness it is important to note that developing a litigation program is a difficult task which takes some time. Prior to this point the litigation program has been hampered by its separation from the administrative process. We hope that finally there will be progress to the development of an effective enforcement program.

At this point it should be noted that the EEOC enforcement program may not be considered separately from private enforcement. In fact, the large majority of precedent-setting cases which have

served to breakdown some of the barriers to equal employment opportunity have been handled by private groups or attorneys.

As we indicated, the rapid-charge processing system has threatened the viability of private litigation, see p. 6, supra. We hope that the new emphasis at the EEOC on enforcement and the development of a systemic program will allow for greater consideration for private enforcement litigation.

EEOC and Federal Employment

Beginning January 1, 1979, the EEOC will have jurisdiction

for the first time over equal employment complaints of Federal employees. For the past six years, the Legal Defense Fund has been engaged in a monitoring and litigation effort against the United States Civil Service Commission concerning its enforcement of federal EEO, and particularly concerning the administrative process for adjudicating EEO complaints. Through this litigation some significant reforms have taken place. However, the system, as set up by the Commission and as implemented by agencies and the CSC, remains seriously deficient in a number of its aspects.

Under Reorganization Plan No. 1 and the Civil Service Reform Act of 1978, the existing system will remain in place until modified by the EEOC. We believe that the first priority for EEOC is to reform the system for the processing of federal EEO complaints.

A new system

should retain the basic feature of the existing system of providing for the formal adjudication of complaints through a hearing process.

However, the hearing process should be improved in a number of respects.

1. The requirement of precomplaint counseling should be substantially modified in that a EEO complaint should be deemed filed at the time the complainant first contacts the EEO office. Any attempts to conciliate on an informal basis should be undertaken following the filing of the formal complaint. Under the present system, where a formal complaint is not filed until after conciliation, there is evidence that many potential complainants are discouraged from filing complaints that may prove to have merit.

2. The complaint should then move to a formal hearing phase that would include methods by which a full factual record necessary to decide the case adequately could be developed. This could be done through discovery provisions similar to those in the Federal Rule Civil Procedure, or through the use of investigators who would compile data according to well established guidelines that would ensure the complete development of the relevant information.

3.

At the hearing, burdens of proof and procedures should be clearly set out. The principals of law developed in Title VII cases by courts should be adhered to, particularly with regard to the standards set out in McDonell Douglas v. Green, 411 U.S. 792 (1973) relating to the shifting burden of proof for proving an individual case of

discrimination.

4. Under the present system the decision of a complaints examiner is merely advisory. The agency is free to disregard it and in