a significant number of cases where the complaints examiner recommends a finding of discrimination the agency rejects that finding. The regulations should be modified to make the recommended decision of the complaints examiner finding discrimination binding upon the agency, unless an agency can demonstrate through a detailed submission that the recommended decision of the complaints examiner is clearly erroneous. The agency, on the other hand, would be free to make a finding of discrimination where the complaints examiner has recommended a finding of no discrimination based on an independent review of the record. The reason for the different standard is clear; the agency is acting as a judge in its own case. In those cases where it wishes to find in its favor, it should have a higher burden of explaining why it is not following a recommended decision that finds against it.

5. The standard for awarding relief once a finding of discrimination has been made should be that required by the courts and by the present regulations as recently amended. A retroactive promotion or appointment with back pay must be awarded unless the record demonstrates by clear and convincing evidence that the challenged employment practice would not have occurred even in the absence of discrimination.

6.

Following the final agency decision the complaint would have, as now, the option of either going into federal court or appealing to the EEOC. In the EEOC itself there should be an

independent board set up to adjudicate these appeals; the board must rigorously apply Title VII law as developed by the courts. The present Appeals Review Board, which we understand will be transferred to the EEOC, is severely understaffed, having only 38 personnel attached to it. As a result there is an enormous backlog in EEO appeals, with current time period for adjudicating such appeals being we understand, in excess of three years. We would strongly recommend the allocation of at least fifty additional positions in order to adequately deal with this backlog. In addition to the processing of individual complaints of discrimination, the processing of class complaints should be monitored. The existing regulations for processing class complaints were promulgated by the CSC pursuant to Court order (Barrett v. United States Civil Service Commission, 69 F.R.D. 544 (D.D.C. 1975)). While the regulations on their face are reasonable, their enforcement has left much to be desired. First, there have been wholly unwarranted delays in processing. In some cases it has taken the CSC months just to complete the initial step in the process, deciding whether to accept a complaint. Second, the regulations have been interpreted very restrictively, and the CSC has explicitly refused to follow Title VII and class action law as developed by the Courts. Thus, the scope of a class administratively is far narrower than that permissible in a Court action. The EEOC should take the position that the large body of court-developed law in Title VII

class action cases should be followed so that the administrative remedy parallels the judicial one.

Congressional oversight should carefully scrutinize the matter in which the EEOC administers the federal EEO program. In particular, it should ensure that the EEOC conducts training programs for agency EEO personnel that will train them fully in Title VII law and emphasize their responsibility to ensure that all personnel actions are in compliance with that law. The training of complaints examiners will be of crucial importance. One of the problems in the existing Civil Service Commission system is that complaints examiners are primarily trained in personnel matters, and have, as one of their primary functions, adjudication of such matters as adverse action appeals. Their orientation has not, in the past, been towards EEO and Title VII law. Thus, many of the decisions of complaints examiners demonstrate an inadequate understanding of Title VII law and generally a lack of sympathy with the goals of Title VII. These attitudes can be changed only by rigorous training in the principles of Title VII law to ensure that proper standards are applied in the future.

Another crucial issue to be resolved is the scope of jurisdiction of the EEOC. This was a central issue in the

Civil Service Reform Act of 1978, and was one of the questions that separated the House and the Senate. Under the Act, the

Merit System Protection Board is to have jurisdiction over
matters appealable to it. It is not clear, however, all the
matters that were intended to be appealable to the Board.
Clearly, adverse actions will be. However, under the present
system challenges based on discrimination to CSC imposed job
requirements, such as examinations, job qualifications, and the
like, are not filed with agencies but are appealed directly to
the CSC under 5 C.F.R. Part 300. The Act does not clearly de-
fine which matters presently appealable to the CSC will now be
appealable to the MSPB. We believe that issues now within the
scope of Part 300 should come under the jurisdiction of the
EEOC. Otherwise the EEOC will not be able to enforce Title VII
in the most significant area the validity of CSC policies.

As a final matter we note that the EEOC is at a critical period. The EEOC is assuming additional enforcement responsibilities while it is attempting, as it must, to improve and develop its procedures. We think that one of the positive functions which the EEOC can perform is to establish a uniform federal equal employment policy. This coordinating function which pursuant to the Reorganization Plan is the responsibility of the EEOC must be adequately staffed in order to be carried out effectively.

STATEMENT OF BARRY L. GOLDSTEIN, ASSISTANT GENERAL COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., WASHINGTON, D.C., ACCOMPANIED BY CHARLES STEPHEN RALSTON, FIRST ASSISTANT COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Mr. GOLDSTEIN. Thank you, Chairman Hawkins, and Representative Weiss. We certainly appreciate the opportunity for the Legal Defense Fund to appear once again before this subcommittee.

My associate is Steve Ralston and if it is OK with the committee, we would like to divide our comments by subject area, and I would like to talk about the private processing and Mr. Ralston about processing with respect to the Federal Government.

Mr. HAWKINS. That is highly satisfactory.

Mr. GOLDSTEIN. Thank you. We would like to summarize our prepared remarks and also make some comments in line with some of the discussion before this subcommittee this afternoon.

We would also like to point out that we have done a detailed theoretical critique of the new EEOC procedures which we have attached as an appendix to our prepared remarks.

I believe we supplied four copies.

Mr. HAWKINS. The attached documents will be entered in the record also in addition to the prepared testimony, without objection. [Additional material submitted by Barry Goldstein follows:]

Enclosed are twenty-five copies of the testimony to be given by the Legal Defense Fund on Wednesday, November 29, 1978. Also enclosed are four copies of an analysis prepared by the Legal Defense Fund on February 8, 1978 on the EEOC procedures which is attached as an appendix to the testimony.

Thank you for the invitation to appear before your subcommittee.

Very truly yours,

Bary L. Fuld fin

Barry L. Goldstein

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Enclosures

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