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Testimony on November 29, 1978

over the obligations of Federal agencies to prepare affirmative-action plans. The Lawyers' Committee has collected its analysis of the problems in the Civil Service Commission's present complaintprocessing activities, and with the Civil Service Commission's affirmative action efforts, in a February 1978 publication entitled Towards Making the Promise of Nondiscrimination in Federal Employment a Reality. Copies were sent to a number of Congressmen and, we believe, to the members of this Subcommittee. We are today filing five additional copies with the Subcommittee. In essence, we concluded that the present Civil Service Commission regulations are unfairly "stacked" against complainants, and that they are in need of substantial revision. We recommended that the EEOC be given the authority it has now been given, and recommended further that it use its authority to establish a model cease-and-desist procedure for Federalsector complaints of discrimination. Doing so would help to redress the fact that no public agency currently has the authority to prosecute discrimination complaints against Federal agencies in court, and would provide a clear indication of the Commission's ability to conduct a fair and efficient cease-and-desist procedure. Only with such a practio cal demonstration can the continuing dispute over giving the

EEOC cease-and-desist authority in the private sector be resolved. Testimony on November 29, 1978

We also concluded that the present affirmative-action program was almost completely ineffective. The Federal government lags far behind the private sector in employing blacks in the South and in employing Hispanics in the Southwest, and lags far behind the private sector in employing blacks in higher-paid jobs. There are, for example, 73 Standard Metropolitan Statistical Areas for which both private-sector and Federal-sector performance as of 1975 can be measured. By our measure, in two-thirds of these SMSA's, Federal performance was less than half the performance of the private sector in the proportions of employees in high-paid jobs who were black. Towards Making the Promise at 13-21.

The EEOC should require meaningful statistical reporting by Federal agencies and meaningful efforts to identify and eliminate barriers to the progress of women and of minorities. Above all, the EEOC should require the Civil Service Commission to prepare a detailed public "Minority and Female Impact Statement" with respect to each test and other employment standard it administers, setting forth its exact impact by race and sex and, where disparate impact is severe, the precise reasons why no other standard would be sufficient. CSC should be required to reconsider its use of each such test or standard in light of the Statement. Such public statements should also be required for all new tests and standards the Civil Service Commission desires to put into effect, before the CSC makes its final

decision on their use. Such detailed, public statements may help

Testimony on November 29, 1978

CSC shift its focus from a myopic preoccupation with coefficients of correlation to the far more important social

effects of its decisions.

Once again, we thank the Committee for having invited us

to testify. We hope that these hearings will strengthen the
EEOC's determination to improve its present procedures and
to enhance the quality of its litigation efforts. We offer
our comments and recommendations to be constructive and we
hope they are considered in that light. We believe in a strong
EEOC as is evidenced by our earlier recommendations to the
President's Task Force on Reorganization. We hope that our

recommendations will be considered favorably, and we will be

happy to work with the EEOC in these and other areas.

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Mr. SEYMoUR. There are three main areas of our testimony. The first is the adequacy of the Equal Employment Opportunity Commission's litigation effort. The second is the effect of the commission's new procedures on enforcement of Title VII by litigation. The third is the EEOC new responsibilities for discrimination in the Federal sector.

I would like to say at the outset that these oversight hearings are extremely important. There have been a number of efforts in court brought by women's organizations and by other groups to challenge some aspect of the new procedures which have caused problems or to challenge some aspects of prior backlog resolution procedures that were causing problems. The general holding of the district courts has been, no one has standing to seek review in court of those procedures, so that the only effective forum outside the EEOC would be before this committee. Turning to the substance of our testimony, we have to recognize at the outset that any outside organization, of necessity, has only a limited view of the EEO's activity. It would be fairly specific both in terms of time and money to do a comprehensive study of all aspects of the commission's activities. We are trying to obtain foundation funding to engage in such a study. If we can obtain the funds, we hope we will be able to obtain also the jo and the cooperation of the EEOC in carrying the study Orwarol. What we have laid out in our report and what we can talk about are some instances which have raised major concerns on our part as to what is taking place, but of necessity it cannot be completely comprehensive. Turning to the EEOC's litigation efforts, I would like at the outset to state that the commission appellate work has generally been excellent. They have provided a good number of briefs of first-rate quality. Unfortunately, the trial work does not come up to those standards. The first problem is the very small number of cases which have been filed with the resulting effect that the EEOC's own litigation effort has been a small part of the total effort to enforce Title VII by litigation. From July 1, 1975, to June 30, 1976, filings by the EEOC were only 6.5 percent of the total filings of Title cases. If suits other than direct enforcement suits, to enforce subpoenas, demands for access to evidence, etcetera, are excluded, the EEOC's direct enforcement filings were only a little more than 3 percent of the total of Title VII cases. In the most recent 12-month period ending June 30, 1978, the Administrative Office of the U.S. Courts has told us that filings by all U.S. agencies in fair employment matters, which includes the Justice Department as well as the EEOC, constituted only 2.9 percent of the total filings of employment discrimination cases. Apart from the low numbers of cases, another major area of concern is the adequacy with which those cases are handled at the trial level. Our concerns in that area were hightened upon reviewing the statement of the general counsel in testimony before this committee yesterday. General counsel stated in the first few pages of his testimony that in fiscal 1978 there were dispositions of 191 cases. Of those, only 31 were resolved by trial and 160 were resolved by settlement. The settlement figure is thus 83.8 percent of the total resolutions of cases in fiscal 1978. Mr. Chairman, I have spent over 90 percent of my time prosecuting fair employment cases since I left o: Government in 1969. I am familiar with the experience of a fairly large number of other attorneys who specialize in this area. I know of only one way to achieve such a ratio of settlements to trial, and that is to take what are called strike suit settlements, which have very weak provisions for either monetary or injunctive relief. The reference to the total dollar amount achieved in such settlements cannot tell the whole story. Without knowing the number of people whose rights were affected by the suit, the relative strength of cases one would have to go into a fair amount of detail into each of those settlements to say for certain what did take place in those settlements, whether it was a reasonable settlement or terribly inadequate. One troubling indication again comes from the General Counsel's testimony. Of the 160 settlements in fiscal 1978, 41 percent of them had no injunctive relief. That figure is at the top of page 2 of the prepared testimony. We have cited in our prepared testimony two examples of settlements which we think raise extremely serious concerns. The first was the settlement of EEOC's case against the Lynchburg facilities of the General Electric Co. We cited that example because, first, it is one we are very familiar with, having a companion case earlier filed against the same facilities, and second, because it was a routine case handled under what we understand to be the Commission's routine priorities and in accordance with its routine mode of settling cases. The three major problem areas in that settlement are, first, that there was no meaningful relief. The Commission settled the case for “injunctive” provisions, which essentially, as to hiring standards, said that the company would not reestablish standards which they had earlier abandoned. Some we believe they abandoned in response to our earlier field case. With respect to the discrimination and promotion to foreman positions, all the EEOC obtained from the company was it would notify EEOC how many blacks were among those who were promoted to foreman jobs. There are no goals, no timetables, no change in procedures in any of the company's practices in that area. F. lack of an independent investigation of crucial facts is another problem area. If the case is settled for a large measure of relief, there is not much need to investigate the strength of the company defenses because you are still obtaining large relief without those defenses curtailing the relief. But if you are settling the case for a very small amount of relief, it is important that you gage the effect of the company defenses because otherwise you do not know whether you are settling adequately or not. The third and most troublesome standard under which the case was resolved is that one of the motivating factors was that it was an old case, filed in 1973. Old cases should be gotten out from under so the Commission can proceed to new cases. We have several problems with that, sir, as litigating attorneys. First, in this one instance, for example, hiring standards was a set of issues which the Commission could challenge. Because of the statute of limitations there could no longer be any private lawsuit as to those standards which had been abandoned, but there were still groups of people who were affected

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