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 assistance and the cooperation of the EEOC in carrying the study forward.

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 VII cases. If suits other than direct enforcement suits, to enforce subpoenas, demands for access to evidence, et cetera, 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 the 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.

The 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

by the prior discriminatory standards. Those people could get relief only in the EEOC case and could never get relief otherwise.

The relief for that and other reasons, including the accumulation of back pay during the pendency of litigation, can be most meaningful in a case which has been in the docket for a substantial period of time, and we do not believe it makes sense either, for a private enforcement effort or for a public enforcement effort to simply try to get rid of old cases so that they can turn to new cases.

The first problem that the Commission would face in bringing a set of new cases after it has gotten rid of the old ones is that no one will regard its litigation efforts credibly unless it has convinced everyone it has prosecuted it to the fullest extent of its ability.

If there is no settlement, then the full weight of the law will be brought to bear on the defendant. The second settlement which we have laid out in our proposed statement is the nationwide settlement with the General Electric Co. We choose that because it was not typical. It reflects a situation which the Commission had itself determined to be a matter of high priority. The chief concern that we have with that, again, is that the manner in which the case was settled and the actual relief obtained seems to be far less than it would look at first balance. For example, the settlement states that the company is going to have an apprenticeship training program with 1,000 of one and 500 of the other. other. It does not state how many apprentices and trainees there were before, so in looking at the settlement one would be completely unable to know what commitment the company was to make. In point of fact, we have been informed on an off-the-record basis there are going to be less than 100 female and minority trainees under what looks like a much more substantial commitment.

The figure $9,900,000 for that training includes all of the females and minorities who are being trained before. It is not definite from the face of the settlement in its percentage figures that the small increase in the number of trainees is going to result in any blacks or women getting training who are not already getting training, and the dollar value of that part of the settlement seems to be greatly inflated.

Similarly, the absence of back pay for persons actually victimized by past discrimination is very troubling. In my experience it is very common for an employer, faced with a litigation effort that has to increase the number of blacks and women in highly paid jobs, to choose to fill those commitments from outside the company. There is much less loss of corporate face in filing such positions with outside persons than it is to promote the persons held down in the past. Under this nationwide agreement the company is not required to promote any blacks or women to fill those numerical timetables. It can fill all of them by hires from outside.

The promotion incentive program which was set up as part of that settlement does not distinguish between the situation in which blacks are going from one traditional black job to another or women from one traditional job to another, it simply applies if you go from one work zone to another. This is not the kind of relief which is

going to cause much problem for the company. There may be all manner of justification for what the EEOC did in that settlement. We do not have those facts. We would be delighted if the committee would request that information for your review. But on the face of it, it does raise a number of serious problems.

Another problem we have with respect to the EEOC's enforcement by litigation is the manner in which it views its relation to the persons it is trying to help. In an ideal sense no public enforcement agency should be required to act as fiduciary for private persons. It has its own allocation of resources to make in terms of the practices it wants to concentrate on in litigation. That interest of public enforcement to an extent is incompatible with the interest of a fiduciary trying to maximize the relief to the particular individuals affected in a particular location. But we do not live in an ideal world, and there are a number of cases where the EEOC does not have much choice but to act in accordance with that rule. For example, the situation I mentioned earlier with respect to General Electric and Lynchburg where only EEOC could get relief of persons harmed.

Another example is the court cases which have held that the EEOC can sue as a class representative sometimes against its will. Or there are cases again, as in the Lynchburg situation, in which class certification is denied in a private enforcement action because the court finds that the Commission would do an adequate job representing the interest of blacks in its action. In those kinds of situations the Commission has to act as fiduciary because it has been assigned that responsibility in a practical sense.

If it does have that responsibility, then it cannot simultaneously decide to get out from under a case because it wants to turn its attention to new cases. It cannot try to obtain waivers of undisclosed rights from the persons it is attempting to represent. I would like to turn for a moment to the charge processing procedures. There is one statement in Chairman Norton's testimony yesterday

Mr. HAWKINS. May I ask you whether or not, in the nationwide GE case are there any further actions that could be taken against GE which would not involve what has been settled away in the settlement itself?

Mr. SEYMOUR. Sir, I understand there are enforcement actions against General Electric brought by private persons other than the case that we have in Lynchburg.

Mr. HAWKINS. These are not EEOC cases; they are private action suits?

Mr. SEYMOUR. Yes, sir. But they do not cover the map with respect to GE facilities. You see, I want to be as fair as I possibly can be with respect to a situation like that. There always are situations where anyone, private agency or public agency, bites off more than it can chew. We think in terms of preserving the credibility of its own efforts it is much better off to dismiss part of a case and to handle well what it can handle than it is to accept a very weak settlement of something which it is not able to go to court on.

The major problem we have, if it can be put in a nutshell, is that oftentimes one gets the impression that there is a great reluctance to bring cases to trial by the Office of General Counsel. That stems in turn, we think, from the fact that there has not been adequate training of the EEOC trial attorneys sometimes on very basic points.

Sometimes an attorney may not realize it is a good idea to talk with the expert witness about the subject of his testimony. The art of litigation is something which most attorneys learn working under attorneys who are much more experienced. Where you have a large number of supervisory attorneys who are not experienced in litigation, there has to be formal training programs.

One useful model for the EEOC to consider would be the Public Defender Service in the District of Columbia. Several years ago that was not considered to be a high-quality litigation agency. When Barbara Babcock, who is now the Assistant Attorney General for the Civil Division, took the agency over, she instituted a formal training program which everyone had to attend-line attorneys, supervisors, everyone. Even now, when the agency has a solid core of highly experienced trial attorneys, they have a 6-week formal training program that every new attorney has to come into, including attorneys who have had substantial criminal experience. Once they are through with the training program they are rotated through a series of assignments of gradually increasing complexity until they get to the stage where the agency thinks that they are really qualified to be on their own. We do not think that litigation of title VII cases is any less complicated than the trial of criminal cases, and a program such as the one that Ms. Babcock introduced and turned that agency around, and which by doing it would be very valuable at the EEOC.

Mr. HAWKINS. Are you at all acquainted with the current training programs of EEOC in connection with its lawyers?

Mr. SEYMOUR. Sir, we have made a number of queries over there. What we have found out is that there has been very recently a few attorneys who have gone through a training program to learn about compliance activities. We do not know the full extent of that. We do not have the persons we have contacted; there is no formal training for attorneys coming into the systemic units. There has been no training in systemic matters for the attorneys assigned to the systemic units at the model offices. That training is scheduled to be held in February 1979. We do not know the extent of the training. My subjective impression is that there has been an increased level of training given in the form of periodic seminars on particular topics such as discovery techniques and perhaps a month later a meeting on the subject of statistics. From what we have been able to observe, however, there is a much more rigorous training that really is required for the agency's litigation effort to come up to the standard they could achieve. The problem is there are a large number of attorneys who are very dedicated and eager to do as much as can be done, but they just have not been given the tools in terms of skills. It is one of the problems that would happen to any agency, not just the EEOC, any group that went from a relatively small number of attorneys to having 300 or 400, as the EEOC did

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