with the 1972 amendments. In that kind of change it is very difficult to insure carryover of quality. We think that can still be done but only with rigorous training.

Mr. HAWKINS. Thank you.

Mr. SEYMOUR. With respect to the processing of charges, the Chair stated at page 40 of the testimony yesterday that the individual charge cannot attack systematic denials of equal employment. There is a difference of perception that we have with the Chair on that subject. Ordinarily when we bring systemic cases, and that is just about all the Lawyers' Committee does, we find out the basic information about what the scope of the suit would be by conducting a full interview of the person who comes to us, by arranging for meetings with company workers and by interviewing them.

It does not take terribly much time to find out what are the major problems affecting blacks or women at that location. We believe that the EEOC, by the use of a similar questionnaire, would provide a wealth of information that would not just protect the rights of the charging party to generally bring a private class action, but it would also be of enormous assistance to EEOC in deciding which companies to target.

For example, the commission is developing a procedure to place a great deal of information on a data processing form about the content of charges. But so long as charges are narrowly taken and intake officers refuse to state class allegations or even indications of class discrimination that would be helpful in processing individual charges, all this information being on computer will not help because it will not be on the original forms, and therefore cannot be computerized. The EEOC has EEO-1 forms. Those contain a very broad kind of statistic that are not terribly helpful in the prosecution of cases. For instance, many promotional cases depend upon subjective discrimination by foremen that in turn depends on the question of whether foremen tend to be all white males or whether there is a fair representation of women among foremen.

Foremen are listed along with craftsmen. The form itself does not inquire into whether the company uses tests or educational practices or various different types of seniority systems that might still be a violation of title VII after Teamsters. It does not provide separate information for apprenticeship programs that are conducted solely by the company. There is a separate form for apprenticeship programs that are conducted jointly by labor-mangement committees but nothing for the company's own programs. Those kinds of information in some Federal agencies even before title VII was adopted used to require. I know we have taken 1962 reports that were submitted to offices of contract compliance under President Kennedy's executive order. There is no reason why the EEOC-1 forms could not require this information now.

We are not sure of the extent of the commitment that the Chair has made to Women Employed with respect to the ability of persons to file class-type charges. We do know of situations in which individuals have been turned away from EEOC Offices when they tried to file class-type charges and insisted upon it. Women Employed is a tiny, influential organization.

The Chicago office of the EEOC has perhaps one of the most dedicated persons, a person of very great knowledge and sensitivity,

both. That situation may be the best yet, the rapid charge system processing that can be produced, and it may be different at other offices with other directors and without attorneys or organizations like Women Employed.

If the EEOC really does intend to allow the filing of class charges, this has to be stated in an amendment to the compliance manual, and it has to be communicated effectively to intake officers so that they will know of this change in policy. A private assurance simply cannot do the job.

There was a question that was asked earlier with respect to whether any individual private enforcement actions have been affected by the new procedures, and we can provide an example of that. We were contacted by the EEOC back when we were part of a private bar program under which we received some money from EEOC for litigation. Under that program we were contacted by some district offices when they felt there was a particular case that would not be taken by the commission as part of its own litigation program but that should be brought.

In this situation there was a story in the Loop in Chicago, which is an area of very high concentration of blacks, a company that had roughly 400 employees, and three of them were black. There was substantial turnover at the store. It was an ideal situation for suit. The problem is the charging party had been allowed to take-or encouraged, I do not know which-a settlement of her individual allegations. She had raised both individual and class allegations in the charge that she filed. She had been under the impression-and we believe that was counseled by EEOC officials who had not been trained-that accepting the individual settlement would not affect her ability to bring a class action.

The problem is, unless you have a personal stake in the action which you no longer have, you cannot bring the class action. It will probably be some time before one of the other two black employees at that store would think of filing an EEOC charge. So that is at least one instance in which private enforcement has been harmed by the concentration upon individual settlements.

There also is another effect in terms of what the commission is able to achieve itself. Through our contacts with attorneys and EEOC personnel across the country, we understand that one of the things which had been taking place before the rapid charge processing system was that if a company faced what it considered a substantial enough danger that the EEOC would engage in a broadranging inquiry into its employment practices, it would be willing not only to grant individual relief to the charging party in terms of some settlement that may or may not have been more of a nuisance value, but they were also willing to make prospective changes in employment practices.

If an educational requirement was the problem, they were willing to abandon that problem and buy off the charging party. That way they would be able to avoid the prospect of litigation, fees they would have to pay to their own attorney, the prospect of backpay to other persons harmed. There is no problem with the propriety of the EEOC working out such an agreement because it is going to be benefiting more people than the charging party. It will avoid

overburdening the courts. Anyone who wishes to receive backpay could always file a charge. It achieved substantial relief.

Since the institution of the rapid charge processing system, however, according to the partial and subjective information that we have been receiving, employers are not any longer willing to engage in changes in their prospective standards because they know with reducing on the individual charge there is little possibility the EEOC would prejudice enforcement action on a broad basis, so the most they are willing to do is provide limited financial relief to the charging party.

We do not want to fail to recognize that for many individuals the most important thing is to get their job back, is to get a particular promotion, is to get the individual back pay they have been denied. That is a very, very important function. But as Women Employed stated in its prepared testimony, title VII cannot really be enforced by handling individual cases.

Sir, I keep saying there are a number of essential points. One particular perception that I have that I do think may be relevant to the committee is that the private bar made a serious mistake when we started filing enforcement cases right after title VII became effective in 1965. My first involvement was with a case that was filed in 1966, when I was still in law school, and I worked in law. For the first several years we did not go after backpay to any significant degree. We concentrated on changes prospectively. The problem we faced was that we were getting court decisions saying educational requirements were unawful, that departmental seniority was unlawful, but even the same companies that we had successfully sued would not change the same practices at other plants, and you would have to bring a lawsuit against virtually every company in the South in order to change those common patterns.

Backpay is the tool, and is the only tool, by which there can be substantial enforcement of the act without the need for litigating against each plant in the country. To the extent that the EEOC settles cases, either nationwide conciliation agreements or in the one-plant situation such as in Lynchburg at GE, the commission locks itself into having to sue the next plant or the next company that has the same practice. If those companies are required through a fully litigated case or through a hard bargain settlement to pay substantial backpay, then corporate managers will begin to pay attention to the potential areas of loss in unexamined personnel practices. They will give the same attention to that they would give to inventory control, and the total amount of litigation will go down, the total amount of discrimination will go down, and we can all devote our attention to other things.

Finally, I just have a few remarks to make with respect to the Federal sector enforcement. I have given seminars and workshops at conventions sponsored by the Civil Service Commission or by private firms that specialize in providing those services to Federal managers. Time after time the persons attending such workshops have been agency officials who had the responsibility for signing off on a decision as to whether or not there was discrimination.

Time and time again, at the time of my discussion when I mentioned it was not necessary to prove racial or sexual malevolence in order to establish a violation of title VII, that you could have a neutral practice like an unnecessary educational requirement that was legally sufficient to constitute discrimination, the reaction has been one of astonishment. There has been very little training conducted by the Civil Service Commission as to the substance of discrimination, and to the extent that the EEOC will continue to sue its officials in the processing of charges of discrimination, again training is absolutely essential and it should be provided without delay.

We have had two specific recommendations which we have made both in prior documents that have been issued and provided to the committee and in our prepared testimony. We think they both are important. One is that the EEOC set up a unit to conduct administrative proceedings over which it would have the primary control. Perhaps that would require a specific delegation of authority, but we think it can be done by whichever means is appropriate. If it conducts administrative procedures leading to an order that an agency cease and desist from a particular practice, it would serve two terribly important functions:

First, it would eliminate the present problem that unlike all other employment sectors-State and local government-private sector, there is no public enforcement agency that has the authority to take a Federal agency to court. The total enforcement burden at present falls upon the Federal employee or applicant for Federal employment who has been discriminated against.

Second, if the EEOC can make such a cease and desist procedure work so it is perceptibly fair, that may once and for all resolve the controversy whether the EEOC should be given cease and desist authority in the private sector. If it can be made to work in the Federal sector, there are a substantial number of employees with terribly serious problems, then I think that the opposition to it on the part of the private sector will die down. If it cannot be made to work in the Federal sector, I think no civil rights organization would attempt to suppress cease and desist enforcement. This is a great opportunity for EEOC to show what it can do in that area. The second recommendation that we have made in our prepared testimony is that one of the specific things that EEOC should do is to require the Civil Service Commission to prepare a minority and female impact statement under which the Civil Service Commission would be required itself to show the exact impact on women and on minorities of its tests and its standards.

The particular test that comes to mind most readily is the PACE examination. There was a case that is now in the process of settlement on the West Coast called Ellis v. Naval Air Rework Facility. In that case the commission was ordered to prepare statistics showing what the racial impact of the PACE examination was. Those statistics were very striking. The PACE exam, just by way of background, is an examination that is used for entry-level professional jobs. There are approximately 120 jobs it applies to. Unless you pass the examination at a sufficiently high level, you have no

hope of employment in those jobs. Those are the jobs that lead up from a GS-5 or 7 up to 12, 13's, and 14's.

The PACE exam in the San Francisco region has a formal cutoff score of 70. In practice, you have to achieve 90 or higher in order to be referred for interview to agencies that have jobs, because the PACE exam is used to rank people. The figures are stated in the document we left with the committee, our report on affirmative action. It is called toward making the promise of nondiscrimination in Federal employment a reality.

The particular figures there were that 25 percent of the whites passed the PACE exam with a score of 90 or higher and were eligible for employment; 1.1 percent of blacks passed with a score of 90 or higher; and zero percent of Hispanics passed with a score of 90 or higher. We think it would be useful for the Civil Service Commission to be required as an ongoing matter to collect statistics with respect to its standards, to pull together the precise reasons why it cannot use other standards that do not have that adverse impact, and on the strength of those two types of information to reevaluate the standards.

That is what affirmative action is really all about, requiring the education and reevaluation of roadblocks to the progress of women and minorities, and we think that would be a good step for the EEOC to take on January 1.

Mr. HAWKINS. Do you have a breakdown on the statistics with respect to sex on the PACE examination? How do the women rank? Mr. SEYMOUR. I do not have that, sir. The Civil Service Commission has since the first of this year been collecting information as to race and sex of applicants, something they did not do to nearly that extent before. Those figures should be available in the future, but I do not have them.

Mr. HAWKINS. Does that conclude your statement?

Mr. SEYMOUR. Yes, sir.

Mr. HAWKINS. Mr. Weiss.

Mr. WEISS. Thank you very much. It was very impressive testimony, and I guess I really have only one area of inquiry. At the outset of your testimony you related the experience with the Lynchburg and the Franklin cases that the Franklin case was a companion case with the EEOC Lynchburg case, and that you had indicated to the EEOC people that you had printouts that would be helpful to them, perhaps, in making their determination as to whether in fact they ought to enter into a stipulation or not or as to what they should be asking for. You state that apparently they listened or received it, but you do not know what if anything they did with it, because they obviously disregarded it ultimately.

Now, that happened only this year, right, 1976 was the stipulation, right?

Mr. SEYMOUR. That is correct.

Mr. WEISS. That is now we are talking about the current Commission.

To what do you attribute the willingness to settle out so easily both in this case and in the national GE case? Is it really simply a matter of closing out cases or what? I would like you to expand on that, if you would.