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on these issues, the validity of the proposed guidelines and the authority of the Commission to issue them is questionable. 11/ Moreover, inasmuch as the guidelines would permit individual employer affirmative action even when there is no evidence sufficient to prove the employer violated Title VII, and before there is a related finding of discrimination "by judicial, legislative, or administrative bodies with competence to act in this area," it is also questionable whether the proposed guidelines comply with the standards established in The Regents of the University of California v. Bakke, 98 S. Ct. 2733, 2757-2758, 2766 (1978) (Opinions of Justices Powell, Brennan, et al.). At a minimum the questions raised above should be addressed by EEOC before the guidelines are issued in final form.

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EEOC regulations do not have the force and effect of law
and are not controlling upon the courts. As a general rule,
the regulations are entitled only to "some" deference even
if they have been consistently applied by the agency. See,
Trans World Airlines v. Hardison, 430 U.S. 903 (1977) and
General Electric v. Gilbert, 429 u.s. 125 (1976).
Employers relying upon the proposed guidelines as a defense
to a Federal court suit under the good faith defense provided
in s 713(b) of Title VII must do so with the recognition that
EEOC in the past has narrowly restricted application of that
section to Commission opinion letters addressed to specific
addressees based on stated factual assumptions. See, 29
CFR SS 1601.31, 1601.32 and 1601.33; EEOC Policy Statement,
35 F.R. 18692, December 9, 1970, and EEOC Decision No. 75-
147, January 13, 1975. The guidelines, however, purport to
sanction virtually all forms of affirmative action, even
though specific programs are not approved by EEOC before

Chamber of Commerce of the United States

202 · 659-6140


December 15, 1978

The Honorable Augustus F. Hawkins, Chairman
Subcommittee on Employment Opportunities
Committee on Education and Labor
House of Representatives
Washington, D. C. 20515

Dear Mr. Chairman:

Attached is a statement expressing the views and recommendations of the Chamber of Commerce of the United States on federal enforcement of equal employment opportunity laws.

We will appreciate your consideration of these views and request that the statement be made a part of the hearing record.

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for submission to

of the

for the

william H. Knapp*
December 15, 1978

The National Chamber is the largest federation of business and professional organizations in the United States. It is the principal spokesman for the American business community. It represents over 75,000 business firms, 2500 chambers of commerce in the United States and abroad, and 1200 trade and professional associations.

Equal employment opportunity for all qualified individuals is of direct concern to the National Chamber and its members. The National Chamber reemphasizes its strong support of reasonable steps intended to achieve the goal of equal employment opportunity for all qualified individuals.

We are pleased to note that a number of the recommendations made to the Carter Transition Office concerning the restructuring of the Equal Employment Opportunity Commission (EEOC) have been followed by Chair Eleanor Norton. The National Chamber has commended Chair Norton and the Commission for their efforts to streamline the often chaotic and time-consuming procedures of the EEOC. We have continually supported procedures that are fair to all parties the agency, the charging party and the respondent. We welcome additional changes at EEOC which will meet that objective.

While we approve of many of the internal procedures that have taken place at EEOC, we still have very serious concerns about certain EEOC actions. Before addressing certain of our concerns, it appears appropriate to make some general observations on the federal civil rights enforcement efforts.

On May 5, 1978 President Carter's Reorganization Plan No. 1 concerning the reorganization of the Federal Government's equal employment opportunity enforcement activities became effective. The

*Labor Relations Attorney, Labor Law Section, Chamber of Commerce of the United States

Plan designated the EEOC as the principal agency in Federal fair employment enforcement. The National Chamber shared the concerns of the President which included inconsistent compliance standards and administrative regulations, investigative programs and paperwork requirements. The lack of uniformity and consistency can only imperil equal employment opportunities for qualified individuals. When we presented our views both to the Senate Governmental Affairs Committee and the Subcommittee on Legislation and National Security of the House Committee on Government Operations we were very concerned that the EEOC would not be able to properly carry forth its new mandates. While we commended Chair Norton and the Commission for their efforts to streamline and place responsible management techniques into the procedures of the EEOC, we believed much work still had to be done. We did not think it was prudent to assign new responsibilities to an agency that was in the midst of solving its own problems. Therefore we recommended that responsibilities for the enforcement of the Equal Pay Act (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA) not be transferred from the Department of Labor (DOL) to EEOC. We question whether enough planning and coordination is taking place to effectuate a smooth and effective transfer on July 1, 1979. One of the purposes of Reorganization Plan. No. 1 was to alleviate agency inconsistences. To reduce the burden on federal contractors caused by the multiplicity of inconsistent demands of compliance agencies, we supported the President's recommendation to consolidate all compliance agencies into DOL., Office of Federal Contract Compliance Program (OFCCP). It is crucial, however, that all compliance officers receive uniform training. Proper training of all persons involved in the enforcement of fair employment practice laws is essential. The recently concluded oversight hearings of this Subcommittee concerned federal enforcement of equal employment opportunity laws. We urge that the Subcommittee, perhaps in later oversight hearings, review the inconsistencies concerning civil rights laws and Executive orders. The ultimate goal is equal employment opportunity for qualified

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