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The original documents are located in Box 12, folder "Equal Employment Opportunity
Commission (1)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
Digitized from Box 12 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
POWELL, JOHN
Material concerning John Powell, former Chairman of
the EEOC, is filed in the safe under
"Personnel -- Powell, John"
FORD i LIBRARY GERALD
EEOC
THE WHITE HOUSE
WASHINGTON
February 10, 1975
Dear Mr. Schubert:
Thank you very much for your memorandum about the
effects of layoffs on minority and women workers.
The subject is an important one, but contrary to
the BNA report, our office is not presently
studying the problem. I have chided the BNA
reporter about misinterpreting my remarks. He
asked me questions on the subject, but I thought I
had made it evident that the subject involved
certain issues in which our office probably would
get involved only if and when legislative recom-
mendations came to the White House for consideration.
Whenever you might think it helpful for someone on
the White House legal staff to participate in any
particular way, I shall be most happy to respond.
Sincerely,
Philip Buchen
Counsel to the President
The Honorable Richard F. Schubert
Under Secretary
U. S. Department of Labor
Washington, D. C. 20210
CC: The Honorable John H. Powell, Jr.
FORD & LIBRARY 0ERALD
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASHINGTON, D.C. 20506
February 1, 1975
OFFICE OF
THE CHAIRMAN
MEMORANDUM FOR
PHILIP W. BUCHEN
COUNSEL TO THE PRESIDENT
Dick Schubert has provided me with a copy of his memo
of January 30, 1975 informing you of efforts being
undertaken by U.S. Department of Labor officials to
develop alternatives designed to avoid or lessen the
impact of layoffs on women and minorities without
violating fair employment practice requirements.
I fully concur and have initiated similar efforts here
at EEOC.
Recent experience suggests, however, that despite such
efforts, layoffs may continue to occur. In view of this,
the efforts described in Mr. Schubert's memo should be
supplemented by an examination of the feasibility of
employing strategies involving the use of incentives for
reducing the number of work hours rather than the number
of employees. In addition, a formula should be devised
for use in those instances where layoffs prove unavoidable.
This formula ought to be thoughtfully tailored so as to
avoid a grossly disparate impact on women and minorities.
It is important that all who have an interest in how the
balance will ultimately be struck, feel that the interest
of their particular group will be identified, understood
and taken into account. In short, this administration's
approach must be one that is both fair and has the
appearance of being fair.
I would welcome the opportunity of discussing this
question in more detail with you and other appropriate
officials.
John H. Powell, Jr.
Chairman
FORD i LIBRARY GERALD
U.S. DEPARTMENT OF LABOR
EMPLOYMENT STANDARDS ADMINISTRATION
LAROR
WASHINGTON, D.C. 20210
OTHER
STATES
MEMORANDUM FOR
PHILIP W. BUCHEN
COUNSEL TO THE PRESIDENT
I read your comments in BNA that you are directing your staff
to study the effect of layoffs on minority and women workers.
You alluded to the three court cases which gave EEO considerations
priority over contract seniority and thus have the effect of
pitting one group of workers against another group of workers.
You stated you had asked the Justice Department for ideas on how
to resolve this problem.
I thought you would be interested to know that at the Department
of Labor we have been studying this problem since August 1974 and
have been trying to develop alternatives to layoffs whereby em-
ployers can keep more employees on the job, still cut labor costs
and yet not violate the various fair employment practice laws or
other statutory provisions. Solicitor William J. Kilberg, Wage
Hour Administrator Betty Southard Murphy and I have been, simply
stated, trying to find ways to ameliorate the economic impact --
within existing resources -- (1) through the immediate modification
of certain regulations in the Wage Hour or EEO fields; (2) by
making accommodations where possible within the statutory framework
and (3) by, as stated above, developing alternatives to layoffs.
I'm attaching hereto a three page summary published in Prentice-
Hall's Report Bulletin No. 15, January 14, 1975 which will give
you a couple of examples.
We have met separately with several union leaders to discuss the
establishment of a small discussion group (under 25) composed of
union, management and government people who would meet to see what
could be done to achieve the above objective. The union officials
with whom we spoke are in complete agreement with this proposal.
We have also had a number of discussions with John Powell, EEOC
FORD LIBRART
- 2 -
Chairman, who is also in agreement. Mr. Powell plans to take
part in the meetings himself and has delegated his Acting
Executive Director to serve as liaison to Mrs. Murphy.
Although we have no way of knowing how successful we will ulti-
mately be, I thought you would certainly want to know what we
are doing. I will be glad to meet with you to discuss this
further and to give you more details.
Dich Achubert
Richard F. Schubert
Under Secretary
Attachment - Prentice-Hall Report No. 15
FORD is DERALD LIBRARY
Personnel Management-
PH
Policies and Practices
Report Bulletin 15
Volume XXII
January 14, 1975
Englewood Cliffs
Prentice-Hall
New Jersey
Contests Spur Peak Performance Among Company First-Aiders
Every company knows how difficult it is to avoid on-the-job accidents,
no matter how many precautions you take. One thing you can do to
minimize the risk is to have employees trained and ready to give first aid
in an emergency until professional help is on the scene. But you must
make sure first-aiders' skills and team coordination are maintained at peak
levels, so they'll function expertly when you're counting on them most.
For a report on how one company ensures top notch performance and
teamwork among first-aiders, turn to NEW IDEAS 258.
Labor Department Reminds Employers of Fair Employment
Obligations in a "Downward Economy"
[15.1] In the grip of an economic slowdown, most companies make
one of two choices: To retain their current workforce even though higher
costs may have a severe impact on the financial well-being of the
company, or-unpleasant as the prospect may be-to lay off substantial
numbers of employees. But are there ways to keep employees on the job
and still reduce labor costs? And if some layoffs or other cost reductions
can't be avoided, how can employers make sure their policies don't violate
anti-discrimination or other federal labor laws? In a recent speech before
ALSO IN THIS ISSUE
Recruiters will keep busy in 1975
15.2
Unemployment insurance compensation extended
$15.3
Computer service matches jobs with engineers
15.4
Check your absence rates against public health survey figures
q15.5
Top execs' salaries, bonus arrangements surveyed
15.6
Higher wages in "veterans only" training program may violate Equal Pay Act
15.7
Survey of paid time off for religious holidays
q15.8
Employer's compulsory maternity leave policy was sex discrimination
15.9
Federal bonding program reports low default rate
$15.10
Health insurance tops youth's most wanted fringe benefit list
$15.11
OSHA inspections find 21% in compliance
q15.12
Coming Events
15.13
Annual competition keeps first aid teams on their toes
q258
Published bi-weekly by Prentice-Hall, Inc., Sylvan Ave., Englewood Cliffs, N.J. 07632. Subscrip-
tion rate $174 per year. Second Class Postage paid at Englewood, N.J. © Copyright 1975 by
Prentice-Hall, Inc. Printed in U.S.A.
FORD
GERALD
LIBRARY
Page
PERSONNEL MANAGEMENT-
Vol. XXII-No. 15
2
POLICIES AND PRACTICES
1-14-75
the Council on Labor Law and Labor Relations of the Federal and New
York State Bar Associations, the U.S. Labor Department Wage-Hour Ad-
ministrator, Betty Southard Murphy, offered some advice.
How to avoid layoffs. Ms. Murphy stressed to Council members that
more time must be spent in finding ways of resolving the layoff problem
in order to keep as many workers as possible on the payroll. She gave
examples of solutions approved by the Wage-Hour Division for two
companies facing layoffs:
Intermittent, shorter work periods. "One company had already laid off 2,000 of
its 9,000 employees," Ms. Murphy said. "They wanted to try closing their plant for
one week a month for three months in order to avoid more layoffs. During the plant
closing all employees, from the president on down, would suffer the same propor-
tionate reduction in salary. Nobody would be paid, including the chief executive
officer." Wage-Hour examined all the facts in this particular case and gave the
staggered work plan the green light.
Plant-wide wage reductions. In another recent situation described by Ms.
Murphy, an employer sought Wage-Hour approval for a plan to reduce certain wages
plant-wide to avoid layoffs. The union had agreed to the reduction. The reduced wages
would still be well above the minimum wage, but the employer was concerned about
possible equal pay violations. After examining the facts, Wage-Hour approved the plan.
Conflicts with equal employment obligations. The Wage-Hour Admini-
strator warned that the economic downturn is going to bring more Title
VII charges, more age discrimination complaints and more equal pay
complaints. "It's already happening," she said. There were 3,040 new age
discrimination complaints filed in 1974, compared with 1,031 in 1969.
The same thing is happening with equal pay complaints, she noted. In
1974, EPA complaints were filed against 2,864 companies, compared with
385 in 1969.
WATCH OUT FOR AGE DISCRIMINATION
According to Ms. Murphy,
"The potential liabilities under the Age Discrimination in Employment Act are
tremendous." Wage-Hour investigators have found that reductions in force adverse-
ly impact on older workers. The issue would be, she said, "whether these layoffs are
discriminatory per se." Her advice: It makes good business sense for employers to
examine their employment practices, from recruitment to retirement, to see
whether their often long-standing policies result in discrimination against older
workers. [See 14.5 for a recent example.]
The Wage-Hour Administrator also pointed out three recent cases
"which may be signalling a trend where plant layoffs or cost reductions
conflict with an employer's fair employment obligation." She indicated
that although these court decisions involve Title VII violations, the same
principles could easily apply to Age Discrimination in Employment
violations and Equal Pay Act violations. The cases:
GERALD FORD LIBRARY
Vol. XXII-No. 15
PERSONNEL MANAGEMENT-
Page
1-14-75
POLICIES AND PRACTICES
3
Employees could be "bumped" to lower jobs. A Virginia District Court ruled
that employees who'd been discriminated against under Title VII were entitled, under
a Court-established company-wide seniority setup, to "bump" other employees out of
their jobs into lower classifications. The Court said it realized that the bumping "will
undoubtedly create morale problems, if not immediate economic problems for those
displaced" but found that relief was warranted because of the discrimination. (The
displaced employees had their wages "red circled" until the wage level for their new
jobs reached the level of their present pay.) [Patterson V. American Tobacco Co. (E.D.
Va., 9-26-74) No. 104-73-R].
Reinstatement with back pay. Ms. Murphy noted that the second case, involving
an employer who'd illegally laid off employees, could also have "far reaching
implications on ADEA and other Civil Rights statutes." A Louisiana District Court
awarded these employees back pay and ruled against further layoffs at that time. The
Court said that "work was to be allocated among the entire workforce until attrition
took care of any excess employees." During the interval, all employees must be paid
for a 40 hour week, whether they work 40 hours or not. Future layoffs, said the
Court, must be allocated between employees who had been discriminated against and
those who had not "in accordance with their respective percentage of the workforce at
the time the layoffs are made." [Watkins V. Steel Workers Local 2369 (E.D. La. 1974)
369 F. Supp. 1221].
Equal employment agreement wins first round over seniority rights. The third
case, according to Ms. Murphy, "shows the dilemma an employer faces in a tight econ-
omy when it has an affirmative action agreement with a federal agency and a collective
bargaining contract." A federal district court in New Jersey ruled that the company's
agreement with the Equal Employment Opportunity Commission to increase its per-
centages of minority and female workers would be violated if the employer followed
the seniority provisions of the labor contract when laying off workers for economic
reasons. The Court said the EEOC agreement prevails over contract seniority provisions.
The union is appealing, arguing that a company-wide seniority system is bona fide even
if it has an adverse effect on employees who might have been previously discriminated
against [Jersey Central Power & Light Co. V. IBEW Local 327 (D. N.J., 9-15-74), No.
74-1083].
MANAGEMENT V. GOVERNMENT PREROGATIVES
Employment
and personnel decisions are management prerogatives, Ms. Murphy noted, but when
these are based on "artificial barriers," federal anti-discrimination laws "circum-
scribe such decisions." But the law is not inflexible: While the Administrator
reminded Council members of the Wage-Hour Division's function as an enforcement
agency, she stressed that the Division would look "very, very seriously" at the
possibility of lawful accommodation with employers to avoid layoffs in a down-
ward economy, and would welcome employer suggestions on viable alternatives.
More on the Age Discrimination Law is at 2131 et seq. Information
on the Civil Rights Law is at [2111 et seq. Details on the Equal Pay Act
are at 17,309. Also see 12305; 5601 et seq.
© 1975 by Prentice-Hall, Inc.
15.1
CERALD
LIBRARY
THE WHITE HOUSE
WASHINGTON
EEUC File
February 12, 1975
TO: PHILIP BUCHEN
FROM:
STAN SCOTT If
For Your Information
UNITED STATES OF AMERICA
#
#
If
GENERAL SERVICES ADMINISTRATION
d
*
WASHINGTON, DC 20405
*
DENTRAL SERVICES
* ADMINIS TRANOR *
FEB 11 1975
*
4
*
Honorable John H. Powell, Jr.
Chairman, Equal Employment
Opportunity Commission
Washington, DC 20506
Dear Mr. Chairman:
It has been brought to my attention that the Equal Employment Oppor-
tunity Commission (EEOC) very recently distributed a limited number
of copies of a purportedly historical pamphlet of its activities
since the passage of the Civil Rights Act of 1964, entitled "The
First Decade."
The concept and purpose of developing and issuing the document appear
to me to be commendable and very useful to those who, like I, are
deeply concerned in making equality of opportunity a reality in
America.
However, I am deeply concerned, and must take the strongest excep-
tions to what I consider the reprehensible and untrue statements
included in Chapter Five, concerning the actions General Services
Administration (GSA) took prior to the signing of the consent decree
on January 18, 1973 by American Telephone and Telegraph Company (AT&T),
the EEOC and the Department of Labor.
On September 19, 1972, the General Services Administration, acting
through its Director of Civil Rights, Mr. E. E. Mitchell, with my
concurrence, entered into an agreement with AT&T which put into effect
a model Affirmative Action Plan (AAP), a model Upgrade and Transfer
Plan and a model Qualifications and Job Briefs Handbook.
There were specific points of criticism leveled against GSA in regards
to the legality of the signing and the merits and sufficiency of the
AT&T Agreement and model AAP.
On September 29, 1972, a Task Force was appointed to review for legal
and procedural deficiencies, the nature and circumstances of the
affirmative action plan agreement executed on September 19, 1972,
between GSA and AT&T. In October 1972, a task force report was sub-
mitted to the White House. In summary, the Task Force concluded that
the GSA/AT&T agreement was in conformance with applicable law and
rund
procedures, and did make significant progress toward the goal of equal
employment opportunity.
GERA
LIBRARY
Keep Freedom in Your Future With U.S. Savings Bonds
2
Mr. William J. Kilberg, at the time Associate Solicitor for Labor
Relations and Civil Rights, made the following statement during
the press briefing regarding the signing of the consent decree
between AT&T, the EEOC and the Department of Labor, on January 18,
1973:
"I think it should be mentioned that the General Services
Administration had undergone negotiations with the Bell
company for some one year before the Department of Labor
and the Office of Federal Contract Compliance became
involved. And we owe a great debt of gratitude to the
General Services Administration for the year of inves-
tigation and hard work that they did and hard negoti-
ation which they did with the company. We use the oppor-
tunity of their work, the opportunity to build upon their
work, in an effort to try to coordinate activities that
we were aware were ongoing.'
These extracted statements of Mr. Kilberg are significantly different
from the allegations attributed "to an EEOC lawyer" on page 28,
Chapter Five, of "The First Decade."
GSA has in the past, is doing so now, and will continue in the
future to cooperate with the EEOC, as well as any other organization
working toward the goal of true equal opportunity. I strongly main-
tain, however, that the distribution of "The First Decade,' as
currently written, is unjustly critical of, and also impugns, the
integrity of a sister government agency. This could be very damaging
to the whole government-wide effort.
I therefore desire, that since the document contains erroneous
statements that malign not only GSA but also a major corporation,
that all copies distributed to date be recovered, and rewritten, and
factual copies issued to replace same.
Sincerely,
Arthur F. Sampson
Administrator
FORD
CC: Hon. Stanley S. Scott - White House
LIBRARY
THE WHITE HOUSE
WASHINGTON
March 17, 1975
MEMORANDUM FOR THE PRESIDENT
FROM:
PHILIP W. BUCHEN
SUBJECT:
Equal Employment Opportunity
Commission (EEOC)
1. Background: Conditions of mismanagement and dissension within
the EEOC and its staff have led your staff to recommend to you
that changes be made in the composition of the Commission
(now consisting of four members, including Chairman John Powell,
with one Democrat vacancy) and in the position of General Counsel
(now held by William Carey).
The statute (42 U.S. C.A. §2000e et. seq. ) provides:
"Members of the Commission shall be appointed
by the President by and wi th the advice and
consent of the Senate for a term of five years
The President shall designate one member
to serve as Chairman of the Commission, and
one member to serve as Vice Chairman."
"There shall be a General Counsel of the
Commission appointed by the President, by
FORD
and with the advice and consent of the Senate,
for a term of four years. 11
GERALD
LIBRARY
Chairman Powell's term on the Commission started 15 months
ago, and it does not expire until 1978. Counsel Carey took office
in early 1973, and his 4-year term does not expire until 1979.
The statute makes no provision for removal from office of any
of the Presidential appointees. However, the President has been
held in the courts to have unlimited authority to remove any appointed
official within the Executive branch. This principle was last restated
-2-
by the Supreme Court in a decision of 1926, and by a Circuit Court
of Appeals in 1940. Yet this principle has been departed from in
Supreme Court decisions of 1935 and 1958, which involved appointees
to an independent regulatory agency or to one having adjudicatory
powers.
It is the opinion of the Department of Justice that EEOC is not an
independent regulatory agency or one having adjudicatory powers.
Its functions are primarily to investigate and conciliate complaints
of discrimination, although it is also entitled when it finds probable
cause to bring court actions to have complaints adjudicated.
Therefore, it is the further view of DOJ that you have removal
power over the persons in question, based on the present state of
the case law, but they do believe there is risk that litigation of
the issue may in today's climate bring a contrary holding. Only
on your authority to designate another member of the Commission
as Chairman would there be no risk of litigation, because this
designation is not for any specified term.
Although the statute is silent even on removal for cause, it could
be argued that a better case for removal authority could be made if
you acted to remove for cause. However, the DOJ raises a note of
caution that a court may still require administrative due process
before upholding removal for cause and could review the adequacy
of the administrative finding of cause warranting removal.
On the question of whether an appointee who claims he has been
unlawfully removed may get preliminary injunctive relief, the
answer in the past would have been he could not because of his
adequate remedy at law for damages. But as you know courts are
currently giving unprecedented early injunctive relief, and the
DOJ is concerned on this issue.
2. Positions taken by the appointees.
With much help from Dick Cheney and Bill Walker, I have sought
the immediate resignations of Powell as both Chairman and
Commissioner and by Carey as General Counsel. Carey says he
will resign but only after Powell resigns and his resignation is
announced. He contends that otherwise he can only be removed
for cause. Powell indicates he may resign as Chairman on
FORD
GERALD
LIBRARY
-3-
Wednesday, because he knows you can readily remove him from
that office, but he would only resign as a Commission member if
and when he found another acceptable opportunity. He too thinks
he is protected from removal except for cause.
3. Options
R) Send removal letter immediately explaining the concerns which
have led to your actions but not predicating the removal on any
administratively determined cause.
Pro argument:
-- A resolution quickly of two major personnel
problems which if coupled with top-notch re-
placements could lead to a much improved
functioning of the Commission and a reduction
in its vast case backlog.
Con arguments:
-- Risk of litigation.
-- Public reaction from those who would regard
the steps as precipitous and unfair.
- - Congressional offense at your defying the
statutory terms of the appointees.
b) Removal only after administrative hearings and findings of
adequate casue.
Pro arguments:
-- Avoids risk of losing litigation on due process
issue.
-- Better public and Congressional reaction.
Con arguments:
-- Delay and more turmoil before hearings can be
RALD FORD LIBRARY
completed.
-4-
-- Uncertainty over appropriate mechanism
for hearings and findings when the arguments
and evidence are likely to be extensive and
confusing.
c) Removal of Powell as Chairman, interim designation of another
member as acting Chairman, and naming of new Republican, when
the next position for such an appointee opens in May 1975, who
would be truly qualified to be designated as Chairman.
Pro argument:
-- Avoids risk of litigation and most risk
of adverse public and Congressional reaction.
-- Would still permit trying to get resignations
by persuasion.
Con argument:
-- Leaves prime sources of trouble in position
to continue making difficulties.
4. Decision
Approve option "a"
Approve option "b"
.
Approve option "c"
.
See me to discuss
.
FORD LIBRARY is GERALD
FOR IMMEDIATE RELEASE
MARCH 19, 1975
Office of the White House Press Secretary
EXCHANGE OF LETTERS
BETWEEN THE PRESIDENT
AND
THE HONORABLE WILLIAM A. CAREY
GENERAL COUNSEL
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
March 19, 1975
Dear Mr. Carey:
It is with sincere gratitude for your devoted service to our
Nation that I accept your resignation as General Counsel of
the Equal Employment Opportunity Commission, effective on
this date, as you requested.
For nearly three years, you have directed the office of the
General Counsel with energy, skill and a strong sense of
purpose. Under your leadership, landmark decisions have
been reached which have broadened the economic opportunities
of all Americans and have effectively enlisted the positive
assistance of employers in identifying and correcting dis-
criminatory employment systems. Your personal contributions
in this regard have been significant, and you have my heartfelt
gratitude.
Now as you depart, I hope you will always look back with a
special sense of satisfaction on your years with the Equal
Employment Opportunity Commission. You have established a
record of accomplishment in which you can take pride, and
you leave with my best wishes for every success and happiness
in the years ahead.
Sincerely,
GERALD FORD LIBRARY
GERALD R. FORD
March 17, 1975
My dear Mr. President:
I hereby offer my resignation as General Counsel of the Equal
Employment Opportunity Commission effective upon delivery
of this letter to you.
more
2
It has been a privilege for me to serve in this capacity and
to develop the legal staff of the Commission to its present
size and to its present outstanding capabilities. At this
time I have completed the responsibilities for recruiting a
much enlarged staff of lawyers and establishing the policies
and procedures to carry out the enforcement powers of the
Commission on a broad scale.
The reason I am resigning now, and without delay, is to
encourage immediate steps on the part of the Administration
which will strengthen the composition of the Commission and
increase the effectiveness of its work.
I wish to express my faith in the future of the Equal Employment
Opportunity Commission because of your strong desire to advance
the purposes for which it was created.
Sincerely,
William A. Carey
General Counsel
# # # #
i
FORD
LIBRARY
EEOC
THE WHITE HOUSE
WASHINGTON
March 27, 1975
Dear Mr. Brown:
Thank you very much for your letter commending
Dr. Marjorie H. Parker for appointment to
the Equal Employment Opportunity Commission.
I note you also sent the same letter to
Mr. William Walker whose primary responsibility
is to consider recommendations of this type
and I am sure he will give your letter careful
consideration.
Sincerely,
Phily W. Buden Philip W. Buchen
Counsel to the President
Mr. Leonard S. Brown, Jr.
1515 Ogden Street, N. W. #203
Washington, D. C. 20010
BERALD FORD LIBRARY
1515 Ogden Street, N. W., #203
Washington, D. C. 20010
March 24, 1975
Philip W. Buchen, JD
Counsel To The President
The White House
Washington, D. C. 20500
Mr. William Walker
Chief of Personnel
The White House
Washington, D. C. 20500
Gentlemen:
I am writing for the purpose of recommending to you the name
of Dr. Marjorie H. Parker, 3115 Fessenden Street, N. W., Washington,
D. C. 20008, to be a member and/or Chairman of the Equal Employ-
ment Opportunity Commission (EEOC).
Dr. Parker has freshly, or recently, completed a tour of tenure
on the immediate past Presidentially-appointed City Council of the
District of Columbia. Dr. Parker's qualifications, and equally well
her commitment to equal and "human rights" for all Americans regard-
less of sex, religion, color, national origin, or station in life,
are encompassed in the District of Columbia's Regulation No. 73-22
("A Regulation Governing Human Rights - Title 34").
Dr. Parker's commitment to human, equal rights and equal em-
ployment is not only illustrated, or demonstrated, if you will, in
the introduction of this regulation while she sat on the D. C. City
Council, but also by her piloting the regulation through the "legis-
lative process," to be signed into local law by Mayor Walter E.
Washington on November 16, 1973.
Regulation No. 73-22 of the District of Columbia, as a so-called
human, civil rights act, is altogether modern, far-reaching, all-em-
bracing, and broadly-sweeping. Sociologically speaking-and I am
somewhat of a social scientist (a sociologist, social worker, poli-
tical scientist, historian, theologian-philosopher, psychologist,
economist, writer, and lawyer to boot, Washington, D. C., a mixed,
Southern community with a "dash" here-and-there of the MidWest and
industrial North endemic milieu, was already "ready" prepared for
the forthcoming regulation in its acceptance, acquiesce, and im-
plementation. Dr. Parker's District of Columbia Regulation No. 73-22
FORD is LIBRARY 076830
serves as a local prototype for national, statewide, and municipal
human rights organic acts guaranteeing to ALL AMERICANS their national
Messrs. Buchen/Walker
The White House
March 24, 1975 -
Page 2 -
born human rights--to be free of all biases, prejudices, and discrimi-
nations of all kinds in our native, free, and endemic democracy.
Dr. Parker is the wife of the Honorable Barrington D. Parker,
United States District Judge, United States District Court, Washington,
D. C. She has been, and is, relevant to her own sex, to us so-called
"male 'chauvinists, in to her own black race, to her own profession,
to her alma mater, to the nation as a whole, and to her own community.
In this light, moreover, as an alumus of Howard Uni versity,
I am also nominating and recommending the name of Dr. Parker before
the Howard University Board of Trustees and its School of Law Dean
Charles T. Duncan, JD, to be considered for the receipt of the award-
ing of the honorary degree of Doctor of Laws (LL.D.) at the Univer-
sity's commencement exercises this year to be held in May.
The raison d'etre for the consideration of Dr. Parker to be a
member and/or Chairman of the EEOC and for the conferring upon her
of the honorary degree of Doctor of Laws is further buttressed by
her appearance on the dramitis personae of several local human rights
organization when they feated her since the introduction and enact-
ment into law of Regulation No. 73-22 of the District of Columbia.
Thanking you very kindly for your consideration of Dr. Marjorie
H. Parker for the position of member and/or Chairman of the Equal
Employment Opportunity Commission, and for your response, I am
Sincerely yours,
Leonard S. Brown, Jr.
cc: Dr. Marjorie H. Parker
Dean Charles T. Duncan
Dr. James E. Cheek
Board of Trustees, Howard UNIVERSITY
FORD is LIBRARY 074400
EEOC
March 28, 1975
2305 Vista Huerta
Newport Beach, Ca. 92660
Mr. Philip Buchen
Counselor to the President
THE WHITE HOUSE
Washington, D. C. 20500
Dear Mr. Buchen:
I am deeply concerned over the unjust "resignation" under duress of
Mr. John Powell, as Commissioner of the Equal Employment Opportunity
Commission. As a life-long dedicated Republican, I should make you
aware of the disappointment now felt by innumerable citizens with whom
I am in constant communication.
I am well acquainted with Mr. Powell's qualifications and proficiency as
an Attorney, but more important, I know him to be an agressive and strict
enforcer of the law.
Knowing him as a fair and just man, I want to voice the strongest protest
to you and the President. His "resignation" is a great loss to the Spanish
Speaking Community.
Lastly, I would not have lost the respect that I had for the President, if I
weren't certain that Mr. Powell's distinguished reputation had been tarnished
and impunged by the "resignation".
Most sincerely,
Jose Maria Burruel
JOSE MARIA BURRUEL, Ph. D.
JMB:dmc
P.S. I will pray to God that the next Appointee is not INTIMIDATED into
inaction by the President!
QERALD FORD LIBRARY
EEOC Holemb
SHELL OIL COMPANY
Saithar
ONE SHELL PLAZA
P.O. BOX 2463
HOUSTON, TEXAS 77001
March 31, 1975
The Honorable Philip W. Buchen
The White House
Washington, D. C.
Dear Mr. Buchen:
I wish to express my sincere appreciation for the manner in which
the Administration handled the recent crisis at the Equal Employment Oppor-
tunity Commission. It was an exceedingly difficult situation and a most
sensitive area.
My credentials for writing this letter are that I served as Vice
Chairman at EEOC for nine years and three months. I am not a candidate for
any position, but out of my experiences I would be willing to share with
you or someone you would like to designate some suggestions for the future
of EEOC.
I am in Washington quite frequently, but I will be glad to come
at a time mutually acceptable to each of our schedules. Individuals that
you would know that are acquainted with me are Senator John Tower, and like-
wise, Peter Roussel who is in the office of Mr. Rumsfeld.
I was tremendously impressed with the televised speech of
President Ford on Saturday evening, March 29th. Both the content and the
delivery were superb.
With sincere appreciation for your service to our nation and with
every good wish.
Respectfully yours,
Luther Hobernit
GERALD R. FORD
Luther Holcomb
Erec
THE WHITE HOUSE
WASHINGTON
April 2, 1975
MEMORANDUM FOR: MRS. ETHEL BENT WALSH
ACTING CHAIRMAN
The attached correspondence has been acknowledged.
It is referred to you for further appropriate handling.
Thank you.
Philip P.W.B W. Buchen
Counsel to the President
FORD LIBRARY
March 31, 1975
Dear Mr. Dormns
Thank you for your letter of March 19, concerning
the Equal Employment Opportunity Commission.
It is my policy not to discuss matters involved in a
case which is presently pending before a Federal
court. Therefore, I am unable to comment on the
issues raised by your dispute with the Commission.
However, you may be assured that your general com-
ments about the Commission's operation will be
reviewed by the appropriate persons.
Sincerely,
Philip W. Buchen
Counsel to the President
Mr. Alionso K. Dorms
1725 Harvard Street, NW.
Washington, D.C. 20089
PWB:JTF:ets
FORD & LIBRARY 07H078
Ecoc
THE WHITE HOUSE
WASHINGTON
April 2, 1975
Dear Mr. Holcomb:
Many thanks for your very complimentary letter of
March 31, 1975.
I appreciate your interest in having given this
Administration the benefit of your long and distin-
guished experience as Vice Chairman at the Equal
Employment Opportunity Commission.
At present I am not particularly involved in the
EEOC organizational problems, but I suggest that
you call Mr. William Walker at the White House
in advance of your coming to Washington, so that
he or someone in his office of Presidential Personnel
could arrange a conference to meet with you.
Thank you also for your praise of the President's
speech on March 29.
Sincerely,
Counsel to the President
Mr. Luther Holcomb
Shell Oil Company
One Shell Plaza
P.O. Box 2463
Houston, Texas 77001
FORD is LIBRARY GERALD
EEUC
THE WHITE HOUSE
WASHINGTON
April 4, 1975
Dear Dr. Burruel:
Your letter expressing concern about developments in
the composition of the Equal Employment Opportunity
Commission has been received.
In contrast to your letter, I have received other
comments from persons equally devoted to Mr. Powell
and the work of the EEOC which commend the steps
which were taken.
Also, Mr. Powell and I have discussed at length, on
most friendly terms, the management problems at the
EEOC, and I can assure you that he does not share
your concerns and does not believe that his reputation
has been tarnished.
Sincerely,
Thelyi W.Buchen
Counsel to the President
Jose Maria Burruel, Ph.D.
2305 Vista Huerta
Newport Beach, California 92660
FORD :- LIBRARY
EEOC
THE WHITE HOUSE
WASHINGTON
April 2, 1975
Dear Ms. Decrow:
On behalf of the President, I would like to acknowl-
edge receipt of your telegram of March 19 concern-
ing nominations to the Equal Employment Opportunity
Commission.
Your interest in these appointments is most welcome
and you may be assured that any appointee to the
Commission will be deeply committed to ending all
forms of outlawed discrimination.
Sincerely,
They Buchen W.Buchers
Counsel to the President
Ms. Karen Decrow
President
National Organization for Women
116 Benedict Avenue
Syracuse, New York 13210
LIBRARY GERALD FORD
Monday 4/7/75
Meeting
4/21/75
4:30 Bob Shaw called to say that Karen Decrow, President
of the National Organization for Women, will be in
Washington the afternoon of April 21st.
She would like to have an appointment.
Mr. Shaw is asking if you will want to be included in the
meeting.
no
LIBRARY GERALD ? FORD
EEOC
3/20/75 to
Copy has T.
sent to Walker.
FORD i LIBRARY
WHD026
WAB186(1549) (2-033204E078)PD 03/19/75 1549
ICS IPMMTZZ CSP
PM 5 17
2024839062 TDMT WASHINGTON DC 122 03-19 0349P EST
PMS PHILIP W BUCHEN COUNSEL TO THE PRESIDENT, DLR
WHITE HOUSE
ASHINGTON DC
THE NATIONAL ORGANIZATION FOR WOMEN (NOW) IS DEEPLY CONCERNED THAT
14
THE PRESIDENTAPPOINT TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
15
(EEOC) PERSONS WITH DEMONSTRATED ABILITY AND COMMITMENT TO FEMINIST
17
AND OTHER CIVIL RIGHTS CAUSES. PAST APPOINTMENTS AND THOSE
CURRENTLY BEING CONSIDERED DO NOT INDICATE THAT THE PRESIDENT IS
20
ADHERING TO THESE CRITERIA. AS AN ORGANIZATION WHICH PLAYED A MAJOR
21
22
ROLL IN THE PASSAGE OF THE 1972 EQUAL EMPLOYMENT OPPORTUNITY ACT,
AND AS THE LARGEST FEMINIST ORGANIZATION IN THE NATION, NOW
24
25
UNQUESTIONABLY SHOULD BE CONSULTED IN ANY CONSIDERATION OF EEOC
26
APPOINTMENTS, INCLUDING COMMISSIONERS AND THE AGENCY'S GENERAL
COUNSEL. THEREFORE, I REQUEST A MEETING WITH YOU IN THE IMMEDIATE
FUTURE TO DISCUSS THE CURRENT VACANCIES AT THE EEOC.
KAREN DECROW PRESIDENT NATIONAL ORGANIZATION FOR WOMEN 116
BENEDICT AVENUE SYRACUSE NY 13210
NNNN
FORD
GERALD
LIBRARY
Eaoc
THE WHITE HOUSE
WASHINGTON
April 8, 1975
MEMORANDUM FOR:
WILLIAM WALKER
FROM:
PHILIP BUCHEN P.W.B.
SUBJECT:
EEOC Candidate
Attached is a letter sent jointly to
Bill Seidman and me from Robert G. Howlett
who is a friend of ours.
He recommends Alfred Cowles for appointment
to the EEOC. If you need further information
on this prospective candidate, I shall be
glad to obtain it.
Attachment
CC: William Seidman
FORD & LIBRARY
THE WHITE HOUSE
WASHINGTON
April 8, 1975
Dear Bob:
Thank you very much for the two letters, and I,
too, am sorry that we missed seeing you when
Bill and I were in Grand Rapids last weekend
for the Republican Party reception.
Had I known you were going to teach a course
in the school where my son Roderick is
enrolled, I would have encouraged him to
enroll in the course.
On your recommendation of Al Cowles to the EEOC,
I have sent a copy of your letter to William
Walker, Office of Presidential Personnel, and I
know he will give it careful consideration.
Sincerely,
Thil
Philip W. Buchen
Counsel to the President
Mr. Robert G. Howlett
Schmidt, Heaney, Howlett & Van't Hof
Attorneys at Law
700 Frey Building
Union Bank Plaza
Grand Rapids, Michigan 49502
is
FORD
LIBRARY
EEOC
THE WHITE HOUSE
WASHINGTON
April 9, 1975
Dear Ms. Scott:
Thank you very much for your letter
concerning the position of General
Counsel for the Equal Employment
Opportunity Commission.
I am immediately forwarding your recom-
mendation to the Office of Presidential
Personnel.
Sincerely,
Counsel to the President
Ms. Jean L. Scott
2880 Eliot Circle
Apt. 208
Westminster, Colorado 80030
FORD
LIBRARY
2880 El-iot Circle, Apt. 208
Westminster, Colorado 80030
April 6, 1975
Mr. Phillip Buchen
Presidential Counselor
The White House
Washington, D.C.
Dear Mr. Buchen:
I understand that you might have something to do with
the selection of a new Chairman and General Counsel of the
Equal Employment Opportunity Commission. If you don't,
please refer this letter to whomever is doing the selecting.
I might be speaking out of turn since I am a lowly"
GS-9, but I have a recommendation to make for the Office of
General Counsel. Having worked at both the Commission and
the Department of Justice, I have an idea of the job that
needs to be done. I think that David Rose, Chief of the
Employment Section, Civil Rights Division, Department of
Justice, is the person that can best do the job. He is an
eminently fair and reasonable man, a dedicated public servant,
and an experienced lawyer and administrator. He attracts
competent people to work for him. I believe his appointment
would be in the best interest of the Commission and of the
public.
Thank you for your time.
Sincerely,
Jun L scott
Jean L. Scott
Research Analyst
Equal Employment Opportunity
Commission
JAMLO R. FORD LIBRABY
EEOL
THE WHITE HOUSE
WASHINGTON
April 17, 1975
MEMORANDUM FOR:
PHILIP BUCHEN
FROM:
WILLIAM N. WALKEI du
SUBJECT:
EEOC Candidates
We appreciate your sending us candidates for EEOC as they have
come to your attention.
As you know, the Democrat Commissioner slot has been
decided and is ready for announcement; the candidate for
Chairman has been approved and is in clearance; and the
candidate for General Counsel is in clearance and is in the
process of being sent to the President for approval.
We spoke with Alfred Blumrosen who was interested in the
General Counsel position. We explained the status of the present
vacancies including the fact that the General Counsel position
appeared to be sewn up. We did promise that should our present
candidate fall through, we would be glad to see that he is considered.
If you could get us a resume on Al Cowles who was recommended to
you by Robert G. Howlett, we will be glad to see that he is con-
sidered for other appropriate positions as they arise.
Thank you for the referrals.
FORDO is GERALD LIBRARY
4/22
THE WHITE HOUSE
WASHINGTON
Mr Morgan (EEOC)
bulieves Mr Buchen
should see the
attached before his
lunch w/ John Pawer
Pirector of
a National Programs
Chair man
Division
(AlicoHolmatHEW)
FORD is LIBRARY DERALD
Aoretoc
DEPARTMENT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
LOUAL
file.
WASHINGTON, D.C. 20506
P.
WOISSIMMEN NOISSIWN
April 21, 1975
Philip W. Buchen, Esq.
Counsel to the President
The White House
Washington, D.C. 20500
Dear Phil:
As agreed in our discussion last Friday, I am enclosing
the following information:
1) Proposed Guidelines on Work Allocation
currently under consideration by this
Commission.
2) The motion by Commissioner Lewis requesting
consideration of these guidelines by the Equal
Employment Opportunity Coordinating Council.
3) The list of the current members serving on the
Coordinating Council.
4) A copy of Section 715 of the Equal Employment
Opportunity Act of 1972, which establishes
and sets forth the purposes of the Equal
Employment Opportunity Coordinating Council.
5) A copy of the April 15, 1975 edition of the
Daily Labor Report, reporting on this Commission's
action on the proposed work allocation/layoff
guidelines.
6) Copies of recent letters and telegrams received
by this Commission on the proposed layoff
guidelines.
FORD
LIBRARY
- 2 -
7) New York Times article of January 29, 1975 by
Ernest Holsendolph on the layoff guidelines issue.
8) A copy of the memorandum of March 6, 1975 by
William A. Carey to me regarding recent cases
involving layoffs and seniority.
As I indicated on Friday, I am concerned that an official
component of the Executive Branch address itself to the
issue of seniority rights versus equal employment
opportunity rights.
It should be noted that any guidelines issued by this
Commission do not have the force of law inherent in
regulations issued by other independent agencies, but
rather are only entitled to "deference," as set forth by
the U.S. Supreme Court in Griggs V. Duke Power Co., 401
U.S. 424 (1971). Guidelines similar to those currently
under discussion within this Commission were adopted last
December by the New York City Commission on Human Rights.
The U.S. Supreme Court has recently scheduled to hear
arguments during its next term on the appeal of Franks V.
Bowman Transportation Co., 495 F. 2nd 398 (Docket No. 74-
728) dealing in part with this issue.
Presently there are some discussions on Capitol Hill,
particularly within the House Subcommittee on Equal
Opportunities, as to whether or not Congressional hearings
should be held on this subject.
In light of all the interest as well as the necessity and
timeliness for formal consideration and recommendation, I
trust this Commission will be free to come forth shortly
with an appropriate remedy.
Respectfully,
Ed Morgan
Edgar Morgan
Director
Office of Congres .onal
ffairs
Enclosures
GERALD
1BRARY
CHAPTER XIV - EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
PART 1608 - GUIDELINES ON WORK ALLOCATION
The Equal Employment Opportunity Commission, by vote taken at a duly
constituted meeting, has adopted guidelines interpreting Title VII of the
Civil Rights Act of 1964, as amended (42 U.S.C. Section 2000e et seq.,
(Supp. II, 1972)), to provide guidance to employers who may be required
to lower labor costs through reductions in work opportunities. Female
and minority workers often bear a disproportionate brunt of reductions
in such opportunities.
The Commission believes that Title VII prohibits allocating a reduced
amount of work in a way which would have a disproportionate impact on
women or minorities, unless required by business necessity. The employer
must use any method of work reallocation which would have the least such
disproportionate impact. Where layoffs are nonetheless necessary, layoffs
under a seniority system having such a disproportionate impact will be
considered to violate Title VII unless the system is a bona fide one;
i.e., one which does not displace a disproportionate number of female or
minority group employees as a result of the employer's past discriminatory
hiring, recruiting, or other employment practices. The guidelines prohibit
labor organizations from causing employers to take actions which
inconsistent with the guidelines.
FORD LIBRARY
Accordingly, Part 1608 of Title 29 of the Code of Federal
Regulations is hereby issued, effective
1975, to read
as follows:
Part 1608 - Guidelines on Work Allocation
Sec.
1608.1.
Introduction.
1608.2
Statement of purpose.
1608.3
Disproportionate impact and alternative
methods of reducing labor costs.
1608.4
Layoffs.
1608.5
Responsibilities of labor organizations.
AUTHORITY: Secs. 713(a), (b) of the Civil Rights Act of 1964,
78 Stat. 265, 42 U.S.C. 200e-13(a), (b) (Supp. II, 1972).
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PART 1608 - GUIDELINES ON WORK ALLOCATION
1608.1
INTRODUCTION
By virtue of the authority vested in it by §713(a) and (b) of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-12(a)
and (b), 78 Stat. 265 ("Title VII"), and its authority to adopt and issue
interpretations of Title VII, the Equal Employment Opportunity Commission
hereby issues Title 29, CHAPTER XIV, Part 1608, of the Code of Federal
Regulations: These Guidelines are applicable to all employers and labor
organizations as defined in § 701(b) and (d) of Title VII, 42 U.S.C.
200e-(b) and (d).
Because the material herein is interpretative in nature, the
provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring
notice of proposed rule making, opportunity for public participation,
and delay in effective date are inapplicable.
1608.2
STATEMENT OF PURPOSE
(a) These Guidelines are issued pursuant to the Equal Employment
Opportunity Commission's Congressional mandate, embodied in Title VII,
to eliminate employment discrimination. In furtherance of this mandate,
the Commission has an obligation to provide guidance to employers who may
be required to lower costs through reductions in work opportunities.
(b) A usual method of accomplishing such reductions has been to lay
off employees without considering alternative methods of lessening labor
costs. Female and minority employees often bear a disproportionate brunt
of such work reductions because such reductions are directly related to
FORD
length in service. But female and minority employees often have EBRARY been
GERAL,
deprived of the opportunity to compete for length in service because of
their mployers' prior discriminatory employment practices.
1608.3
DISPROPORTIONATE IMPACT AND ALTERNATIVE METHODS OF REDUCING
LABOR COSTS
Whenever an employer adopts a procedure for allocating a reduced
amount of work, it is required by Title VII to consider and adopt
cost-reducing measures which will not have a disproportionate impact on
women or minorities unless required by business necessity: that is,
unless the procedure used is essential to the safe and efficient
operation of the employer's business and no reasonable alternative
procedure is available. To avoid such disproportionate impact an
employer must use any method which will have the least disproportionate
impact on women and minorities: e.g-, work-sharing, elimination of
over-time, voluntary early retirement, reduction in hours, or rotating
layoffs.
1608.4
LAYOFFS
In those cases in which an employer has previously adopted a
seniority system requiring layoffs to be based on plant-wide or company-
wide seniority, and the devices used by an employer in the manner prescribed
by § 1608.3 do not sufficiently cut labor costs, making a layoff
absolutely necessary, layoffs which have a disproportionate effect on
women or minorities will be considered to violate §703(a) of Title VII
unless the layoffs are based on a bona fide seniority system. For
purposes of these Guidelines a bona fide seniority system is one which
3.
does not displace a disproportionate number of female or minority group
employees from the workforce as a result of the employer's past discriminatory
hiring, recruitment, or other employment practices. If the seniority
system is not bona fide as thus defined, the provisions of $1608.3 will
apply.
1608.5
RESPONSIBILITIES OF LABOR ORGANIZATIONS
As set forth in $703(c) (3) of Title VII, 42 U.S.C. §2000-2(c),
no labor organization shall cause an employer to take any action
inconsistent with these Guidelines.
FORD VIBRARY
April 15, 1975
Commissioner Lewis made the following motion:
That the Commission, consistent with the requests of
certain members of the Equal Employment Opportunity
Coordinating Council, defer action on the proposed
Work Allocation Guidelines until such time as the
Coordinating Council can be convened to discuss the
substance of the Guidelines. I further move that the
Commission request the Coordinating Council to meet
at the earliest possible date to discuss this matter.
The motion was seconded by Acting Chairman Walsh, and
was approved by a vote of 3 to 0.
Voting in the affirmative: Chairman (Acting) Walsh,
Commissioner Lewis, Commissioner Telles.
Abstaining: Commissioner Powell.
OK CBW
OK OK.
of DH
FORD LIBRARY
Coordinating Council
Department of Justice
Harold R. Tyler
Deputy Attorney General
Department of Labor
Richard F. Schubert
Under Secretary of Labor
(Resigned)
Civil Service Commission
Robert E. Hampton
Chairman
Commission on Civil Rights
John A. Buggs
Staff Director
Equal Employment Opportunity
Ethel Bent Walsh
Commission
Chairman (Acting)
Chairman
GERALD FORD LIBRARY
16
the legislative and judicial bra:
functions under this Act shall be punished by imprisonment for any
positions in the competitive serv
term of years or for life.
be made free from any discrimi
or national origin.
EQUAL EMPLOYMENT OPPORTUNITY COORDINATING COUNCIL
(b) Except as otherwise prov
Commission shall have authorit
SEC. 715. There shall be established an Equal Employment Opportunity
Coordinating Council (hereinafter referred to in this section as the
(a) through appropriate remed
Council) composed of the Secretary of Labor, the Chairman of the Equal
employees with or without back
section, and shall issue such ru
ployment Opportunity Commission, the Attorney General, the Chair-
as it deems necessary and app
man of the United States Civil Service Commission, and the Chairman of
under this section. The Civil Se.
the United States Civil Rights Commission, or their respective delegates.
(1) be responsible for the
The Council shall have the responsibility for developing and implementing
and regional equal employ
agreements, policies and practices designed to maximize effort, promote
partment and agency anc
efficiency, and eliminate conflict, competition, duplication and incon-
subsection (a) of this secti
sistency among the operations, functions and jurisdictions of the various
affirmative program of eq
departments, agencies and branches of the Federal government responsible
employees and applicants
for the implementation and enforcement of equal employment opportunity
(2) be responsible for th
legislation, orders, and policies. On or before July 1 of each year, the
of all agency equal employ
Council shall transmit to the President and to the Congress a report of
obtaining and publishing
its activities, together with such recommendations for legislative or ad-
reports from each such dep
ministrative changes as it concludes are desirable to further promote the
(3) consult with and 8
purposes of this section.
individuals, groups, and
EFFECTIVE DATE
ment opportunity.
SEC. 716. (a) This title shall become effective one year after the date
The head of each such department
of its enactment.
rules, regulations, orders, and in
(b) Notwithstanding subsection (a), sections of this title other than
that an employee or applicant
sections 703, 704, 706, and 707 shall become effective immediately.
final action taken on any CO.
(c) The President shall, as soon as feasible after the enactment of
thereunder. The plan submitte
this title, convene one or more conferences for the purpose of enabling
shall include, but not be limited
the leaders of groups whose members will be affected by this title to
(1) provision for the (
become familiar with the rights afforded and obligations imposed by
programs designed to provi
its provisions, and for the purpose of making plans which will result
to advance SO as to perform
in the fair and effective administration of this title when all of its
(2) a description of the
provisions become effective. The President shall invite the participa-
experience relating to equal
tion in such conference or conferences of (1) the members of the
and operating officials of
President's Committee on Equal Employment Opportunity, (2) the
responsible for carrying
members of the Commission on Civil Rights, (3) representatives of
program and of the allocat
State and local agencies engaged in furthering equal employment
by such department, agenc
opportunity, (4) representatives of private agencies engaged in fur-
ment opportunity program.
thering equal employment opportunity, and (5) representatives of
With respect to employment in ti
employers, labor organizations, and employment agencies who will be
in this subsection to the Civil St
subject to this title.
Librarian of Congress.
(c) Within thirty days of re
NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT
department, agency, or unit re
Civil Service Commission upon
SEC. 717. (a) All personnel actions affecting employees or applicants
department, agency, or unit or
for employment (except with regard to aliens employed outside the limits
race, color, religion, sex, or nati
of the United States) in military departments as defined in section 102 of
(a) of this section, Executive (
title 5, United States Code, in executive agencies (other than the General
orders, or after one hundred an
Accounting Office) as defined in section 105 of title 5, United States Code
charge with the department, a
(including employees and applicants for employment who are paid from
Commission on appeal from di
nonappropriated funds), in the United States Postal Service and the Postal
or unit until such time as fin
Rate Commission, in those units of the Government of the District of
Columbia having positions in the competitive service, and in those units of
18
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LIBRARY
BNA
®
DLR No. 73
APRIL 15, 1975
TUESDAY
WASHINGTON, D.C.
Today's Summary and Analysis
EEOC DEFERS ACTION
EEOC decides to defer action on the layoff guidelines they are
ON LAYOFF GUIDES
considering issuing until the Equal Employment Opportunity
Coordinating Council convenes "at the earliest possible time"
to discuss them. After meeting for most of the day in executive session, the commissioners --
Acting Chairman Ethel Bent Walsh, Colston A. Lewis, Raymond L. Telles, and John H. Powell,
Jr. -- vote 3-0 to postpone their decision. Powell, who resigned as chairman on March 19
under White House pressure, abstains from voting. He wants the guidelines issued immediately.
This marks the second time the commissioners have voted to defer action on the guide-
lines that would prohibit layoffs that have a disproportionate impact on minority and women work-
ers. On March 25, they agreed to wait until April 15 to vote so that other federal civil rights
enforcement agencies would have a chance to review and comment on them. One source says
"everybody opposed them," including the Labor and Justice Departments, Civil Service Com-
mission, Civil Rights Commission, AFL-CIO, and U.S. Chamber of Commerce. He sums up
the status of the proposed guidelines by saying "they took a bath."
- - - page A - 20
BACK PAY, JOB TESTS
The U.S. Supreme Court hears oral argument on an employer's
AIRED BEFORE COURT
use of job tests that have not been validated, and on the right to
back pay relief under Title VII of the 1964 Civil Rights Act.
Attorneys for Albemarle Paper Company, Roanoke Rapids, N.C., and Halifax Local No. 425 of
the United Papermakers urge the Court to reverse the Fourth Circuit's adoption of a flat rule
requiring a district court to award back pay in race discrimination suits whenever injunctive
relief is entered.
Warren Woods, attorney for Local 425, asserts that Section 706(g) of the Act gives dis-
trict courts the discretion to award appropriate relief "with or without back pay. " The district
court had refused to grant back pay to a class of black employees.
Francis V. Lowden, Jr., attorney for Albemarle Paper Company, maintains that EEOC's
standards for validating employment tests are "irrational" and "unworkable." He asserts that
the trial court was justified in refusing to order the abolition of the employer's use of the Won-
derlic tests and the revised Beta Examination.
J. Levonne Chambers, attorney for the class of plaintiffs, contends that the record is
"abundantly clear" that blacks were excluded from skilled lines of progression mt the plant be-
cause of the testing criteria used by the company. Chambers concludes that the tests used by
the company tested the "person in the abstract" rather than the person's ability to perform the
job.
Published by THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C. 20037
reserved
This would be a way of publicizing the program. The subcommittee struck out the pro-
vision for reimbursing employers for their expenses in publicizing it and decided to leave the
information responsibility on HEW alone, in the hope that it could get free TV and radio "public
service" time for that purpose.
The subcommittee also decided to add a requirement in the Medicaid section as well as
in the insurance section that an unemployed worker who can should get coverage through an em-
ployed spouse, if possible, rather than under the law.
- 0 -
EEOC DEFERS ACTION ON PROPOSED LAYOFF GUIDELINES
UNTIL INTER-GOVT COUNCIL MEETS TO DISCUSS THEM
The commissioners of EEOC vote to defer action on the layoff guidelines they are con-
sidering issuing until the Equal Employment Opportunity Coordinating Council convenes "at the
earliest possible time" to discuss them, according to Ronnie Blumenthal, special assistant to
Acting EEOC Chairman Ethel Bent Walsh.
The commissioners met in executive session "for most of the day, she said, but added
that "there were other things on the agenda. Because the meeting was in executive session, no
staff members were allowed to be present. Besides the four commissioners Walsh, Colston A.
Lewis, Raymond L. Telles, and John H. Powell, Jr. -- Acting General Counsel Julia Cooper also
was involved in the lengthy discussion on the controversial proposed layoff guidelines.
The vote to defer action was 3-0. Powell, who resigned as EEOC chairman on March 19
under pressure from the White House (1975 DLR 54: A-21) and agreed to step down as a com-
missioner on April 30, abstained from voting. He wants the guidelines issued immediately.
The commissioners decided on March 25 to vote on April 15 on whether to issue the
guidelines that would prohibit layoffs that have a disproportionate impact on minority and women
workers. They were set to vote on the guidelines on March 25, but voted to postpone a decision
until after the other federal civil rights enforcement agencies had a chance to review and com-
ment on them.
An EEOC source says the Justice Department's written comments on the proposed guide-
lines advised that they should not be issued. The Justice Department reportedly said the issue
of laying off recently hired minority and women workers under a seniority system should be in-
terpreted by the courts, not by EEOC.
The Labor Department also is known to oppose EEOC's proposed guidelines, agreeing
with the Justice Department that the courts should decide the layoff issue.
A draft of the proposed guidelines dated March 14 says layoffs under a seniority system
will be in violation of federal law unless the system is bona fide (1975 DLR 58: A-14). The guide-
lines define a bona fide seniority system as "one which does not displace a disproportionate num-
ber of female or minority group employees from the work force as a result of the employer's
past discriminatory hiring, recruitment, or other employment practices."
The Equal Employment Opportunity Coordinating Council is composed of agency heads
or deputies of Labor, Justice, EEOC, the Civil Service Commission, and the Civil Rights
Commission.
End of Section A --
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Published by THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C. 20037
Right of reproduction and redistribution reserved
UNITED STATES COMMISSION ON CIVIL RIGHTS
Washington, D.C. 20425
Honorable Ethel Bent Walsh
Chairman (Acting)
Equal Employment Opportunity
Commission
Washington, D.C. 20426
Dear Chairman Walsh:
At their meeting of yesterday, (April 14, 1975), the members of the
U.S. Comission on Civil Rights considered the proposed Guidelines on
Work Allocation Procedures prepared by the Equal Employment Opportunity
Commission. The Commissioners agreed that promulgation of such
Guidelines would be an appropriate action by EEOC. In their view, the
rights of minority group members and women are seriously jeopardized in
periods of employment contraction.
With respect to the specific Guidelines proposed by REOC, the Comissioners
indicated their view that the requirements of fairness in labor force
adjustments should be imposed on employee organizations as well as employers.
In addition, the Comissioners have determined that the protection of the
rights of minority group persons and women during periods of work force
contractions is an issue of such significance that they wish to consider
the matter more fully and will do SO in the near future.
In the absence from Washington of Chainnan Flemming and John A. Buggs,
Staff Director, pursuant to their instructions, I am transmitting to
you the views of the Commission.
Sincerely,
Laurene B. B. Hick Laurence B.Hlick
LAWRENCE B. GLICK
Acting General Counsel
CC: Honorable Colston A. Lewis
Honorable John H. Powell
Honorable Raymond Telles
=
Ms. Julia C. Cooper, Acting General Counsel
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ASSISTANT ATTORNEY GENERAL
#1109
Department of Justice
Mashington, D.C. 20530
RECEIVED
OFFICE OF THE CHARMAN
APR9 1975
Honorable Ethel Bent Walsh
'75 APR 9 PM 5:00
Chairman (Acting)
Equal Employment Opportunity
Commission
2401 E Street, N.W.
Washington, D.C. 20506
Attention: Ms. Julia C. Cooper
Acting General Counsel
Dear Ms. Walsh:
Your letter of March 28, 1975 to the Attorney
General calling for comments on proposed "guidelines
on work allocation procedures" has been referred to this
Division for response.
In our judgment, issuance of the guidelines at
this time is inappropriate. The purpose of guidelines
is to provide authoritative interpretations of the Act
for the guidance of employers, labor organizations, and
the classes protected by Title VII. While guidelines
under Title VII are of course entitled to deference (see,
Griggs V. Duke Power Co., 401 U.S. 424, 434), they do
not have the force and effect of law, and will not be
followed by the courts where they are inconsistent with
Congressional intent. Espinoza V. Farah Mfg. Co., 414
U,S. 86, 94.
As we understand the proposed guidelines, they
would treat seniority systems as bona fide only where
they do not displace a disproportionate number of fe-
male or minority group employees from the workforce as
a result of the employer's past discriminatory hiring,
recruitment or other employment practices. This position,
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which has been asserted by the Commission recently in
several cases, has been rejected by the appellate courts
as being inconsistent with the language of Section 703 (h)
of the Act and inconsistent with the intent of Congress.
Waters V. Wisconsin Steel, 502 F.2d 1309 (7th Cir. 1974)
Jersey Central Light and Power V. Electrical Workers
Locals, 508 F.2d 687 EPD 9923 (3rd Cir., 1975). Those
appellate decisions are further supported by the language
of earlier decisions of the Court of Appeals for the 5th
Circuit. See, e.g., United States V. Local 189 Papermakers,
980, 416 F.2d 980, 994-995 (5th Cir., 1969), cert. denied
397 U.S. 919. We are not aware of any appellate authority
supporting the position adopted by the proposed guidelines.
We do not understand what useful purpose would be
served by the issuance of the proposed guidelines under
these circumstances. Because they adopt a position which
thus far has been rejected by the courts, they do not
provide accurate guidance for employers, labor organizations
and the protected classes. They are likely to cause
unnecessary dispute and disagreement, as well as to arouse
expectations which are not likely to be fulfilled.
The issuance of guidelines in such circumstances
is also likely to affect adversely the litigating posture
not only of the Commission, but also of this Department
and the enforcement program of the Department of Labor
under the Executive Order. There does appear to be authority
for the proposition that seniority systems which are pro-
tected by 703 (h) as being bona fide, may nevertheless be
altered pursuant to the authority of the court under
Section 706 (g), after a finding of other violations of the
Act. See the brief in United States and EEOC as amici
curiae in Franks V. Bowman, S.C. No. 74-728. Issuance
of the proposed guidelines may result, however, in re-
jection by the courts not only of the position asserted
therein, but also in the rejection of the position taken
in Franks V. Bowman.
There is another, independent reason for not
issuing the guidelines at this time. Section 715 of
the Act, which established the Equal Employment Opportunity
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Coordinating Council, was designed among other things to
eliminate inconsistency among the departments and agencies
of the Federal Government responsible for the enforcement
of equal employment opportunity legislation, orders and
policies. As we understand it, the proposed guidelines
adopt a position contrary to that of at least one of the
other agencies having enforcement responsibility. There
has as yet been no opportunity for the Council to discuss
the proposed guidelines on their merits and to consider
the positions of the various agencies and to determine
whether it is possible to develop a consistent Government
position on this important issue. We would accordingly
recommend that issuance of the proposed guidelines be
deferred at least until such time as the Council has had
an opportunity to consider and discuss the merits of the
proposed guidelines, their effect, and any alternatives
to them which may exist.
We have discussed the proposed guidelines with
Deputy Attorney General Tyler, and he has indicated his
agreement with our view that the proposed issuance of the
guidelines is an issue appropriate for consideration by
the Equal Employment Opportunity Coordinating Council,
and his intent to call a Council meeting in the near
future to discuss that issue. We assume that you will
defer issuance of any proposed guidelines at least until
the Council has had opportunity to consider this matter.
Please advise us if this assumption is incorrect.
Accordingly, we would oppose issuance of the
proposed guidelines at this time.
J. S. Stanley Pottinger Potting
Assistant Attorney General
Civil Rights Division
GERALD LIBRARY FORD
UNITED
STATE
UNITED STATES CIVIL SERVICE COMMISSION
IN REPLY PLEASE REFER TO
CIVIL
SERVICE
WASHINGTON, D.C. 20415
#1088 YOUR REFERENCE
APR 8 1975
Honorable Ethel Bent Walsh
Acting Chairman
Equal Employment Opportunity Commission
Washington, D.C. 20506
Dear Chairman Walsh:
Thank you for the opportunity to review the proposed EEOC Guide-
lines on Work Allocation.
While I appreciate the opportunity to review the proposed guide-
lines prior to their final adoption and publication in the Federal
Register, I believe their substance is of such great potential
impact for industry and government that the EEO Coordinating Council
should meet and the members have an opportunity to discuss their
views on the proposed guidelines with you. This would seem to
me to carry out the intent of the law in establishing the Council
as a coordinating mechanism.
See
It appears to us that impact of these guidelines on State and
local personnel practices places them clearly within the coverage
of OMB Circular A-85. The circular, entitled, "Consultation of
RECEIVED
Heads of State and Local Governments in Development of Federal
Regulations, sets forth required notice procedures including
circularization by the Advisory Commission on Intergovernmental
Relations at least 45 days before the intended date of promulga-
tion and in advance of publication in the Federal Register. Also,
under Section 2000e-12 (which is EEOC's authority to issue regu-
lations) even procedural regulations issued under the Civil Rights
Act must be in conformity with the standards and limitations of
the Administration Procedures Act.
Further, the significance of these guidelines is such that I believe
the convening of a public hearing on this matter would clearly
be in the public interest.
The proposed guidelines would have a major impact on State and
local government personnel administration, which is an area of
considerable interest to the Civil Service Commission under the
Intergovernmental Personnel Act. The proposed guidelines would
clearly alter or require renegotiation of most labor-management
relations contracts in both the public and private sector since.
90
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MERIT PRINCIPLES ASSURE QUALITY AND EQUAL OPPORTUNIT
1883-1973
2
the guidelines could only be met by establishing separate, parallel
systems of seniority for each race, sex, and nationality.
It would seem from the holding in Jersey Central Power and Light
vs. IBEW Local Unions that the legislative history of Title VII
indicates that a "bona fide" seniority system, in spite of its
tendency to perpetuate the effects of past discrimination, cannot
be challenged. The court's definition of a "bona fide" seniority
system is substantially different from the definition set out
in your proposed guidelines. The court declared: "Congress intended
to bar proof of the 'perpetuating' effect of a plant-wide seniority
system as it regarded such systems as 'bona fide.' Congress,
while recognizing that a bona fide seniority system might well
perpetuate past discriminatory practices, nevertheless chose between
upsetting all collective bargaining agreements with such provisions
and permitting them despite the perpetuating effect that they
might have." In light of the Supreme Court's decision to review
another case involving seniority systems, Franks vs. Bowman, an
attempt by a Federal agency to hastily publish Guidelines on so
crucial an issue without consulting all affected parties might
be interpreted by the Court as an attempt to influence the decision
in Franks. Such an appearance of impropriety can be avoided through
appropriate notice and public hearing.
Finally, I have considerable substantive concern relating to the
proposed guidelines. Section 1608.3 appears to embody the kind
of cosmic search for alternatives which members of the EEO Coor-
dinating Council have objected to in testing guidelines and have
agreed should be deleted from proposed uniform selection guide-
lines. Moreover, the meaning of the expression, "essential to
the safe and efficient operation of the employer's business" is
not clear to me. What if the procedure increases productivity?
Would that fall within the quoted phrase? On a literal reading
it would not appear to, but surely it should be permitted. I
use this as but one illustration.
Moreover, 1608.3 casts a burden on the employer to "avoid such
disproportionate impact" apparently even at the expense of good
business practice or binding labor agreements. Further under
1608.3 and 1608.4, read together, an employer must apparently
look to lay-off as a last resort only. This may be sound policy
but it is hardly proper for the Federal Government to make such
management decisions for State and local authorities or private
employers. In this regard I am concerned that the national impact
of 1608.4 will be to require an employer to give preferential
treatment to some employees based on race, sex, or other imper-
missible characteristics. This is of course inconsistent with
our Agreement of March 21, 1973, and contrary to the policy set
forth by the President in his statement to department and agency
heads of March 6, 1975.
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In summary, we believe the Guideline on Work Allocation should
not be issued in its present form. We believe it is violative
of Title VII, that it imposes management determinations which
are outside the province of the Federal Government and that it
calls for policies inconsistent with the President's statement
of March 6, 1975. The matter should have full discussion by the
Coordinating Council and the views of groups affected should be
obtained through a public hearing.
Sincerely yours,
Robert Hampton
Robert E. Hampton
Chairman
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U.S. DEPARTMENT OF LABOR
B
RECEIVED
OFFICE OF THE SOLICITOR
WASHINGTON, D.C. 20210
CHAIRMAN
75
APR
APR 9 1975
Ms. Ethel Bent Walsh
Chairman (Acting), Equal
Employment Opportunity Commission
Washington, D. C. 20506
Dear Chairman Walsh:
Secretary Dunlop has asked me to respond to your letter of
March 28, 1975, which enclosed a copy of the Equal Employment
Opportunity Commission's proposed Guidelines on Work Allocation
Procedures, and which invited this Department, as a member of
the Equal Employment Opportunity Coordinating Council, to
comment on the proposal prior to its final adoption by the
Commission and its publication in the Federal Register.
As we understand them, the Guidelines would constitute the
Commission's official interpretation of Title VII (of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e) relative
to the growing conflict between seniority rights achieved by
organized workers and newly gained rights of minorities and
women achieved under equal employment opportunity programs
during the last decade or SO.
Generally speaking, the proposal interprets Title VII to
require (1) the allocation of reduced employment opportunities
in a manner so that mounting unemployment does not impact
disproportionately on minority and female employees and
(2) to preclude layoffs, based on seniority, which have
a disproportionate effect on women or minorities.
To achieve the first result section 1608.3 interprets Title
VII to mean that an employer which reduces the amount of
available work is required to adopt measures which will not
have a disproportionate impact on women or minorities. Work
sharing, elimination of overtime, voluntary early retirement,
reduction in hours, and rotating layoffs are suggested as
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legitimate measures which may be used to allocate available
work opportunities.
A literal reading of sections 1608.3 and 1608.4 suggests that an
employer which uses the last-hired, first-fired system may
move to layoffs only after it has implemented the allocation
principles mentioned in section 1608.3. If the layoffs resulted
in a disproportionate effect on minorities or women they
would be in violation of Title VII unless the seniority
system pursuant to which they were made is bona fide. A
bona fide seniority system is defined, however, as "one
which does not displace a disproportionate number of female
or minority group employees from the workforce as a result
of the employer's past discriminatory hiring, recruitment, or
other employment practices." If the seniority system is not
bona fide, the provisions of section 1608.3 apply.
You perhaps are aware that this Department has taken the
position that the seniority system IS not inherently dis-
criminatory, and that layoffs based on reverse order of
seniority are generally permissible. However, we favor granting
constructive seniority, to individuals who can demonstrate
that their prior attempts to secure employment with a specific
employer were rejected either for sex or racial reasons. This
position was rejected, however, by the Fifth Circuit in
Franks V. Bowman Transportation Company, 495 F.2d 398 (1974).
In addition, the broader issue (i.e. discrimination based
solely on disparate impact, which the proposed Guidelines
address) has been rejected by each of the appellate courts
to review it. See e.g., Waters V. Wisconsin Steel Works,
8 FEP Cases 577 (C.A. 7, 1974) and Jersey Central Power &
Light Co. V. IBEW Local 327, 9 FEP Cases 117 (C.A. 3, 1975).
Also, the Fourth Circuit recently decided to stay the execution
of a district court ruling which ordered two American Tobacco
Company branches to institute an immediate "bumping" system
in which any black or female worker could bid for almost any
plant job and displace workers with less company seniority.
Patterson V. American Tobacco Company, No. 75-8050 (C.A. 4,
February 10, 1975).
CLEALS FORD LIBRAST
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While we favor reversal of the Bowman case, we do not believe
the time is appropriate for the issuance of guidelines either
on the broader issue as argued in the Waters and Jersey Central
cases or on the more limited issue as argued in the Bowman
case. We believe it is inappropriate to issue the Guidelines
at this time because such interpretations should be applied
on a uniform basis throughout the country. But employers
in the Third, Fifth, and Seventh Circuits, where the cases
mentioned above presently are controlling, obviously would
have no obligation to follow the Guidelines. To issue the
Guidelines with no application in such a large geographical
area would be, in our judgment, unfair to the large number
of employers who would be required to follow the guidelines
in the other circuits. Moreover, there is confusion and, per-
haps, contradiction among the Federal agencies on this issue
and others, thus underlining the importance of bringing such
matters to the Equal Employment Opportunity Coordinating
Council before any agency acts unilaterally, In addition,
on the seniority issue, there are differences in the nature
and application of seniority systems among the various
sectors of the economy and between and within industries.
This further suggests the need for inter-agency reflection
and discussion on this issue.
Sincerely,
William J. Kilberg
Solicitor of Labor
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western union
Telegram
1975 APR
LLB123
WAG208(1831) (1-040646A094) PD 04/04/75
1829
PH
7:
#106.
58
ICS IPMDCND NYK
04178 FR DC NEWYORK NY 68 04-04 511P EDT
PHONE
Po
VIA
PMS MS ETHEL BENT WALSH, CHIRPERSON
6347040
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASH DC 20005
da
SINCE WE URGED YOU TO ADOPT APPROPRIATE GUIDELINES
TO ENCOURAGE WORK SHARING AND OTHER AMELIORATIVE MEASURES
'75 7 AM
WE APPROVE YOUR DESIRE TO CREATE SUCH GUIDELINES.
HOWEVER, IN VIEW OF THEDANGER OF POLARIZATION ON THIS
10:11
OFFICE OF RECEIVED THE VICE CHAIRMAN
EXTREMELY COMPLICATED ISSUE, WE URGE YOU TO MEET WITH
TEPRESENIATIVES OF LABOR, MANANGMENT AND THE CIVIL
RIGHTS COMMUNITY BEFORE ADOPTING FINAL GUIDELINES.
VERNON E. JORDAN, JR BERTRAM H. GOLD
SF-1201 (R5-69)
FORD LIBRAGE
Telegram
western UNION
EXEC DIR EXEC VICE PRES
NATIONAL URBAN LEAGUE AMERICAN JEWISH COMM
NNNN
SF-1201 (R5-59)
GERALD FORD VIBRARY
Chamber of Commerce of the United States
1615 H STREET. N.V
WASHINGTON. D.C.
NATIONAL ECONOMIC DEVELOPMENT GROUP
202.659.6120
March 14, 1975
Mr. John H. Powell, Jr.
Chairman, Equal Employment
Opportunity Commission
2401 E Street N.W.
Washington, D. C.
Re: Guidelines/Policy for layoffs having a disparate
effect on minorities and/or females
Dear John:
Persistent reports from within and without the Commission lead
me to believe that EEOC is seriously considering issuing either guide-
lines or a policy position on the subject of layoffs which have a
disparate effect on minorities and/or female employees.
The Chamber's position is that the legislative history of
Title VII of the Civil Rights Act supports the upholding of bona fide
seniority systems even where operation of such a system (based on the
length of service, not on race or sex) results in the layoff of greater
numbers of minorities or females, particularly where the individuals
affected were not themselves the victims of discriminatory hiring prac-
tices. Several U.S. Circuit Courts of Appeals have upheld the imple-
mentation of seniority provisions in such cases, and it would not be
fair for the Commission to issue requirements to employers contrary to
those decisions, since employers would not then know which principle
to follow.
The Chamber of Commerce of the United States is concerned that
EEOC might issue such guidelines or policy without a full public airing
of the vital and complex human issues involved in this matter. Therefore,
we respectfully request that prior to issuing any layoff guidelines or
policies, the Commission publish the proposal in the Federal Register
with sufficient time to allow all those interested to comment, and that
public hearings be held on this important and sensitive issue. In
addition, since such matters are also of interest to the Department of
Labor as well as the Department of: Justice, both of which have civil
rights responsibilities, we suggest that the Equal Employment Coordinating
Council would be an appropriate body to hold such hearings and to resolve
these questions.
GERALD
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It is in the best interests of all Americans that this matter
be carefully considered by both government civil rights agencies and
the public before a course of action is decided upon.
Very truly yours,
&
G. Brockwel Heylin
Labor Relations Attorney
(202) 659-6103
cc: Commissioner Colston Lewis
Commissioner Ethel Bent Walsh
Commissioner Raymond L. Telles
Senator Harrison A. Williams
Representative Carl D. Perkins
Mr. Stan Scott, Counsellor to the
President for Minority Affairs
LIBRARY ULHALD P. FORD
UAW
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
LEONARD WOODCOCK. PRESIDENT
EMIL MAZEY, SECRETARY-TREASUR
VICE-PRESIDENTS
PAT GREATHOUSE
KEN BANNON
NELSON JACK EDWARDS
DOUGLAS A. FRASER
OLGA MADAR
DENNIS McDERMOTT
IRVING BLUES
STEPHEN 1. SCHLOSSBERG
JOHN A. FILLION
GENERAL COUNSEL-WASHINGTON
GENERAL COUNSEL-DETR
1125 15TH STREET, N. W.
WASHINGTON, D. C. 20005
PHONE: (202) 296-7484
April 7, 1975
Ethel Walsh
Acting Chairperson
EEOC
2401 E St. N.W.
Washington, D.C.
Dear Madam:
It has come to our attention that the Commission might issue
"guidelines" for layoffs.
This letter is to urge you not to do so at this time. The
matter of layoffs is a painful and sensitive fact of present
industrial life. Any attempt to guide companies and unions
should be done only after the most careful legal, technical
and practical study.
It would seem to us that the EEOC would be well advised to
wait until a new permanent Chairperson and a new Commission
Member are appointed, before issuing "guidelines" on this delicate
subject.
'75 APR AM 9:27 27
OFFICE OF THEMICE THE VICE CHAIRMAN
RECEIVED
In any event, even after the most careful internal study,
no "guidelines" should issue until after public hearings have
been held so that the Commission can get the views of those
affected. The UAW hereby requests such a hearing.
Stephen Sincerely, I. Schlonk Schlossberg
FORD
General Counsel UAW
GERALD
LIBRARY
John A. Fillion
General Counsel, UAW
Chamber of Commerce of the United States of America
5
CHAIRI
Washington
'75 APR 14 PM 12:2
April 10, 1975
Honorable Carl D. Perkins
Chairman, D.S. House of Representatives
Committee on Education and Labor
2101 Rayburn House Office Building
Washington, D. C. 20513
Dear Mr. Perkins:
On March 14, 1975, we asked John Powell, then Chairman of
the Equal Employment Opportunity Commission to delay the issuing
of guidelines on layoffs until there had been careful consideration
given to the feasibility and propristy of this proposal. A copy of
that request to enclosed.
We also asked that before any guidelines were to be issued
that there be a public hearing held by the EEO Coordinating Council.
Those requests have not been acknowledged by the Commission
and I would appreciate your advice and interest prior to April 15,
the date on which the Commission has announced their intention to
vote on whether these guidelines will be issued.
Very truly yours,
Richard B. Barman
Director of Labox Law
CC: Mr. John Buchanan
Mr. Augustus Hawkins
Hr. Albert Quio
Reting Chairman, EEOC, Ethel Bent Walsh
LIBRARY GERALD ? FORD
AMERICAN FEDERATION OF LABOK AND CONGRESS OF INDUSTRIAL ORGANIZATIONS
FEDERATION
EXECUTIVE COUNCIL
GEORGE MEANY
OFFICANE KIRKLAND
IMMIGRAN
OF
LAROR
PRESIDENT
SECRETARY
815 SIXTEENTH STREET. N.W.
JOSEPH D. KEENAN
RICHARD F. WALSH
LEE W. MINTON
WASHINGTON, D.C. 20006
PAUL HALL
I. W. ABEL
HUNTER P. WHASTON
12
PAUL JENNINGS
MAX GREENBERG
11
JOHN H EYONS
A.F. GROSPIRON
MATTHEN GUINAN
C. L. DENNIS
PETER BOMMARITO
PETER FOSCO
THOMAS W. GLEASON
FLOYD E. SMITH
LOUIS STULBERG
JEPRY WURF
S. FRANK RAFTERY
ALEXANDER J. ROHAN
JAMES T. HOUSEWRIGHT
GEORGE HARDY
CONGRESS OF AFL INDUSTRIAL
(202) 637-5000
P.I
FREDERICK O'NEAL
AL H. CHESSER
MARTIN 1. WARD
WILLIAM SIDELL
MURRAY H. FINLEY
JOSEPH P. TONELLI
ALBERT SHANKER
SOL STETIN
C.L. DELLUMS
FRANCIS S. FILBEY
GLENN E. WATTS
21
April 11, 1975
Mrs. Ethel Bent Walsh
Acting Chairperson
Equal Employment Opportunity
Commission
2401 E Street, N.W.
Room 5214
Washington, D.C. 20506
Dear Mrs. Walsh:
It is our understanding that next week the Commission will consider
whether to issue guidelines concerning Title VII's impact on the rules
governing layoffs set by employers or through collective bargaining.
The question of who shall be furloughed is a sensitive one at any
time; and, as the AFL-CIO is well aware, in today's economy that question
poses particularly acute problems for individual workers, their unions,
employers and the society as a whole. Particularly for that reason, we
believe that the Commission should not issue guidelines at this time.
The focus of attention in this area has been layoffs by seniority.
This is not the proper occasion to correct the errors of those who argue
that there are superior alternatives to seniority in some ultimate sense.
For, the Commission is empowered to enforce Title VII, not to make social
policy. And, in conformity with the clear Congressional intent the
two United States courts of Appeals that have addressed this matter (which
is presently pending in a third) have both concluded that the use of date-
of-hire seniority is lawful under Title VII. It is therefore unlikely that
at this time Commission guidelines would further illuminate the law. We
submit that given the multitudes of substantial legal issues the Commission
has before it, and the crushing backlog with which it must contend, there
is no warrant for diverting scarce resources to a subject which admits of
only one legal answer, and which, in any event, is being fully litigated
in the courts.
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Mrs. Ethel Bent Walsh
Page 2
April 11, 1975
Additionally, as we noted at the outset, the rules governing lay-
offs are a matter of vital natural concern. If, despite the existing
precedents the Commission should determine that it wishes to address
Title VII's impact on those rules, it should do so in a manner fitting
to the practical importance of the task undertaken. At the minimum
this requires that the full compliment of Commissioners permitted by
law rather than a bare quorum consider this matter, and that any
resulting decision be issued only after the commission has invited and
received comments from all interested parties and afforded those parties
an opportunity to appear and testify at a public hearing. These are
the minimum requisites necessary to assure that the ruling that emerges
is worthy of respect.
Sincerely yours,
Nerliam Enfollard
William E. Pollard
Director
AFL-CIO Department of Civil Rights
WEP/ppo
opeiu#2, afl-cio
BERALD FORD LIBRABY
DICKSTEIN, SHAPIRO & MORIN
CHARLES H MORIN
THE OCTAGON BUILDING
DAVID 1. SHAPIRO
NEW YORK OFFICE
SIDNEY DICKSTEIN
WILLIAM J. O'HARA"
1735 NEW YORK AVENUE, N. W.
745 FIFTH AVENUE
ARTHUR J.GALLIGAN
JUDAH BEST
WASHINGTON, D. C. 20006
NEW YORK, N. Y. 10022
HENRY C. CASHEN I
JAMES VA.R SPRINGER
SL
212 832-1900
RICHARD LITTELL
202 785-9700
THOMAS W. MACK
GORDON P. RAMSEY
BOSTON OFFICE
ARTHUR D MASON
INE BOSTON PLACE
FREDERICK M LOWTHER
ROBERT J HIGGINS
April 14, 1975
BOSTON, MA95 02108
SEYMOUR GLANZER
MJ MINTZ
IRA H POLON
KENNETH L ADAMS
ALAN B PICK
PM
IRA R MITZNER
617 723-8100 ECEINED
WILLIAM SILVERMAN
RICHARD P. FERRIN
GEORGE T BOGGS
JOEL B KLEINMAN
* NOT ADM.IN
E.VICE CHAIRMAN
Honorable Ethel Walsh
Acting Chairperson
EEOC
2401 E Street, N.W.
Washington, D. C.
Dear Madam:
We have read reports that the Commission is considering
the issuance of guidelines regarding the legality under Title
VII of standards established by employers or by collective bar-
gaining agreements for reductions in force or layoffs. We write
this letter to urge that no such guidelines be issued at this
time. We do so for two reasons. First, because the Commission
has not solicited or received the views of interested employers
and labor organizations; and second, because the question is of
such importanct that any action on the subject should be taken
by a commission of five members rather than a bare quorum as
presently exists. The latter point requires no elaboration,
but a few additional observations on the first may be appropriate.
The standards for determining which employees will be
laid off in a reduction in force differ widely. Neither the
narrow practicalities for the most economically successful opera-
tion nor considerations of fairness and morale can be properly
evaluated except in the context of the particular industry or
plant, or perhaps even smaller unit, involved. Before issuing
guidelines the Commission should surely attempt to learn as
much as possible of the complexities of the problem and the
practical ramifications of the guidelines. To do otherwise
would be to operate in a vacuum and to treat those whom it regu-
lates as adversaries whose views simply do not matter. If in-
dustry and unions are to be "guided" in their actions, then they
FORD
GERALU
LIBRARY
Honorable Ethel Walsh
Page 2
April 14, 1975
must have confidence that the guidelines are based on an under-
standing of industrial realities. Indeed, if the Commission
disables itself from learning about the industrial realities,
it can contribute little if anything, since the meaning of the
Act as such is in the province of courts, some of whom have
already ruled. Finally, a failure to solicit and consider the
views of the private parties affected would be inconsistent
with the letter and spirit of the Administrative Procedure Act.
Accordingly, for these reasons, the Commission should
not issue guidelines now, and if it chooses to do so at all,
should first publish proposed guidelines in the Federal Register
and then give a full and fair opportunity for comment to all
interested parties.
Very truly yours,
Robert J. Higgins
FORD is LIBRARY GERALD
MGMWSHT HSA
1-829378C104 04/14/75
wastern union
Maigram
UNITE
U.S.MAIL
TLX DRESCON NYK
*
001 NEW YORK NY APRIL 14
RECEIVED
ZIP 20506
OFFICE OF THE VIDE CHAIRMAN
DELIVERY
275 APR 15 AN 38
ACPING CHAIRPERSON ETHEL BENT WALSH
#1195
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
2401 E STREET, NW
WASHINGTON, DC 20506
DEAR MS. WALSH:
01 MAJOR CORPORATIONS! REPRESENTATIVES, MEETING IN SPECIAL SESSIONS
OF THE ORC EQUAL OPPORTUNITY GROUPS AND THE ORC EQUAL OPPORTUNITY
LEGAL GROUP APRIL 10TH AND 11TH, CONCURRED IN THESE POINTS REGARDING
EEOC'S DRAFT OF GUIDELINES ON WORK ALLOCATION:
1. BECAUSE THEY ARE IN FACT NEW RULES, NOT INTERPRETATIONS, THE
ISSUANCE 0 F THESE GUIDELINES SHOULD FOLLOW THE ADMINISTRATIVE
PROCEDURES ACT AND BE SUBJECTED TO PUBLIC REVIEW AND COMMENT BEFORE
ADOPTION.
2. SINCE THE LIFO QUESTION AND THE EEOC POSITION ARE ALREADY IN THE
COURTS (JERSEY CENTRAL, WATERS, BOWMAN, ET AL.), ADOPTION NOW WOULD
BE ESPECIALLY UNTIMELY.
3. GUIDELINES! REDEFINUTION OF "BONA FIDE SENIORITY SYSTEMS" IS
PATENTLY CONTRARY TO CONGRESSIONAL INTENT AND TO RECENT DECISIONS OF
THREE COURTS OF APPEAL.,
US HHS CMUCH SHUHSD IN JERSEY CENTRAL,
"AE BELIEVE THAT CONGRESS INTENDED W PLANT-WIDE SENIORITY SYSTEM,
FACIALLY NEUTRAL BUT HAVING A DISPROPORTIONATE IMPACT ON FEMALE AND
MINORITY GROUP WORKERS, TO BE A BONA FIDE SENIORITY SYSTEM WITHIN THE
MEANING OF S703(H) OF THE ACT."
4, GUIDELINES ARE QUOTA ORIENTED,
5. GUIDELINES CONFLICT WITH NLRA AND A BASIC, TIME-PROVED FORMULA
OF LABOR-MANAGEMENT RELATIONS,
6, GUIDELINES INVITE ALL EMPLOYERS TO REPEAT JERSEY CENTRAL FORD
APPROACH OF GOING DIRECTLY TO COURT RATHER THAN UTILIZING EEOC
PROCEDURES,
LIBRARYA
7, GUIDELINES CONFLICT WITH MANY STATE REGULATIONS AND ARE UNCLEAR
I'v MEANINGS OF "VOLUNTARY," "DISPROPORTIONATE," "ROTATIONAL" AND
ELSEWHERE.
8. ALTERNATIVES TO LIFO WOULD COST MORE, HAVE INFLATIONARY
ECONOMIC IMPACT AND BE DESTRUCTIVE TO COMPETITION WITH FOREIGN
PRODUCTS BOTH DOMESTICALLY AND ABROAD,
(
9. OTHER PROBLEMS EXIST, TOO MANY FOR INCLUSION IN MAILGRAM,
(
FOR THE ORC EQUAL OPPORTUNITY GROUPS AND THE
ORC EGUAL OPPORTUNITY LEGAL GROUP,
WILLIAM G, SHEPHERD
EQUAL OPPORTUNITY INTERCHANGE COURDINATOR
15:31 EST
MGMWSHT HSA
rono
GERALD
LIBRARY
MGMWSHT HSA
(
1-0159914104 04/14/75
western MI union Mailgram
UNITED *
SERVICE
U.S.MAIL
TLX OTISEL NYK
01 NEWYORK NY APRIL 14
RECEIVED
ZIP 20506
OFFICE OF THE VICE CHAIRMAN
DELIVERY
$75 APR 15 AM 9:38
#119,
(
JOHN H POWELL, JR. CHAIRMAN
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1800 G. STREET, N.W.
WASHINGTON, D.C. 20506
ISSUANCE OF GUIDELINES ON WORK ALLOCATION, PART 1608, CHAPTER XIV,
(
TITLE 29, WILL RAISE MAJOR QUESTIONS AS TO IMPLEMENTATION, SEVERAL
COURT ACTIONS, INCLUDING JERSEY CENTRAL, WATKINS, ETC, CONTEST
VALIDITY OF GUIDELINE PREMISES; ISSUANCE NOw WOULD BE UNTIMELY.
GUIDELINES, IN EFFECT, CREATE QUOTA SYSTEM. STRONG PROBABILITY
OF CONFLICT WITH NLRA, GUIDELINES DEFINITION OF BONA FIDE
---
---
SENIORITY SYSTEM WILL BE IN CONFLICT WITH THAT OF EXISTING, LAWFUL
SENIORITY SYSTEMS. "ROTATION LAY-OFFS," SUGGESTED AS A METHOD
HAVING LEAST DISPROPORTIONATE IMPACT IN REDUCING LABOR COSTS, CAN
CONFLICT WITH STATE LAWS REGARDING UNEMPLOYMENT BENEFITS ELIGIBILITY,
RESPECTFULLY SUGGEST ISSUANCE OF GUIDELINES BE POSTPONED PENDING
FURTHER STUDY.
HARRY J. CROSSON, JR. OTIS ELEVATOR CO 750-3RD AVE NEWYORK NY 10017
TELEX 126500
12:37 EST
MGMWSHT HSA
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SQUAL ENVLOYMENT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASHINGTON, D.C. 20506
(
*
)
March 6, 1975
Memorandum
To:
Edyar& Morgan
Director, Office of Congressional
Affairs
From:
William A. Carey WAC
General Counsel
Subject: Recent Cases Involving Layoffs and Seniority
Recent Title VII court decisions may be placed in two
groups. The first group includes those which consider
challenges to plant or company-wide seniority systems
when the use of such systems causes the layoffs of a
disproportionate. number of females, blacks, or other
minorities. A second--smaller--group consists of those
cases in which plaintiffs do not challenge the seniority
systems as such but, rather, assert claims to seniority
equivalent to that which they would have earned had
they not been the direct victims of their employers'
discriminatory hiring practices.
a. The first group of cases includes the following:
Jersey Central Power and Light Co. V. IBEW,
F.2d 2. 9 FEP Cases 117, 9 EPD 9923 (3rd Cir.
1975);
Waters V. Wisconsin Steel Corp., 502 F.2d 1309
(7th Cir. 1974);
arqued
Watkins V. Steelworkers, 369 F. Supp. 1221
1/28
(E.D. La. 1974), appeal pending No. 74-2604
(5th Cir.)
FORD
Loy V. City of Cleveland, F. Supp. , 8 FEP BERAL
Cases 614, dismissed as moot at 8 FEP Cases 617
(N.D. Ohio 1974);
LIBRARY
Delay V. Carling Brewing Co., F. Supp.
,
9 EPD 19877 (N.D. Ga. 1974);
Bales V. General Motors Corp.
F. Supp.
,
9 FEP Cases 234 (N.D. Cal. 1974)
These courts have divided on the issue of whether layoffs
based on plant or company seniority violate Title VII
if they have a disproportionate impact on females or
members of minority groups. In general, the Waters and
Jersey Central courts have held that a "last-in, first-
out" system may be used by an employer irrespective of
its impact, whereas the Watkins, Loy, and Delay courts
have held that if the system has a disproportionate
impact on minorities as a result of past hiring discrimi-
nation, the system violates Title VII if used for layoffs
and recall. The difference in approach turns on a reading
of §703 (h) of Title VII, 42 U.S.C. $2000e-2(h), which
permits the use of bona fide seniority systems even when
their effect is discriminatory. Waters and Jersey
Central conclude that a plant or company seniority system
is per se bona fide; Watkins, Loy and Delay reject this
talismanic approach and focus, instead, on the history
of the system at issue. (The Bales court has not yet
decided the question). We have participated in the Jersey
Central and Watkins appeals and have generally supported
the Watkins view. We currently have a petition for re-
hearing pending in the Jersey Central case.
b. The second group of cases at present consists
only of Franks V. Bowman Transportation Co., 495 F.2d
398, (5th Cir. 1974) and Meadows V. Ford Motor Co., F.2d
,
9 FEP Cases 180, 9 EPD 19907 (6th Cir. 1975) In
Franks, the court held that applicants who were discrimina-
torily denied employment in the past were entitled to a
court order requiring the employer to hire them but were
not entitled to seniority for the period between their
discriminatory rejection and subsequent court-ordered
hiring. The court held that to confer such seniority
would provide the rejected applicants with "super-
seniority" or fictional seniority. The Meadows court
rejected this approach. While it acknowledged that giving
seniority to applicants who had been unlawfully rejected
for employment could pose practical problems, it found
no legal impediment in Title VII to an award of at least
some seniority tor the period of discriminatory exclusion
We have advocated the Meadows position and have joined
with the Solicitor General in supporting a petition for
certiorari in Franks.
GERALD
LIBRARY
- 2 -
THE NEW YORK TIMES, WEDNESDAY, JANUARY 29, 1975
Issue and Debate
Layoff and the Civil Rights of Minorities
By ERNEST HOLSENDOLPH
was to achieve equality of em-
"Although unions can de-
The New Jersey utility had
Special to The New York Times
ployment opportunities and
velop their own local op-
been operating under an
WASHINGTON, Jan. 28-
remove barriers that have op-
tions," Mr. Pollard said, "we
agreement with the Equal Em-
In times of recession, when
erated in the past to favor-
ployment Opportunity Com-
feel a commitment to protect
the workers and the
Last Hired, and Usually the First Let Go
By CHARLAYNE HUNTER
chair the conference-others
ployers consider cost savings
are "leery" because they see
"by other cuts and economies,
Char'otte Brown, a 24-year-
old black woman, was hired
the problem as a very prickly
such as reduced work weeks,
shift changes, payless work
one.
last January by Twentieth Cen-
days, payless holidays and cuts
"It's so potentially extremely
in