Certiorari Denied March 24, 1969. See 89 S.Ct. 1189.
CRAVEN, Circuit Judge:
Whether an actual attempt by the Equal Employment Opportunity Commission to eliminate an unlawful employment practice is a jurisdictional prerequisite to a suit by an individual plaintiff
Ray Johnson, on January 14, 1966, filed a charge of employment discrimination with the Commission against Seaboard Coast Line Railroad Company. The Commission's investigation of the charge showed that Johnson, who had been employed by Seaboard as a porter from 1940 to 1965, was dismissed, ostensibly because of a conviction for a misdemeanor; that the offense occurred while Johnson was off duty and not on Seaboard's property and occasioned no loss of time from his job; that Johnson had written letters protesting Seaboard's racial discrimination to the President's Committee on Equal Employment, the National Railroad Adjustment Board, and the United States Attorney General; and that Seaboard's agents were uncooperative when questioned by the Commission's investigator about company practices and regulations used to discipline white employees and about conduct standards used for Seaboard's employees generally.
The facts in No. 12,155 are substantially similar. Charles Walker filed his charge with the Commission on February 28, 1966, and amended it on March 15, 1966. On July 20, 1966, the Commission determined that reasonable cause existed in Walker's case also, basing the decision on its investigation which showed that Walker's application to Pilot Freight Carriers, Inc. for employment as an over-the-road truck driver was denied; that no Negroes were currently employed by Pilot and had been employed in the past only in casual positions; that Pilot hired five drivers after Walker's application was denied; that of the five, two had applied after Walker, and only one of the five met the company's employment qualifications; and that Pilot made no effort to determine Walker's qualifications. A letter, similar in all respects to the one sent Johnson, was mailed to Walker by the Commission on August 5, 1966, and on August 23, 1966, Walker filed his complaint.
On the basis of a memorandum of decision filed January 25, 1968, the District Court for the Western District of North Carolina dismissed the complaints of both Johnson and Walker on the sole ground that "Congress intended that conciliation efforts be made prior to the institution of civil actions and that this is a jurisdictional prerequisite to the right to file a civil action."
It seems clear to us that the statute, on its face, does not establish an attempt by the Commission to achieve voluntary compliance as a jurisdictional prerequisite. Quite obviously, 42 U.S.C. § 2000e-5(a) does charge the Commission with the duty to make such an attempt if it finds reasonable cause, "but it does not prohibit a charging party from filing suit when such an attempt fails to materialize."
If the plain language of the statute will not support their contention, the defendants, relying heavily on Dent v. St. Louis-San Francisco Ry. Co., supra, urge that its legislative history shows a congressional intent to require that civil actions under Title VII be preceded by informal efforts to achieve voluntary compliance. However, the legislative history is not so clear as the defendants would have it. Hall v. Werthan Bag Corp., 251 F.Supp. 184, 186 (M.D.Tenn. 1966). The bill underwent extensive revisions culminating in a leadership compromise,
Our examination of the bill's history indicates that either side can find statements that, taken out of context, support their position.
110 Cong.Rec. 14188 (1964). Apparently in reply to Senator Ervin, Senator Javits said,
Id. at 14191. And Senator Humphrey's opinion was, "The individual may proceed in his own right at any time. He may take his complaint to the Commission, he may bypass the Commission, or he may go directly to court." Id. at 14188.
Such diversity of opinion, without more, destroys defendants' contention that the legislative history compels their interpretation of the Act. Moreover, none of these statements was directed to the jurisdictional question. They were, instead, directed to Senator Ervin's amendment No. 590 which was designed to strike out that portion of Title VII that permits a member of the Commission to file a charge of discrimination against an employer.
The defendants also rely on an amendment
We have not ignored statements made in Congress after the shift had occurred. While we concede that these statements place heavy emphasis on the
However unclear the statute and its history are with respect to the jurisdictional problem at hand, the policies and purposes of the Act are clearly discernable.
In Quarles v. Philip Morris, Inc., 271 F.Supp. 842, 847 (E.D.Va.1967), Judge Butzner said:
The shift in the Congress from a rationale of national official enforcement to a policy of private individual vindication is, we think, of controlling importance.
There is no corresponding unfairness to employers or unions for the reason that there is no right to persist in invidious discrimination. All that defendants ask is not to be sued before being persuaded to comply with the law. They can, of course, do so without persuasion, or may be persuaded to do so without resort to the complaint procedure.
BOREMAN, Circuit Judge (dissenting):
With due respect for the opinions of my brothers I find myself in disagreement with them in these cases. Accordingly, I record my views in this separate statement.
The statutes here principally involved (Title VII, § 706, 42 U.S.C. § 2000e-5, subsections (a) and (e), are set out in footnotes numbered 4 and 5 of the majority opinion. There is no need to reproduce them here. The majority view is that the "statute, on its face, does not establish an attempt by the Commission to achieve voluntary compliance as a jurisdictional prerequisite" to the bringing of a civil action by a person allegedly aggrieved.
In each of these cases the Commission admittedly made no effort whatsoever to eliminate the alleged unlawful employment practice by the informal methods prescribed by statute. The only reason assigned by the Commission for such failure was its "heavy work load." By this simple expedient the Commission sought to bypass the clear provisions of the statute, to render them meaningless and thereby open the floodgates to the judiciary when the obvious intent of the lawmakers, as indicated by the language of the statute and the legislative history, was to place the primary burden on the Commission, to protect employers and other persons subject to the provisions
It is elementary that the fundamental purpose of conciliation is to avoid litigation. In these cases appellants (hereafter plaintiffs) would have the court adopt the unnatural view that conciliation may follow litigation at the election of a litigant. Undeniably, if conciliation is to follow litigation then its whole purpose is defeated and the effort of Congress to require it prior to litigation is reduced to an idle gesture. This point is clearly manifested in the wording of the statute and it was recited again and again in the legislative history as will be later noted. Plaintiffs seek to persuade the court to read and construe subsection (e) standing alone and not in conjunction with subsection (a). That argument entirely overlooks subsection (a) as well as other pertinent language in subsection (e). The language of subsection (a) of section 706 is clear that if the Commission finds reasonable cause to believe the charge is true it shall endeavor to eliminate the practice by "informal methods." The language of subsection (e) of section 706 further establishes, as the court below stated, that after this effort is made by the Commission it then becomes its duty to report its failure to the aggrieved party who may then institute action in court. Subsection (e) gives the Commission power to extend conciliation beyond thirty days if further efforts to secure voluntary compliance are warranted. The words "further efforts" clearly connote that Congress contemplated that initial efforts to conciliate had already gone before. Furthermore, after an action has been commenced in the district court, subsection (e) authorizes the Commission to request the court to stay proceedings pending the termination of the efforts of the Commission "to obtain voluntary compliance." This language is further proof that conciliation efforts must have begun before suit is filed.
Applying elementary rules of statutory construction, section 706 must be read as a whole in order to ascertain its true meaning. Each part or section should be construed in connection with every other part or section to produce a harmonious whole.
In analyzing the language of the statute the court in Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56, 62 (N.D.Ala.1967), stated:
In referring to subsection (e) and noting that the Commission has up to sixty days to attempt to secure voluntary compliance the following statement appears in the Harvard Law Review:
The passage of this civil rights legislation and the statutory provisions pertinent here were accomplished only after much debate, after amendments were proposed and material changes made which differed from the original proposals. "Seldom has similar legislation been debated with greater consciousness of the need for `legislative history' or with greater care in the making thereof, to guide the courts in interpreting and applying the law."
In both the House and Senate, it was explained that a civil action could not be brought without efforts to achieve voluntary compliance by conciliation. The House Labor Committee Report explained that "maximum efforts be concentrated on informal and voluntary methods of eliminating unlawful employment practices before commencing formal procedures." Representative Lindsay, then a member of the House Judiciary Committee, explained that "the procedures are carefully spelled out. * * * Those procedures are designed to give due protection to everyone. They command that there first be voluntary procedures."
On at least two occasions Congress thoroughly considered and then rejected proposals that litigants be permitted to proceed with court action before conciliation was attempted. Thus, the original bill expressly provided that a civil action could be brought "in advance" of conciliation efforts "if circumstances warrant," but these clauses were eliminated "to make certain" that there be resort "to conciliatory efforts" before court action.
The bill was passed by the House as amended and the amendment, eliminating the "in advance" clause, was explained by Representative O'Hara:
Further evidence of intent is found in the fact that in 1965 Congress again was urged to enact a law which would permit litigation "in advance" of conciliation.
The plaintiffs concede in their brief that conciliation efforts were a prerequisite to a civil action under the bill as passed by the House. But they argue that the conciliation prerequisite was eliminated by the Dirksen compromise in the Senate. To support this argument they point to the fact that the compromise substituted the "person aggrieved" for the Commission as the party authorized in the original proposal to bring the civil action. This argument is in "patent disregard for the fact that the procedure under the compromise was explained [in the Senate], just as was the House Bill, as authorizing the institution of a civil action only after conciliatory
Senator Saltonstall explained his support of the proposed legislation as follows:
Senator (now Vice President) Humphrey made the following statements:
The plaintiffs ignore the legislative history relating to the compromise between the Senate and the House and the adoption of the legislation in its present form. All of this history was relied upon by Chief Judge Lynne in the Dent case,
Therefore, it would be illogical to construe the compromise as placing less emphasis on voluntary compliance than did the House bill.
The plaintiffs' argument that the Dirksen compromise in the Senate was intended to permit suit prior to conciliation efforts, thereby reversing the procedure admittedly spelled out in the House bill, is illogical in two more respects. First, the compromise grew out of the need of the supporters of the bill in the Senate to invoke the cloture procedure. In order to obtain the required number of votes the House bill had to be softened. "The necessity for and difficulties in obtaining the two-thirds vote for cloture must be borne in mind in any attempt to understand the amendments to the bill adopted in the Senate and particularly the amendments to Title VII.
Adverting to the Senate proceedings, it was pointed out that the compromise proposal was based upon the accumulated experience of twenty-five states which have fair employment practices laws. Senator Javits assured the Senate that fears about the procedure of the compromise
The experience of the states, showing that conciliation is a successful means of obtaining voluntary settlement of complaints of discrimination in employment, is not to be lightly regarded. This court has already recognized that conciliation provides a means for the Commission to settle the matter "in an atmosphere of secrecy without resorting to the extreme measure of bringing a civil action in the congested federal courts," Mickel, supra, 377 F.2d 239, 241. The statute, § 706(a), 42 U.S.C. § 2000e-5(a), directs that nothing said or done and as a part of "such endeavors" may be made public by the Commission without the written consent of the parties or used as evidence in a subsequent proceeding. This section also makes it a misdemeanor for any employee of the Commission to divulge such information. If voluntary compliance with these statutes is the first objective, and I think it is, the prospect of willing cooperation is greatly diminished by a suit instituted prior to conciliation efforts on the part of the Commission. Publicity with respect to complaints of discrimination might involve substantial dangers to industrial peace. The pressures, publicity and adversary attitudes which naturally follow the institution of a law suit can make willing cooperation difficult, if not impossible. Congress intended, in my view, that the Commission should make the effort to eliminate alleged unlawful employment practices by conferences with the employer, by persuasion and by conciliation. Such is the sensible approach before authorizing the aggrieved person to plunge into litigation. I am persuaded that it is this approach which Congress intended and for which it made provision.
It is true that the courts are not in accord in their interpretation of these statutes, as pointed out in the majority opinion. As these disagreements began to appear the Commission may have been impelled to review and reconsider the procedures which it had undertaken to follow. In the instant cases the notification was sent to each plaintiff that he could resort to court action prior to any conciliation effort by the Commission. Up to that time the Commission had issued no formal or official interpretation of the requirements of the statute with regard to whether an effort to conciliate must precede the issuance of such notice. But in November 1966 the Commission, perhaps entertaining some doubt as to the legality of its procedure employed in these and other cases, issued a Regulation stating that it "shall not issue a notice * * * where reasonable cause has been found, prior to efforts at conciliation with respondent," except that, after sixty days from the filing of the charge, the Commission will issue a notice upon demand of either the charging party or the respondent. (29 C.F.R. § 1601.25a).
If inability to undertake conciliatory procedures be attributable solely to a "heavy case load," as asserted by the Commission, this would not be the first instance where statutes could not be followed or enforced because of lack of necessary implementation. If sufficient funds were not appropriated to permit the Commission to function as intended this situation can and should be corrected, but this is a problem which cannot be solved by the courts. Claims of resulting unfairness to allegedly aggrieved persons have been made in this and other courts if conciliation effort, though unsuccessful, is held to be a prerequisite to resort to the courts. It is clear that Congress intended to protect aggrieved persons against violations of their civil rights but it is clear also that Congress
"Due to the heavy workload of the Commission, it has been impossible to undertake or to conclude conciliation efforts in the above matter as of this date. However, the conciliation activities of the Commission will be undertaken and continued.
"Under the provisions of Section 706 (e) of Title VII of the Civil Rights Act of 1964, the Commission must notify you of your right to bring an action in Federal District Court within a limited time after the filing of a complaint.
"This is to advise you that you may within thirty days of the receipt of this letter, institute a civil action in the appropriate Federal District Court. If you are unable to retain an attorney, the Federal Court is authorized in its discretion, to appoint an attorney to represent you and to authorize the commencement of the suit without payment of fees, costs or security. If you decide to institute suit and find you need such assistance, you may take this letter, along with the enclosed Commission determination of reasonable cause to believe Title VII has been violated, to the Clerk of the Federal District Court nearest to the place where the alleged discrimination occurred, and to request that a Federal District Judge appoint counsel to represent you.
"Please feel free to contact the Commission if you have any questions about this matter."
"Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred * * * that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization * * * with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."
"If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice * * *."
"We have leaned over backwards in seeking to protect the possible defendants by means of all the procedures referred to — those of conciliation, arbitration, and negotiation." 110 Cong. Rec. 14190 (remarks of Senator Morse).
"If efforts to secure voluntary compliance fail, the person complaining of discrimination may seek relief in a federal district court." Id. at 12617 (remarks of Senator Muskie).
"An aggrieved party may initiate action under the provisions of the bill on a federal level. In such cases, provision is made for Federal conciliation in an effort to secure voluntary compliance with the law prior to court action." Id. at 12690 (remarks of Senator Saltonstall).
"The point of view of this section is to permit one who believes he has a valid complaint to have it studied by the Commission and settled through conciliation if possible. The Court procedure can follow.
"In Massachusetts, we have had experience with an arrangement of this sort for 17 years and as I recall, approximately 4,700 unfair practice complaints have been brought before our Massachusetts Commission Against Discrimination. Only two of them have been taken to court for adjudication. That procedure is the basis and theory of this part of the bill and that is why I support it." Id. at 14191 (remarks of Senator Saltonstall).
"Those of us who have worked upon the substitute package have sought to simplify the administration of the bill * * * in terms of seeking a solution by mediation of disputes, rather than forcing every case before the Commission or into a court of law.
* * * * *
"We have placed emphasis on voluntary conciliation — not coercion.
* * * * *
"The amendment of our substitute leaves the investigation and conciliation functions of the Commission substantially intact.
* * * * *
"Section 706(e) provides for suit by persons aggrieved after conciliation has failed." Id. at 12722-23 (remarks of Senator Humphrey).
"The purpose of this title is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin * * *.
"Section 701(a) sets forth a congressional declaration that all persons within the jurisdiction of the United States have a right to the opportunity for employment without discrimination on account of race, color, religion, or national origin. It is also declared to be the national policy to protect the right of persons to be free from such discrimination."
H.R.Rep. No. 914, 88th Cong., 2d Sess. (1964), U.S.Code Cong. & Admin.News 1964, p. 2401. See also, 42 U.S.C. § 2000e(b).
"To assist businesses throughout the country in establishing and carrying forward an affirmative action program on a community-wide basis, the Office of Technical Assistance, which is the educational and promotional arm of the Commission, has prepared a step-by-step plan, based on established and successful programs. In an effort to broaden business participation, Technical Assistance has scheduled a `Sixty-City Plan,' calling for regional meetings with small groups of business leaders on the community level during the coming months. The purpose is to counsel and guide these leaders in forming Merit Employment Councils in their respective communities and to cooperate with them in establishing equal employment programs. Meetings are being held in key cities throughout the country and are expected to draw businessmen from surrounding communities. A traveling field staff will follow up on the meetings, contacting the participants for reports of progress and offering solutions to the problems which they may face.
"It is our hope that through persuasive and aggressive promotion of affirmative action we may be able to achieve more significant results, both quantitative and qualitative, for minority group workers than through the complaint procedure."
7 B.C.Ind. & Comm.L.Rev. 413-14 (1966).