ance divisions.703 Action has been taken to remedy the situation. By the end of the 1970 fiscal year, the professional staff is expected to total 22. Since the unit's function under the new procedures will be primarily to review and audit, the Division Chief believes the increased staffing will be sufficient to handle the workload.704

On August 29, 1969, the EEOC Chairman announced new procedures to eliminate the backlog. These included decentralization of decisionwriting. The immediate goal was 100 to 200 decisions per week, compared to the approximately 25 that were then being rendered. At the same time, Mr. Brown promised a restructuring of the overall complaint process to insure speedy case completions.705

707

It was not until November 13, 1969 that the Commission adopted the procedures, to become effective February 2, 1970.706 In short, the revised process seeks to bypass the decisionwriting stage by securing predecision settlement." This represents a basic departure from past EEOC policy which has emphasized the importance of a written "cause" decision in attaining productive conciliation and supporting the aggrieved party's right-to-sue prerogative.

(D) Conciliation. The final phase of the complaint process is conciliation. On determination of "reasonable cause",708 the Commission is authorized to endeavor to eliminate the alleged unlawful employment act by methods of "conference, conciliation and persuasion".709 As indicated, the lack of enforcement authority has hindered EEOC's ability to secure relief through the conciliation process. However, the Commission has attempted to augment the limited potency of the conciliation process by incorporating within the mechanism the individual's right to sue under section 706 (e) of the statute. As one commentator has pointed out:

In addition to the threat of a private suit, the conciliation process receives leverage from the Commission's "reasonable cause" decision. Conciliation personnel believe a decision gives support to the conciliator in his negotiations with the respondent."11

EEOC has tried to use the "reasonable cause" decision and the potential 706 (e) suit as leverage to broaden the conciliation negotiation from an attempt to secure individual relief to an endeavor to produce a class remedy. More specifically:

The goals of the Commission in conciliation are to obtain specific relief for the charging party; to remedy the practice of the respondent which led to unlawful discrimination against the charging party; and, where necessary, to modify other employment practices to achieve compliance with Title VII." (Emphasis added.) To date, there has been only marginal success in achieving these goals.

The conciliation function was partly decentralized by region during the latter part of fiscal year 1967; previously, it had been conducted by a small Washington-based staff.713 The central office's Division of Conciliation retains considerable responsibility for the process, including standardization of procedures, training of field conciliators, and review of agreements involving novel or unusual cases."

714

Although the number of successful and partly successful conciliations of respondents has increased greatly, the rate of success has decreased. Thus, in fiscal year 1966, 56 of 68 conciliations, or 82 percent, were successful or partly successful; in fiscal year 1967, 88 of 174 or 51 percent; in fiscal year 1968, 306 of 640 or 48 percent; and in fiscal year 1969, 376 of 774 or 49 percent.

(2) New Permanent Procedures

When the Commission voted to adopt special procedures to eliminate the decisionwriting backlog of 4,000 cases,716 it also accepted new compliance procedures to be instituted on a permanent basis.717 Modeled after those used by the National Labor Relations Board,718 they represent extensive changes in practices that had evolved during EEOC's 5-year history.718 The procedures, adopted as a "compromise matter",720 were to take effect on February 2, 1970, but did not actually become operational until the beginning of April 1970.

The Commission's aim is to cut in half the time it currently takes, about 2 years, to process a case." 721 There is no realistic hope a case can be processed in the 60 days as the regulations provide,722 even with the revised system.723

The new permanent conciliation procedures are directed toward securing predecision settlements, thus eliminating the decisionwriting phase of the compliance process. In brief, they will operate as follows:

(1) At the conclusion of an investigation, the investigator will write findings of fact, stated in such a manner that most involved parties can anticipate the Commission's action

if the case proceeds to the decisionwriting stage.724

(2) The findings of fact, signed by the Field Director, will be forwarded to the charging party and respondent, who will have 15 days in which to file exceptions. A regional attorney will be available in each field office to aid the charging party or respondent.

(3) On the basis of the findings of fact (which may be altered to reflect valid exceptions filed), the parties will be invited to discuss a predecision settlement. In "nonguideline cases",725 settlement proposals formulated by conciliators must be approved by the headquarters Conciliation Division prior to negotiation.

(4) Settlement

agreements in guideline cases 726 will be forwarded to the Commissioners for approval; nonguideline cases to the Conciliation Division for review before circulation to the Commissioners.

(5) If settlement talks fails or are not desired, either party requests a written decision (at that point the charging party could request his right-to-sue notice), one of the following will occur: (a) The field office will compose a short-form decision and forward it to the Commissioners for approval; (b) if objections have been filed in a guideline case, the field office will draft a formal, long-form Commission decision and forward it for approval; or (c) if substantial legal objections have been filed in a nonguideline case, the investigator's file will be transmitted to the Decisions and Interpretations Division where a long-form decision will be drafted and then forwarded to the Commissioners.

(6) The decision will be returned to the field for conciliation or right-to-sue notification.

On the surface, the new procedures appear more cumbersome and complex than the present ones. Those responsible for their draft

ing, however, contend that they will streamline the process in numerous ways. First, the investigative phase will be shortened because the investigator will not have to prepare an elaborate field investigator's report.727 Second, and most important, in cases where predecision settlement is obtained, the need for a written decision will have been eliminated, a procedure which the Commission believes most charging parties and respondents will welcome for its expediency. If the respondent entertains negotiation at that point but refuses to come to an agreement, the Commission anticipates that many charging parties will request their right-to-sue notice. 728 The Commission, in fact, expects that there will be many 706 actions instituted.729 Third, when written decisions are necessitated, the issuance of the short-form will be merely a perfunctory step. Where long-form decisions are required, the job of the decision writer will be shortened since he will not have to cull through the investigator's file; he can base his decision on the findings of fact and the exceptions and and legal objections raised.730

In addition to streamlining the process, the Commission anticipates two further advantages will accrue. First, because of the exceptions process, the quality of investigations is likely to improve. Poor investigators will be identified if valid exceptions are continuously filed against their findings of fact.731 And the filing of exceptions will permit closing the record since both the charging party and respondent will have an opportunity to object to the findings, raise legal objections, and/or submit additional documentation.732

The streamlining of the compliance process depends partly on the willingness of respondents to participate in predecision settlement discussions.733 It is not evident that this will be the case. Some Commission staff members believe that many respondents will not settle

without a written decision.734 In one office where the procedures have already been made operational, predecision attempts have been unsuccessful because respondents have not been interested in negotiating prior to a Commission finding.735

Another problem will arise if many exceptions are filed. Objections raised by respondents, coupled with unwillingness to negotiate prior to a decision could, in fact, lengthen the process. 736

Most important, the process could work to the substantial disadvantage of the charging party. The new procedures assume much greater litigation activity by charging parties. Yet, while corporations and their legal staffs have begun to develop competence in the technicalities and complexities of such litigation, the legal profession generally has not specialized sufficiently in Title VII matters to provide equal representation to complainants.787

b. Commissioner Charge

Processing individual complaints of discrimination is a mandatory Commission function, but EEOC is not, by law, relegated to assuming a mere passive posture in enforcing Title VII; it also has discretionary authority to initiate enforcement proceedings.

Section 706 (a) of the title states that a change may be filed "by a member of the Commission where he has reasonable cause to believe a violation has occurred." The potential impact of section 706(a) is greatly enhanced by section 706 (e) which permits the initiation of a private suit, in a case where a charge was filed by a Commissioner, "by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice."

Little has been done to implement the potential effectiveness of the Commissioner charge as an enforcement mechanism. No uniform procedures for initiating a Commissioner charge have been adopted,738 nor has a policy been developed to utilize the Commissioner charge to attack pattern or industrywide dis14 Interview with Charles Wilson, Deputy Chief, Conciliation Division, May 1, 1970.

735 Gordon interview, supra note 718.

Wilson interview, supra note 734.

" Id. There is also the problem of the cost if private litigation. See discussion on litigation at pp. 107–08, infra.

crimination.739 Rather, most Commissioner charges have resulted from routine individual complaints, such as nonalleged violations uncovered during investigations and complaints from charging parties who wished to remain anonymous. Moreover, with the exception of the Houston hearings, where it was used extensively, the Commissioner charge has not been used as a followup tool to Commission hearings, despite indications at those hearings that substantial job discrimination was being practiced by major nationwide companies. There are no present plans to place more emphasis on the Commissioner charge, at least prior to eliminating the case backlog.741

740

Any impact EEOC might have had through those Commissioner charges that have been processed has been vitiated by nonutilization of section 706(e). Upon failure of conciliation attempts in a Commissioner charge, EEOC has rarely notified members of the aggrieved class of their right-to-sue.742 This has adversely affected the Commission's ability to conciliate a Commissioner charge successfully.743 The Office of the General Counsel is now formulating procedures to notify members of a class of their 706(e) rights in an effort to make the Commissioner charge more effective than it now is.744

c. Litigation

Although the Commission's formal enforcement proceedings terminate at the conclusion of the conciliation stage, its ability to influence

739 "Id.

140 For example, Commissioner charges were not issued against utilities companies following the utility hearing. 741 Rayburn, Gordon interview, supra note 724. The current status of Commissioner charges filed during last 3 fiscal years does not reflect any special emphasis or priority to be attached to them. In Fiscal Year 1968 there were 110 cases and only 65 have been decided (40 cause and 25 no cause). In fiscal year 1969 there were 146 cases and only three have been decided (two cause and one no cause). In fiscal year 1970 there were 67 cases with zero decisions. Of 323 cases in all there have been only 68 decisions. Letter and attachments from Joseph C. Fagan, Executive Director, EEOC to Lawrence B. Glick, Deputy General Counsel, U.S. Commission on Civil Rights, Oct. 26, 1970.

742 Wilson interview, supra note 734.

7:43 Id. 744 Interview with David Cashdan, senior attorney, Office of General Counsel, Apr. 29, 1970.

implementation of Title VII continues through the litigation process. Two types of suits are sanctioned by Title VII: private suit under section 706(e) and action by the Attorney General pursuant to section 707.

(1) 706 Suits

The aggrieved party may institute civil action against the respondent named in the complaint at any point after EEOC has had jurisdiction of the case for 60 days.745 Normal procedure, however, is for the charging party to wait until receipt of right-to-sue notification transmitted upon Commission determination of a "no cause" decision or upon failure to secure relief in the event of a "cause" decision. The charging party must exercise his option to sue within 30 days of receipt of notice.

To date, charging parties have been cautious about bringing suit under section 706(e). Action has been initiated in less than 10 percent of those cases in which the Commission has found cause but has been unable to secure settlement.746 The reason: the charging party cannot afford the expense and time involved in private litigation.747

Section 706 (e) assigns no role to the Commission in the private litigant's action beyond recommending to the Attorney General that he intervene in certain cases.748 The Commission, however, has been able to make an impact on the 706 remedy in two ways: by par

ticipating in the suit as amicus curiae 749 and by aiding the charging party in processing an action.

As of July 1969, the Commission has filed amicus curiae briefs in 121 section 706 suits before the courts. In its early years, EEOC engaged in almost no amicus activity. In fiscal year 1968, for example, only 22 amicus briefs were filed.750 Subsequently activity was increased and 90 briefs were entered in the 1969 fiscal year.751 EEOC becomes involved when important issues bearing on development of equal employment law are involved and substantial procedural issues are in question. Other criteria considered include the novelty of the issue, the situs of the case (EEOC will file amicus in geographical areas where there has been little previous activity in order to involve local attorneys in 706 proceedings), and the stage of the proceedings (EEOC generally enters at the appellate level).752

The Commission has had noteworthy success in its amicus activity in persuading the courts to adopt its position, particularly in the areas of formulating adequate remedies, determining issues of "standing to sue", and in developing procedures designed to benefit the charging party.753

The Commission has been less successful, however, in assisting the charging party in seeking to exercise his rights under section 706(e). As indicated, there is almost no experienced 706 bar available for charging parties.754 Moreover, unless the court appoints an attorney, litigation costs are prohibitive for

749 An amicus curiae is an individual or organization with special expertise or interest in the case or a single issue in the case, who, although not a party to the case, is granted permission by the court to file or otherwise participate in the case.

150 EEOC Third Annual Report, fiscal year 1968, at 10, 11.

751 EEOC 1971 Appropriations Hearing, supra note 584, at 606.

752 Cashdan interview, supra note 744.

753 Notable examples include Jenkins vs. United Gas Corp., 400 F.2d 28 (1968); Bowe vs. Colgate Palmolive Co., 272 F. Supp. 332 (S.D. Ind. 1967); King vs. Georgia Power Co., 295 F. Supp. 943 N.D. Ga. 1968); and Quarles vs. Phillip Morris, 279 F. Supp. 505 (E.D. Va. 1968).

754 Wilson interview, supra note 734.

According to EEOC's General Counsel, the guiding question in determining which cases to refer to the Attorney General is: "Would the elimination of this particular practice have an appreciable impact on the elimination of employment discrimination?" 759 Thus, such factors as number of employees, percentage of minority group members in the given area, nature of the unlawful practice, number of complaints against the company, and the priority aims of the Department of Justice are weighed in determining referrals.760

The referral procedure is an informal one. Cases identified by EEOC as potential vehicles for 707 action are discussed informally with Department of Justice attorneys. Files for those cases in which Justice expresses interest are then transmitted by EEOC.761

The Commission's involvement terminates at the point of referral. According to EEOC, "to date [it] has not played an active role in 707 litigation except to the extent of supplying