ence of discrimination in hiring, testing, seniority lines, and other employment practices, and the fact that many of the hard issues under Title VII have not yet been decided. The large number of man-hours required to prosecute a Title VII action, compounded by the small number of attorneys available to the section, severely limits the number of employment cases which the Civil Rights Division can bring.855

In attempting to allocate its resources most effectively the Division has established three broad objectives in the employment area: to bring suits in large metropolitan areas with heavy black or Spanish-speaking concentration; to develop legal principles under Title VII; to assist other Federal agencies having equal employment opportunity responsibility [notably EEOC and OFCC] in order to develop a uniform governmental approach to the problem.856

Priorities to secure these objectives have been determined in terms of two categories— geographic and substantive. The geographic priorities are not regional, but consist of certain cities on which the Division will concentrate its efforts. The first area of concentration is the 41 cities with populations of more than

55 Interview with David L. Rose, Chief, Employment Section, Civil Rights Division, Nov. 12, 1969. For example, the first employment case filed by the Department, U.S. v. Sheet Metal Workers International Association, Local Union 36, was filed on Feb. 2, 1966, and was not decided by the Circuit Court of Appeals until Sept. 16, 1969. Furthermore, the Eighth Circuit reversed and remanded the case to the district court, making further litigation necessary. However, the parties settled the case at this point without further judicial hearings.

856

U.S. Department of Justice, Civil Rights Division, Program Memorandum, fiscal year 1969. The 1970 program memorandum had not been completed at the time of the Commission investigation. An example of the type of litigative support the employment section provides other agencies is the suit filed on June 2, 1970 against a construction union in East St. Louis, Ill. The union was the most vocal of the several local unions which did not agree to State administered area equal employment opportunity plan. (Ogilvie plan) The Department of Transportation requested the Department to investigate the practices of the union and if they were discriminatory to file suit. The suit, thus, encourages the growth of the area plan concept. Interview with Robert T. Moore, Deputy Chief, Employment Section, Civil Rights Division, June 3, 1970.

100,000 persons which are more than 10 percent Negro and which are large manufacturing centers. Next, the Division focuses on those cities with populations of more than 100,000 persons with Negro populations of more than 10 percent, which are not manufacturing centers. The third geographic priority focuses on cities where State and large private employment agencies are located. This priority is based on the theory that these agencies can be a major source of employment referral for Negroes. The final priority is to give attention to other cities of 100,000 with other identifiable minorities of more than 10 percent.857

The Civil Rights Division does not appear to adhere closely to the geographic priorities. Although most of the employment actions have been brought in large cities, almost half (23 of a total of 50) have been in the South.858 Only one action has been filed against a State employment agency, and two others were filed against private employment agencies.859 As of August 1970, there have been few employment cases in which the prime victims of discrimination have been minority group members other than Negroes.860

The substantive priorities of the Civil Rights Division's employment program focus on those unions, companies, and employment agencies which are the most serious violators of Title VII and present the broadest spectrum of discriminatory practices. The rationale be857 Id.

85 Civil Rights Division memorandum, Title VII of the Civil Rights Act of 1964, Status of Cases as of May 11, 1970.

859

Id. A complaint was filed against the Ohio Bureau of Employment Services on Dec. 12, 1968. A complaint was filed on Apr. 4, 1970, against the Ideal Employment Co. in Chicago, Ill. On July 3, 1968, a complaint was filed against the Metro Personnel System, Inc., in Tex. and a consent decree was issued on August 1, 1969. In a related case, the Division, in U.S. v. Frazer, 297 F. Supp. 319 (M.D. Ala. 1968) sued various officials of the State of Alabama to enjoin racial discrimination in the administration of the Alabama Merit System as a condition to the receipt of Federal grants-in-aid. Rose interview, supra note 855. The Employment Section has no Spanish surnamed Americans, Orientals, or American Indians on their 33-man professional staff. The Justice Department's first suit in which the prime victims of discrimination were Spanish surnamed and American Indians was filed on June 24, 1970 against Inspiration Consolidated Copper Co., 13 unions and a trades council. Its first suit in which women

560

hind this approach is that it is the most efficient way of developing the law, so that Federal agencies, companies, and unions will understand the "full range of Title VII requirement" 861

The Division also believes that lesser violations of the law can be remedied by private suits.

Furthermore, to derive the greatest impact from each case, the Section intends to increase the number of suits it has filed against employers with multiple facilities.862 Generally, only one of the employer's facilities will be sued, on the assumption that an action against one of the employer's plants will generate voluntary reform in all of its plants.868 On the other hand, the Division has also brought suits charging discrimination in all of the plants of a particular employer. This approach was followed in the April 1969 suit against Cannon Mills, Inc., which has 14 plants and 23,000 employees in North and South Carolina. Other methods specified by the Division for increasing the impact of employment cases include suing unions on a nationwide basis, suing all employers in a limited geographic area who discriminate,864 and litigating cases against selected employers within an industry. The rationale here is that once a legal precedent is established, OFCC, through the use of its sanctions, can enforce the law nationally on an industrywide basis.865

were the prime victims of discrimination was filed on July 20, 1970 against Libby-Owens-Ford Co., Inc., and the United Glass and Ceramic Workers of North America, AFL-CIO.

C. Litigation

867

Although Title VII became effective in July 1965, the Department of Justice did not file a Title VII complaint until February 2, 1966.866 Prior to late 1967, when employment discrimination became the Division's priority issue," only eight Title VII actions had been initiated.868 In the 2 years between September 1967 and September 1969, 38 more cases were filed.869 Since the Employment Section formed in October 1969, only four cases have been brought as of June 1970. The reason given by Justice officials for their failure to file a larger number of new cases during this period is that the manpower of the Employment Section is almost totally committed to litigating the cases filed in late 1968 and early 1969.870

It was for this same reason that the Employment Section Chief estimated in November 1969 that the section would file no more than 20 to 25 new cases in the next year.871 It is unlikely, however, that the Division will file as many as 10 cases during that period.872

It is the hope of senior officials in the Civil Rights Division that, once sufficient legal precedents are established, most employers will reform their practices voluntarily or through the action of OFCC. It is further hoped that those sued by the Department of Justice will settle without a trial and that in the small number of cases that do come to trial, judgments will be handed down within a few months after the Department files its complaint.873 Three recent circuit court of appeals'

872 From the time of the interview with Mr. Rose in November 1969, until late August 1970, Justice has filed only five additional employment discrimination suits and there are only a handful of matters which are in the later stages of investigation.

573 Rose and Dunbaugh interviews, supra notes 855 and 865. The feeling is that whereas a public body, such as a school board or a county board of voting registrars would litigate an issue even though they were aware of the fact that they would lose the case, a private party would not do this because of attorney costs and the bad public relations effect protracted litigation

decisions are cited by Justice officials as the types of precedents which suggest that the Division's hope will be realized.874 The issue in U.S. v. Local 189, United Papermakers and Paperworkers,875 was the legality of the seniority system in effect at Crown Zellerbach's Bogulusa, La., papermill. The court held that: "where a seniority system has the effect of perpetuating discrimination, and concentrating or telescoping the effect of past years of discrimination against Negro employees into present placement of Negroes in an inferior position for promotion and other purposes, that present result is prohibited, and a seniority system which operates to produce that present result must be replaced with another system." 876

An important precedent for job referrals by unions was established in U.S. v. Sheet Metal Workers International Association, Local 36, a suit stemming from the labor disputes which arose over the construction of the St. Louis Arch. In that case, the Eighth Circuit Court of Appeals held that employment referral systems established under collective bargaining agreements which gave priority to those with work experience prior to the effective date of the Civil Rights Act were unlawful, since Negroes had not been able to obtain the experience. Consequently, the referral systems were held to have perpetuated past employment discrimination in violation of Title VII.877

Justice officials expect that these two cases, defining what the law prohibits, will discourage employers from engaging in those practices and thereby reduce the number of suits it must bring. Furthermore, trial court judges are required to follow these precedents, thus eliminating the need for detailed arguments on these points at the lower court level.878

might produce. It should be noted, however, that many companies retain house counsel to handle litigation and that opposing a Title VII law suit might not be an unpopular course of action on a local level. 874 Id.

The third decision was a procedural ruling of great importance to all future Title VII cases made by the Fifth Circuit Court of Appeals in U.S. v. Hayes International Corp. The court held that in a Title VII case, when the facts show that the employer has engaged in a pattern and practice of discrimination on account of race, "affirmative and mandatory preliminary relief is required." 879 The court ruled, further, that irreparable injury need not be proved in seeking a preliminary injunction in a Title VII action. This prerequisite is assumed from the fact that the statute appears to have been violated. As a result of this decision, it is felt that the Department can now move for a preliminary injunction in almost all situations, and that many of the district courts will grant the motion.880 In effect, a large part of the relief is secured once a preliminary injunction is granted, since the discriminatory practices then cease for the duration of the litigation.

An important nonjudicial precedent handled by the Division is the April 1, 1970 agreement signed by 73 motion picture producers, three major television networks, and the 13 craft unions which service these industries. The Department of Justice was originally asked by EEOC to bring suit in the Los Angeles area against a large number of employers and unions in the motion picture industry.881 It investigated the allegations and, although its own staff originally recommended suit, it reached an agreement with the potential defendants after long negotiations but without resort to the courts.882 The agreement provides, in part, that 20 to 25 percent of all craft daily employment will be made available to minority group members and that selections for permanent craft jobs will be based on a 20 percent ratio of minority to white members. The agreement also requires submission of a series of reports to the Department and EEOC so that compliance with the agreement can be

monitored.883 Justice hopes to be able to replicate agreements of this nature in other industries.884

D. Liaison with Other Departments

For the most part, matters of coordination (except those which arise in the course of a lawsuit) are handled by the Civil Rights Division's Coordination and Special Appeals Section, rather than by the Employment Section.885 Prior to the October 1969 reorganization, the former Office of the Special Assistant to the Attorney General for Title VI handled all interagency coordination, including that which was related to Title VII and other employment issues. For example, that unit wrote a memorandum recommending the centralization of the equal employment opportunity responsibilities of the Civil Service Commission.886 The unit also worked with the Department of Labor, notably the Bureau of Apprenticeship and Training and the Bureau of Employment Security. Representatives of the Title VI unit

883 News release Department of Justice, Mar. 31, 1970. One of the significant provisions in the agreement is a waiver by all the private parties, in any enforcement action, of the right to deny violations of Title VII that occurred prior to the agreement.

894 Interview with Robert T. Moore, Deputy Chief, Employment Section, Civil Rights Division, June 3, 1970. It should be noted that in the future the Department would prefer to file suit and submit the agreement to the court for approval. In that case future noncompliance would not require the Department to initiate a new cause of action. Rather it would request the court to find the defendant guilty of contempt of court. Id.

885 Interview with J. Harold Flannery, Chief, Coordination and Special Appeals Section, Civil Rights Division, Nov. 14, 1969. Mr. Flannery and his Deputy, Benjamin Mintz, both resigned in June 1970 and the Coordination and Special Appeals Section was divided into three separate units: Legislation and Special Projects, Planning and Special Appeals, and Title VI. The Title VI unit assumed responsibility for coordination of employment matters. However, it is anticipated that the Employment Section will take an increasing role in the coordination area. Department of Justice, Civil Rights Division Memorandum No. 70-2 to all Personnel, Re: New Appointments and Personnel Changes, May 27, 1970; interview with Benjamin W. Mintz, Special Assistant to the Assistant Attorney General, June 3, 1970.

conducted joint investigations with the Department of Labor personnel of the Texas and Ohio State Employment Services.887 It also reviewed the apprenticeship programs sponsored by DOD and NASA in the Norfolk and Hampton Roads area of Virginia, and tried a case against six agencies of the State of Alabama involving failure to comply with the nondiscrimination requirements of the Federal merit standards agreement.888

The two agencies with which the Civil Rights Division has the most frequent dealings regarding Title VII matters are EEOC and OFCC.889 Cooperation with these agencies arises both within and beyond the context of litigation.890 The Employment Section has only ad hoc dealings with them in connection with court actions, whereas the Coordination and Special Appeals Section works with the EEOC and OFCC on a more continuous basis.

Section 705 (g) (6) of the Civil Rights Act of 1964 gives the Equal Employment Opportunity Commission the power: "to refer matters to the Attorney General with recommendations for intervention in a civil action brought by an aggrieved party under Section 706, or for the institution of a civil action by the Attorney General under 707, and to advise, consult, and assist the Attorney General on such matters." 891

In practice, the referral of cases from EEOC

887 Id. The Ohio investigation led to the filing of a law suit against the State agency (supra, note 859). The suit was handled by the Employment Section. The Texas Employment Commission refused to sign a written agreement with the Department of Labor, guaranteeing certain reforms. The Texas Commission has been reinvestigated, and the matter was under study at Justice and Labor at the time this report was written. 888 Interviews with David L. Rose, former Special Assistant to the Attorney General for Title VI and present Chief, Employment Section, Civil Rights Division, Feb. 3, and 11, 1969. See, D. Rose, Special Assistant to the Attorney General, Memorandum to Jerris Leonard, Assistant Attorney General, Civil Rights Division, "Pending Matters of Significance in the Title VI Office," Jan. 28, 1969.

880 For a more detailed discussion of the relationship between Justice and EEOC and OFCC see sec. VI of this chapter-"Coordination."

890 The Civil Rights Division has been involved in drafting proposed legislature amendments of Title VII. 891 The Civil Rights Act of 1964, sec. 705 (g) (6). The comparable section of Executive Order 11246 is sec. 209(a) (2), (3).

to the Department has been done on an informal basis and in a manner which was described by the Chief of the Employment Section as "hit or miss". 892 Since it has taken EEOC more than 2 years to process most of the complaints it receives, by the time a file is turned over to the Department of Justice for action the investigative report may be several years old. It is, of course, still of some value, but the Civil Rights Division experience has been that it must instigate a new investigation before proceeding with the case. At present, there are no formal criteria for referral of cases by the EEOC, although guidelines are scheduled to be drawn up in the near future.893

Coordination with the OFCC has been stronger than with EEOC, particularly in nonlitigative areas. The former Title VI unit worked closely with OFCC on several matters, such as agreements negotiated between the OFCC and various employers, the issuance of OFCC regulations, and the question of what OFCC should do with respect to Federal contracts of employers who are being sued by the Department. 894

In the summer of 1969, a committee was set up by the three agencies which meets weekly to discuss problems and policies in the employment area. Prior to this, there had been informal biweekly luncheon meetings of representatives from EEOC, OFCC, and the Department of Justice. The Deputy Chief of the Coordination and Special Appeals Section usu

ally represented the Division at the luncheons. Currently, he represents Justice at the weekly meetings.895 Besides serving as a forum for the exchange of information, the Interagency Committee is intended to develop solutions for substantive questions which arise under Title VII and Executive Order 11246. For example, the Committee has served as a forum for bringing three agencies together to write new uniform testing guidelines.896

As of June 1970, the Employment Section was not sending a representative to the Interagency Committee meetings regularly because it did not have enough attorneys to spare on a regular basis for this purpose.897 The Deputy Chief of the Coordination and Special Appeals Section, Benjamin Mintz, was the only person working on coordination with EEOC and OFCC until he left Justice in June 1970. His position, however, gave him many other responsibilities. The fact that the only attorney who was intended to assist him in this work was detailed, full-time, to a housing case, is a reflection of the priority given nonlitigative matters by the Division.