obvious in field offices, which have the major enforcement responsibility. As the Commission stated in its fiscal 1971 budget submission:

"Since the beginning of the Commission in fiscal year 1965, budget and staff resources have proven inadequate to deal with the inflow of complaints. . . . As a result, the enforcement backlog . . . has grown steadily. [T]he Commission has not been able to satisfy its most basic responsibility-that to distressed charging parties." 99 584

Because of high attrition rates, the Commission has been unable to develop a core of field experts in investigation and conciliation. As Mr. Brown pointed out: "In the field, the high rate of turnover among young investigators seriously hampered the effectiveness of these offices." 585 Moreover, similar experience among conciliation personnel is one of the reasons offered for the increasing rate of conciliation failures. 586

3. TRAINING

The absence of a systematic training program has been another serious problem in the Commission's overall operation.587 It has been particularly acute in the case of field investigators and conciliators, and was cited by Mr. Brown as a central cause of the Commission's past failure to develop an effective enforcement procedure.588

Although never officially authorized, a small training unit has existed at various times as part of the compliance office. Its main function, however, has been preparation and updating of an instructional manual for field personnel. No uniform or systematic training program has been developed either for new employees or for older employees moving to move advanced positions.

A new training unit, the Employee Development and Training Division, was established in January 1970 as part of the Office of Ad

ministration. The Division plans intensive training for compliance personnel, particularly those in the field. The unit's creation is too recent to permit evaluation. However, it does not have sufficient time or staffing now to train all the field compliance personnel hired just prior to the close of the fiscal year.589 For example, while newly hired investigators have been exposed to an orientation program prior to assuming their positions, specific investigative training has not yet been programed.590 Thus, new investigators begin their jobs with little more than on-the-job training provided by the already over-taxed field offices.591 C. Goals and Priorities

1. GOALS

As charged by Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission has one basic program goal-the elimination of employment discrimination in the private sector. 592 EEOC has described its function as follows:

"The mission of the Equal Employment Opportunity Commission is to obtain the highest possible degree of compliance with Title VII of the Civil Rights Act of 1964, which eliminates all employment discrimination based on race, color, religion, sex or national origin in all industries affecting interstate commerce." **

Achievement of this goal, 6 years after enactment of Title VII, still lies in the future. In a recent speech, William H. Brown, III, the Commission's Chairman, charged continuing employment discrimination:

"It is 5 years after the passage of the Civil Rights Act of 1964, and yet the Equal Employment Opportunity Commission has found that job discrimination is still so prevalent that it must expand and enlarge. "The reality is that minority group persons, although substantially advanced in employment compared to 5 years ago, are still concentrated in the lowest level and lowest paying positions.'

99 894

2. PRIORITIES

Because of staff and financial limitations, the Commission has been forced to assign priorities in three different areas: first, in determining the most effective vehicles of implementation; second, in choosing the categories of respondents 595 against which to direct its resources; and, finally, in selecting among classes of aggrieved persons 596 to concentrate its efforts.

It is difficult to identify precisely the priorities the Commission has adopted, nor has there been any definitive Commission statement in this regard. Rather, they must be inferred from public addresses of those who have served as as Chairmen, from printed statements, from budget and staff allocations, and the actual conduct of Commission activities. Moreover, the priorities that have been established have been subject to change with modifications resulting from decisions of the various Chairmen as well as the pressure of events.597

a. Mechanisms of Implementation

The most important question for the Commission in allocating priorities has been determining which of its available mechanisms can be most effective in reducing employment discrimination. At issue has been the delineation of the Commission's basic role. Should EEOC adopt a primarily reactive approach, responding on a case-by-case basis to filed charges, or should it assume an initiatory posture, emphasizing self-starting activities in both enforcement (e.g., Commissioner charges) and affirmative action (e.g., public hearings, technical assistance)? Those favoring a reactive approach have contended that this was Congress' intention and was necessary to build a body of

law. 598 Those involved in the enforcement process at EEOC still favor this stance,599 but there has not always been uniformity of the opinion on the subject.600

During most of its history, the Commission has given priority to the handling of individual discrimination complaints. Hearings, technical assistance, and a broad use of Commissioner charges have been relegated lower priority in relation to complaint handling. Thus in its First Annual Report, the EEOC described itself as a "complaint-centered agency" with "specific statutory responsibility to handle complaints." 601 Two years later, in its Third Annual Report, the Commission asserted that its "primary resource has been and continues to be its authority to investigate and conciliate reported violations of Title VII." 602

In addition, many of the Commission's resources have been allocated to the compliance function, a trend accelerated under the present Chairman. In fiscal year 1969, enforcement accounted for almost 50 percent of total program costs; for fiscal year 1970, it will be more than half; and the fiscal year 1971 estimate is for enforcement activity to require more than 63 percent of total program costs.603

600

Alexander interview, supra note 583. The need for EEOC to devote more resources to initiatory activities was also adopted by Richard Nathan in a published study done for the U.S. Commission on Civil Rights. Mr. Nathan concludes:

"The Commission's greatest promise for the future lies in . . . 'self-starting' activities. The EEOC could increase its effectiveness appreciably by moving further away from the case-by-case or reactive approach and giving more emphasis to broader self-starting activities, such as the 1967 and 1968 textile and white collar hearings. Another promising technique for the future is the development of an EEOC-initiated enforcement program." Nathan, supra note 598, at 67, 68.

601 EEOC First Annual Report, fiscal year 1966, at 7. 602 EEOC Third Annual Report, fiscal year 1968, at 1. 603 EEOC 1971 Appropriations Hearing, supra note 584, at 584. These figures do not include legal program

This emphasis has been given the complaint process despite the Commission's recognition that the complaint mechanism is an inadequate vehicle for eliminating job discrimination. Speaking in January 1970, the EEOC Chairman Mr. Brown, questioned the adequacy of the complaint process as a means of opening up new and broader opportunities. "Millions of people," he stated, . . . will not complain because they have 'no evidence' of discrimination -only a suspicion-when turned away from a job; they cannot complain if they are unaware of the opportunities in the first place." 604

66

The immediate former Chairman, Clifford L. Alexander, Jr., viewed priorities somewhat differently, and placed greater emphasis on the holding of hearings. Mr. Alexander considered public hearings, in particular, an important means of uncovering patterns of discrimination. During his less than 2 years as Chairman, Alexander presided over four of the six Commission hearings that have been held to date. 605 His successor has placed high priority on the compliance function, particularly on eliminating the backlog of cases. Almost all the new positions he has requested, if granted, will be allocated to the compliance function.606 However, he has not discounted the importance of initiatory activities. Under his direction, EEOC held a public hearing in Houston in June 1970. Further, several Commissioner charges have been filed against employers in

support, most of which is complementary to enforcement activities.

604 EEOC News Release No. 70-3, Jan. 29, 1970, at 1. This view is not peculiar to the present Chairman; nor is it of recent origin. In a series of Government-industry symposiums held in 1968, EEOC responded in the following manner to an inquiry about the adequacy of the complaint process to handle legitimate questions of employment discrimination:

"Experience has shown that in many cases people who have legitimate complaints of discrimination do not file charges. . . . Frequently an individual feels that he has much to lose if he files a complaint. . . . In some companies the individuals who file complaints are branded as troublemakers. This is particularly true in connection with executive or white collar positions." See T. Powers, Equal Opportunity: Compliance and Affirmative Action 16 (published by NAM and PFP, 1969).

605 Alexander interview, supra note 583.

***EEOC 1971 Appropriations Hearing, supra note 584, at 584.

Wisconsin and in the New Mexico-ArizonaUtah region.607

b. Respondents

Because Title VII coverage includes private employers, labor unions, public and private employment agencies, and joint labor-management apprenticeship groups, EEOC has had to determine where to direct its major efforts in eliminating job discrimination. Priority clearly has been assigned to employers; labor unions come next; and almost no attention has been given to employment agencies or apprenticeship programs.

Two major considerations helped shape these decisions. First, EEOC has sole responsibility for compliance by private employers, other than Federal Government contractors; it shares enforcement responsibility for labor with the National Labor Relations Board and for apprenticeship programs and public employment agencies with the Department of Labor.608 Second, the overwhelming majority of charges have been lodged against private employers, with labor unions a distant second; only a handful of complaints have concerned employment agencies and apprenticeship pro-, grams. 609

In addition to the complaint processing, these priorities are reflected in various other EEOC activities. The Commission in five hearings has focused almost entirely on the role of employers. Only in the Los Angeles hearing, were labor practices considered; the role of employment agencies was alluded to only in the New York City white-collar hearing. Similarly, technical assistance activities have been largely directed toward generating affirmative actions by private employers in the hiring of minorities.610

The same set of priorities also has prevailed in the collection and publication of data. Thus, a reporting system for employees was insti

tuted a year prior to one for unions; a similar system for employment agencies has still not been established, nor is it programmed for fiscal year 1971.611 A three-volume statistical report based on 1966 employers' employment data has been released by EEOC; a similar report for 1967 is forthcoming. There have been no corresponding publications on unions and apprenticeship groups.

No early change is anticipated in this ordering of priorities. The Houston hearing, for example, held on June 2, 3, and 4, 1970, focused on practices of employers; a reporting system for employment agencies is not programed in the next fiscal year; and no activity is now being planned for joint labor-management apprenticeship groups.612

c. Aggrieved Classes

Although Title VII prohibits job discrimination on the basis of race, color, religion, sex, or national origin, EEOC has insufficient resources to launch an effective attack on behalf of all the potentially aggrieved classes. Priorities have been assigned on the basis of a variety of factors, including number of incoming charges, prevailing patterns of discrimination as evidenced by EEOC reports, lobbying by concerned pressure groups, and determination of Congressional intent. Consequently, the Commission's three priority antidiscrimination activities have been concerned with blacks, and Spanish Americans and women, in descending order of priority.

Generally little attention has been devoted to job discrimination based on religion, and there have been relatively few religious complaints 13 and pressure from religious groups.614 Nevertheless, guidelines on discrimination on the basis of religion were put out in July 1967.

King, Oldaker interview, supra note 587.

412 Id. *13 In fiscal year 1967, there were 169 religious complaints; 291 in fiscal year 1968; and 330 in fiscal year 1969. See EEOC, Second Annual Report, fiscal year 1967, at 52; EEOC, Third Annual Report, fiscal year 1968, at 33; and EEOC, Complaint Statistics: July 1, 1968-June 30, 1969, at 2.

* The employment reports required by EEOC do not solicit information on employees' identification by religion. EEOC recommends a visual survey to determine minority identification. Information on religious affiliation would require self-identification which is against EEOC policy.

This was done in response to several complaints which raised the issue of whether it was discriminatory to discharge or refuse to hire employees whose observance of a Sabbath other than Sunday or certain special religious holidays prevented them from working on such days. The Commission ruled employers must make reasonable accommodations to employees' religious needs where it can be done without undue hardship to their business.615 Similarly, little attention has been given to employment discrimination against American Indians or Orientals.

Highest Commission priority has gone to attacking racial discrimination. As a result, EEOC has been criticized by Spanish American and women's groups and, in fact, has been accused of being black-oriented. At the EEOCsponsored Albuquerque Conference on Job Discrimination held on March 28, 1966, groups representing the Mexican/American community withdrew, claiming lack of sensitivity and knowledge of Mexican American problems by EEOC representatives. At the March 1969 Los Angeles hearing, chicano groups picketed the Commission for its alleged black-orientation. Similarly, women's organizations have complained that too little attention has been given to sex discrimination. The National Organization of Women (NOW), for example, noted "a reluctance among some of its [by EEOC] male members to combat sex discrimination as vigorously as they seek to combat racial discrimination."

9 616

tion which still prevails.618 The first Commission hearing was held in an area where there are many blacks, but relatively few Spanish-speaking Americans.619 The Commission's publications have evinced the same concentration on the problems of black Americans. Thus, the First Annual Report stated: "The chief thrust of the statute was, of course, aimed at discrimination against the Negro." 620

In the past 2 years, however, increasing awareness has been shown the problems of Spanish Americans. The last three public hearings have been held in New York, Los Angeles, and Houston with their respective heavy Puerto Rican and chicano concentrations. Commission instruction booklets and charge forms, as well as many of its press releases, are published in Spanish, and a major report of Mexican American employment in the Southwest was released in early 1970.621 Moreover, a special post, Special Assistant to the Chairman for the Spanish surnamed and American Indian communities, was created and filled by Mr. Brown in January 1970.622 Finally, because of the relatively small number of charges filed by Spanish Americans,623 the Commission is opening district offices in areas of high Spanish American concentration, e.g., Denver and Phoenix, and recruiting investigative personnel fluent in Spanish. 624

Similarly, the Commission has become more sensitive to the problems of sex discrimination. After long delays, it has taken action to protect the rights of women in several areas, including State protective laws,625 classified advertise

ments,626 and bona fide occupational qualifications.627 Considering that almost a fourth of its complaints have concerned sex discrimination,628 however, the Commission's resources have not been directed proportionately to this issue. Also, its efforts to deal with sex discrimination continue to be on a complaintoriented basis.629 Moreover, EEOC employs no women at the supergrade level; and only the Office of Administration and one of the 13 field offices are directed by women.630

D. Implementation

The Commission considers the various means to end job discrimination delegated by Title VI as falling into two broad categories. These are: (a) enforcement, the process by which complaints are investigated, conciliated, and possibly recommended for litigation; and (b) affirmative action, programs designed to effect broad-scale change in discriminatory employment practices and result in increased hiring and promotion of minority group persons.631 The effectiveness with which EEOC utilizes the various available means to reduce employment discrimination is the focus of this section.

cause of sex, amended on Aug. 15, 1969, provide that State legislation which restricts the occupations women may hold, the hours they may work, and the weights they may lift, do not justify limiting work opportunities for women. See EEOC News Release No. 69-37, Aug. 26, 1969.

626

The Commission's guidelines concerning sex discrimination in job advertising state that the placement of job advertisements under separate male and female column headings violates the law unless sex is a bona fide occupational qualification for the position advertised. See EEOC News Release No. 69-3, Feb. 3, 1969.

627 The Commission has held that as a general rule all jobs must be open to both men and women. The burden of proof that sex is a bona fide occupational qualification-a term being narrowly defined by the EEOC for a job falls on the employer. See EEOC pamphlet, "Toward Job Equality for Women," at 5.

625 Of 8,512 charges filed in fiscal year 1967, which were recommended for investigation or other action, 2,003 alleged sex discrimination. 2,410 of 11,172 in fiscal year 1968; and 2,689 of 14,471 in fiscal year 1969 also alleged sex discrimination.

629

King, Oldaker interview, supra note 618. 630 Id.

631

Report of news conference held by William H. Brown III, Chairman, EEOC News Release No. 69-39, Aug. 29, 1969, at 1.