The authority of the Federal Power Commission to use its administrative decisions, rules and regulations to prohibit employment discrimination is further demonstrated by the actions of the Federal Communications Commission which on July 5, 1968, adopted a broad policy statement prohibiting such discrimination by licensed broadcasters. Following the submission of comments by interested parties, the FCC issued a Report and Order on June 6, 1969, adopting that policy as a rule. The FCC was convinced that the national policy against discrimination in employment and its duty to regulate in the public interest required such action. We believe that the same national policy and the same duty to serve the public interest require the Federal Power Commission to issue regulations prohibiting employment discrimination in the power industry. Further, the Commission on Civil Rights believes that the Federal Power Commission has more than a statutory duty to prohibit employment discrimination. The FPC has a substantial and close involvement in the affairs of the enterprises it regulates through its licensing, controls, and grants of monopoly rights. For the FPC to permit these companies to discriminate in their employment, in light of this close involvement, places the Commission in violation of the due process clause of the Fifth Amendment to the Constitution. The Constitutional basis for this position is fully discussed in the Legal Appendix to the Federal Civil Rights Enforcement Effort. A copy of this report is enclosed for your convenience. In conclusion, the United States Commission on Civil Rights believes that the Federal Power Commission has ample authority to issue regulations prohibiting employment discrimination in the industries it regulates. Furthermore, we believe that both its statutory mandate to regulate in the public interest and its obligation to uphold the Constitution require the Federal Power Commission to issue such regulations and to insure that they are obeyed. Sincerely, THEODORE M. HESBURGH, Chairman. FEDERAL MARITIME COMMISSION, Hon. DON EDWARDS, Chairman, Civil Rights Oversight Subcommittee, U.S. House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: In reply to your letter of March 28, 1972, we are forwarding the attached memorandum of law relative to your second point of inquiry therein. We are currently undertaking a study of the feasibility of employing sanctions under Title VII of the 1964 Civil Rights Act with respect to the employment practices of independent ocean freight forwarders, the only group over which the Commission exercises licensing authority. As the attached memorandum points out, we do not have far-reaching licensing authority as do other regulatory agencies. Because of these limitations, we do not possess the requisite controls necessary to employ the effective use of sanctions over the other phases of the shipping industry that we regulate, namely, water carriers and terminals, to insure compliance with the provisions of Title VII. We do, of course, recognize and support the implementation of the Title VII provisions in all matters of discriminatory employment practices by those involved in foreign and domestic offshore water carriage. Likewise, we recognize the powers vested in the Equal Employment Opportunity Commission and the Department of Justice under the 1964 Act, as well as the newly enacted Equal Employment Opportunity Act of 1972, to act in those areas where the FMC lacks adequate authority to insure compliance with the provisions of Title VII. We, in turn, will endeavor to fulfill our obligation to insure compliance by independent ocean freight forwarders with those provisions. As you probably are aware, I have taken a strong personal position on the problems facing women and minorities. You can be certain that the Commission will do all in its power to assure compliance with the equal employment opportunity provisions of Title VII by those participants in our waterborne commerce over which we are authorized to issue licenses. Sincerely, HELEN DELICH BENTLEY, FUNCTIONS OF THE FEDERAL MARITIME COMMISSION Under Reorganization Plan No. 7 of 1961 (75 Stat. 840), effective August 12, 1961, the Federal Maritime Commission (FMC) was established and empowered to regulate certain phases of waterborne foreign and domestic offshore commerce.1 Under subsequent provisions, the FMC was empowered with extremely limited licensing authority, that of licensing operations of independent ocean freight forwarders. Because of the entirely different regulatory responsibilities imposed upon the FMC by its enabling acts, we have not been empowered with any licensing authority over other phases of our foreign and intercoastal water commerce. 3 In 1970, the United States Civil Rights Commission issued a lengthy report citing the many discriminatory employment practices existing in all phases of our society and offered various recommendations as to measures which could be taken by various government entities, including the regulatory agencies, to correct these deficiencies. With respect to the regulatory agencies, it cited the licensing power as the primary means by which each agency could promote compliance with the provisions of Title VII of the 1964 Civil Rights Act. That report recognized the unique position held by the FMC in relation with the other discussed regulatory agencies by citing its lack of general licensing authority." In even further recognition of the extremely limited role the FMC is authorized to play with regard to discriminatory employment practices within the waterborne shipping industry, the report recognized that: "Of the seven regulatory agencies under discussion, four-FPC, ICC, CAB, and FCC-have the capacity to play a significant role in expanding job opportunities for minority group members in specific industries." The preceding quote was footnoted by the following statement: ". . . While the FMC regulates a specific industry-water carriers-the employment practices of the industry are the responsibility of the Federal Mari 1 Under section 103 of the Reorganization Plan, various functions formerly vested in the Federal Maritime Board were transferred to the FMC, including: (a) All functions under the provisions of sections 14-20, inclusive, and sections 22-33, inclusive, of the Shipping Act, 1916, as amended (46 U.S.C. 812-819 and 821-832), including such functions with respect to the regulation and control of rates, services, practices, and agreements of common carriers by water and of other persons. (b) All functions with respect to the regulation and control of rates, fares, charges, classifications, tariffs, regulations, and practices of common carriers by water under the provisions of the Intercoastal Shipping Act, 1933, as amended (46 U.S.C. 843-848). (c) The functions with respect to the making of rules and regulations affecting shipping in the foreign trade to adjust or meet conditions unfavorable to such shipping, and with respect to the approval, suspension, modification, or annulment of rules or regulations of other Federal agencies affecting shipping in the foreign trade, under the provisions of section 19 of the Merchant Marine Act, 1920, as amended (46 U.S.C. 876), exclusive of subsection (1) (a) thereof. (d) The functions with respect to investigating discriminatory rates, charges, classifications, and practices in the foreign trade, and with respect to recommending legislation to correct such discrimination, under the provisions of section 222 (e) of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1122 (f)). (e) To the extent that they relate to functions transferred to the Commission by the foregoing provisions of this section: (1) The functions with respect to requiring the filing of reports, accounts, records, rates, charges, and memoranda, under the provisions of section 21 of the Shipping Act, 1916, as amended (46 U.S.C. 820). (2) The functions with respect to adopting rules and regulations, making reports and recommendations to Congress, subpoenaing witnesses, administering oaths, taking evidence, and requiring the production of books, papers, and documents, under the provisions of sections 204, 208, and 214 of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1114, 1118, and 1124). 2 Under section 44 of the Shipping Act, 1916 (46 U.S.C. 841b), the FMC is authorized to issue license to independent ocean freight forwarders who are "fit, willing, and able properly to carry on the business of forwarding and to conform to the provisions of this Act and the requirements, rules, and regulations of the Commission issued thereunder . 3 Federal Civil Rights Enforcement Effort, a report of the United States Commission on Civil Rights, 1970, issued October 12, 1970 (Effort). The FCC has likewise recognized the necessity of the licensing power in order to impose sanctions upon its regulees in its report and order adopted August 5, 1970, in Docket No. 18742, wherein it imposed certain requirements upon its "licensees and permittees" in order to ensure compliance with Title VII of the Civil Rights Act. 5 Along with the FMC, the report concentrated on the Interstate Commerce Commission (ICC), the Federal Communications Commission (FCC), the Federal Power Commission (FPC), the Civil Aeronautics Board (CAB), the Federal Trade Commission (FTC), and the Securities and Exchange Commission (SEC). 6 Effort, supra, at p. 814. 7 Effort, supra, at p. 819. 77-374-72- -9 time Administration of the Department of Commerce under the provisions of Executive Order 11246 and Title VI of the Civil Rights Act of 1964." (Italic supplied.) Thus, the United States Commission on Civil Rights has recognized that the FMC is not authorized to regulate the employment practices of the water carriers who fall under our regulatory controls. In the "Findings" and "General Recommendations" sections of its report, the Civil Rights Commission acknowledges no specific remedies available to the FMC, even thought it does make specific recommendations for actions that could be taken by each of the other six regulatory agencies under discussion therein. The FMC supports the goals of the United States Commission on Civil Rights as enunciated in its report, and like that Commission, it recognizes that it has heretofore taken no steps of its own to implement sanctions with regard to compliance with Title VII. However, also like that Commission, the FMC recognizes the limited scope of its regulatory powers in the area of licensing, and thus its inability to promote sanctions for noncompliance with Title VII. In the case of independent ocean freight forwarders, the Commission does possess some authority through which sanctions might be imposed to insure compliance with the equal employment opportunity provisions of Title VII. Under that title, any person who is "engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year," 10 is required to comply with the provisions of Title VII. 9 Although no accurate current figures are available, it is estimated that no more than 10 percent of the approximately 970 forwarders currently licensed by the Commission employ more than 25 people on a full-time basis. Those who employ more than 15 people would probably not amount to more than 15 percent. Since this figure represents a significant number of jobs-at least significant enough to warrant an investigation of the employment practices of these forwarders-such an investigation is currently underway. The specific sanctions that the Commission could employ with respect to freight forwarder operations would be limited to the area of "fitness" qualifications that are requisite to the approval of forwarder applications." By requiring new applicants who employ 15 or more people to submit an employment report 12 with their applications, the Commission could base one aspect of approval under the "fitness" requirement that the applicant is in compliance with the equal employment opportunity provisions of Title VII. Likewise, those freight forwarders presently licensed by the Commission would be required to file a similar equal employment program being implemented by such forwarders as well as an annual report that would reflect its compliance with Title VII provisions. Failure to comply with these provisions would be made grounds for revocation or suspension of the forwarder's license, inasmuch as noncompliance would reflect upon his "fitness", or lack thereof, "properly to carry on the business of forwarding and to conform to the provisions of . (the Shipping) Act (1916) and the requirements, rules, and regulations of the Commission issued thereunder. . . ." 13 Hon. DON EDWARDS, INTERSTATE COMMERCE COMMISSION, Chairman, Civil Rights Oversight Subcommittee, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR CONGRESSMAN EDWARDS: Thank you for your letter of March 28, 1972, inquiring as to activities of the Interstate Commerce Commission to assure that Effort, supra, at p. 819 (footnote 9). Under the provisions of the newly enacted Equal Employment Opportunity Act of 1972 (Public Law 92-261, enacted March 24, 1972), this figure would be reduced to fifteen or more employees as of March 24, 1973. 10 41 U.S.C. 2000e. 11 Supra, footnote 2. 12 This report would include a listing of employees by positions held and the percentage of minority representation in those positions. Further, it would entail filing with the Commission an equal employment opportunity program that the forwarder intends to implement, which would include a postive continuing program of specific practices designed to assure equal employment opportunity in every aspect of employment policy and practices. 13 46 U.S.C. 841b. the carriers regulated by it have not engaged in employment practices violative of Title 7 of the 1964 Civil Rights Act. I am pleased to be able to report that the Commission has instituted a proceeding, Ex Parte No. 278, Equal Opportunity in Surface Transportation, to inquire whether discrimination exists in the employment and other practices of the railroads, truck lines and other carriers which we regulate. We contemplate that in that proceeding we will determine whether any discrimination as may be found to exist is in violation of the law; whether the Commission possesses the requisite authority to deal with such unlawful discrimination; and finally, whether the Commission should promulgate rules and regulations or otherwise proceed with a program relating to equal opportunity practices by carriers engaged in surface transportation. As I have stated, one of the questions being explored in the proceeding pending before us is the extent to which we have authority to impose sanctions upon the carriers subject to our jurisdiction, designed to correct discriminatory employment patterns that may be found to exist or to prevent the establishment of discriminatory employment practices. Accordingly, we are unable to furnish you with a memorandum of law on this subject, lest we be accused of having prejudged issues pending before us. If I can be of further assistance to you and the members or staff of the Civil Rights Oversight Subcommittee, I should be pleased to oblige. Sincerely yours, GEORGE M. STAFFORD, Chairman. CIVIL AERONAUTICS BOARD, Hon. DoN EDWARDS, Chairman, Civil Rights Oversight Subcommittee, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This is in further response to your letter of March 28, 1972, requesting an outline of the actions the Board is taking to prevent violations of the equal employment opportunity policies of Title VII of the 1964 Civil Rights Act by companies which it regulates in this area, and a memorandum of law concerning the extent to which the Board has authority to impose sanctions to correct or prevent discriminatory practices in the air transportation industry. The Board has not heretofore interpreted the powers vested in it by the Federal Aviation Act to include authority over discrimination in employment in the air transportation industry. As a consequence, the Board has never undertaken any formal action in this field. However, recently the Board has determined, in light of the national policy of equal employment opportunity, to re-examine its prior interpretations of the Act regarding this matter. Therefore, the Board will shortly initiate rulemaking proceedings to determine whether it has jurisdiction to assure that the employment practices of air carriers are non-discriminatory and, if so, whether it may issue and enforce rules which regulate the carriers' equal employment opportunity practices or may consider a carrier's equal employment opportunity practices as a public interect factor in passing upon the application of that carrier for some benefit. Pursuant to your request, we are enclosing a legal memorandum on this subject wherein we discusss possible interpretations of the Act to be considered in the rulemaking proceedings. We shall keep you informed of the progress of the rulemaking proceedings and any regulations which may result therefrom. Sincerely, (Signed) SECOR D. BROWNE, Chairman. Enclosure POWER OF THE CIVIL AERONAUTICS BOARD TO IMPOSE SANCTIONS ON AIR CARRIERS FOR DISCRIMINATORY EMPLOYMENT PRACTICES The Civil Aeronautics Board is vested under the Federal Aviation Act (Act) with substantial economic regulatory powers over civil air transportation in the United States and between the United States and foreign countries. However, the Board does not have plenary jurisdiction over all aspects of civil aviation. Its rules and orders, although issued under the broad authority of section 204 (a) of the Act, 49 U.S.C. 1372(a), and other relevant sections, must be pursuant to and consistent with the provisions of the Act and necessary to carry them out. There is no provision of the Act which expressly empowers the Board to eliminate discriminatory employment practices of air carriers.' Thus, any authority in this area must be derived by inference from the Act itself or the Act construed in harmony with some other law. The Board has not heretofore considered that it had authority to adopt regulations governing equal employment opportunity and has not done so. Thus, persons failing to maintain non-discriminatory employment practices, while acting in violation of Title VII of the Civil Rights Act, are not in violation of any specific regulation of the Board or existing Board interpretations of the Federal Aviation Act. Therefore, there is no basis presently for the Board to apply sanctions to violators of Title VII provisions. While the Board has not previously felt authorized to deal with employment discrimination, it has not dispositively precluded the possibility that such power may exist under the Act. Therefore, in light of the clear national policy in favor of equal employment opportunity and the receipt of comments by various groups offering alternative interpretations of the Act, the Board is now preparing to initiate rulemaking proceedings to determine the extent of its authority in this area. If jurisdiction over equal employment is found to exist, the Board further intends in the rulemaking proceedings to determine whether it should adopt rules to regulate the employment practices of air carriers or consider employment discrimination as a factor in carrier certification proceedings, or both. Arguably, Board jurisdiction over employment discrimination might flow from a number of provisions of the Act. Under section 404 (b) of the Act, 49 U.S.C. 1374 (b), carriers are forbidden from subjecting "any particular person . . . in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever." Section 1002 (c) of the Act, 49 U.S.C. 1482 (c), empowers the Board to enforce compliance with this provision of the Act. Under section 102 (c) of the Act, 49 U.S.C. 1302 (c), the Board in performing its duties must consider as being in the public interest and in accordance with the public convenience and necessity the "promotion of adequate, economical, and efficient service by air carriers at reasonable charges, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices." The Board has assumed that these sections conferred jurisdiction on it to restrain not only rate discrimination but also racial or other discrimination in service to airline passengers or shippers. It has required carriers to correct any racially discriminatory situations involving airline service which have come to its notice. However, the Board has heretofore considered that these sections were limited to discrimination in service to persons in air transportation and did not empower it to act against discrimination in a carrier's own employment because that was not service discrimination and employees were not "persons in air transportation" under the Act. The Supreme Court has characterized these sections as "familiar types of regulation aimed primarily at rate discrimination injurious to shippers, competitors, and localities." Colorado Anti-Discrimination Commission, et al. v. Continental Airlines, Inc., 372 U.S. 714, 723 (1963). However, the Court expressly refrained from ruling that these sections were not applicable to prohibit racial discrimination against not only airline passengers but also airline job applicants and employees. Indeed, the Court was willing-without passing on the matter-to assume arguendo that they did so apply in this manner in order to hold that they did not bar State legislation against employment discrimination by an interstate carrier in that State. Such State legislation, reasoned the Court, would not frustrate Federal purposes, at least so long as any powers the Board may have remain "dormant and unexercised." (372 U.S. at 724.) 1 Section 401(k) of the Act, 49 U.S.C. 1371. requires the carriers to provide rates of compensation, maximum hours, and other working conditions and relations for pilots and copilots no less than those in conformity with Decision No. 83 of the National Labor Board dated May 10, 1934, but provides that carrier employees may secure more favorable compensation and working conditions and relations through collective bargaining. However, nothing in Decision No. 83 relates to discriminatory employment practices. 2 See e.g., Fitzgerald v. Pan American World Airways, 229 F.2d 499 (C.A. 2, 1956). |