Swain v. Callaway Reply Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 75-2002

THEODORE R. SWAIN, et al.,
Appellants,

v.
HOWARD CALLAWAY, et al.,

Appellees.

• -----------------

On Appeal From The United States District Court 
For The Northern District Of Alabama 

Eastern Division

REPLY BRIEF FOR APPELLANTS

U. W. CLEMON
Adams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Appellants

V



TABLE OF CASES

Page

Aetna Insurance Co. v. Kennedy, 301 TJ.S. 389
(1937) .... ................................ 10

Albemarle Paper Company v. Moody,__U.S.___,
43 U.S.L.W. 4880 (June 25, 1975) ..............  11,15

Alexander v. Gardner-Denver, 415 U.S. 35
(1974) ....................................... 8,10

Dillon v. Bay City Construction Co., 512 F.2d
801 (5th Cir. 1975) ........................... 3

District of Columbia v. Carter, 409 U.S. 418
(1973) ..................... ................... 4

Douglas v. Hampton, 512 F.2d 97G (D.C. Cir.
1975) ................ .................... 2

Hodges v. Easton, 106 U.S. 408 (1882) ............ jq

Hurd v. Hodge, 334 U.S. 24 (1948) .... ........ 4
Jones v. Alfred E. Mayer Co., 392 U.S. 409

(1968) ......;................................. 4
Johnson v. Railway Express Agency, __ U.S.__,

44 L.Ed. 2d 295 (1975) .......................... 4,5
Johnson v. Zerbst, 304 U.S. 458 (1938) ..........  10
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965).... 15
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ....... ............................ ..... 8,10
McLaughlin v. Callaway, 5th Cir. No. 75-2261 .... 16
Morton v. Mancari, 417 U.S. 535 (1974) ......... . 2,5,7,13
Ohio Bell Telephone Co. v. Public Utilities

Commission, 301 U.S. 292 (1937) ................ 11

Penn v. Schlesinger, 497 F.2d 970 (5th Cir.
1974) ..... .................................... 6,16



TABLE OF CASES (Continued)

Page

Polcover v. United States, 477 F.2d 1223
(D.C. Cir. 1973)   6

Rios v. Reynolds Metals, -467 F.2d 54 (5th Cir.
1972)   9

Sperling v. United States, 515 F.2d 465
(3rd Cir. 1975) ............................... 2,6,7

Sullivan v. Little Hunting Park, 396 U.S. 229
(1969) .... ...........'..... .................. 4

Tillman v. Wheaton-Haven Rec. Assoc., 410 U.S.
431 (1973) ............ ...................... 4

Weinberger v. Salfi, __ U.S. __, 43 U.S.L.I\T.
4985 (June 26, 1975)    14,15

Zahn v. International Paper Company, 414 U.S.
291 (1973) ................................ . 13

STATUTES

42 U.S.C. § 1981 ..................... ........... Passim
42 U.S.C. § 2000e-5 .... ......................... 15

42 U.S.C. § 2000e-16 ............................. Passim

OTHER AUTHORITIES

United States Commission on Civil Rights, The Federal Civil 
Rights Enforcement Effort - 1974, Vol. V, "To Eliminate 
Employment Discrimination" (July, 1975) .... . 7,8,13

-ii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 75-2002

THEODORE R. SWAIN, et al.,
Appellants,

v.
HOWARD CALLAWAY, et al.,

Appellees.

On Appeal From The United States District Court 
For The Northern District Of Alabama 

Eastern Division

REPLY BRIEF FOR APPELLANTS

In this Reply Brief, appellants will respond point-by-point 
to a number of arguments made by the defendants in their brief. 
Initially, however, we think it necessary to reiterate that 
the arguments made by the Civil Division of the Department 
of Justice are designed to exempt the federal government from 
effective enforcement of laws against discrimination in employ­
ment, laws applicable to all other employers in the United



States.
The common thread throughout the defendants' brief is 

that, for reasons often not explained, the government is not 
subject to the same law as are other employers. We have 
demonstrated in our brief-in-chief that the clear intent of 
Congress was to make Title VII law applicable to the federal 
government. The Supreme Court indeed has so held with regard 
to substantive law in Morton v. MancarjL, 417 U.S. 535 (19/4),
and the District of Columbia Circuit has so held with regard 
to remedies as well. Douglas v. Hampton, 512 F.2d 976 (D.C. Cir.
1975). However, the defendants' arguments relating to the 
procedural rights available once an action is filed m  federal 
court would totally obliterate the substantive law of Title VII. 
The federal courts, most notably this Court, have developed a 
variety of rules governing Title VII cases, including a rignt 
to a plenary trial and the right to maintain a class action, 
because they understand the necessity of those procedural rights 
if the substantive benefits of Title VII are to be realities.

1/

1/ We specify the Civil Division of the Department of Justice 
advisedly since it is our understanding that the civil Rights 
Division is not in agreement with a number of the positions taken 
by the Civil Division in these cases. Thus, the Solicitor General 
of the United States has requested an extension of time from the^ 
Supreme court for the filing of a petition for writ of certiorari 
in Sperling v. United States, 515 F .2d 465 (3rd Cir. 1975), where 
the Third Circuit rejected the government's position with regard 
to the right to a trial de novo. The Solicitor General has_informed 
the Court that the final decision whether to seek certiorari was 
dependent on consultations between the Civil Division and the Civil 
Rights Division (United States v. Sperling* Oct. Term 1975, No.
A-17) .



If the defendants prevail, therefore, Title VII would be 
nullified and the will of Congress would be frustrated. This 
Court must not allow the defendants to win here the argument 
they lost before Congress in 1972.

In this Brief, as in our brief-in-chief, we will not 
discuss at length the facts of the case, since the entire point, 
of our appeal is that there has been no proper determination 
of those facts because of a denial of both a plenary judicial 
trial and a class action. The impossibility of adducing the 
actual facts relating to the Anniston Army Depot is well 
illustrated by the defendants' objection to this Court's being 
advised of the Army Survey Team's report on EcpJinl Employment 
Opportunity contained in Attachment A to our brief (Brief of 
Defendants , p. 15, nn. 8-10). If, of course, plaintiffs had been 
allowed to conduct discovery (see, A. pp. 234, 238), they would 
have been able to produce the detailed evidence summarized in 
the survey team report. We have attached the report to our 
brief simply to show that systemic racial discrimination at the 
depot is not a figment of plaintiffs' imagination. All that we 
ask in this lawsuit is the opportunity to prove it and root it 
out through the device we are entitled to under Title VII —  a 
plenary trial maintained as a class action. The truncated 
procedure used by the district court here denied plaintiffs this 
opportunity. See, Dillon v. Bay City Construction Co., 512 F.2d 
801, 804 (5th Cir. 1975).

3 -



1. In arguing that Title VII is the exclusive remedy
for employment discrimination available to federal employees,
the government advances exactly the same arguments repeatedly
advanced by private employers and repeatedly rejected by the
courts. The argument on page 25 that it makes no sense for
Congress to have enacted a comprehensive legislative scheme

2/m  Title VII and then allow an action under § 1981, is 
precisely the argument rejected by the Supreme Court repeatedly 
with regard to the Fair Housing Act of 1968 and Title 
VII of the Civil Rights Act of 1964, Jones v. Alfred E . Mayer 
£P.• > 392 U.S. 409, 413-417 (1968); Sul3 ivan v. Little Hunting 
■£axk, 396 U.S. 229 (1969); Johnson v. Railway Express Agency,
__ U.S.  , 44 L.Ed.2d 295 (1975). The cases cited by the
government on page 26, are completely inapposite, since they do 
not deal with the unique statutory scheme of overlapping 
x'emedies in the realm of racial discrimination.

With regard to Congressional intent when it enacted the 1972 
Amendments to Title VII, the Supreme Court has held specifically 
with regard to Title VII, that the burden is on those urging a

2/ In addition to the cases cited in our brief-in-chief, p. 34, 
n. 33, we urge that the decisions of the Supreme Court in District 
of- Columbia v. Carter, 409 U.S. 418 (1973), and Hurd v. Hodge. 334 
U.S. 24 (1948) (holding that 42 U.S.C. § 3.982 app3.ies to discrimi­
nation by federal officia3.s) , and Tillman v. Whe at on -Have n Re c. 
Assoc., 410 U.S. 431 (1973)(holding that § 1981 is co-extensive 
with § 1982), establish that § 1981 provides a cause of action 
against federal officials for racial discrimination in employment.

4



repeal by implication to demonstrate affirmatively such an
intent. Morton v. Mancari, 417 U.S. at 549-51. See also,
Johnson v. R.E.A., 44 L.Ed.2d at 301, It seems perfectly clear 
to plaintiffs that the federal government should not be given 
special privileges denied to all other employers, and that its 
employees must not be denied protections made available to all

3/
others.

2. The government's argument that plaintiff cannot sue 
under § 19S1 because he abandoned the administrative procedures 
available, is similarly in error. No federal employee is 
informed in any way, shape, or form that there are independent 
administrative procedures that must be exhausted as a condition 
to his suing under § 1981. Indeed, the regulations themselves 
governing employment discrimination complaints (and reproduced 
in the Appendix to the Defendants' Brief), do not in any way 
suggest a different standard of exhaustion as a condition to 
suing under 1981. In fact, the information given to employees, 
including the notice sent out advising them of their rights 
(A. pp. 12, 20-21), does not in any way suggest that an employee 
is giving up anything by not appealing to the Civil Service 
Commission. Rather, it actively leads the employee to the

3/ The defendants suggest, on p. 28, n. 18, that the procedural 
aspects of 42 U.S.C. § 2000e-16 should govern in § 1981 cases. 
This proposition is so squarely rejected by Johnson v. R.E.A., 
supra, as to require no further comment.

5



conclusion that he need not appeal as a pre-condition to 
filing in federal court. Once he is in court, the government 
proceeds to spring the trap by informing the employee that he 
should have appealed to the Commission? of course, his failure 
to do so leaves him no recourse because by this time the 15-day 
period to perfect such an appeal has long since expired.

3. With regard to the issue of plaintiffs' entitlement 
to a trial de novo, we will not repeat the arguments made in 
our brief-in-chief, but simply refer the court to the extended 
discussion of the issue in Sperlincr v. United States, supra, 
and in the amicus brief in Laurel v. United States, appeal pending,
No. 74-3746. None of the points made therein have been met by 
the defendants. Rather, they are reduced to a non-sequitur of 
staggering proportions on pp. 32-33 of their brief, viz., that 
because § 2000e-16 does not define the scope of judicial review 
"hence" the scope of review is that found in the A.P.A. Not a 
single citation is provided to support this assertion, and the 
government does not attempt to explain why on earth Congress 
bothered to pass the 1972 Amendment if it gave a federal employee 
who wished to challenge an adverse employment action no more in 
the way of judicial review than he had long enjoyed. See,
Poleover v. United States, 477 F.2d 1223 (D.C. Cir. 1973). Again,

4/ Thus, this case is completely different from Penn v. Schlesinuer. 
497 F.2d 970 (5th Cir. 1974), where there was no administrative 
processing of a discrimination complaint.

6



the government's discussion of the legislative history of 
Title VII simply ignores much of which is relevant and does 
not deal at till with the extended analysis in Sperling.

4. The defendants' argument that if a trial de novo is 
granted an employee will not have an incentive to pursue his 
administrative remedy with vigor, is both irrelevant and wrong. 
First, Congress, as the Supreme Court held in Morton v. Mancari, 
supra, provided an independent judicial remedy because it found 
the administrative remedy to be ineffective. It is not the 
function of the courts to second-guess this judgment and cut 
back on the remedy provided by statute.

Second, if federal employees do not have an incentive to 
pursue the administrative remedy, it is because they have found 
it to be a futile waste of time and energy., One need o n l y  look 
at the dismal performance of both agencies and the Civil Service 
Commission to conclude that federal employees are fully justified 
in their lack of faith in ever obtaining the end of discrimina­
tion through those avenues. See, United States Commission on 
Civil Rights, The Federal Civil Rights Enforcement Effort - 1974 
Vol. V (July, 1975)(hereinafter. Civil Rights Commission Report),

ypp. 61-86. Pages 61-86 and 619-624 of the Report have been
reproduced and attached to this Brief as an Appendix for the 
Court's conveni ence.

5/ See, in particular, p. 79, n. 272; pp. 81-82, n.n. 279-283.
7



Third, if the administrative process is ever to be
effective, there must be an incentive for agencies and the 
Civil Service Commission to make it so. As long as they 
think that their virtually uniform decisions of "no discrimina­
tion" will be rubber-stamped by the courts (as they uniformly 
are when there is no plenary trial), then there is no reason 
why anything should ever change. Only if it is known that the 
courts will independently decide questions of discrimination 
will there be any reason for the government to begin doing the 
job itself.

Fourth, it is little short of grotesque for the defendants 
to warn against burdening the courts in a brief in which they 
later argue that no class actions may be maintained but that 
every employee must, file his own lawsuit. There would be much 
less of a burden if those responsible for running the administra-

£/tive process would make it give someone meaningful relief sometime. 
In any event, as the Third Circuit has pointed out forcefully, 
such concerns, "are matters properly within the sphere of the 
legislature." Sperling v. United States, 515 F.2d at 483-84.

5. The appellees' discussion of Alexander v. Gardner-Denver, 
415 U.S. 36 (1974) and McDonnell Douglas v. Green, 411. U.S. 7 92
(1973), has already been dealt with, in the main, in our brief-in­
chief. Alexander squarely holds that a Title VII civil action is

6/ In fiscal year 1973, only 22 federal employees were given
any retroactive relief, including back pay. Civil Rights Commission
Report, pp. 84-85.

8



precisely what the term means , a plenary trial by a federal
court. Indeed, the Supreme Court even disapproved this Court's 
decision in Rios v. Reynolds Metals, 467 F.2d 54 (5th Cir. 1972), 
which allowed some measure of deference to be given to an 
arbitration decision. Rather, the Court helo., to do more than 
to allow the introduction into evidence of such a non-judicial 
determination, to be given whatever weighr to which it might 
be entitled, would be to seriously undermine the judicial remedy 
which Congress obviously felt to be fundamental to the pi.otect.ion 
of the right to equality in employment.

The fact that the administrative procedure available to 
federal emoloyee is somewhat different t.o that, available under 

the EEOC, does not mean that it is a proceeding in federal court 
or even its remote equivalent. For example, the complaints 
examiner need not even be an attorney let alone an administrative 
law judge; there is no right to discovery, to subpoena documents, 
or witnesses; the proceeding is not adversarial; the suostantive 
law of Title VII is not applied. Since the administrative 
process is not equivalent to an action brought in federal 
court, it cannot serve as a substitute.

6. The government's alternative argument, that even 
conceding that a trial de novo might, generally be available, 
one should not have been given here because an administrative 
hearing was not requested, is similarly fallacious. As the 
record here demonstrates, at no time was the plaintiff (as is

9



no other federal employee who has ever filed an administrative 
complaint), ever informed that unless he chose an administrative 
hearing he would lose procedural rights if he filed an action 
in federal court. Quite to the contrary, in accordance with 
standard procedures adopted pursuant to Civil Service Commission 
directives, he was told that he had the option of either a 
hearing or a decision on the investigative record, and that 
whichever option he chose, after the decision of the agency, 
he would be entitled to go into federal court (A. 20-21). it 
is unconscionable for the same federal government that held out 
these options as a matter of free choice, to then turn around 
and argue in federal court that a federal employee, by choosing 
one of them, has forfeited his right to a full inquiry into the 
merits of his discrimination claim.

ln Alexander v. Gardner-Denver, the Court held, 11 [l]t[is] 
clear that there can be no prospective waiver of an employee's 
rights under Title VII," 415 U.S. at 51; McDonnell Douglas Corp. 
v. Green, supra, 411 U.S. at 798-99 and Alexander v. Gardner- 
Denver Co., supra, held that Title VII required trials de novo 
after plaintiffs, as here, satisfied express statutory juris­
dictional prerequisites. Thus, acceptance of the defendants' 
waiver argument here would be in conflict with Title VII law as 
well as with the more general rule established in Johnson v. Zerbst, 
304 U.S. 458, 464 (1938), citing Aetna Ins. Co. v. Kennedy, 301

10



U.s. 389, 393 (1937); IJodcres v. Easton, 106 U.S. 408, 412 
(1882); Ohio Bell Telephone _Co. v . guklig. Utilities Comm . ,
301 U.S. 292, 306-07 (1937), that, "'courts indulge every
reasonable presumption against waiver' of fundamental constitu­
tional rights and that we 'do not presume acquiescence in the 
loss of fundamental rights.' A waiver is ordinarily an intentional 
relinquishment or abandonment of a known right or privilege."

In fact, the waiver argument is a red herring. In this 
case the government wishes to prevent a plenary judicial trial 
on the merits when an administrative hearing has not been held. 
However, the government also argues, even where an administrative 
hearing has been held that no trial de novo can be had. It is 
dear that the government simply wishes to deprive all federal 
employees subject to discrimination of their only opportunity 
for a truly "fair and impartial hearing" no matter what the

circumstances.
7. with regard to the class action issue, the defendants 

are faced with the embarrassing fact that the courts, including
this Court and recently the Supreme Court in Albemarle Paper

„ , TT c 48 u s L.W. 4880, 4883, n. 8 (JuneCompany v. Moody,   U.S. — , u.s.ii.w. io<_u,
25, 1975), have uniformly held that a class action m^y be
maintained even though all members of the class —  and indeed
all named plaintiffs —  have not exhausted administrative remedies
The reasoning behind these decisions is both simply and obvious:
if racial discrimination is ever to be corrected —  and if the 
rights guaranteed by Title VII and 42 U.S.C. § 1981 (which is not



even discussed in the class action section of the government s 
brief) are to be enforced —  then it must be attached on a broao 
class basis. This is because racial discrimination can only be 
understood and dealt with in the context of overall employment 

practices and problems.
i

As we have already noted in our brief—.in-chief, one o i the 
main reasons that Congress extended Title VII to the federal 
government was that the Civil Service Commission failed lO 
understand this basic principle. Thus, the Commission deals 
with discrimination complaints as individual matters involving 
narrow and limited problems and never addresses systemic problems. 
The government's approach would thus totally undermine the entire 
purpose of the 1972 Amendments, since its practical effect would 
be that there would never be any class actions and therefore 
never any systemic relief. In each agency every single employee 
would have to file a complaint in order for there to be a 
across-the-board solution of abuses, no matter how pernicious. 
This is, of course, precisely what the Civil Division and the 
Civil Service Commission apparently want; they are not interested 
in changing the method of operation of employment in the federal 
government. They wish to be free of the kind of review and 
corrective action that have become routine as far as private 
and state and local government employers are concerned, and to 
keep the employees for whose benefit Title VII was enacted bogged

12



down in a morass of complex and convoluted regulations whose 
entire focus is to deal at the most minimal level possible 
with individual problems.

The total failure of the system so stoutly defended by 
appellees has been fully documented by the Civil Rights 
Commission of the United States in the report cited above, 
and attached hereto as an appendix.

Thus, the claim of the appellees that the Court should 
operate on the assumption that a class action is not necessary 
because federal officials will apply any remedy for an 
individualized situation to all of its minority employees, is 
nothing short of ludicrous. The 1972 Amendments were passed 
because, as the Supreme Court has already held, Congress 
recognized the failure of the federal government to enforce the 
existing laws prohibiting employment discrimination. Morton 
v. Mancari, supra.

The two cases relied upon by the United States are simply 
inapposite. First, it is interesting to note that Albemarle 
Paper Company made exactly the argument based on Zahn v. 
International Paper Company, 414 U.S. 291 (1973), that the 
appellees make here (Brief of Petitioners, p. 66, in No. 74-389, 
October Term, 1974). The Supreme Court thought so little of 
the argument that it did not even mention it in its

13



opinion. Second, Weinberger v. Saifi,  U.S.  , 43 U.S.L.W.
4985 (June 26, 1975), if relevant at all, undermines appellees' 
position. The discussion in Saifi begins by reiterating the 
long-standing rule that exhaustion requirements must be based 
on the particular statutory and administrative scheme at issue 
(supra, at 4990). The particular statute involved there had an 
absolute requirement that each individual obtain a "final" 
decision "made after ct hearing to which he was a party, " as 
a pre-condition for seeking a limited review of that decision 
in federal court. Section 2000e-16 of course, does not contain 
any requirement even remotely approaching those involved in 
Saifi, since the only requirement is that an agency be given a 
reasonable opportunity to correct problems of racial discrimina­
tion brought to its attention.

In this case, of course, the agency was given every possible 
opportunity to correct the general problems that existed at the 
Anniston Army base, since they were brought forcefully to its

V

7/ The Solicitor General evidently didn't think much of the 
argument either, since the amici curiae brief of the government 
does not mention Zahn in its discussion of the question of whether 
all class members need exhaust as a pre-condition to maintaining 
a Title VII class action. That brief states that a "single change 
is sufficient to satisfy the requirements of Title VII," and that 
the legislative history of the 1972 Amendments demonstrates that 
Congress agreed with that interpretation of the statute (Brief 
for the United States and the Equal Employment Opportunity Commission 
as Amici Curiae, pp. 31-33).

14



attention by the Third Party Complaint and by plaintiff Swain's 
individual complaint. The defendant's total non-response to 
the complaint and denial that any problems existed (in the 
face of an army survey team report indicating exactly the 
opposite), make a mockery out of appellees' contentions that 
the Army officials can be relied on to enforce the requirements 
of Title VII.

In order to be able to rely on Saif1, the defendants have
to explain why its holding would not apply equally to private

, i/employees bringing an action under 42 U.S.C. § 2000e-5 (f) (1).
Just as does § 2000e-16, that provision speaks only of "the person 
aggrieved" bringing a civil action, after filing a complaint 
and waiting a specified period of time for action on it. in 
fact, § 2000e~5 contains an additional requirement, vis., a 
notice of the right to sue addressed to "the person aggrieved." 
Nevertheless, that single person can represent all past, present, 
or would-be employees by a class action under Title VII. Of 
course, even before the adoption of the more liberal Rule 23(b) (2), 
this Court held that the "person aggrieved" language of the 1964 
Civil Rights Act did not preclude the maintenance of a class 
action. Lance v. Plummer, 353 F.2d 505 (5th Cir. 1965).

8/ Unless, of course, defendants wish to argue that Salfi in 
fact overruled Moody, which was decided the day before on June 
25, 1975.

15



8 . In conclusion, three points need to be emphasized.
Firsjt, the appellees' arguments boil down to an assertion that 
somehow this civil action is exempt from the provisions of the 
Federal Rules of Civil Procedure which govern the granting 
of motions for summary judgments, which provide for a plenary 
trial, and which give the right to maintain a class action.
Rule 1 states that the rules shall govern all civil actions 
except those specified in Rule 8; Section 2000e-16 states that 
this proceeding is a civil action; Rule 81 does not list actions 
brought under § 2000e-16 as being exempted from the coverage 
of the Federal Rules. Thus, the appellees have a heavy burden, 
which they have net met,- of explaining why nevertheless this
action is not governed by those rules.

Second, the entire purpose of the defendants' arguments 
is to avoid a decision on the merits by a federal court that is 
in possession of all facts relevant to deciding a claim of 
racial discrimination in employment. The reason such a decision 
is not desired is because the defendants are evidently afraid 
they will lose the case. See, e . g. , McLaughlin, v. Ca_ll_aWc-\ ,

5th Cir. No. 75-2261.
Third, in Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974), 

this Court held that a plaintiff could not sue a variety of 
federal agencies, including the Department of Defense, witnout 
exhausting administrative remedies. Plaintiffs here have so 
exhausted? they wish now to be afforded the right implicit in the

16



Penn decision, viz., to have a full hearing in federal court
with all the attendant procedural rights provided under the 
federal rules, on the merits of their claims.

Respectfully submitted,
t- /' /

/"V .<?-■
/ / /") '

a / , .  ( / K j M
j l u lU. W. CLEMON

Adams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of August, 1975,
copies of Appellants1 Reply Brief was served on counsel for the
parties by United States mail, air mail, special delivery,
postage prepaid, addressed t.o:

John K. Villa, Esq.
Appellate Section, Civil Division 
U.S. Department of Justice 
Washington, D. C. 20530

17



APPENDIX

United States Commission on Civil Rights, The Federal 
Civil Rights Enforcement Effort - 1974. Vol. V, "To Eliminate 
Ihnployment Discrimination" (July 1975) (excerpts: pp. 61-86;
619-624.)



61

Iv. Processing Title. VII Complaints
Prior to the extension of Title VII coverage to Federal employment, 

the Commission had issued regulations governing employment discrimination 

complaints brought under Executive Orders 11246 and 11478. In 1971,
congressional committees in both the House and Senate strongly criticized 

the Commission's complaint procedures and determined that they may have 

actually denied employees impartial investigations and fair consi­
deration. Bias against complainants appeared to the committees to be 
inherent in the procedures, since the allegedly discriminatory agencies 

were responsible for investigating the complaints and rendering final 

decisions, unbound by the findings of the hearing officers. Agencies' 
final decisions were appealable to the Commission's^Board of Appeals 

and Review (BAR), but were affirmed in most cases. Finally, the
committees found that the complaints system, as well as other parts 
of the Federal Equal Employment Opportunity (LEO) program, had 1>een 

seriously weakened by the Commission's narrow view of discrimination

as primarily a problem of individual bigotry rather than the result
203 .

of systemic practices. The Senate committee, whose provisions on

201. 5 C.F.R. § 713.211, et se£. (1969).
202. Legislative History, supra note 42, at 84 and 423.
203 Td The Commission's complaint procedures were, also strongly 
criticized in a report prepared by Ralph Nader's Public Interest 
ResearchGroup in June 1972. See M.W. Brewer, Jr., Public Interest 
Research Group, Behind the Promises: Equal Employment Opportunity
in the Federal Government (1972).



62
Federal employment ultimately passed, reported that the new Title VII
authority was "...intended to enable the Commission to reconsider its entire
complaint structure and the relationship between the employee, agency and

204
Commission in these cases."

As indicated in the discussion below, almost three years after 
the enactment of this legislation, the Commission's regulations were 
still fundamentally biased against the employment discrimination com­
plainant, for many of the same reasons recognized by the congressional 

committees in 1971. In addition, the Commission's interpretations of

complainants' substantive and procedural rights were in many respects
205

contrary to the requirements of Title VII.
206

The Commission regulations in effect in 1975 set out detailed 

steps which aggrieved persons must follow in challenging employment

204, Id. at 423.
205. The Commission maintains that parts of the. 1972 Amendments to Title VII 
"were drafted to accommodate specifically to the" complaint system existing 
at the. time of the enactme.nt of the legislation. "Therefore," the Commission 
believes, "the basis for the report's conclusion that the system and the 
rights granted to Federal employees and applicants are contrary to Title VII 
requirements is difficult to find." Hampton letter, supra note 7.

206. 5 C.F.R. § 713.211 et seq. (1974). The regulations adopted in
1969 were, only slightly revised in 1972 following the enactment of 
the 1972 Amendments to Title VII. 5 C.F.R. § 713.211 et sc£., 37 
Fed. Reg. 22717 (Oct. 21, 1972). A listing of the revisions made 
at that time is found in FPM Letter No. 713-17 (Attacliment 1), Nov. 3,
1972. For a discussion of the revised complaint regulations, see, 
Brief for the National Association for the Advancement of Colored 
People (NAACP) Legal Defense and Education Fund as Amicus Curiae, 
Laurel v. United States, appeal docketed No. 74-3746, 5th Cir. 1974. 
Further revisions were made in the regulations in 1974 to include 
provisions for the processing of complaints alleging discrimination 
on the basis of age, pursuant to Public Lav? 93-259 (effective Hay 1, 
1974). FPM Letter 713-28, July 9, 1974.



63 / u/
discrimination in Federal employment. ,Following an informal process, 

complaints proceed through formal investigation and a hearing, if 

requested by the complainant, and are then subject to final decision 

by the agency head or other designated official. Complainants may file 

a civil action in U.S. district court after 180 days from the initiation 
of the complaint or after final agency action. They may also appeal the

t 208agency s final decision to the Commission's Appeals Review Board.

These procedures do not apply to general allegations of discrimina­
tion unrelated to a specific individual, which are made by an individual 
complainant or a third party. When complaints are made alleging

discrimination against a class, the agency is required only to establish 

a file and to notify the complainant of its decision, which the complainant 
may appeal to the Commission within 30 days. There is no requirement that 

the agency^conduct an investigation, nor are any time limits set for agency 

action. Complainants are not permitted access to the investigatory file 
until the easels closed, and there is no right of appeal to the Appeals 

Review Board. Further, the Commission regulations do not acknowledge that

thin rIcPl°y|T ?°mplaintS alleging improper agency actions on grounds other 
v r’ h f ’ °r S0X discrimination are processed according to entirely

o f ! 0 I"! WhfCh Pr°Vide f°r a hc™ S  before the Commission but light of appeal to the Commission's highest reviewing authority, the
Appcais Review Board - 5 C.F.R. S 772. These procedures apply to employees' 

1f?ngeS ^verse actions such as termination, probation, or pay classi­
fication. Complainants frequently are faced with having to elect which of
tl b! Pr°?e^ res t0 fol^ow in challenging an adverse action which they believe to be racially or sexually discriminatory. y

208. The name of the Board of Appeals and Review was changed in 1974 to the Appeals Review Board.

209. 5 C.F.R. § 713.212(b).

210. 5 C.F.R. 8 713.251. There are no procedural requirements governing the 
conuuct of such investigations.

211. FPM Letter No. 713-20 (Jan. 27, 1975).

**• • *V.N--£»



64
complainants raising general allegations have the right to file a civil 

212
action in court. During the first quarter of fiscal year 1975,

approximately 25 general allegation complaints had been referred to
213

the Commission for review. However, complainants challenging an
agency's employment practice, for example, a job requirement which may

adversely affect a minority group, may pursue the challenge through
214

the regular complaint procedures. However, when an employment practice-

required by the Commission is challenged, the complaint may be made in
215

the form of an appeal to the Commission. The Commission has failed to

212. 5 C.F.R. § 713.281.

213. The Commission did not begin to collect data on the total number of 
such complaints filed nationally until fiscal year 1975. In the Washington, 
D.C., area alone, 14 general complaints were reviewed during fiscal year 
1974. In only two instances was the agency's decision reversed. In one
of these cases, the agency was ordered to establish a Sixteen Point Program. 
The Sixteen Point Program, now called- the Spanish Speaking Program, is 
discussed on p. 108 infra. In the other instance, the agency was instructed 
to discontinue requiring a job qualification which was related to a single 
recruitment source. Interview with Paul Leslie, Chief, Washington Operations 
Division, Bureau of Personnel Management Evaluations, CSC, Nov. 13, 1974.
214. 5 C.F.R. § 300.104(c).

215. 5 C.F.R. § 300.104(a). An appeal is made to the Appeals Review 
Board whose decision is final, subject to discretionary review by the 
Commissioners. 5 C.F.R. § 772.401; 5 C.F.R. § 772.303. In at least
two instances, court challenges to the Commission's entrance examinations 
have been dismissed or remanded for failure of the complainants to exhaust 
these administrative procedures. Douglas v. Hampton, supra note 121; League 
of United Latin Am, Citizens v. Hampton, 501 F.2d 843 (D.C. Cir, 1974).
To date, there have been few complaints filed with the Commission pursuant 
to these regulations. See In Re Shirley Long, Appeals Review Board, CSC,
Nov. 13, 1972 (finding improper a job requirement by the U.S. Park Police 
that candidates weigh a minimum of 145 lbs. and have a minimum height 
of 5'8") .



~ C" enCeU'“ e ^ 1S1““  *» « -  -— > complaint

ato ~ ~ u,at th^  - >  • « » * =  teMd 
practices in their complaints.

Although Titlo VII inclut.ua „  « strlctlons „„ the £1 U „S of . 
complaint .gainat a Put.cval „8u„u„ the Oo-isalo„ has ^

~ “ T  T‘“ C“ SS1“  — 217 «  employtrom initiating individual comDlaint-c 1complaints unless an infon.al complaint is first
icgis tered within 30 davs of _Oafs of the date on which the allegedly die-
criminatory act occurred. In dd. ,

in addition, the complainant must allege

EducationalVF u L ^ ^ L a,2oJel975?St0n’ Att°rney» NAACP LeSal Defense and

employment. liras'held^f.or that dGfiniti°n of ^PPUcant for
Government basic entry examination but w h o aperSOn wh? takes a Federal
or othPGCi fi<= agency is I10L an applicant wi t h t !' V  1Cd i"?1' GmPi°yment is , aDoncy and, therefore may not Fi 1 *G ^V1 Service Commission
°ard Decisi°n in Case No. 713-74-278, Dec i l / w s  ‘ Appeals Rcvi™

regulations which p e r a i e t c H h e ^ " ^ ^ 8111 “ P“ Vlslon in^nded in previo 
alleged discrimination was coni in, • S- f a comP]aint at any time if the 
0 % 9 )  with 5 C.F.R. 6 713.2 r  ' V T T  5 C^ -  7 3 21
discrimination charges with the EIOC ‘ a ViI c™Plainants may file
and local governments within 180 days o/t! l!r-LVate employers or State 
natory act, 42 U.S.C. 2000e-5(e) but ‘C ‘ °£ the alleged discrimi- 
been heid not to apply in c a s e s ^ h a r g i ^ ^ t - “T *  tlm£ limitati°n has 
Culpepper v. Reynolds Metals Co vor , 8 , lng discrimination
I ™ ]  > .■^^-iJ--SJi~2£!i££_££ou^s^'042l^p^2d l23 *̂ 1235-6, (N.D. Ca.complainants, h ^ ^ i ^ T o m p i y  wit^ n r Cir • 1970) . Federal 
limitations unless- they can show l  ̂ ‘e Coinrnission1 s strict time 
/13.214(a)(4). Thus, a Federal comn0! -C? Se ^  the delay. 5 C.f T  8 * 
a female alleged continuing sex discriSna7* ■e.JeCtcd aS untimely where 
the grounds that her complaint was fi^d 2 4 7^  ^  P1r°al°tion Practices on denial of promotion to her Anno■Iq p •  ̂days after the most recent
713-74-291, Dec. 17 1973 rtl r • ^  Board» V i s i o n  in Case No
alleging continuing’d i s c r L i L t i o n ^ ^ ^ ^ M r 8^ 1011 ^Plaints 'law. The Commission believes that ^  ln confllct; witb Title VII
complaints benefits all parties as i, re?uirement for timely filing 0f 
gation of recent events which are s t i l ^ r  f 3 £°mprehcnsive investi- 
witnesses1 minds." Hampton letter, supra note“ 7 reconstructible in the



66
219

V-Ij

ViT*t'
i

i!
f
j;

1»

a specific act of discrimination. The complaint is treated informally

by an Equal Employment Opportunity Counselor, who is directed to seek
resolution of the matter within 21 days. If informal measures fail, the

counselor must inform the aggrieved person of the right to file a formal
220

written complaint within 15 days of the notice.

219. Hampton letter, supra note 7. Despite congressional criticism of 
the Commission's tendency to view the problem of discrimination as one
of individual actions and to ignore systemic discrimination, the Commission, 
nevertheless, conditions its complaint procedures on the allegation of 
a specific act of discrimination. See Legislative History, supra note 42, 
at 423.
220. The Commission maintains that -"the great majority of EEO-related 
issues of concern to employees are resolved informally, and some form of 
corrective action is taken by the agency as a result of over one-third 
of these contacts with counselors." Therefore, the Commission believes 
that this process is "an effective means of resolving problems quickly and 
informally and substantially reducing the number of issues which need to 
be processed through the formalized complaint system and the courts." 
Hampton letter, supra note 7. On the other hand, there may be some 
question whether complainants are fully informed at this stage of the 
nature of the discrimination they may have experienced or of the relief
to which they may be entitled. Ralston interview, supra note 216.



itvV.'W, *i.«A-:i-*v.

In the past, from 10 to 11 percent of all informal complaints 
developed into formal complaints:

67

Number of Persons 
Counseled

Number of Formal 
____Complaints

Fiscal Year 1972 
Fiscal Year 1973 
Fiscal Year 1974

16,883
26,627
31,484

The vast majority of formal complaints in each fiscal year alleged race

on the basis of sex, national origin, and religion,
222

1,834 (11%) V
if.

2,743 (10.3%) If
3,435 (10.9%) 221
• alleged race

.scrimination

designated
if

221. Memorandum to Irving Kator, Assistant Executive Director, CSC, from 
Anthony W. Hudson, Director, Office of Federal Equal Employment Opportunity, 
CSC, Aug. 23, 1974. Approximately 35 to 45 percent of the informal complaints 
were followed by some "corrective action," but not necessarily any

analys is
. - - —  — —  — —  — —~ j specific

relief to the complainant. Id. An analysis of corrective actions taken by 
agencies in fiscal year 1973 found that these measures most frequently con­
sisted o1 an "improved personnel practice," promotion, reduction or rescission 
of adverse action, training opportunities, or reassignment. The next most 
frequently occurring corrective actions were reinstatement, priority consid­
eration for promotion, improved EEO practices, and removal of adverse material 
from official personnel folders. Telephone interview with Anthony W. Hud: 
Director, Office of Federal Equal Employment Opportunity, CSC, Nov.

son, 
25, 1974.

222. Race discrimination complaints represented 68.4 percent of the total 
formal complaints in fiscal year 1972, 61 percent in fiscal year 1973, and 
60.3 percent in fiscal year 1974. The respective figures for the other 
bases were as follows: sex-female, 16 percent, 20 percent, 21.7 percent; sex-
male, 3.6 percent, 4 percent, 6.3 percent; national origin, 9.1 percent,
10 percent, 9.5 percent; religion, 2.6 percent, 5 percent, 4.3 percent.
Hudson memorandum, supra note 221. The Commission1s tabulation of 
complaints did not indicate the number of complaints alleging both sex 
and race or national origin discrimination.

- j.,c •• •Kvvl*,'.. . 4* -4-3 1 >-*JU •



68
nature and not related to the individual.

H i
In fiscal year 1974, 10

percent of final^con,plaint dispositions reported fay agencies were rejections
of complaints. The Commission has not issued clear guidelines
specifying what types of allegations are "unrelated" to an individual
complaint. It has consistently held, however, that complaints
alleging discrimination against a particular class of employees, of
which the complainant is a member, are not within the purview of the226
standard complaint procedures. In contrast, class and individual

223. 5 C, F.R. & 713.215. The complainant may challenge such a rejection
by appealing to the Commission or fay filing a civil action.

note 221.2,650 cUsp0Sitions’ 265 rejections. Hudson memorandum,

which d^not^an^tllin that alle«atio"s of discriminationnicn cio not tail within the purview of the regulations are those not filed
y an employee, or applicant for employment in the agency where the act ‘
occurred do not relate to an employment matter over which the Agency has
jurisdiction, or are not based on race, color, sex, religion or national
origin. FPM Letter No. 713-213 Sept 21 1 073 Ti-n Vn ’ ■ ,rnf-ed i-h-,, ", „ t , . ’ ‘ ZL> Inc Commission has indi-aLca that each complaint, must: h r- co^s* d o- i — n - ■ <bo an S-m-nioioji . M , • . ....  1Lo uwn what: may
complaint 1  ̂ Hampton‘l o t —  *  *»»«>“

nee‘ i r ^ Q ?  ApPeals Review Board, Decision in Case No. 713-74-275
era’, ’ V ■ J:h\ COmplainam- a^ g e d  Ibat an agency policy of S t r o l l i n g ’

ii::î f sappiiwi -  j°*> wa8 dî S i-cry on the basi, oi sex, since virtually all employees in the two class!
iofa categories " T ''l^l c0,nplainant was an employee in one of the two 
filed a complaint , ■3 NaLiVe Arilericaa employee denied a promotion
motions- H r  t ?Sln8 dlScrimlnatioi> against Native Americans in pro­motions the class allegation in the complaint was rejected. Appeals Review
card, Decision in Case No. 713-74-289, Dec. 17, 1973? since the ?inm!s^on

district , r,°BVlar processin8 of class-wide complaints, some Federaldisuict courts have held that a class action law suit is barred See e g
he NM(T loAl 1i o f n8er’ T y  ,1689-73 (IJ-D-C‘ A»K- 9, 1974). In No^faeri974, ‘ . u  V s 1  Defenfae and Educational Fund filed a lawsuit challenging the

Barret^vio 11 u °f S6V0rin8 class allegations from individual complaintsBaiiett v. United States Civil Serv. Comm’n, Civil No. 75-1694 (D D C Nov 20‘
io ; ' fVOm WilUam P* BGr2ak> Chairman, Appeal R^iew ’, . ’ r° tn B ack> MACP Legal Defense and Educational Fund, Oct 18 1974
which ̂ aftinned that the Commission does not permit individuals to H i s s
discrimination allegations in their individual complaints.



69
discrimination claims under Title VII have historically been treated 
simultaneously, since the Federal courts have long held that employ­

ment discrimination is, by definition, class discrimination. ^  From 
the complainant's standpoint, severance of class issues from the 

individual claim in the administrative process can be extremely 

detrimental because it may preclude collection and introduction of
evidence relating to the class which may be highly material to the 

z/o
individual's case.

The rule of rejecting portions of complaints not previously
raised also appears to be contrary to the historic treatment of

litle VII complaints. Charges before the EEOC have generally been

.broadened, where appropriate, to encompass like and related issues
229

to the one raised by the charging party. This practice was adopted
by EEOC and upheld by the courts on the grounds that victims of

employment discrimination most often do. not comprehend the complcx
230ooinces of tnat disoriniinat i nn mt . •Ihere is no reason to believe that

Federal employees are any different.

L-wyets Committee for Civu 'R igSfoodor^Se Lo»J°Sr' ' ' ‘ " " hln8l;°n

complaint. McDonnell-Douglas Corp. "  G r e U , 0 9 ™ ^ "  

2290) See, e ^ . , Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5 th Cir.

(5th c f f h M r  DA 1 Her V; Phlllips Petrolc“ “ Co.; 447 F.2d 159, 161-2

investigated if thev rclah in t-h n ^  complaint may be subsequentlyk y relate to the work situation." 5 C.F.R. U 713.216(a)

„ -rv“» -V» «



~ A. tW*.-

If a complaint is not rejected, it is then the responsibility of
the agency's Equal Employment Opportunity Officer to provide for the

231
complaint investigation. Complainants are not given the right to

influence the scope or method of the investigation. The regulations do 
not require that investigators be certified or trained in employment 

discrimination matters, but only that they be employees from a part of the 
agency not subordinate, to the^agency official in charge of the unit in 

which the complaint arose. Until September 1974, the Commission pro­
vided agencies with investigators on a reimbursable basis. Effective 
September 3, 1974,^agencies were required to assign their own staffs to 

investigations. Thus, despite congressional concern expressed in 1971
that there was an inherent bias in the complaint investigation procedures,

Commission regulations still provide that the investigation be conducted by
. „ 234employees of the allegedly discriminatory agency.

70

.231. 5 C.F.R. § 713.210.

232. Id- Investigators of Federal Title VII complaints may he persons with 
1 T “ 'le"“  0r tho“‘! “h° i» occupations routing invest8 C k lls» “uch as attorneys, auditors, personnel management specialists 
°ta” i‘f’fc"L ™  No. 713-34, su£va. The Co,„„,issio„ proJldos
c c h m c u H o u  h T n  r 118" " '  aml • n i t  which would requitecertification by the Commission. Hampton letter, supra note 7.

•,<l“  l m - However, botvoer, September 1973 and April 197a, the Commission conducted 18 investigations on the requests 
of agencies and between December 1974 and April 1975 assumed jurisdiction
1 e11erC°sudrann ,lnV?Sti8atifons bccau«f ^ u e  delay by agencies. Hampton letter, b^ra no.e 7. The Commission's policy is to conduct investigations
r agencies where there is a potential conflict of interest, publicity or 

outside interest, or where the agency is small. Id.

re ev al un this Commission recommended that the Civil Service Commission
reevaluate its regulations providing for investigations by agency personnel

L V T s * 8' ? 0"? « «  hmpari:inlitj7of' suchgators. See, U.S. Commission on Civil Rights, The Federal Civil
l^ c e m e n t  Effort: AJi^ssessment 55 (1973). i h T ^ n ^ iH'ion sees no~'~b as is
f r the statement that there is inherent bias in the investigation process. Hampton letter, supra note 7. ‘

" *~ *J*'̂ »» * i**iî**“W' v»ii>i•**«-- * '-i*  *«V• •>»*■ i’, •



/1
Commission regulations further provide that the investigation include 

a thorough review of the general work environment in which the complaint 

arose and a comparison of the "...treatment of members of the complainant's 
group identified by his complaint as compared with the treatment of other 

employees in the organizational segment in which the alleged discrimination
J-.J J

occurred...." This provision ignores the possibility that the complaint
may have arisen in an organizational segment in which there was discriminatory
segregation of one class. It further militates against proper analysis

of the work force, since the complainant's group is to be compared with

the aggregate of all other groups rather than with each separate group. ^
In addition, the term "organizational segment" is not defined to

indicate clearly how broad or restricted the investigation should be.

The Commission issued guidelines in 1971 explaining in more detail

h°W C°mplaint investigations are to be conducted. These investigation
guidelines suffer from a number of deficiencies, only a few of which

235. 5 C.F.R. § 713.216.

if* IV; COinplain' arise ^  an all-female clerical pool oran aU-biack mail room. J he Commission does not believe this provision to
S o  d r eH f hG term "orSanizational sefi“ t" may be interpreted very uiOc-Ciî . Hampton letter., .supra note 7. **

and *20^ anaf Sif mi8hf find> f°r exaraP]e» that /|0 Percent of minorities and 0 percent of nonminorities are concentrated in the lowest: four grades
I. the complainant is a minority female, the investigation should compare 
the condition of minority females separately with that of nonminority females 
minority males, and nonminority males in order to determine the disparity 
between the status of minority females, and the other groups. In a typical 
situation, this analysis would find that 50 percent of minority females 
^0 percent of nonminority females, 30 percent of minority males, and 5 ’ 
jerccnt of nonminority males are concentrated in these grades. Thus the

! * S ? r  8roilI> wilji the ;Lu& 1S, d dilferc,nc.c of 45 percent, rather than 2.0 percent. For data 
.lowing the composition of the work force in the lowest four grades cross - 
tabulated by race and sex, sec CSC, Manpower Statistics Division Bureau '
S d e r a l T r-1- T ^ ° n SyStCm"> Federal Civilian Personnel Statistics:Tedeial Civilian Employment.by Minority Group and Sex, Nov. 30, 1972.
H I * ‘g a t i n g  Complaints oi Discrimination in Federal Employment, CSC,
Oct. 1971 /hereinafter cited as Investigation Guideline's/'.

I



72
be eliminated in revised draft guidelines circulated in November

lho most serious deficiency in the current guidelines is their

failure to include a correct definition of the meaning of discrimination.
Ihe guidelines implicitly adopt a definition limiting discrimination

240
to overt acts or patterns of "unfair treatment." The guidelines in
, . , 241droi. stage in 197h did not correct this deficiency, despite the well 

established rule under Title VII that illegal discrimination includes 
not only disparate or unfair treatment, but also neutral treatment which

had a disparate effect on any ethnic, racial, or sex group, unless justi-
, .  , , 242tied by some compelling, nondiscriminatory purpose.

Second, the guidelines generally limit the scope of the investigation
to the actions and decisions of the allegedly discriminatory agency

official and to the organizational segment in which the complaint

ihe. proposed new guidelines would permit extending the investi-

would
19 7 4 .

229, Draft Investigation Guidelines (undated), provided by Mr. Anthony W 
Huosou Director, Office of Federal Equal Employment Opportunity, CSC, Nov. 1, 

/hereinafter cited as Draft Investigation Guidelines/.

240. The current guidelines state that the investigation should be suffi- 
crenay comprehensive to uncover any evidence of overt discrimination and 
should develop enough information to bring out...any pattern of nonselection 
oi unfair treatment of members of the complainant's group which might consti­
tute evidence of discrimination---" Investigation Guidelines, supra note 238,

241 ihe draft guidelines state that "A pattern of discrimination is estab­
lished by evidence which shows disparate treatment of members of the com- 
plainant s group when compared with the treatment of members of other groups." 
J Jr all: Investigation Guidelines, supra note 239, at 29-30.
2̂i 2. Griggs v. Duke Power Co., supra note 114.

243. investigation Guidelines, supra note 238, at 9. This limitation can 
operate severely to the disadvantage of the complainant, since statistical 
evidence based on the agency as a whole has been held to be highly material 
,D V  SiQ7n'. ^£-pxample, Robinson v. Warner, No. 1654-23
Da 2h- i9?4) ln.whlch the courL supplemented the administrativerecoid with statistical evidence based on the entire Navy Command Systems 
upport vetivity and reversed the agency's final determination of nondiscrimi­nation.



73
gation to other units under the same administrative jurisdiction but not

244
to the agency as a whole.

Third, the guidelines on investigating complaints arising in the 

selection or promotion process fail to include essential instructions 

on investigating a personnel action. The guidelines merely instruct 

(he investigator to list the name, sex, race, or ethnicity of each of 
the candidates and their relative ranking. There are no instructions 

to investigate the possibility of systemic discrimination in the ranking 

itself or in the process by which candidates were placed on the certificate
245

list of eligibles. The proposed new guidelines indicate that the

investigator should "...consider the need for looking into the reasons
why the complainant did not appear on the certificate or was not rated

246
high enough to be within reach on the certificate," but they do not

244. Draft Investigation Guidelines, supra note 239, at 30.
In testigc 

1,
n Guidelines, supra note 233, at 15-17. The failure to 

include such an analysis in an investigation can seriously injure the com­
plainant. For example, a black female who was the only black in her divi­
sion and who had been passed over for promotion three times and for training 
opportunities two times was held not to have been subjected to race discrimi­
nation on the grounds that the selection panel's decision was based on 
"documentary appraisals and evaluations" and the personal knowledge of the 
candidates by the three panel members, two supervisors and the selecting 
official. Appeals Review Board, Decision in Case No. 713-74-284, Dec. 13,
1973. Race discrimination can easily occur in supervisors' appraisals of 
employees. Site, e.g■, Rowe v. General Motors, 457 K.2d 348 (5th Cir. 1972). 
Yet, the Commission made the decision in the above case without any indi­
cation that an investigation had been made of the evaluations and ratings 
given black applicants and employees by the agency. The Commission main­
tains, however, that the procedures for investigating promotion actions 
are adequate because they determine how and why each candidate is ranked. 
Hampton letter, supra note 7.

246. Draft Investigation Guidelines, supra note 239, at 11



74
include instructions on the method by which this investigation should 

247
be conducted. Neither the current nor proposed guidelines contain

any instructions concerning the investigation of qualification standards

which may have had an illegally discriminatory effect on the complainant.

Finally, both sets of investigation guidelines suffer from extreme
vagueness. For example, both instruct the investigator to determine

whether there exists "...any improper segregation of personnel by reason
of their membership in the group alleged to have been discriminated 

249
against, 1 but there is no explanation of the meaning of the term

"improper." Similarly, the investigator is instructed to collect

"information about the agency's merit promotion plan and procedures,
250

if needed for an understanding of the case." However, there are no

included for determining the relevance of such information, 
or for evaluating a merit promotion system to determine compliance 
with the dictates of Title VII.

248

247. Id. at: 39-43.
248. In reviewing 
the job relatednes 
complainant. The 
investigative file 
Id. at 15. This i 
relatedness of a q

individual complaints, the Commission does not consider 
s of a particular selection standard which rejected the 
draft guidelines propose to prohibit the inclusion in the 
of any Commission Job Element Guides or rating schedules, 

nformation could be essential to challenging the job 
ualificatrion standard.

249. Investigation Guidelines, supra note 238, 
Guidelines, supra note 239, at 31. at 10; Draft Investigation

250. Investigation Guidelines, supra note 238, 
Guidelines, supra note 239, at 42. at 17; Draft Investigation



The n<?W Sidelines in draff stage as of November .1974 contained
two distinct improvements over the current guidelines in that they

emphasized the importance of the investigator’s maintaining independence
from the agency's official and that they permitted the investigator to

information relevant to a basis of discrimination other than
that charged by the complainant. The revisions to the 197.1 version of
the Guidelines were prepared without consulting with EEOC, despite

a clear request from Congress in 1972 that the Commission
2 r\Uobtain EEOC's advice on equal employment matters.

75

251. Draft Investigation Guidelines, supra note 219 at 1 ? i

fhc investigative fxie to these officials during the investigation. Id.

i m ™ r ^ t atJ 6\  !!rmittln8 this flexibility to the investigator is 
basic of disc11-6 -1 n0t uncon,mon fpr a complainant to allege one 
she or h- ma f 1” 10"’ e,g’> scx discrimination, when in fact

°r he may b£ the vlctlm « c e  or ethnic discrimination as well.
253. Hudson telephone interview, supra note 221. The Commission consulted 
with representatives from agency internal EEO programs, including
therF F O ? S f ^ S ff°r H°WeVCr’ the Commission did not consult withthe EEOC Office of Compliance. Hampton letter, supra note 7.

^ ; ted8t ^ f ^ niS,;0ry’ n°te 42‘ at /|25' The Commission's staff in-fo‘ iCd, E " WaS noc consulted concerning the revision because theCommission perceived that the two agencies had basic differences in 
approach to investigations. According to the Commission's staff 
federal complaint investigators arc to look for evidence that individuals 
received disparate treatment; the Commission's staff felt that EEOC 
investigations were directed primarily to collecting statistical
Z l  17, ° V he Cl/ SS‘ 3 S .a whole* Hudson telephone interview, supra

. * F°r 3 dlscussion of EEOC investigations, see Chapter V infra.
EEOC investigations, in fact, appear to entail collection of both 
types of information. There is a strong reason to believe that 
ingress intended that the basic approach of the Commission be more 
like that of EEOC in all matters and that the Commission utilize the 
reservoir of talent and expertise available within the EEOC for
improving Federal complaint and other equal employment programs. Legislative History, supra note 42, at 425. legislative



76

Commission regulations require the agency to make a second attempt
to resolve the complaint informally following the completion of the 

255
investigation. If an adjustment of the complaint is not obtained, the

complainant is to be notified of the proposed disposition by the agency
, . , . , 25and or tne right to request a hearing within 15 days of the notification.

In fiscal year .1974, slightly less than 25 percent of the complainants
257whose cases were decided had requested and received a hearing.

258
Hearings are closed proceedings conducted by a complaints

259
examiner, who is certified by the Commission and who must be an employee

255. 5 C.F.R. § 713.217(a). The complainant is entitled to review the 
investigation file.
256. 5 C.F.R. § 713.217(b).
257. Hearings were held .in 64 3 of the 2,650 cases which received final 
dispositions during fiscal year 1974. Hudson memorandum, supra
note 221 ; Hudson telephone interview, supra note 221 •
258. Only persons directly connected with the complaint m-cy attend.
5 C.F.R. § 713.218(c)(1). However, the allegedly discriminatory 
official is not entitled to be present. Discrimination Complaints 
Examiners Handbook, Office of Federal Equal Employment Opportunity,
Apr. 1973, at 36.
259. 5 C.F.R. § 713.21.8(a) . Complaints examiners must meet the 
qualifications established in the Commission's GS-930 (Hearings and 
Appeals) Series, which is applicable to most hearing officer positions 
not subject to the Administrative Procedure Act. A law degree is not 
required but may substitute for work experience in adjudicating cases.
Expertise in Title VII law or employment discrimination matters is not required. 
Memorandum to J. Philip Bohart, Acting Director, Personnel and Labor Relations 
Division, from H. Alan McKean, Chief, Standards Division, Apr. 1, 1974. This 
certification standard was adopted in conjunction with a reorganization of the 
employee appeals system within the Commission and the establishment of the 
Federal Employee Appeals Authority. 'Hie reorganization primarily affected the 
system through which employees appeal adverse personnel actions and did not 
change any of the appeal provisions pertaining to discrimination complaints.
CSC, New Federal Employee Appeals System (undated).



77

from another agency except in unusual circumstances. The complainant
261

has the right to be represented by counsel and to cross examine

witnesses but not the right to obtain information other than that
262

collected by the agency or to subpoena documents or witnesses. The
hearing is not to be an adversarial proceeding but rather an extension 

263
of the investigation.

To assist complaints examiners, the Commission issued an examiner's
handbook in April 1973, which gives instructions on preparing lor and

conducting a hearing, admitting and evaluating evidence, and writing
264

recommended decisions. Although the Discrimination Complaints

260

260. Where an agency is prevented by law from disclosing to persons 
without security clearances information concerning the matter complained 
of, the complaints examiner may be an employee of the agency. 5 C.F.R.
§ 713.218(a).

With respect to representation by counsel, the Commission on Civil 
Rights recommended in 1970 that free legal assistance be provided on re­
quest tc all employees who require it. Enforcement Effort report, supra 
note ]47, at 358. The Cj.\ il F -rvi.ee Commission has not implemented such a 
program in the ensuing 5 years.
262. The complaints examiner has the authority to require agencies to 
produce witnesses requested by the complainant when the complaints 
examiner determines that the testimony is "necessary and where it is 
not "administratively impracticable" for the agency to comply with the 
request. 5 C.F.R. Pi 713.218(e). Both the agency and the complainant 
have the right to submit evidence, in the form of documents, affidavits, 
or testimony of witnesses. Discrimination Complaints Examiner Handbook, 
supra note 258, at 85, 87. The complainant may also request that the. 
examiner request evidence or testimony. If the examiner denies the. request, 
reasons must lie given in the record.
263. Discrimination Complaints Examiners Handbook, supra note 258, at 5.
See. also, letter from Robert E. Hampton, Chairman, CSC, to Arthur F.
Sampson, Acting Administrator, General Services Administration, June 18, 1973.

264. Id.



II

Examiners Handbook was issued more than a year after Title VII became

applicable to Federal employment, it contains no guidelines or information
265

on substantive Title VII law. 1„ addition, the Handbook's instruction 

concerning the meaning of discrimination and questions of burden of proof 
are contrary to the weight of authority under Title VII a The Handbook 

describes discrimination exclusively in terms of disparate treatment^and 
provides that complainants have the initial burden to present evidence of 

disparate treatment. The weight of Title VII law, however, does not place 

the burden on plaintiffs to show disparate treatment; instead, plaintiffs 
are held to make out a £rima facie case of illegal discrimination by pre­

senting statistical evidence showing a disparity in the employment status of 

the alleged discriminatees and other employees. ' The Commission's hand­
book does not indicate that Federal Title VII complainants have access to 
this procedure in the context of the administrative hearing.^ Jf the 
record establishes that disparate treatment has occurred, then

examiner is instructed to view the evidence most favorably to the 
agency and to make a finding of discrimination if a reasonable mind 

could not inter from the evidence so viewed that the agency's action 

was free from discrimination on the basis of race, color, sex, religion,

78

265. The Commission does, however, provide a digest of Title v n  
for complaints examiners. Hampton letter, s n ^ ^ o L  7.

266. Id. at 57, 62. As noted on n. 72 supra Title vtt t '
disparate treatment but neutral t U m c n ^ J h a s '  I “ l ^ “

R»; vT^eli?rVlfM“tor;1 L r r elaS C°ri" Gr°“ > A K  J2 *(
Bull Telephone Co., 433 r - * » • « ■ « « « »
268. Complaints examiners freauentlv evei.,w • i 
discrimination against the *•
routinely affirmed by the Appeals Revrew Board 1 "  1 ° ™  m
Board Decision in Case No, 713-73-593 (June 14,’ Review

.*» vry~.



79

or national origin. In short, the instructions lead a reasonable person
to believe that the complaints examiner is instructed to apply a standard

which gives the benefit of the doubt to the allegedly discriminatory agency
The findings and recommendations of the complaints examiner are

not binding on the agency unless the examiner recommends a finding of
discrimination and the agency has not issued a final decision within

270
180 days after the complaint was filed. If the agency rejects or

modifies the decision recommended by the complaints examiner, or if

the agency's decision is made when a hearing is not requested, it
271must set forth the specific reasons for its final action. During

fiscal year 1974, 7 percent of final agency dispositions made a
, 272finding of discrimination.

269

Discrimination Complaints Examiners Handbook, supra note 258? at 
62. The Handbook states as follows:

Where the record shows disparate treatment, the 
Examiner must then evaluate the evidence and 
assemble the facts which tend to establish a case 
free from discrimination based on the complainant's 
race, color, religion, sex, or national origin. If a 
reasonable and unprejudiced mind could not infer from the 
facts so assembled that the agency was free from discrimi­
nation in the matter, then the Examiner should make 
a finding of discrimination. Id.

270. 5 C.F.R. § 713.220(d); S 713.221(b).

271. 5 C.F.R. § 713.221. However, the Commission has held that an agency's 
failure to provide specific reasons for its action does not invalidate the 
decision if the ARB provides reasons in its review. Minutes of Civil Service 
Commission, Feb. 27, 1974, declining to reopen Appeals Review Board Decisions 
Nos. 713-73-595, 713-74-179, and 713-74-43.

272. A finding of discrimination was made in 170 of 2,650 dispositions.
Hudson memorandum, supra note 221. Final dispositions include rejections 
or cancellations of complaints. Findings of discrimination 
constituted 12.8 percent of all decisions on the merits. Complaints 
examiners made findings of discrimination more frequently than did 
agencies. In the 643 cases which went to a hearing, complaints examiners 
recommended a finding of discrimination in 109 (16.9 percent) cases.
Agencies adopted contrary findings in 26.6 percent of these cases, CSC, Office 
of Federal Equal Employment Opportunity, Performance by Agency and CSC Complaints 
Examiners in EEO Discrimination Complaint Cases During FY 1974 (undated).



80

Commission regulations require that agencies proceed with the
processing of complaints without "undue delay" so that complaints are
resolved^within 180 days after filing, including time consumed by a
hearing. However, in fiscal year 1974, the Government-wide average
time spent processing a complaint was 201 days, which was 26 days

274
onger than that of fiscal year 1973. Some major agency complaint

2 7 5processing procedures averaged well over 300 days.

273. 5 C.F.R. g 713.220.

274. Memorandum to Irving Kator, Assistant Executive Director CSC 
from Anthony Hudson, Director, Office of Federal Equal Emplo^ent ’
Artii *,nlny’- C’ PreCOmplaint CounHeling and Discrimination Complaint t e r  s y T g FlS(;al Year 1974> Au^  23, 1974. Agencies whose d t  complaint processing time in fiscal year 1974 exceeded 180
of t h t / t m v t t  D!Parjtment 0f' Agriculture (214 days); Department
of Commerce ‘ ”yS? ’ Lliergy Commission (317 days); Departmentof Commerce (256 days); Defense Contract Audit Agency (307 days); Defense
‘ 1>P,yr ^ ncy day;3/> HnviroriiiienLai Protection Agency (259 days) •

f;ommisslon <296 dflys) Federal Communications ' " (8-S6 day-), General Services Administration ( 2 1 2 days) •
epaitment of Health, Education and Welfare (367 days); Department of 

Housing and Urban Development (369 days); Department of the Interior (197 
; , efitment of Justice (250 days); Department of Labor (253 days);

I , -̂ âal Aeronautics and Space Administration (254 days); National 
Labor Relations Board (296 days); Selective Service System (370 days)’
(395 d ^ s ) ^ S SS r f iStlT ’ i 0 n A ( 2 5 2 d7 S): DePartment of Transportation IRQ r  ’ : Inf0rmatl0n ASency <238 days); and U.S. Postal Service
year 1 07 4 *, ^hos^_average complaint processing time in fiscal
of U Co n Jfa°-day were as follows: Administrative Officeof U.S. Courts, U.S. Air Force, Army and Air Force Exchange, Civil ' 
Service Commission, Commission on Civil Rights, Federal Maritime 
Commission, General Accounting Office, Government Printing Office
Naw°noff? fBMreaU’ Nati°nal Science Foundation, Department of the 
\avy, Office of Management and Budget, Smithsonian, Department of State 
Tennessee Valley Authority, Department of the Treasury, and Veterans 
Administration During fiscal year 1974, there were no complaints 
iled against ACTION, Agency Tor International Development, Civil

Aeencv Def Conununications ASency, Defense Intelligencegency, Defense Mapping Agency, Defense Nuclear Agency, Federal Power
ommission, National Gallery of Art, National Mediation Board, National 
>curiLy Agency, Office of Economic Opportunity, or U.S. Soldiers Home.

See, for example, HEW, ited in note 275 supra,

T i r v y r r ' ' ' "



81

Title VII authorizes the Federal complainant to file a civil

action in U.S. district court if the agency does not make a decision
within 180 days or within 30 days of the final agency action^A

complainant may delay civil action by appealing to the Commission's 
277 278 ’

Appeals Review Board for a review of the record. In fiscal year-

1974, approximately 30 percent of agencies' final dispositions of
279complaints were appealed to the Appeals Review Board. In approxi­

mately 73 percent of these cases, the agency decision finding no

dal'- M ? ‘Kr '  f 2°°0e"16c- A civil action may be filed within 30 aa)s afterfinal agency action or final action by the Commission if 
tuc-.complainant elects to appeal to the Commission.

277{ „The Appoals Review Board, formerly called the Board of Appeals 
am, Review, consists of nine members appointed by the Chairman of 
he Commission. Board members are career civil servants who serve 

at tne pleasure of the Chairman. As of November 1974, the Boardc o n ̂ i s t cd u f 5 ang 1 n m a lx- <:, 1 black male, 1 Spanish surnamod
and 1 black female. The Board members, all of whom are attorneys 
are assisted by a staff of 2 1 examiners and 15 clerical workers, 
one of the staff or Board members, as of November 1974, had had any

Chairman “  Tltle V U  law* Interview with William Berzak,tnairnian, Appeals Reviev; Board, Nov. 7 , 1974.

278 There is no right to a hearing before the Board, although it
hii™.reCc1pCwW^ltte2 ,trSU?entS ln additlon to the record compiled below. j C.l-.R. g 713.234; Berzak interview, supra note 277.

279. 808 of the 2,650 final dispositions were appealed to the
Board during fiscal year 1974. Appeals Review Board, Receipts and 
Production: REO Appeals (Oct. 26, 1974).



82

discrimination or rejecting the complaint, was affirmed. J.n slightly

more than 10 percent of the cases, the Board remanded the complaint
281

to the agency for further investigation, and in approximately 7 percent
282

the appeal was cancelled by the complainant. The Board reversed
agencies' rejections of complaints and findings of no discrimination in

283
5 . 5 percent of the total decisions rendered.

The Board reviews the record to determine if it shows that the complainant
284

was subjected to disparate treatment. It does not consider discrimination

in the form of disparate impact. If disparate treatment is shown, the 

burden is then shifted to the agency to come forward with evidence

280

280. 575 of 778 Board decisions affirmed agencies' decisions finding 
no discrimination or rejecting the complaint. Jit fiscal year 1973,
585 of 692 Board decisions (or 84.5 percent) affirmed agencies' 
decisions. Appeals Review Board, Receipts and Production, supra 
note 279.
281.. 82 of 778 Board decisions were in this category. In fiscal 
year 1973, only 3.6 percent of Board decisions (25 of 692) remanded 
cases to agencies. Id.
282. Td. In 1973, only 1.4 percent of Board final dispositions were 
the result of cancellations by complainants.
283. Id. In an additional two percent of the decisions, the Board 
recommended that further corrective action be taken by agencies.
The remaining decisions reversed agency decisions on the grounds 
that improper procedures had been followed ( . 8 percent) or rejected 
the appeal as untimely (.5 percent).
284. The Board's definition of "disparate treatment" appears to be 
extremely narrow. It has held, for example, that "favoritism" is
not a form of discrimination prohibited by law or regulations. Appeals 
Review Board Decision in Case No. 713-74-285, Dec. 1/, 19/3, wherein 
tiie. complainant alleged that supervisors showed favoritism to white 
employees.



that the treatment was justified by some lawful purpose, such as

Commission or agency qualification standards. An agency's decision
finding no discrimination will be upheld if the evidence in the record

285
supports the conclusion that the disparate treatment was justified.
The Board does not follow or refer to judicial decisions interpreting 

the substantive or procedural requirements of Title VII, nor do«s it
286

follow the rule, of stare-decisis with regard to its own prior decisions, 
Although it is well settled.under Title VII law that the complainant 

need not show direct proof of intentional discrimination and that a statistical 

disparity shifts the burden to the employer to show evidence of non-discrimi­
nation, the Board does not applj* this standard. In one case decided in 1973,

287
the Board correctly followed this standard but was reversed by the Commission.

The 1972 Amendments to Title VII gave the Commission express

authority to order reinstatement, back pay, and other relief to persons
283

found to be victims of discrimination. Commission regulations provide

285. Telephone interview with William Berzak 
CSC, Nov. 27, 1974. If, however, the record 
the Board may remand the case or conduct an

, Chairman, Appeals Review Board 
is not sufficiently complete, 

independent: review.
286. The decisions of the Appeals Review Board are largely ad hoc disposition*
o f "  „ T  c “  «■= to— »*i» „ I I I  r ° ;of law. ihe Commission does not publish these decisions but merely makes 
them available at headquarters and certain regional offices.

287. Minutes of the Civil Service Commission, Nov 14 
Review Board Decision No. 713-73-465.
268. 42 U.S.C. g 2000e-16(b).

1973, reversing Appeals

\

.• J it*-- » • «■



that a person denied employment or promotion shall be given priority

consideration for any existing vacancy where the record shows that
289

discrimination existed when the selection was made. However, such
persons are not entitled to back pay or other retroactive relief

unless the record shows that the person would have been selected
290

but for the impermissible discrimination. The Commission's rule, 

which places a heavy burden of proof on complainants seeking retro­
active relief, is completely contrary to the weight of Title VII 
case law, which holds that once discrimination has been found, the

employer has the burden of showing that the victim would not have.
291been selected even in the absence of the illegal discrimination.

As a result of the Commission's restrictive interpretation of the

289. 5 C.F.R. § 713.271.

290. Id. Thus, the Commission has held that where sex discrimination 
was found xn the denial ol a promotion to a female complainant, she 
was not entitled to retroactive relief, even though she was the top 
ranked candidate for the position, on the grounds that she might have 
been denied (.he promotion on grounds other than sex, since hiring 
officials have some limited discretion. Appeals Review Hoard,
Decision in Case No. 713-74-437, Mar. 14, 1974. Similarly, where 
racial discrimination was found in the ratings made by a promotion 
panel, the black complainant, who was ranked second best, was not 
given back pay or other retroactive relief, since the record did
not show that but for the ratings, the complainant would have been 
selected. Appeals Review Board, Decision in Case No. 713-74-277,
Dec. 10, 1973.
291. See, e•g■, Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974). In late 1974, a Federal district court ruled that 
the Commission's standard on retroactive relief was improper. Day v. 
Weinberger, No. 74-292 (D.D.C. Kov. 4, 1974). The Commission maintains 
that its position comports with a decision by the. Court of Claims in 1971, 
Chambers v. United States, 451 F.2(i 1045 (Ct» Cl. 1971). Hampton letter, 
supra note 7. However, the district court in Day v. Weinburger specifically 
noted that the Chambers decision was no longer applicable because it was 
rendered prior to the passage of the 1972 amendments to Title VII.



s . r>

remedial authority it lias been given in Title VII, full relief is 

rarely provided to discriminatees. In fiscal year .1973, retroactive
relief was provided in 22 (or 3 percent) of 778 cases in which action

, 292was taken to correct discrimination.

Thus, it is clear that Federal Title VII complainants face 
severe disadvantages throughout the complaint process. The 

allegedly discriminatory agency not only has control over the content 

of the complaint's allegations but over the investigation as well.

While the complainant has a right to a hearing before an independent 

examiner, the complainant's rights are limited in that: proceeding, and 
the finding of the hearing examiner is not binding on the agency in 

most cases. The final decision made by the allegedly discriminatory 

agency is appealable to the Commission, but is not subject to a review 

according to Title VII case lav;. Fore importantly, the substantive rights 
guaranteed under Title VII, as well as important Title VII evidentiary and 

procedural rules, are not available to the Federal complainant. Finally, 
when a civil action is filed in court, the. complainant may well not bo.

292. Hudson telephone interview, supra note. 221. Hampton letter, supra 
note 7.

293. Since complaints examiners are paid by the allegedly discriminatory 
agency, an argument could be made that the examiners are not totally 
independent. Discrimination Complaints Examiners Handbook, supra note 258. 
The Commission emphasizes, however, that the examiner is referred by the 
Federal Employee Appeals Authority which is reimbursed by the agency for 
the examiner's service. Thus, the examiner is not paid directly by the 
agency. Hampton letter, supra note 7.



86

given a full trial, but only a review of the administrative record. 

Three years after the passage of the 1972 Act, it did not appear that 

the extension of Title. VII to Federal employment had led to any mean­

ingful changes in the handling of complaints or the substantive rights
295

of Federal employees to be free from discrimination.

294

294. As of April 1975, the courts were divided on the question of 
whether Section 7.17(c) of Title VII, as amended, 42 U.S.C. t? 2000c-16(c), 
gives Federal employees the right to a trial ifcJlQKU or only to a review 
of the administrative record, gee, c.g., Sperling v. United States, No. 
79-1533 (3rd Cir. Apr. 18, 1975); Henderson v. Defense Contract Servs. 
Administration, 370 F. Supp. 180 (S.D.N.Y. 1973) (holding that a right
to a trial de novo exists). Contra Sal one v. United States, No. 74-1975 
(10th Cir. Feb. 21, 1975); Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 
1973), Appeal docketed, No. 73-2072, D.C. Cir. Oct. 17, 1973.

295. The Commission maintains that it is incorrect to state that 
complainants face severe disadvantages throughout Its procedures.
"The rights of the complainant," the Commission maintains, "are fully 
safeguarded and the Commission standards are in fact more favorable to 
the complainant than is required by the courts under Title VII pro­
ceedings in the private sector," Hampton letter, supra note 7. In 
addition, the Commission emphasizes that no 1'ederai court has yet 
found the procedures inconsistent with Title VII. Id.



. . .  •v . f t  -  -  »'• *-■

Chapter 1

FINDINGS ANl.i CONCLUSIONS 

Civil Service Commission (CSC)

1. The United States Civil Service Commission oversees and sets 

standards governing the civilian personnel practices of the Federal 
Government, which employs nearly four percent of the Nation's work force.

Title VII of the 1964 Civil Rights Act, as amended in 1972, prohibits 
Federal agencies and departments from discriminating against applicants 

or employees on the basis.of race, color, religion, sex, or national 
origin. Under Title VII the Commission is responsible for ensuring that 
Federal employment practices are nondiscriminatory and for reviewing agency 

affirmative action plans on an annual basis. In addition, the. Commission
.__u.,rv cl-'”*eed vi«-h erfnrcinp Executive orders since 1965, which require

agencies to maintain complaint procedures as well as nondiscriminatory 

practices.
2. It is the position of the Commission on Civil Rights that the 

Federal Government should he bound by the same standards on equal employment 
opportunity and affirmative action as govern the. practices of all other employers, 

However, CSC maintains that it is not required to adhere to the Title VII 
guidelines established by the Equal Employment Opportunity Commission (EEOC) 

for all other employers or to follow the affirmative action principles 

applicable to employers who are Federal contractors.
, 3 . Although Congress expressed deep concern in 1972 that many of the 

civil service employee selection standards appeared to be discriminatory, 

the Commission has failed to carry out its responsibility under Title VII

619



620

. ■ ,nv that al. Federal , » » » . ■ > »  b” ccdutc= having 
*• damans Lf ate ■ * « «  ' to job

.,nsi \7oinen arc. manifest an adverse impact on mnoritic- and

performance. . for demonstrating the
a The Commission has adopted guideline*

job „ sss 0C —  ^ e .  -  a ~  —  ̂
chan the guideHnes at the Heel « , lament Opportune., Ca,„t

. ,m  „ w  great deference to the EEOC gntoeUnce, - 
Supremo Court an ■ • p m a m m U .

« e  applicable to private ample,eta, as well
• ,c. for entry into major professionalb. To screen applicant

•mm Up? developed a new exami- „e,,.innc the Commission has cic\tiui and administrative position. ,
,. reneer Examination (PACE;,. ,.„e P r o f e s s i o n a l  and Administrative Career h *

. . ,llv to „e related to job performance
which has not hen demonstrated empirrcaU, to

or to lack cultural and/or sex bias. _ ,
, . . „ f.liled to conduct a systematic analyser The commission has t  ueu* 1 * ‘-aC r\f% flip. T-nukiV’!' cancitauee o..r ... n,-n1 nn^] nLr cl no i., if ifs proceau:.u* '•---to determine - or to show empirically

basis of biographical information are iscri -
d res are job related. A study conducted by the General

that such proccc • that these procedures
Accounting Office in 1973 included substantial c. -

• ofo-rd of iob performance,wore not reliable indicators J
W . . ff-i rials from consideringd Federal law prohibits hiring o:

, H - ton three ranked individuals when hiring
-  0thM ;  Ibls ,,ulc of thteev ,  repaired h,
f„em outside the etvtl set ptoeedutes ate
statute. Available evidence rndreates

,, . .lcotors Cf successful job performance and may, »  .not reliable indicators oj. _
,.,.t.es Nevertheless, the Commission has.. m,,uiifipd candidates.screen out quail -- ,.f. i,, . thp i'ruie of three" be modified 

failed to recommend to Congress ta

neni.it considetation of .11 ^

~P-V



621
p. Ihc Commission has failed to make recommendations to Congress 

v/ith regard to modifying the requirement that veterans be given preference 
in selectionj although this provision has a clearly discriminatory impact 
on women.

f. CSC prohibits agencies from making race, sex, or 
ethnicity a criterion for selection of candidates even when agencies 
are attempting to adhere to affirmative action goals to eliminate 
the vestiges of prior discrimination.

' ' • The Commission's regulations governing complaint procedures to 
be maintained by agencies deny Federal employees a full and fair consideration 
of their employment discrimination grievances. The deficiencies in the 
Commission's previous regulations which were criticized by Congress in 1972 
persist in the regulations in effect in early 1975.

a. Strict, time limitations imposed on complainants at each
s tape of the nrocess. as v»‘'! i as ni-Ĵ r > . - r. -•. . ~ ,.. L f-^uqu.LoJ.u.5 j pose seu.uus barriers
to Federal employees in bringing complaints. These harriers are not faced
by employees who file discrimination charges before the Equal Employment
Opportunity Commis s ion.

b. Complainants alleging a pattern or practice of discrimi­
nation or discrimination on a classwide basis arc not guaranteed the 
right to a hearing or expeditious investigation.

c. The agency charged with discrimination has the principal 
control over the framing of complaints, the investigation, and the final 
decision on complaints brought by their employees or applicants.

d. The Commission’s instructions on complaint investigations

uffer from a number of significant deficiencies, including the failure to



1

I1

:i!:

f 1

I.iIfi

define discrimination according to Title VII law and to provide adequate 

Ruidanco on detecting discrimination in the selection process. The guide­

lines do not provide that complaint investigations consider whether general 

personnel practices have had a disproportionately adverse impact on the 
complainant's group. New guidelines in draft stage as of November 1974 

would not correct most of the deficiencies in the current instructions.

e. Complainants alleging an individual act of discrimination are 
given the opportunity to have a hearing, but the hearing provided for in the 
Commission's regulations is not considered by the Commission to be a n  adver­
sarial Proceeding. Neither substantive nor procedural Title V H  law is required

t0 bG aPPUCd* F°r eXample* Title VII case precedent, which holds that 
statistical evidence of disparities constitutes a jjrima facie violation of
Che Act, is not followed in these proceedings. In addition, the complaints 

examine! is instructed to apply a standard in making a determination which 

gives the benefit of the doubt to the allegedly discriminatory agency. More­

over, the examiner's determination is merely a recommendation to the accused 
agency, which has the authority to make the final determination, subject to
limited review by the Commission's Appeals Review Board (ARB) and discretionary 
review by the Commission.

£. The Appeals Review Beard, In issuing decisions on employment
dil.-»cruninntion QcitLoirs* lias not~ I'vrr.*'1 t> nas not -ollowed the substantive Title VII lav; and,
In some coses, has adopted Interpretations el law Inconsistent with Title VII,

S- Aid,onph Title VII provides Federal complainants the right to
file a civil.,action In Federal district court, , „ , bet of courts have limited
this proceeding to « review of the administrative record, while other courts
have permitted Federal plaintiffs a trial de novo.

622

*■“ ■ V y  J A  >. " \  f V  . f '  ■V.l’ • #«rv •* • -



623
h. Although the 1972 Amendments to Title VII gave the 

Commission additional authority to provide, retroactive relief to 

victims of discrimination, such relief appears to be provided in only 
three percent of the Instances in which action is taken to correct 

discrimination.
5. The Commission's guidelines on agency affirmative action plans 

are deficient and clearly inferior to similar procedures applicable 
under Executive Order 11246, as amended, to private employers which are 
Government contractors. In addition, the Commission's reviews of agency 

affirmative action plans are inadequate.
a. The Commission's affirmative action guidelines fail to require 

agencies to conduct adequate analyses for determining if underutilization
of minorities and women exists in their work forces, although such a require­

ment is expected of all Federal contractors under Executive Order 11246.
b. In contrast to Government contractors, Federal agencies 

are not required to establish goals and timetables for eliminating under­

utilization of minorities and women. Although the Commission's statistics 
indicate that serious underutilization of these, groups exists in the higher- 

level positions at most agencies, few voluntarily set goals and timetables 

for eliminating these disparities. The Commission has failed to issue 

adequate instructions on the proper development of goals and timetables. 
Agencies which voluntarily establish objectives appear to set them so low

as to preclude the agency from ever eliminating the underutilization which 
it lias identified. At least one agency established a hiring goal which 

led to a decrease in the percentage of the class whose employment the
agency had intended to increase.



624
c. The. Commission fails to require, adequate reporting on the 

effects of affirmative action measures on the employment of minorities and 

women; as a result, there is little, if any, evidence that affirmative action 
plans are accomplishing meaningful improvement in the status of these groups.

d. Many agencies fail to submit their affirmative action plans 
within the time required by the Commission, as well as fail to adhere to 

the Commission's instructions on conducting assessments of equal opportunity 

deficiencies. Of 1/ national affirmative action plans reviewed, none included 
adequate assessments. Nevertheless, the Commission approved the vast majority 
of these plans without ordering any corrective revisions.

6. The Commission is responsible for conducting periodic reviews of agency 

employment practices to determine compliance with all applicable laws and 
regulations, including merit system requirements and Title VII. This evaluation 
program suffers from number of deficiencies.

a. The Commission evaluates no more than 15 percent of all 
Government installations per year.

b. The Commission's guidelines for staff conducting evaluations 
are inadequate. These guidelines do not give instructions fer systematic 

investigation to determine if agency hiring, placement, and promotion practices 
have a disproportionately adverse impact on minorities and women.

c• A review of reports on 13 such evaluations found that the 
Commission routinely fails to consider patterns and practices which may 

constitute systemic discrimination. In addition, when the Commission found 
discriminatory practices, it failed to order the agency to provide relief 

to the victims of such discrimination, despite specific authorization to do 
so in Title VII.



9