Chandler v. Roudebush Brief for the Respondents

    So. 74-1599

J!# i\t  djirntf « f tlu U n M  pistes
October Term, 1975

J e w e l l  D. C h a n d l e r , p e titio n e r

v.
R ic h a r d  L. R o h d ebu sh , e t  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

R O B E R T  H . B O RK ,
Solicitor General,

R E X  E. LE E ,
Assistant Attorney General, 

L A W R E N C E  G. W A L L A C E ,
Deputy Solicitor General, 

K E N N E T H  S. S E L L E R ,
Assistant to the Solicitor General, 

R O B E R T  E. KOBE,
JO H N  M . RO G ERS,

Attorneys,
Department of Justice, 

Washington, D.C. 205S0.



I X  D E X
Page

Opinions below_________________________ ______  1
Jurisdiction______________________ ____________  1
Question presented___________________________  2
Statute and regulations involved_____________  2
Statement ___________________________________  2
Introduction and summary of argument_______ 9
Argument:

Section 717 of the Civil Rights Act of 1964 
does not entitle federal employees who 
have been accorded an administrative
hearing the right to a district court trial 
de novo of their employment discrimina­
tion claims, and petitioner’s claims were 
properly determined on the basis of the
administrative record___________________ 16

A. The language and structure of the Act
do not mandate a trial de novo______ 16

B. The legislative history of the 1972 
Amendments to the Civil Rights Act 
of 1964 does not indicate a congres­
sional intent to accord every federal
employee a right to trial de novo_____  25

C. The statutory scheme is best promoted
by confining judicial review in 
ordinary cases to the administrative 
record ______________________________ 50

D. The judgment below is correct__________  72
Conclusion___________________________________  75
Appendix A __________________________________  la
Appendix B ---------------------------------------------------  19a

to



II

CITATION'S
Cases: Page

Albemarle Paper Go. v. Moody, 422 U.S.
405 ____________________________________  63

Alexander v. Gardner-Denver Co., 415 U.S.
3 6 _____________  51, 53, 54, 55, 56, 63, 64, 71, 72

Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240.____________________  59

American Skip Building Co. v. National
Labor Delations Board, 380 U.S. 300-------  62

Barrett v. United States Civil Service 
Commission, D.D.C., Civ. No. 74—1694,
decided December 10, 1975--------------------  65

Best v. Humboldt Mining Co., 371 U.S.
334 ____________________________________  65

Beverly v. Lone Star Lead Construction
Corp., 437 F. 2d 1136____________________ 52, 53

Blaze v. Moon, 440 F. 2d 1348____________  32
Branley v. Hampton, 403 F. Supp. 770------ 24
B rown y. General Services Administration,

507 F. 2d 1300, pending on writ of cer­
tiorari, No. 74-768_____________________ 23, 57

Butler v. Kleppe, 9 EPD H 10,054_________  24
Butz v. Glover Livestock Commission Co.,

411 U.S. 182____________________________ 54
Camp v. Pitts, 411 U.S. 138______________  11
Caro v. Schultz, 521 F. 2d 1084, pending on 

petition for a writ of certiorari sub nom.
Simon v. Caro, No. 75-784_____________ 10, 38

Carter v. Lynn, 401 F. Supp. 1383________  57
Chandler v. Johnson, 515 F. 2d 251________  10
Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402_____________________  70
Consolo v. Federal Maritime Commission,

383 U.S. 607________________________ 11, 19, 50



Ill

Cases— Continued Page
Davis v. Department of Health, Education

and Welfare, 10 EPD II 10,341__________  71
Day v. Weinberger, 8 EPD H 9771, pending

on appeal, C.A. D.C., No. 75-1085_______62, 71
Eastland v. TV A, 9 EPD 9927__________  11
Evans v. Lynn, D.D.C., Civ. No. 630-73,

decided October 24, 1974__________________ 65
Fein v. Selective Service System Local

Board No. 7, 405 U.S. 365__'_____________  55
Fekete v. Z7.N. 424 P. 2d 331__ • 52
Ficklin v. Sabatini, 383 P. Supp. 1147____ 11
Fisher v. Brennan, 384 P. Supp. 174, af­

firmed, 517 P. 2d 1404______________  10-11
Flowers v. Local No. 6, Laborers Inter­

national Union of North America, 431
P. 2d 205______________________________ 52

Foster v. Civil Service Commission, 9 EPD
H 9887 _________________________________  11

Fuqua v. Robinson, 398 P. Supp. 681_____ 57
Gajewski v. United States, 321 P. 2d 261,

certiorari denied, 375 U.S. 968_________  74
Gnotta y. United States, 415 P. 2d 1271,

certiorari denied, 397 U.S. 934_________  32
Goldberg v. Kelly, 397 U.S. 254__________  55
Griffin v. United States Postal Service, 385

P. Supp. 274__________________________  11
Guilday v. Department of Justice, 385 F.

Supp. 1096_____________________________ 11
Hockley v. Johnson, 360 P. Supp. 1247, 

reversed sub nom. Hackley v. Roudebush,
520 P. 2d 108_8, 10, 18, 19, 24, 36-37, 38, 45, 70

Haire v. Calloway, C.A. 8, No. 74—2004, de­
cided November 17, 1975________________10, 49

Handy v. Gaylor, 364 F. Supp. 676_______  11
Harrison v. Buts, 375 F. Supp. 1056__ _ 24



IV

Cases-—Continued Page
Henderson v. Defense Contract Adminis­

tration Services Region, 370 F. Supp. 180_ 11
Jackson v. Civil Service Commission, 379

F. Supp. 589___________________________ 11
May v. United States, 175 F. 2d 994, certi­

orari denied, 338 U.S. 830_____________  74
McDonnell Douglas Corp. v. Green, 411

U.S. 792________ ,______  14, 20, 51-52, 54, 55, 71
McLaughlin v. Callaway, 382 F. Supp.

885 __________________     11
Morton v. Mancari, 417 U.S. 535_________  62
Napper v. Schnipke, 393 F. Supp. 379____ 71
National Broadcasting Co., Inc. v. United

States, 319 U.S. 190__________________  19
National Labor Relations Board v. Brown,

380 U.S. 278____________________________62, 71
National Labor Relations Board v. Univer­

sal Camera Corp., 190 F. 2d 429________  71
Palmer v. Rogers, 10 EPD H 10,265_______  71
Pointer v. Sampson, 62 F.B.D. 689_______  43
Polcover v. Secretary of Treasury, 477 F.

2d 1223__________      18
Richardson v. Perales, 402 U.S. 389_______  55
Rios v. Morton, D. Colo., Civ. No. C-5499,

decided September 25,1975_____________  71
Robinson v. Klassen, 9 EPD H 9954_______  11
jRobinson v. Lorillard Corp., 444 F. 2d 791_ 52
Robinson v. Warner, 8 EPD H 9452_______  71
Salone v. United States, 511 F. 2d 902, 

pending on petition for a writ of certi­
orari, No. 74-1600______________________  10

Shaughnessy v. Pedreiro, 349 U.S. 48-------  70
Spencer v. Schlesinger, 374 F. Supp. 840— 11
Sperling v. United States, 515 F. 2d 465, 

pending on petition for a writ of cer­
tiorari, No. 75-247__________________10, 38,47



V

Cases— Continued
Tagg Bros. & Moorhead v. United States, Page

280 U.S. 420___________________________  19
Thomas v. Department of State, 8 EPD

H 9622 __________________________    11
United States v. Carlo Bianchi & Co., Inc.,

373 U.S. 709_____________________ 11,19, 24, 50
Universal Camera Corp. v. National Labor

Relations Board, 340 U.S. 474__________  71
W.E.B. DuBois Clubs of America v. Clark,

389 U.S. 309____    55
Wong Yang Sting v. McGrath, 339 U.S.

3 3 _________ ___________________________  70
Statutes, regulations, and rules:

Civil Rights Act of 1866, 14 Stat. 27, 42
U.S.C. 1981____________________________  59

Civil Rights Act of 1964, Title V II, 78 
Stat. 253, as amended by the Equal Em­
ployment Opportunity Act of 1972, 86 
Stat. 103, 42 U.S.C. (Supp. IV ) 2000e
et seq__________________________________  2

Section 706, 42 U.S.C. (Supp. IV )
2000e-5___________________________ 20, 26

Section 706(b), 42 U.S.C. (Supp. IV )
2000e-5(b) _______________________  53

Section 706(f) through (k ), 42 U.S.C.
(Supp. IV ) 2000e-5(f) through
( k ) ____________________________ 19, 20, 21

Section 706(f)(1 ) through (3), 42 
U.S.C. (Supp. IV ) 2000e-5(f) (1)
through (3 )_______________________  20

Section 706(f)(4 ) through (5), 42 
U.S.C. (Supp. IV ) 2000e-5(f) (4)
through (5 )_______________________  20

Section 706 (f)(5 ), 42 U.S.C. (Supp.
IV ) 2000e-5(f)(5 )_________________ 20

Section 706(g), 42 U.S.C. (Supp. IV ) 
2Q00e-5(g) _______________________  20



VI

Statutes, regulations, and rules— Continued Page
Section 706(h), 42 U.S.C. 2000e-5(h)_ 21
Section 706(i), 42 U.S.C. (Supp. IV )

2000e-5(i) ________________________  21
Section 706( j ) ,  42 U.S.C. (Supp. IV )

2 0 0 0 e -5 (j)________________________  21
Section 706(k), 42 U.S.C. (Supp. IV )

2000e-5(k) _______________________  21
Section 717, 42 U.S.C. (Supp. IV )

2000e-16_________  12, 14, 16, 20, 21, 23, 56
Section 717(a), 42 U.S.C. (Supp. IV )

2000e-16(a)________________________ 16,67
Section 717(b), 41 U.S.C. (Supp. IV )

2000e-16(b) ______________________  16
Section 717(c), 42 U.S.C. (Supp. IV )

2000e-16(e)_______________________  8,
9,17,18, 20, 23, 45, 56, 66, 73 

Section 717(d), 42 U.S.C. (Supp. IV )
2000e-16(d) ____________________ 17,19,45

Section 717(e), 42 U.S.C. (Supp. IV )
2000e-16(e)_______________________  37

Consumer Product Safety Act, 86 Stat.
1217, 15 U.S.C. (Supp. IV ) 2059(e) (2)_ 19

Food Stamp Act, 78 Stat. 707, 7 U.S.C.
2 0 2 2 (c )________________________________  19

Vorris-La.Guardia Act, Sections 1-15, 47
Stat. 70, 29 U.S.C. 101-115_______________ 21

Perishable Agricultural Commodities Act,
46 Stat. 534, as amended, 7 U.S.C.
4 9 9g (c)------------------------------------------------  19

Social Security Act, 49 Stat. 624, 42 U.S.C.
405(g) ------------------------------------------------  18

Social Security Act of 1935, Section 1878
( f ) (1 ) ,  as added by 86 Stat. 1422, and 
amended by Pub. L. 93-484, 88 Stat.
1459, 42 U.S.C. (Supp. IV ) 1395oo
( f ) ( 1 )  --------------------------------------------------------  18



VII

Statutes, regulations, and rules— Continued Page
5 U.S.C. 556(d)__________________________  55
5 U.S.C. 706(2)__________________________  70
5 U.S.C. 706(2) (D )_______________________ 64-65
28 U.S.C. 1291__________________— _______  21
28 U.S.C. 1292__________________________ _ 21
Civil Service Commision’s Equal Oppor­

tunity Regulations:
5 C.P.R. Part 713_______________  2
5 C.P.R. 713.201 et seq____________   13
5 C.F.R. 713.213-713.216____________— 57
5 C.F.R. 713.214(a)(4)___________   56
5 C.F.R. 713.214(b)__________________ 58, 59
5 C.F.R. 713.215__________     24
5 C.F.R. 713.216______________________ 24, 65
5 C.F.R. 713.216(a)__________________ 59, 65
5 C.F.R. 713.217______________________24, 57
5 C.F.R. 713.218(a)__________________ 57, 58
5 C.F.R. 713.218(b)____- _____________ 58
5 C.F.R. 713.218(c)(2)_______________ 58, 59
5 C.F.R. 713.218(e)______________  58, 66, 73
5 C.F.R. 713.218(f)_________________  58
5 C.F.R. 713.218(g)_________________  60
5 C.F.R. 713.221_____________________  60
5 C.F.R. 713.234_____________________  60
5 C.F.R. 713.271_____________________  60
5 C.F.R. 713.271(b)(1)______________  63
5 C.F.R. 713.281_____________________  60
5 C.F.R. 713.281(b)_________________  24
5 C.F.R. 713.302_____________________  65

Federal Rules of Civil Procedure:
Rule 2 _______________________________ 18
Rule 56 _____________________________  69
Rule 5 6 (c )________________________—  20



V III

Miscellaneous: Page
Annual Report of the Director of the Ad­

ministrative Office of the United States
Courts, 1974___________________________  61

117 Cong. Rec. 32095 (1971)____________  27
117 Cong. Rec. 32097 (1971)______________ 27
117 Cong. Rec. 32098 (1971)___________  27
117 Cong. Rec. 32111-32113 (1971)_______ 28
118 Cong. Rec. 595 (1972)_____________  45
118 Cong. Rec. 697 (1972)_____________  45
118 Cong. Rec. 945 (1972)_____________  29
118 Cong. Rec. 951 (1972)_____________  29
118 Cong. Rec. 954 (1972)_____________  21
118 Cong. Rec. 956 (1972)_________________ 22
118 Cong. Rec. 1384 (1972)_____________  29
118 Cong. Rec. 1972 (1972)________________ 29
118 Cong. Rec. 2494 (1972)______________ 29
118 Cong. Rec. 3389 (1972)______________ 45, 46
118 Cong. Rec. 3809 (1972)______________  46
118 Cong. Rec. 3973 (1972)____________  29
118 Cong. Rec. 3979-3980 (1972)_______  29
118 Cong. Rec. 3980 (1972)_____________ 45
118 Cong. Rec. 4912 (1972)_____________ 30
118 Cong. Rec. 4922 (1972___________  33, 34, 48
118 Cong. Rec, 4923 (1972)_____________ 31, 47
118 Cong. Rec, 4929 (1972)_______  32, 33, 48, 49
118 Cong. Rec. 4931 (1972)______________  48
118 Cong. Rec, 4940 (1972)________________ 32
118 Cong. Rec. 4943-4944 (1972)________  45
118 Cong. Rec, 4944 (1972)______________  30
118 Cong. Rec. 4949 (1972)______________  32
118 Cong. Rec, 7170 (1972)______________  30
118 Cong. Rec. 7573 (1972)______________  30
119 Cong. Rec. S1219 (daily ed. Jan. 23,

1973 )__________________________________ 49



IX

Miscellaneous— Continued Page
Executive Order 9980, 3 C.F.R. 720 (1943-

1948 Comp.)___________________________  33
Executive Order 10590, 3 C.F.R. 237 (1954-

1958 Comp.)___________________________  33
Executive Order 11246, 3 C.F.R. 567

(1966 )_________________________________  33
Executive Order 11478, 3 C.F.R. 207

(1 974 )_________________________ _______  33
H.R. 1746, 92d Cong., 1st Sess. ( 1 9 7 1 ) 2 6 , 2 7
H.R. 9247, 92d Cong., 1st Sess. (1971)------ 27
H.R. Rep. No. 92-238, 92d Cong., 1st

Sess. (1971)_____________________________32,34
Jaffe, Judicial Control of Administrative

Action (1965)_________________________ - 19, 88
Jaffe & Nathanson, Administrative Law

(3d ed. 1968)__________________________  68
Legislative History of the Equal Employ­

ment Opportunity Act of 1972, 92d 
Cong., 2d Sess. (Comm. Print 1972), pre­
pared by the Subcommittee on Labor of 
the Senate Committee on Labor and
Public Welfare_________________________21-22,

26, 27-28, 29, 30, 31, 32, 33, 34, 35, 36, 
39, 40, 41, 42, 44, 45, 46, 47, 48, 49, 66 

Office of Federal Equal Employment Oppor­
tunity, Discrimination Complaints Exam­
iners’ Handbook (1973)-------------------------  63

S. 2515, 92d Cong., 1st Sess. (1971)----------  28,
29, 39, 40, 41

S. Rep. No. 576, 47th Cong., 2d Sess.
(1882) _________________________________  36

S. Rep. No. 92-415, 92d Cong., 1st Sess.
(1 971 )________________  31, 34, 35, 36, 42, 44, 66



g it i k  C|«ttrt of States
O ctober  T e r m , 1975

No. 74-1599

J e w e l l  D. C h a n d l e r , petitio n er

v.
R ic h a r d  L. R oudebttsh, et  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS

O P IN IO N S B E L O W

The opinion of the court of appeals (Pet. App. 34a- 
41a) is reported at 515 F. 2d 251. The opinion of the 
district court (Pet. App. 30a-33a) is not officially re­
ported; it is unofficially reported at 7 EPD H 9139.

JU R IS D IC T IO N

The judgment of the court of appeals was entered 
on April 25, 1975. The petition for a writ of certiorari 
was filed on June 19, 1975, and was granted on Oc­
tober 6, 1975. The jurisdiction of this Court rests on 
28 TT.S.C. 1254(1).

( i )



2

Q U ESTIO N  P R E S E N T E D

Whether a federal employee who brings a civil 
action under Section 717 of the Civil Rights Act of 
1964, following an administrative determination of his 
employment discrimination claim, is entitled to a trial 
de novo in the district court rather than a review of 
the administrative decision on the administrative 
record.

S T A T U T E  A N D  R E G U L A T IO N S  IN V O L V E D

Title V II  of the Civil Rights Act of 1964, 78 Stat. 
253, as amended by the Equal Employment Oppor­
tunity Act of 1972, 86 Stat. 103, 42 U.S.C. (Supp. IV ) 
2Q00e et seq., is set forth in Appendix A  to this brief, 
infra, pp. la—18a. Portions of the statute that were 
added or amended in 1972 appear in italics.

The Civil Service Commission’s Equal Opportunity 
Regulations, 5 C.P.R. Part 713, are set forth in A p­
pendix B to this brief, infra, pp. 19a-52a.

S T A T E M E N T

Petitioner, a black female, was employed in 1972 
as a OS-12 grade level Claims Examiner in the Los 
Angeles Regional Office of the Veterans Administra­
tion. She had begun working for the agency in 1966 
as a OS-7 level Claims Clerk and, after several grade 
promotions over the next three years, was appointed 
a Claims Examiner in March 1971. In August 1972, 
petitioner applied for a promotion to a OS-13 Super­
visory Claims Examiner (Section Chief) position 
(A.R. 3).1 Following a lengthy and thorough selection 1

1 “A.R.” refers to the Administrative Record.



3

process (A.R. 177-179), in which petitioner was one 
of several “ highly qualified” candidates interviewed 
for the position and one of three finalists, the selecting 
official, Martin Holland, chose a Filipino-American 
male, Inocentes Dineros, who had been in the division 
in which the vacancy occurred for approximately 13 
years and had been a (IS—12 Claims Authorizer for 
five years.

On September 25, 1972, following the selection of 
Mr. Dineros, petitioner filed an administrative com­
plaint with the Veterans Administration alleging race 
and sex discrimination (A.R. 269). After an exten­
sive investigation as required by Civil Service regu­
lations, during which sworn statements were taken 
from some 20 persons (A.R, 168-225), the investiga­
tive report submitted to the agency’s Equal Employ­
ment Opportunity Officer (App. 24-44) concluded that 
the evidence supported neither the allegation of race 
and sex discrimination against petitioner individ­
ually (App. 29-31), nor a finding of general race 
and sex discrimination within the Adjudication Divi­
sion of the Regional Office (App. 33). The report did 
conclude, however, that certain personnel practices 
should be changed in order to alleviate feelings among 
minority employees that they were subject to dis­
crimination (App. 41).

As required by the regulations, petitioner was fur­
nished a copy of the investigative file and an op­
portunity for informal adjustment of her complaint.



4

An adjustment was not achieved, however, and peti­
tioner was notified of her right to an administrative 
hearing, which she requested (A.R. 154-155). On ap­
plication of the Veterans Administration, the Civil 
Service Commission promptly appointed an independ­
ent complaints examiner from another agency to con­
duct the hearing (A.R. 153). Petitioner was notified 
by the examiner that at the hearing she could be rep­
resented by an attorney or other person of her choice, 
that she could submit the names and titles of any 
witnesses she wished to call, and that specific reasons 
would be given for the failure to summon any witness 
she had so specified (A.R. 150-151). Petitioner re­
sponded that she would represent herself because of 
her familiarity with the policies and procedures in­
volved, and requested that 24 designated wdtnesses be 
called (App. 19-23). The complaints examiner deter­
mined not to call 15 of these witnesses because they 
did not appear to have direct knowledge of peti­
tioner’s non-selection and because information about 
the general atmosphere out of which the complaint 
arose (the expected subject of testimony by several of 
petitioner’s witnesses) had already been sufficiently 
developed in the complaint file (App. 16-18).

Ten witnesses testified under oath at the two-day 
hearing held in January 1973.2 After a Veterans Ad­
ministration personnel officer had sketched the agen­

2 Petitioner testified and presented seven witnesses, and the com­
plaints examiner called two witnesses. The agency representative 
called no further witnesses, relying heavily upon cross-examina­
tion and the sworn statements in the investigative file. (A-.B- IS)-



5

cy’s promotion procedures and criteria (A.R. 47-56), 
the selecting official and two other members of the 
interviewing panel testified about the relative quali­
fications of petitioner, the selectee, and another highly 
qualified applicant. The panel agreed that Mr. Dineros 
was not as familiar with one area of expertise as peti­
tioner (education claims), but two of the three panel 
members, including the selecting official, considered 
Mr. Dineros generally more qualified, in particular 
because of his experience and ability to motivate peo­
ple (A.R. 56-69, 93-103). Finally, five other employees 
testified about the capabilities of petitioner and Mr. 
Dineros, and petitioner herself testified. All witnesses 
were subject to direct, cross, and redirect examination 
by both the agency representative and the petitioner, 
as well as examination by the complaints examiner.

Subsequent to the hearing, the complaints exam­
iner submitted findings and recommendations as re­
quired by Civil Service regulations (A.R. 16-35; 
Pet. App. la-17a). The examiner found that a pre­
ponderance of the evidence justified the conclusion 
that petitioner had been discriminated against on the 
basis of sex (but not of race) in not being selected for 
the GS-13 Section Chief position. Specifically, the 
examiner relied on findings that:

1. Petitioner had demonstrated a greater technical 
proficiency in three main areas of responsibility (edu­
cation, pension, and compensation claims) than Mr.
Dineros;



6

2. Petitioner had demonstrated a greater potential 
to perform in a supervisory capacity than Mr. 
Dineros;

3. The selecting official had not sufficiently consid­
ered petitioner’s ability to read computer printouts;

4. Mr. Dineros’ law degree did not justify his se­
lection over petitioner, since most Section Chiefs did 
not have law degrees and petitioner had completed 
courses established for employees without such 
degrees; and

5. The selecting official preferred males in super­
visory positions, as demonstrated by his previous se­
lection of three men for such positions and his use of 
the words “ he” and “ his” in describing the qualifica­
tions of a Section Chief. The examiner recommended 
that petitioner be promoted retroactive to Septem­
ber 17, 1972.

The complaints examiner’s decision and the hear­
ing record were transmitted to the Veterans Adminis­
tration, which was authorized by regulation to adopt, 
reject, or modify the recommended decision (see p. 
60, infra). On March 21, 1973, the Acting Assistant 
General Counsel of the agency determined that the 
record failed to support petitioner’s allegations of 
either sex or race discrimination (A.R. 36-39; Pet. 
App. 18a-21a). While agreeing that petitioner had 
shown a superior ability to read computer printouts 
and that the selecting official could not justify the 
choice of Mr. Dineros on the basis of his law degree, 
the agency rejected the examiner’s findings that Mr. 
Dineros had not demonstrated technical proficiency in



7

the areas of education, compensation, and pension 
claims, and that the record indicated a predisposition 
on the part of the selecting official for males in super­
visory positions.

Petitioner then filed a timely appeal of the agency 
decision to the Civil Service Commission Board of 
Appeals and Review (subsequently redesignated as 
the Appeals Review Board). On July 18, 1973, upon 
review of the entire complaint file and written repre­
sentations submitted by petitioner, the Board affirmed 
the agency decision (A.R. 3-9; Pet. App. 21a-29a). 
After analyzing petitioner’s response to the agency’s 
treatment of each of her allegations and examining 
the statistical picture of the Veterans Administra­
tion’s Adjudication Division furnished by the initial 
investigation, the Board concluded (A.R. 8; Pet. App. 
28a) :

To summarize, the main evidence that the se­
lecting official discriminated against complain­
ant in not selecting her over the male selectee 
is the inconsistency of his explanation that the 
main reason for the selection was his belief in 
the ability of the selectee to motivate employees 
whereas he had previously concurred in assign­
ing complainant a higher rating on ability to 
motivate employees. The Board notes, however, 
that on the whole blacks and women have fared 
relativelv well in promotions received in the 
division, and that there are two white female 
G-S-13 Section Chiefs, one of whom received 
her position before the selecting official was as­

213-385 0  -  76 - 2



8

signed to his present position, but the other of 
whom was reassigned laterally with the concur­
rence of the person acting as selecting official 
for the promotion in question.
In view of the foregoing, the Board finds that 
the evidence of record does not support a find­
ing that the agency’s failure to promote the 
complainant resulted from discrimination on 
the basis of race or sex.

Within 30 days after receiving notice of the Com­
mission’s decision, petitioner filed this action in the 
United States District Court for the Central District 
of California under Section 717(c) of Title V II  of 
the Civil Rights Act of 1964, as amended, 42 U.S.C. 
(Supp. IV ) 2000e-16(c). On December 27, 1973, the 
court granted the government’s motion for summary 
judgment (Pet. App. 30a-33a). Adopting the scope of 
judicial review expressed in Hackley v. Jolmson, 360 
F. Supp. 1247 (D. D.C.) (subsequently reversed sub 
nom. Hackley v. Roudebush, 520 F. 2d 108 (C.A. 
D .C .)), the court found that “ the absence of discrimi­
nation is firmly established by the clear weight of the 
administrative record and hence plaintiff is not 
entitled to any relief” (Pet. App. 33a).

The court of appeals affirmed (515 F. 2d 251; 
Pet. App. 30a-41a). After conducting its own exami­
nation of the administrative record, that court agreed 
with the district court that “ other than the facts 
that appellant was female and that the person 
promoted was male, there was no evidence to sup­
port appellant’s assertion of sex discrimination” (515



9

F. 2d at 254; Pet. App. 38a). The court of appeals 
further rejected petitioner’s argument that she was 
entitled to a trial de novo in the district court of 
the issue of discrimination that had been explored in 
the administrative proceedings (515 F. 2d at 255; Pet. 
App. 40a-41a):

Here, the district court was presented with 
a verbatim transcript of a hearing and a com­
prehensive civil service review. There was no 
material flaw in the administrative record on 
its face; and nothing of substance in appel­
lant’s challenge to the administrative proceed­
ings. There was nothing before the district 
court to indicate that a useful purpose would 
be served by having a trial de novo. * * * 

* * * * *
Where the administrative record affirma­

tively shows, as it did here, that the challenged 
personnel action was based upon nondiscrimina- 
tory reasons; and where, as here, the record 
on its face appears to be the product of a fair 
and impartial hearing; and where, as here, 
the appellant fails to point out a prejudicial 
defect in procedure or evidentiary deficits that 
should be remedied in court, the district court 
commits no error in deciding the case on the 
administrative record.

IN T R O D U C T IO N  A N D  S U M M A R Y  OE A R G U M E N T

Section 717(c) of the Civil Rights Act of 1964, 
as amended by the Equal Employment Opportunity 
Act of 1972, 86 Stat. 112, 42 TT.S.C. (Supp. IV ) 2000e- 
16(c), provides that a federal employee who claims



10

to have been discriminated against in employment 
may bring a civil action in the United States District 
Court following the timely presentation of his claim 
to the appropriate administrative authorities. Pas­
sage of the 1972 Amendments has resulted in volumi­
nous litigation across the country on the issue of the 
proper scope of review to be applied by district courts 
to these administrative determinations.3 The courts of 
appeals, like the district courts, have arrived at widely 
divergent views. The Third, Seventh, and District of 
Columbia Circuits have held that federal employees 
are entitled as of right to a trial de novo in the district 
court. Sperling v. United States, 515 P. 2d 465 (C.A. 
3), pending on petition for a writ of certiorari, No. 
75-247; Caro v. Schultz, 521 P. 2d 1084 (C.A. 7), pend­
ing on petition for a writ of certiorari sub nom. 
Simon v. Caro, No. 75-784; Hackley v. Roudebush, 
520 P. 2d 108 (C.A. D.C.). The Eighth, Ninth, and 
Tenth Circuits, on the other hand, have held that fed­
eral employees are not generally entitled to trials de 
novo. Haire v. Calloway, C.A. 8, No. 74-2004, Novem­
ber 17,1975; Chandler v. Johnson, 515 P. 2d 251 (C.A. 
9) (the instant case) ; Salone v. United States, 511 
P. 2d 902 (C.A. 10), pending on petition for a writ of 
certiorari, No. 74-1600.

It is our position that in the ordinary case brought 
under Title V II, such as the present one, there is no

3 Well over 50 district court decisions, varying widely in result, 
have been reported. See, e.g., Fisher v. Brennan, 384 F. Supp. 174



11

justification for according the plaintiff an absolute 
right to a judicial trial de novo of the factual issues 
determined in the administrative proceedings, with­
out regard to the fairness or completeness of those 
proceedings. It is a basic principle of administrative 
law that, “ in the absence of specific statutory author­
ization, a de novo review is generally not to be pre­
sumed.” Console v. Federal Maritime Commission, 
383 TT.S. 607, 619, n. 17. See Camp v. Pitts, 411 U.S. 
138, 141-142; United States v. Carlo Bianchi & Co., 
Inc., 373 U.S. 709, 715. The language of the 1972 
Amendments to the Civil Rights Act is silent as to 
the type of review that the courts must provide in 
federal Title V II  actions, and certainly cannot be in­
terpreted as a specific authorization of trials de novo.

Petitioner’s heavy reliance on the legislative history 
to supply the authorization lacking in the statute’s

(E.D, Term), affirmed, 517 F. 2d 1404 (C.A. 6 ): Ficklin v. Saba- 
tini, 383 F. Supp. 1147 (E.D. Pa.) ; Spencer v. ScMesinger, 374 
F. Supp. 840 (D. D .C .); Handy v. Gayler, 364 F. Supp. 676 
(D. Md.) (trial de novo not required; substantial evidence re­
view) : Guilday v. Department of Justice, 385 F. Supp. 1096 (D. 
Del.) ; McLaughlin v. Gallcuway, 382 F. Supp. 885 (S.D. A la .); 
Eastland v. TV A, 9 EPD 1f9927 (N.D. Ala.) ; Thomas v. Depart­
ment of State, 8 EPD 1(9622 (D. D.C.) (trial de novo not required 
if administrative record affirmatively establishes an absence of 
discrimination by the clear weight of evidence); Griffin v. United 
States Postal Service, 385 F. Supp. 274 (M.D. Fla.) ; Jackson v. 
Civil Service Commission, 379 F. Supp. 589 (S.D. Texas) ; Hen­
derson v. Defense Contract Administration Services Region, 370 

. F. Supp. 180 (S.D. N.Y.) ; Robinson v. Klassen, 9 EPD 1(9954 
(E.D. Ark.) ; Foster v. Civil Service Commission, 9 EPD 1(9887 
(S.D. Texas) (trial de novo required).



12

terms ignores the context in which statements were 
made and places unwarranted weight upon portions of 
floor debate that concerned issues unlike those pre­
sented here; the few, isolated excerpts of legislative 
history that specifically address the scope of judicial 
review offer support for both sides. Indeed, the key 
item in petitioner’s analysis of the legislative history— 
a sentence in the Senate Committee Report stating 
that federal employees under proposed amendments to 
Title Y II  were to enjoy the same rights in court as 
private employees—was part of a discussion of a 
Senate bill that would generally have limited judicial 
review of private discrimination complaints to a de­
termination of whether an administrative order was 
supported by substantial evidence.

Our main disagreement with petitioner and amicus 
curiae, however, lies in their fundamental assumption 
that Congress intended the central role in federal Title 
Y II  enforcement to be played by the courts. This as­
sumption is belied by the language of Section 717, 
which not only requires federal employees to initiate 
their discrimination complaints in an administrative 
proceeding and gives the agencies and Civil Service 
Commission broad remedial authority, but also affirm­
atively directs the Commission to eliminate federal 
employment discrimination by a program of ongoing 
review of departments and agencies and by mandatory 
enforcement powers. Congress, by deliberately contin­
uing the primary responsibility of the agencies and 
the Civil Service Commission in federal personnel



13

EEO matters, recognized that the proper resolution of 
such grievances could best be achieved, not by isolat­
ing them from other employee and personnel consider­
ations, but by adjudicating them in light of the more 
general obligation to maintain a merit system in fed­
eral employment and with the benefit of the substan­
tial expertise accumulated in the Commission’s en­
forcement of that system over the past 90 years.

Thus, while the legislative history clearly indicates 
a congressional intent to accord federal employees 
relief from employment discrimination that substan­
tially approximates the relief available to workers in 
the private sector, the statutory scheme devised for 
enforcing Title V II  rights in federal employment dif­
fers significantly from that applicable to employees 
in the private sector. Unlike the Equal Employment 
Opportunity Commission (EEOC), which investi­
gates but cannot adjudicate charges of private 
employment discrimination, the Civil Service Commis­
sion is fully empowered to adjudicate federal discrim­
ination complaints after formal evidentiary proceed­
ings and to award complete relief, including retro­
active promotion and back pay.

Moreover, the Equal Opportunity Regulations of 
the Civil Service Commission, 5 C.F.R. 713.201 et seq., 
as revised to implement the 1972 Amendments, were 
specifically designed to establish a strong and reli­
able system of administrative complaint processing 
by providing for the fair and expeditious resolution 
of discrimination claims, while giving a complainant



14

significant procedural rights and safeguards. Because 
of these crucial distinctions, de novo judicial review 
of discrimination allegations—an essential ingredient 
of effective Title V II  enforcement in the private sec­
tor, where administrative proceedings are not de­
signed to adjudicate the Title V II  claim and are in­
formal, procedurally deficient, and incomplete, see 
McDonnell Douglas Gorp. v. Green, 411 U.S. 792— 
would be inappropriate in the federal sector, where 
employees can obtain full benefits under the Civil 
Rights Act by court review of the procedural fair­
ness of and the evidentiary and legal bases for the 
administrative determination. This ytarallel, equiva­
lent procedure for the enforcement of federal Title 
V II  rights is fully consistent with the repeated legis­
lative pronouncement that federal employees should 
enjoy the same statutory protection from employment 
discrimination as private workers.

There are also strong policy reasons for construing 
Section 717, in the ordinary case, as authorizing judi­
cial review of the administrative record rather than 
a trial de novo. A  contrary conclusion would lead to 
unnecessary delay in the resolution of employment 
discrimination claims (a result in stark conflict with 
the intent of Congress), would impair the integrity 
and retard efforts at improvement of the administra­
tive process, would encourage litigants to belittle the 
societal and systemic importance of an administrative 
resolution of their grievances, and would unneces­
sarily burden the federal judicial system with dupli­
cative and wasteful trials. While such policy consid­



15

erations may be immaterial where Congress has 
clearly spoken, they should be determinative in the 
resolution of the present case. The administrative 
procedure set forth in the regulations of the Civil 
Service Commission is fair and fully protects the 
complaining employee’s legitimate interest. I f  an 
error of law occurs in the administrative process, it 
can of course be corrected by the reviewing court; 
similarly, if, for reasons of structural inadequacy, 
the administrative record appears incomplete or is 
otherwise procedurally or substantively deficient, the 
court possesses the discretion to remedy the defect 
by supplemental proceedings, including a plenary 
judicial trial in appropriate cases. We fully recog­
nize that additional proceedings may be necessary, 
for example, when suit is brought after the agency 
has delayed more than 180 days without holding 
an evidentiary hearing or when proof of the com­
plainant’s grievance is dependent upon the testimony 
of a non-governmental employee who cannot be com­
pelled by the complaints examiner to appear at the 
administrative hearing. We disagree, however, with 
petitioner’s contention that these infrequent excep­
tions should dictate the general rule.

In all events, there is no justification for granting 
every federal Title V II  complainant a trial de novo 
without regard to the fairness or completeness of the 
administrative determination of his claims, thereby 
rendering the administrative proceedings mandated by 
Congress little more than an inconsequential dress 
rehearsal for a subsequent court action.



A R G U M E N T

SECTION  717 OF T H E  C IV IL  R IG H T S  A C T OF 1964 DO ES NOT 
G R A N T F E D E R A L  E M P LO YE E S W H O  H A V E  B E E N  ACCO RD ED  
AN A D M IN IS T R A T IV E  H E A R IN G  TH E  R IG H T  TO A  D IS T R IC T  
COU RT T R IA L  DE NOVO OF T H E IR  EM PLO YM EN T D IS C R IM IN A ­
TIO N  CLAIM S, AN D  P E T IT IO N E R ’S CLA IM S W E R E  PR O P E R L Y  
D E T E R M IN E D  ON TH E  B A S IS  OF T H E  A D M IN IS T R A T IV E  
R E C O R D

A. T H E  LA N G U AG E  A N D  STRU C TU RE  O P T H E  A C T  DO NOT M A N D A T E  A 
T R IA L  D E  NOVO

Section 717(a) of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. (Supp. IY ) 2000e-16(a), pledges 
the federal government to undertake all personnel 
actions 4 affecting employees or applicants for employ­
ment “ free from any discrimination based on race, 
color, religion, sex, or national origin.”  Section 717
(b) assigns primary enforcement responsibilities for 
Section 717(a) to the Civil Service Commission, 
through annual review and approval of equal employ­
ment opportunity plans submitted by each federal de­
partment and agency and by adjudication of appeals 
by aggrieved federal employees from adverse depart­
ment or agency decisions. To carry out its functions 
under Section 717(a), the Commission is expressly 
empowered by Section 717 (b) to grant “ appropriate 
remedies, including reinstatement or hiring of em­
ployees with or without back pay,” and to issue rules, 
regulations, orders and instructions.

4 Aliens employed outside the limits of the United States, em­
ployees of the General Accounting Office, and employees of the 
Government of the District of Columbia and of the legislative and 
judicial branches who do not hold positions in the competitive 
service, were excluded from the Act’s coverage.

1 6



17

The Act also authorizes employees unsatisfied by 
the administrative resolution of their complaint to 
file a civil action in the United States District Court. 
Sections 717(c) and (d) provide:

(c) Within thirty days of receipt of notice 
of final action taken by a department, agency, 
or unit * * * or by the Civil Service Commis­
sion upon an appeal * * * or after one hundred 
and eighty days from the filing of the initial 
charge with the department, agency, or unit 
or with the Civil Service Commission on 
appeal * * * until such time as final action may 
be taken by a department, agency, or unit, an 
employee or applicant for employment, if 
aggrieved by the final disposition of his com­
plaint, or by the failure to take final action on 
his complaint, may file a civil action as pro­
vided in section 2000e-5 of this title, in which 
civil action the head of the department, agency, 
or unit, as appropriate, shall be the defendant.

(d) The provisions of section 2000e-5(f) 
through (k) of this title, as applicable, shall 
govern civil actions brought hereunder.

Prior to instituting the civil action in this case, 
petitioner fully pursued her administrative remedies 
under the Act, including a detailed investigation and 
attempts at adjustment of her complaint by the Veter­
ans Administration, a thorough evidentiary hearing 
before an impartial complaints examiner, and an 
appeal to the Civil Service Commission. In the proc-



18

ess, a complete administrative record of petitioner’s 
claim was compiled. In such circumstances, nothing 
in the language of the Act mandates a trial de novo 
of the identical claim in the district court.5

The provision in Section 717(c) for a “ civil 
action” in the district court, on which petitioner places 
substantial weight (Br. 25-29), certainly does not in­
dicate that a trial de novo is required. The Federal 
Buies of Civil Procedure authorize only one form 
of action, termed a “ civil action,” in suits of a civil 
nature in the United States District Court. Rule 2, 
Fed. R. Civ. P. Accordingly, causes of action in the 
district courts are properly denominated “ civil ac­
tions”  by Congress even when substantial evidence 
review of an agency determination is clearly man­
dated. See, e.g., Social Security Act, of 1935, 49 Stat. 
624, as amended, 42 U.S.C. 405(g) and Section 1878 
( f )  (1) of the Act, as added by 86 Stat. 1422, and 
amended by Pub. L. 93-484, 88 Stat, 1459, 42 U.S.C. 
(Supp. IV ) 1395(f)(1 ).6 Moreover, when Congress

5 We discuss the situation where an agency has not taken final 
action prior to the filing of suit, or where a full administrative 
record has not been developed, infra, p. 66.

6 This also answers amicus’’ contention (Br. 8, n. 7) that signifi­
cance should attach to the statute’s use of the term “ civil action” 
rather than “petition for review.” In a similar vein, the District 
of Columbia Circuit has stated that “ if review of the administra­
tive record was intended, we doubt that Congress would have 
placed jurisdiction in the District Courts rather than in the Courts 
of Appeals.” Hockley v. Roudebush, supra, 520 F. 2d at 121. But 
the district courts commonly review administrative proceedings, 
both where such review is explicitly mandated by statute, as in 
Social Security cases (see 42 U.S.C. 405(g)), and where it is not, 
as in judicial review of federal personnel actions not arising 
under Title VII. See, e.g., Polcover v. Secretary of Treasury, 
477 F. 2d 1223, 1225 (C.A. D.C.), holding that “ although cast 
in the mold of original actions in the district court,” federal per­



19

has intended the courts to conduct a de novo proceed­
ing following administrative action, normally it has 
explicitly so indicated. See, e.g., Consumer Product 
Safety Act, 86 Stat. 1217, 15 U.S.C. (Supp. IV ) 
2059(e)(2 ); Food Stamp Act, 78 Stat. 707, 7 U.S.C. 
2022(c) ; Perishable Agricultural Commodities Act, 46 
Stat. 534, as amended, 7 U.S.C. 499g(e). The absence 
of such language here is in itself strong evidence of 
legislative intent not to require de novo review in 
every situation. Cf. Consolo v. Federal Maritime Com­
mission, supra, 383 U.S. at 619, n. 17; United States 
v. Carlo Bianchi & Co., Inc., supra, 373 U.S. at 715.

Petitioner’s principal contention concerning the 
language of the Act is that a trial de novo is virtually 
compelled by Section 717(d), which states that fed­
eral employee civil actions are to be governed, “ as 
applicable,”  by the provisions of Sections 706(f) 
through (k ), which apply to private sector actions

sonnel cases “ are disposed of on the basis of the administrative 
record and should be governed by the principles generally applica­
ble to judicial review of administrative action.” See also National 
Broadcasting Co., Inc. v. United States, 319 U.S. 190, 227; Tagg 
Bros. & Moorhead v. United States, 280 U.S. 420, 443. Contrary to 
the court of appeals’ assertion that review in the district court, 
rather than in an appellate court, serves “ ‘no viable purpose,' ” 
Hackley v. Roudebush., supra, 520 F. 2d at 121, n. 49, district court 
review facilitates supplementary evidentiary proceedings in those 
instances when the administrative record is incomplete. See infra, 
pp. 66-67. In addition, as Professor Jaffe has noted, district court 
venue often encourages review because the typical plaintiff in 
certain types of actions (sucli as actions under Title V II) is a per­
son of modest means. Jaffe, Judicial Control of Administrative 
Action 158 (1965).



2 0

under Title V II. Since private litigants seeking to 
enforce Title V II  rights are entitled to a trial de 
novo in the district court, see McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, petitioner asserts that 
the same result must follow from the incorporation 
by reference into Section 717 of the provisions of 
Section 706. W e disagree.

None of the provisions of Sections 706(f) through 
(k) confers, either explicitly or by necessary implica­
tion, a right to a trial de novo, and none of them is 
inconsistent with the construction we suggest. Sec­
tions 706 (f)(1 ) through (3) contain jurisdiction and 
venue provisions and terms relating to the EEOC that 
are applicable only to state, local government, or pri­
vate employees, and authorize court appointment of 
an attorney for the plaintiff and waiver of costs; Sec­
tions 706 (f)(4 ) through (5) require the district court 
to “hear and determine”  the case expeditiously—a 
requirement that no more indicates a trial de novo 
than it does a hearing on a summary judgment mo­
tion.7 See Rule 56(c), Fed. R. Civ. P.

Section 706(g) empowers the district court to enjoin 
discriminatory practices and to order appropriate af­

7 While Section 706(f) (5) authorizes the district court to ap­
point a master if the case has not been scheduled “ for trial” within 
120 days after issue has been joined, that provision does not pur­
port to require a trial de novo, or even a trial, in every case. “As 
applicable” to Section 717 proceedings, that provision could be 
utilized where a trial would be appropriate because of failure by 
the agency to act upon an administrative complaint or where 
supplementary evidentiary proceedings are necessary (see p. 66. 
infra).



21

firmative relief, including reinstatement or hiring of 
employees with back pay; Section 706(h) relieves the 
district court in Title V II  cases o f the restrictions im­
posed by the ISTorris-LaGuardia Act, Sections 1-15, 
47 Stat. 70, 29 U.S.C. 101-115, on the issuance of in­
junctions and restraining orders; Section 706(i) au­
thorizes the EEOC to institute court proceedings, in 
its discretion, to compel compliance with court orders; 
Section 706(j) provides for appeal to the United 
States court of appeals under the normal rules of 
28 U.S.C. 1291, 1292; and Section 706 (k) allows the 
district court to award attorney’s fees to the pre­
vailing party, including an award of costs against the 
United States. Thus, these sections, incorporated by 
reference “ as applicable”  into Section 717, are not 
the source of a right of trial de novo for private 
litigants under Title V II  and, accordingly, confer no 
such right in federal employee actions.8

8 The legislative history indicates that, in incorporating Sections 
706(f) through (k) into the federal employment provisions, Con­
gress was mainly concerned with the attorney’s fee and costs provi­
sions. Senator Javits sought to amend an amendment of Senator 
Dominick (which was subsequently rejected) that, inter alia:, 
would have removed the incorporation by reference from the 
Senate bill. In urging that the incorporation by reference be 
retained, Senator Javits remarked:

I f  you refer to those provisions, insofar as they are ap­
plicable, you find that the main point is that where the com­
plainant is suing in court, you have arrived at the stage of 
the. proceeding where he has that remedy, and in such cir­
cumstances as the court may deem just, the court may appoint 
an attorney for the complainant and authorize the commence­
ment of the action without the payment of fees, costs, or 
security.

118 Cong. Ree. 954 (1972) ; Legislative History at 868, ( ‘‘Legis­
lative History” refers to Legislative History of the Equal Employ­



22

Indeed, if  petitioner and the District of Columbia 
Circuit are correct in asserting that the language of 
Section 706 “unequivocally accord[s] private sector 
litigants the right to a trial de novo,”  Hackley v. 
Boudebusk, supra, 520 F. 2d at 120, this Court could 
have rested its decisions in McDonnell Douglas Gorp. 
v. Green, supra, and Alexander v. Gardner-Denver 
Go., 415 U.S. 36, on the commands of the statutory 
language of Title Y II  rather than on a practical deter­
mination that the proceedings urged as substitutes for 
district court trials in those cases—EEOC investiga­
tion and attempted conciliation on the one hand and 
union grievance arbitration on the other—were in­
adequate to secure the rights granted by the Act. 
These decisions, however, are not based on the lan­
guage of Section 706—and in particular not on sub­
sections ( f )  through (k ). As we show infra (see pp. 
51-54), the crucial findings in McDonnell Douglas 
Gorp. and Alexander regarding the substantive and 
procedural inadequacy of administrative and arbitral 
adjudication of private employment discrimination

ment Opportunity Act of 1972, 92d Cong., 2d Sess. (Comm. Print 
1972), prepared by the Subcommittee on Labor of the Senate 
Committee on Labor and Public Welfare.) In agreeing to Senator 
davits’ amendment to his amendment, Senator Dominick stated: 

The amendment to strike the language was included because 
the language to be struck was thought to be inappropriate 
to the specialized grievance procedures adopted in commit­
tee for Federal employees. A  closer reading of sec. 706(g) 
[sic, should be (q)] through (w) does indicate that lan­
guage for providing attorney's fees and waiving court costs 
are applicable.

118 Cong. Rec. 956 (1972) (emphasis added) ; Legislative His­
tory at 872.



23

claims are inapplicable to the elaborate federal ad­
ministrative remedial system established under Sec­
tion 717.

Finally, petitioner contends that the Act’s apparent 
authorization of a civil action prior to the completion 
of federal administrative proceedings inevitably sup­
ports her conclusion that a trial de novo is required 
in the district court. Under Section 717(c), an ag­
grieved employee is required initially to file his claim 
with the department or agency that has allegedly dis­
criminated against him. I f  the final decision by the 
department or agency is adverse, the complainant has 
a right of appeal to the Civil Service Commission. 
Alternatively, he may, within 30 days of his receipt 
of notice of the department or agency’s final decision, 
file a civil action directly without appealing to the 
Commission. I f  the employee does appeal to the Civil 
Service Commission, he may also bring a civil action 
within 30 days after receiving notice of the Commis­
sion’s final decision. In addition, the complainant is 
authorized to file a civil action if, after the expiration 
of 180 days from the filing of his initial charge or the 
filing of his administrative appeal, the department or 
agency, or the Civil Service Commission, has not yet 
taken final action on the complaint or the appeal.

W e have argued in a related case that an employee 
must exhaust his administrative remedies under the 
Act before he may resort to court review. Brief for 
the Respondents, Brown v. General Services Admin­
istration., pending on writ of certiorari, No. 7-1-768. 
Thus, under our interpretation of Title V II, court

213-385 0  -  76 - 3



24

actions would proceed in the absence o f an adminis­
trative record only in those isolated instances when 
more than 180 days have elapsed since the filing of an 
administrative complaint without any department or 
agency action.9 5 C.F.R. 713.281(b). In such cases, 
a trial de novo may well be required in order to effec­
tuate the congressional desire for a speedy resolution 
of federal employment discrimination disputes. W e 
submit, however, that there is no reason why the 
inadequacy or incompleteness of an administrative 
record on those rare occasions—which can be handled

9 Court review without an administrative hearing also can occur 
in two other situations. First, an employee may file suit after the 
department or agency has rejected or cancelled his complaint on 
non-evidentiary grounds, such as the inapplicability o f Title V II 
or untimely filing. 5 C.F.R. 713.215. Obviously, the district court 
can review the legitimacy of that action without the need for a 
complete evidentiary record. Furthermore, if the court concludes 
that the agency has acted erroneously, the proper course would be 
to remand for further administrative proceedings, not to hold a 
trial de novo. See, e.g., United States v. Carlo Bianchi & Co., Inc., 
supra, 373 U.S. at 718; Branley v. Hampton, 403 F. Supp. 770,775, 
n. 8 (D. D.C.) ; Butler v. Kleppe, 9 EPD 10,054 (D. D .C .); Har­
rison v. Butz, 375 F. Supp. 1056 (D. D.C.). Second, an employee 
may refuse a hearing after the agency fails to achieve adjustment 
of his complaint. 5 C.F.R. 713.217. A  complainant who, by his own 
conduct, waives his right to an administrative hearing should of 
course not be permitted to use the lack of an administrative hear­
ing record as a justification for obtaining a trial de novo. See 
Hachley v. Roudebush, supra, 520 F. 2d at 158, n. 201. Moreover, 
in many such situations, the district court can determine whether 
the agency’s action was justified on the basis of the investigative 
record required by 5 C.F.R. 713.216. Although amicus contends 
(Br. 15-16, n. 14) that there can be no prospective waiver of an 
employee’s rights under Title VII, this assumes the conclusion 
that a federal complainant has an absolute right to a trial de novo 
in the district court.



25

by the district court as circumstances warrant— 
should necessitate a trial de novo for every litigant, 
regardless of the adequacy or completeness of his ad­
ministrative record. Indeed, the present case, in which 
petitioner’s complaint resulted in protracted adminis­
trative proceedings and the compilation of a full hear­
ing record, well illustrates the unreasonableness of a 
construction of Section 717 that would mandate a 
de novo judicial retrial of every discrimination 
complaint.
B. T H E  LE G ISL ATIV E  H IS T O R Y  OF T H E  1 9 7 2  A M E N D M E N T S  TO T H E  C IV IL

RIG H TS A C T  OP 1 9  6 4  DOES N O T IN D IC A T E  A  CON GRESSION AL IN T E N T  TO
ACCORD E V E R Y  F E D E R A L  EM PLO Y EE  A  R IG H T  TO T R IA L  DE NOVO

The legislative history of the 1972 Amendments to 
the Civil Rights Act does not conclusively answer the 
question whether a trial de novo is required in federal 
Title Y II  cases. A  careful reading of this history, 
however, does indicate that Congress, in providing a 
civil action following exhaustion of an employee’s 
enhanced administrative remedies, contemplated that 
the courts would engage in a review on the adminis­
trative record. The fundamental flaw in petitioner’s 
contrary contention, in our view, rests in her seizing 
upon snippets of legislative debate without a dis­
criminating analysis of the precise subject under de­
bate or the context in which the debate occurred. 
Thus, while the history indicates that Congress un­
doubtedly intended to accord federal employees the 
same substantive Title V II  rights enjoyed by their 
colleagues in private industry, Congress was not con­



26

cerned that federal workers utilize the identical pro­
cedures in enforcing those rights.

The 1972 Amendments to Title V II  were considered 
against a backdrop that included allegations of wide­
spread discrimination in federal employment, com­
pounded by serious doubts that federal employees 
had redress in court because of sovereign immunity. 
The Civil Rights Act of 1964, of course, did not apply 
to federal employment, and federal administrative 
proceedings were frequently valueless because, among 
other reasons, effective make-whole relief could not 
be granted. Moreover, in the private sector, although 
the EEOC had authority to attempt conciliation in 
employment discrimination cases, it had no enforce­
ment authority and lacked the power to conduct 
an evidentiary hearing (although it could conduct an 
investigation). Section 706, 42 U.S.C. (Supp. IV ) 
2000e-5.

1. On June 2, 1971, to remedy these deficiencies, the 
Committee on Education and Labor of the House of 
Representatives reported H.R. 1746, the so-called 
“ Hawkins B ill”  (named after its chief sponsor, Rep. 
Hawkins), to the House. This bill, inter alia, would 
have given the EEOC authority to hold evidentiary 
hearings on individual complaints in private sector 
cases, following an investigation finding reasonable 
cause to believe the charge of discrimination (H.R. 
1746, 92d Cong., 1st Sess. 3-6 (1971) ; Legislative His­
tory at 34-37). I f  the EEOC found that an employer 
had engaged in a discriminatory employment practice, 
it could issue a cease and desist order reviewable in



27

the court of appeals under a substantial evidence 
scope of review (H.R. 1746, supra, at 7-10; Legisla­
tive History at 38-41). I f, on the other hand, the 
EEOC found no reasonable cause or probable juris­
diction or did not act within 180 days of the complain­
ant’s initial charge, the employee could file a civil ac­
tion in the district court (H.R. 1746, supra, at 23-25; 
Legislative History at 54-56). With regard to federal 
employment, the bill would have transferred Civil 
Service Commission responsibility in equal employ­
ment opportunity matters to the EEOC and author­
ized a “ civil action” by a federal employee following 
notification of final agency action (H.R. 1746, supra, 
at 28-29; Legislative History at 59-60).

Because of substantial opposition to the Hawkins 
Bill, a substitute proposal by Rep. Erlenborn was in­
troduced in the House on June 17, 1971 (H.R. 9247, 
92d Cong., 1st Sess.; Legislative History at 141-147). 
This bill would have denied the EEOC cease and 
desist power, but would have authorized it to bring 
suit on a complainant’s behalf in the district court. 
There was no provision in the so-called “ Erlenborn 
Substitute”  covering discrimination in federal em­
ployment and, although the floor debate centered pri­
marily around EEOC cease and desist authority, 
several Congressmen noted the absence o f any such 
federal anti-discrimination features (117 Cong. Rec. 
32095 (1971) (remarks by Del. Fauntroy) ; 117 Cong. 
Rec. 32097 (1971) (remarks of Rep. A bzug); 117 
Cong. Rec. 32098 (1971) (remarks of Rep. Steiger) ;



28

Legislative History at 271, 276, 280). On Septem­
ber 16, 1971, the House accepted the Erlenborn Sub­
stitute by a narrow margin and then overwhelmingly 
passed the bill (117 Cong. Rec. 32111-32113; Legisla­
tive History at 312-323). Thus, as initially approved 
by the House of Representatives, the amendments to 
Title V II  did not extend to federal employment at all 
and, in private sector cases, contained no provision 
giving the EEOC power to make binding findings of 
fact based on an administrative record.

Meanwhile, on September 14, 1971, a bill making 
substantially the same changes in Title V II  as the 
Hawkins Bill was introduced in the Senate by Senator 
Williams. The Senate Committee on Labor and Public 
Welfare reported this bill in amended form (the “ Sen­
ate Committee Bill” ) on October 28, 1971 (S. 2515, 
92d Cong., 1st Sess.; Legislative History at 344-409).

With respect to the private sector, the Senate Com­
mittee Bill granted the EEOC cease and desist power 
following an evidentiary hearing, and, in the event of 
timely EEOC action, provided for judicial review on 
the EEOC administrative record in the court o f ap­
peals under a substantial evidence test (S. 2515, supra, 
at 42, 44; Legislative History at 385, 387).10 Except 
for a subsequent technical change, the federal employ­
ment provisions o f the Senate Committee Bill were 
worded precisely as finally enacted into law. In par­

10 The private sector provisions of the bill at this stage are 
described in detail infra, pp. 39-43.



29

ticular, responsibility for assuring nondiscrimination 
in federal employment was retained in the Civil 
Service Commission rather than transferred to the 
EEOC (as in the Hawkins Bill in the House and in 
the original Williams Bill) (S. 2515, supra, at 62-66; 
Legislative History at 405-409).

On the Senate floor, Senator Dominick offered an 
amendment to the Senate Committee Bill that would 
have substituted EEOC enforcement authority in the 
district court for EEOC cease and desist authority, 
but would have retained the provision for a district 
court civil action for federal employees (Legislative 
History at 553-558). This amendment was rejected by 
a vote of 43-41 on January 24, 1972, and again (fol­
lowing agreement by a narrow margin to a motion to 
reconsider) by a vote of 48—46 on January 26, 1972 
(118 Cong. Rec. 945, 951, 1384; Legislative History at 
843, 859, 912).

A filibuster ensued and two attempts at cloture were 
unsuccessful (118 Cong. Rec. 1972, 2494 (1972) ; Leg­
islative History at 1211, 1335). Senator Dominick 
then introduced another amendment (Legislative His­
tory at 1499-1504) substituting EEOC court enforce­
ment authority for cease and desist powers in the 
private sector. When it became evident that passage 
of this amendment was needed in order to obtain suffi­
cient votes for cloture, the Senate agreed to the 
Dominick amendment on February 15, 1972 (118 
Cong. Rec. 3973 (remarks of Senator Allen), 3979- 
3980; Legislative History at 1542, 1557, 1561). One



30

week later cloture was voted, and the Senate passed 
the bill on the same day (118 Cong. Rec. 4912, 4944 
(1972) ; Legislative History at 1699, 1779). Following 
a conference in which, inter alia, the Senate-passed 
provisions regarding federal employment discrimina­
tion were accepted by the House conferees, the Senate 
and House of Representatives accepted the conference 
report on March 6 and 8, 1972, respectively (118 Cong. 
Rec. 7170, 7573; Legislative History at 1854, 1875). 
The bill was signed into law on March 24, 1972.

Although several issues were explored in detail dur­
ing the course of the extended legislative debates on 
these amendments to Title V II, the central and most 
heatedly discussed question in both the House and the 
Senate was whether, in private sector cases, the EEOC 
should be given cease and desist powers or merely the 
authority to bring suit on a complainant’s behalf in 
the district court. Discussion of the provisions regard­
ing federal employees w7as limited. Since the federal 
employment provisions as eventually enacted were ini­
tially prepared in the Senate Committee, and since the 
House bill as originally passed contained no federal 
anti-discrimination provisions, the legislative history 
on the Senate side is the more probative here.

2. While there is little explicit indication in this 
legislative history of the appropriate scope of court 
review in federal employee actions, there are re­
peated, specific assertions of the purposes for passing 
the federal civil action provisions. The following 
sentences explaining the rationale behind the fed­



31

eral employment discrimination section appear un­
changed 11 in the Senate Committee Report and in an 
analysis submitted by Senator Williams, the floor 
manager of the Senate Committee Bill, on the day of 
final passage of the Senate bill:

The testimony of the Civil Service Commission 
notwithstanding, the committee found that an 
aggrieved Federal employee does not have ac­
cess to the courts. In many cases, the employee 
must overcome a U.S. Government defense of 
sovereign immunity or failure to exhaust ad­
ministrative remedies with no certainty as to 
the steps required to exhaust such remedies. 
Moreover, the remedial authority of the Com­
mission and the courts has also been in doubt. 
The provisions adopted by the committee will 
enable the Commission to grant full relief to 
aggrieved employees, or applicants, including 
back pay and immediate advancement as 
appropriate.

S. Rep. No. 92-415, 92d Cong., 1st Sess. 16 (1971) ; 
118 Cong. Rec. 4923 (1972); Legislative History at 
425, 1730.11 12

11 For a discussion of the preceding and subsequent language, 
dealing with the equivalency of federal employee rights to private 
sector rights, which language did change with the restructuring 
of private sector procedures through amendment of the Senate 
Committee Bill, see infra, pp. 37-48.

12 The House Committee Report similarly states:
“Despite the series of executive and administrative directives 

on equal employment opportunity, Federal employees, unlike 
those in the private sector to whom Title V II is applicable, face 
legal obstacles in obtaining meaningful remedies. There is serious 
doubt that court review is available to the aggrieved Federal em-



32

None of these reasons articulated as a basis for the 
federal civil action provision supports the implication 
of a trial de novo. First, Congress was primarily con­
cerned that nearly all federal governmental action in 
regard to its employees, at least short of discharge, 
had been considered unreviewable in many courts be­
cause of sovereign immunity. See, e.g., Gnotta v. 
United States, 415 F. 2d 1271 (C.A. 8) (Blackmun,
J .), certiorari denied, 397 U.S. 934; Blaze v. Moon, 
440 F. 2d 1348 (C.A. 5). Thus Senator Cranston, who 
co-authored the Senate federal employee sections,13 
stated just prior to passage of the Senate bill:

For the first time, [my Federal Government 
EEC amendment would] permit Federal em­
ployees to sue the Federal Government in dis­
crimination cases—under the theory of Federal 
sovereign immunity, courts have not generally 
allowed such suits—and to bring suit either 
prior to or after CSC review of the agency 
EEO decision in the case.

ployee. Monetary restitution or back pay is not attainable. In pro­
motion situations, a critical area of discrimination, the promotion 
is often no longer available. Information and documents contained 
in Government files are not obtainable since the Freedom of In­
formation Act exempts internal personnel rules. Under the pro­
posed [House Committee B ill], court review, back pay, promotions, 
reinstatement, and appropriate affirmative relief is available to 
employees in the private sector; also the Commission has bi’oad 
powers to conduct an intensive investigation and obtain access to 
all pertinent records.” H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 
25 (1971); Legislative History at 85.

13 See 118 Cong. Rec. 4929, 4940, 4949 (1972); Legislative His­
tory at 1744,1768,1792.



33

118 Cong. Rec. 4929 (1972); Legislative History at 
1744.14 The waiver of sovereign immunity to permit re­
view of agency equal employment opportunity deter­
minations obviously indicates the desire only to pro­
vide a judicial remedy, not to mandate the precise con­
tours of that remedy.

Second, Congress was disturbed by the apparent 
inability of the Civil Service Commission, the agency 
that had been responsible for enforcing the ban on 
discrimination in federal employment as decreed by 
executive order,15 to grant full relief to aggrieved em­
ployees—relief, such as back pay and immediate ad­
vancement, that was considered indispensable to pri­
vate sector Title V II  enforcement. Senator Cranston 
thus told his colleagues immediately prior to passage 
of the Senate bill:

My Federal Government EEO amendment 
* * * would * * * [elntitle an employee to back 
pay if  discrimination has been found to exist— 
the Government has insisted it does not have 
legal authority to make such awards.

118 Cong. Rec. 4929 (1972) ; Legislative History at 
1744. Again, the congressional intent to assure that 
such remedies were available to federal employees, not 
only in the courts but also in the agencies which were 
to retain primary responsibility for meeting the prom­

“  See also 118 Cong. Rec. 4922 (1972) (remarks of Senator 
Williams) ; Legislative History at 1727.

15 See, e.g., Executive Order 11478, 3 C.F.R. 207 (1974); Execu­
tive Order 11246, 3 C.F.R. 567 (1966); Executive Order 10590, 
3 C.F.R. 237 (1954-1958 Com p.); Executive Order 9980, 3 C.l .R. 
720 (1943-1948 Comp.).



34

ise of equal employment opportunity, does not suggest 
that a trial de novo rather than a court review of the 
administrative record was intended.

Finally, Congress sought to alleviate the confusion 
over the proper administrative recourse available to 
a federal employee alleged to be the victim of dis­
crimination. The statute as enacted, which clarified the 
administrative mechanism for the adjustment of such 
grievances, does not on its face grant a right to de 
novo review once the administrative decision has been 
appealed to the district court. See supra, pp. 16-25. 
And, indeed, if  any inference is to be drawn from the 
clear dual requirements of the 1972 Amendments that
(a) an employee first seek administrative relief of his 
complaint and (b) a strengthened and adequate ad­
ministrative mechanism be available to adjudicate the 
complaint and to grant a complete remedy, it is that 
the courts are not free to disregard the work of the 
agency and Civil Service Commission and to begin 
anew.

The legislative debates on the extension of Title Y II  
to federal employees also questioned the adequacy of 
Civil Service Commission EEO proceedings, including 
its complaint procedure. See H.R. Rep. No. 92-238, 
92d Cong., 1st Sess. 23-24 (1971) ; S. Rep. No. 92-415, 
supra, at 14-15; 118 Cong. Rec. 4922 (1972) (remarks 
of Senator Williams) ; Legislative History at 83-84, 
423-424, 1726. The Hawkins Bill, as well as the origi­
nal Williams Bill, proposed the transfer of Civil Serv­
ice Commission EEO authority to the EEOC. The



35

Senate Committee, however, expressly decided to re­
tain Civil Service Commission authority over em­
ployment discrimination matters in the federal 
government, and its recommendation was adopted by 
both Houses of Congress and by the President. As 
the Senate Committee Report stated:

The Civil Service Commission’s primary re­
sponsibility over all personnel matters in the 
Government does create a built-in conflict of 
interest for examining the Government’s equal 
employment opportunity program for struc­
tural defects which may result in a lack of true 
equal employment opportunity. Yet, the Com­
mittee was persuaded that the Civil Service 
Commissi on is sincere in its dedication to the 
principles of equal employment opportunity 
enunciated in Executive Order 11478 and that 
the Commission has the will and desire to over­
come any such conflict of interest. In order to 
assist the Commission in accomplishing its goals 
and to make clear the Congressional expectation 
that the Commission will take those further 
steps which are necessary in order to satisfy the 
goals of Executive Order 11478, the Committee 
adopted in Section 707 (b) [sic] of the bill 
specific requirements under which the Commis­
sion is to function in developing a comprehen­
sive equal employment opportunity program.

S. Rep. No. 92-415, supra, at 15; Legislative History 
at 424.

There was, we submit, ample reason for the con­
gressional determination to preserve", in the area of



36

EEO complaints, the Commission’s “ primary respon­
sibility” for federal personnel matters. For the Civil 
Service Commission, as well as the officials respon­
sible for individual agency personnel administration 
under the Commission’s guidance, is charged with the 
basic responsibility of maintaining a merit system of 
employment in the federal service.16 Because of their 
experience with the requirements of the federal merit 
system of employment, the Commission and other re­
sponsible federal personnel officials are peculiarly 
qualified17 to evaluate complaints of employment dis­
crimination in light of those requirements and to ad­
judicate discrimination complaints in a wTay that is 
compatible, rather than in conflict, with the more per­
vasively non-discriminatory maintenance of the merit 
system of federal employment.

Thus, whatever the perceived imperfections in Civil 
Service Commission procedures,18 Congress deliber­

16 As Senator Pendleton stated, in sponsoring the original civil 
service law (sometimes referred to as the Pendleton Act) :

The single, simple, fundamental, pivotal idea of the whole 
bill is, that whenever, hereafter, a new appointment or a pro­
motion shall be made in the subordinate civil service in the 
departments or larger offices, such appointment or promotion 
shall be given to the man who is best fitted.

S. Eep. Ho. 576, 47th Cong., 2d Sess. X  (1882) (statement of 
Senator Pendleton).

17 During the first half of Fiscal Year 1976, for example, the 
Commission’s 102 complaints examiners conducted EEO com­
plaint hearings in 926 cases, or 24.7% of their total docket of 3750 
hearings. In Fiscal Year 1975,1216 (20.8%) of the examiners’ 5846 
hearings were devoted to EEO complaints.

18 In a portion of his analysis of the legislative history in 
Hackley v. Roudebush, supra, not joined by the other members



37

ately determined to maintain federal EEO jurisdic­
tion within the agencies and the Commission and, 
through improved administrative proceedings, to con­
tinue the “primary responsibility” 19 of the Executive 
Branch to assure non-discrimination in employment. 
Absent a showing of procedural unfairness, legal 
error, or inadequate evidentiary support, judicial 
deference to the results of these administrative 
proceedings would best comport with this legislative 
determination.

3. Petitioner (Br. 30, 38-39, 45), like those courts 
that have held federal employees entitled to a judicial 
trial de novo, relies heavily on the following state­
ment from the Senate Committee Report:

An important adjunct to the strengthened 
Civil Service Commission responsibilities is the 
statutory provision of a private right of action 
in the courts by Eederal employees who are 
not satisfied with the agency or C om m ission 
decision.

of the panel, Judge Wright, minimized the improvement in Com­
mission procedures since the enactment of the 1972 Amendments. 
520 F. 2d at 137-141. Obviously, however, Civil Sendee Com­
mission conduct subsequent to 1972 is not relevant to an assessment 
of the intent of Congress in passing the federal amendments. 
Moreover, as we explain infra, pp. 56-63, we disagree with Judge 
Wright’s conclusion as to the adequacy of current Civil Service 
Commission procedures.

'9 Section 717 (e) of the Act provides:
“ Nothing contained in this Act shall relieve any Government 

agency or official of its or his primary responsibility to assure 
nondiscrimination in employment as required by the Constitution 
and sta&s or of its or his responsibilities under Executive Order 
11478 relating to equal employment opportunity in the Federal 
Government.”



38

The testimony of the Civil Service Commis­
sion notwithstanding, the committee found that 
an aggrieved Federal employee does not have 
access to the courts. In many cases, the employ­
ee must overcome a U.S. Government defense 
of sovereign immunity or failure to exhaust 
administrative remedies with no certainty as 
to the steps required to exhaust such remedies. 
Moreover, the remedial authority of the 
Commission and the courts has also been in 
doubt. The provisions adopted by the committee 
enable the Commission to grant full relief to 
aggrieved employees, or applicants, including 
back pay and immediate advancement as appro­
priate. Aggrieved employees or applicants will 
also have the full rights available in the courts 
as are granted to individuals in the private 
sector under title V II.

S. Rep. No. 92-415, supra, at 16; Legislative History 
at 425 (emphasis added). W e have previously shown 
(see supra, pp. 30-34) that the initial portion of this 
excerpt indicates a legislative intent behind the fed­
eral employee provisions of the 1972 Amendments that 
in no way requires de novo judicial review. The last 
sentence, however, has been interpreted by three 
courts of appeals to mean that Congress contemplated 
de novo review for federal employees, since private 
sector suits were then and are now trials de novo and 
the federal employee provisions as finally enacted are 
essentially identical to those referred to in the Senate 
Committee Report.20

20 See, e.g., Hockley v. Roudebmh, supra, 520 F. 2d at 143-144; 
Caro v. Schultz, supra, 521 F. 2d at 1087-1088; Sperling v. United 
States, supra, 51$ F. 2d at 471, 480-481.



With deference, we submit that that reading of 
the sentence improperly ignores the provisions of the 
specific bill to which the report was addressed, and 
is erroneous. While the federal employment provisions 
ultimately signed into law are indeed essentially the 
same as those discussed in the report, the private 
sector provisions of the Senate Committee Bill that 
was the subject of the report differed significantly 
from those either then in existence or ultimately en­
acted. Therefore, in order to determine the intent 
reflected in the statement in the Senate Committee 
Report equating federal and private enforcement pro­
cedures under the proposed bill, the system of judicial 
review proposed for private employees in the Senate 
Committee Bill must be examined.

As we have noted, supra, p. 28, the Senate Com­
mittee Bill proposed to give the EEOC cease and 
desist authority in the private sector. Following the 
filing of a charge of employment discrimination, the 
EEOC would undertake an investigation. I f  it found 
reasonable cause to believe that the charge was true, 
it would endeavor by “ conference, conciliation, and 
persuasion” to eliminate the practice (S. 2515, supra, 
at 34-35; Legislative History at 377-378). I f  those 
efforts were unsuccessful, the EEOC would issue a 
complaint to the employer, and a full administrative 
hearing, with testimony taken under oath and tran­
scribed verbatim, would follow (S. 2515, supra, at 38- 
39; Legislative History at 381-382). The EEOC would 
then state its findings of fact and either dismiss the

39

213-385 0  -  76 - 4



40

complaint or issue a cease and desist order to the 
employer, which order could include provisions for 
reinstatement with back pay (S. 2515, supra, at 39-40; 
Legislative History at 382-383). Either action by the 
EEOC would be reviewable only by a United States 
court of appeals to determine whether substantial 
evidence supported the EEOC decision (S. 2515, 
supra, at 41—45; Legislative History at 384-388).

The bill also provided for a civil action in the dis­
trict court in certain limited circumstances (S. 2515, 
supra, at 47-50; Legislative History at 390-393). In 
the absence of a conciliation agreement to which 
the aggrieved person was a party, a private sector em­
ployee could bring a civil action (1) if the EEOC dis­
missed his charge for lack of reasonable cause, (2) if 
180 days after filing the charge with the EEOC, the 
Commission had issued no complaint (this right ended 
after 60 days or once the EEOC issued a complaint, 
but if suit was filed under this provision, the EEOC 
was precluded from further action), or (3) if 180 
days after issuing a complaint the EEOC had made 
no decision and issued no order (this right ended 
once the EEOC issued an order).21 With regard to 
the last provision, the bill provided that a district 
court could stay an action brought during the period 
from 180 days to one year after the issuance of the 
complaint------

21A  civil action in the district court was also permitted under 
the Senate Committee Bill if the EEOC entered into a post-com­
plaint agreement with the employer to which the aggrieved person 
was not a party.



41

upon a showing that the Commission has been 
acting with due diligence on the complaint, 
that the Commission anticipates the issuance 
of an order * * * within a reasonable period of 
time, that, the case is exceptional, and that 
extension of the Commission’s jurisdiction is 
warranted.

S. 2515, supra, at 50; Legislative History at 393.
The obvious purpose of these provisions was to give 

an aggrieved employee a plenary, de novo judicial 
remedy only in the event that he had been unable to 
obtain a timely EEOC order based upon an admin­
istrative hearing; under the bill, a civil action could 
not be instituted in the district court if  the complain­
ant had previously obtained an administrative order, 
either satisfactory or adverse, based upon a hearing 
record. Substantial evidence review in the court of 
appeals on the basis of that administrative record 
would then be the exclusive remedy. Hor was this re­
sult inadvertent—the Senate Committee Report 
clearly explained that the bill was intentionally 
drafted to preclude an employee from retrying his 
case in the district court after losing at the adminis­
trative level:

The committee is concerned, however, about 
the interplay between the newly created en­
forcement powers of the [EEO] Commission 
and the existing right of private action. It con­
cluded that duplication of proceedings should 
be avoided. The bill therefore contains a provi­
sion for cutoff of the Commission’s jurisdiction 
once the private action has been filed except 
for the power to intervene—as well as a cutoff



42

of the right of private action once the Com­
mission issues a complaint or enters into a con­
ciliation or settlement agreement which is sat­
isfactory to the Commission and the aggrieved 
party.

* * * * *

It should be noted, however, that it is not the 
intention of the committee to permit an ag­
grieved party to retry his case merely because 
he is dissatisfied with the Commission’s action. 
Once the Commission has issued an order, fur­
ther proceedings must be in the courts of 
appeals * * *.

S. Rep. Ho. 92-415, supra, at 24; Legislative History 
at 433.

The district court civil action authorized in limited 
circumstances by the Senate Committee Bill was a 
trial de novo, but not because of anything provided in 
Section 706 (see supra, pp. 20-21). Rather, precisely 
because such actions could be brought only when there 
was no prior administrative hearing record to review, 
a trial de novo was a necessity. Once an administra­
tive record had been compiled, however, court review 
was to be confined to a determination of whether the 
administrative findings were supported by the evi­
dence adduced. When viewed in context, therefore, the 
statement in the Senate Committee Report that 
“  [ajggrieved employees or applicants will also have 
the full rights available in the courts as are granted 
to individuals in the private sector under title V I I ”  
(S. Rep. No. 92-415, supra, at 16; Legislative History 
at 425) indicates not an absolute right to a trial de



43

novo but, to the contrary, that a de novo judicial pro­
ceeding in federal employment cases is appropriate 
only in the absence of an administrative hearing rec­
ord, and that otherwise a more restricted scope of 
judicial review was envisioned. See Pointer v. Samp­
son, 62 F.R.D. 689, 693 (D. D.C.)

The conclusion that Congress intended federal anti­
discrimination remedies roughly to parallel these pri­
vate sector judicial review provisions under the 
Senate Committee Bill follows not only from this 
explicit legislative history but also from the structure 
of the 1972 Amendments as finally enacted. Thus, in 
addition to the civil action permitted after final 
agency or Civil Service Commission review, a federal 
employee may bring a civil action (1) if 180 days 
after filing a charge with the appropriate agency 
there has been no final agency action (this right ends 
once the agency acts) and (2) if 180 days after filing 
an appeal to the Civil Service Commission the Com­
mission has made no decision (this right ends once 
the Civil Service Commission decides). The parallel 
is emphasized by the Section-by-Section Analysis in 
the Senate Committee Report:

The provisions of sections 706 (q) through 
(w) concerning private civil actions by ag­
grieved persons are made applicable to ag­
grieved Federal employees or applicants. They 
could file a civil action within 30 days of notice 
of final action on a complaint made pursuant to 
section 717(b), or after 180 days from the filing 
of an initial charge, or an appeal with the [Civil 
Service] Commission. The authority given to



.44

the [Equal Employment Opportunity] Commis­
sion or the limitations placed upon the Com­
mission under sections 706 (q) through (w) 
would apply to the Civil Service Commission or 
the agencies, as appropriate, in connection with 
a civil action brought under section 717(c). So, 
for example, i f  the Civil Service Commission or 
agency does not issue an order within 180 days 
after a complaint or appeal is filed, the ag­
grieved person may also institute a civil action. 
I f  such action is instituted within one year of 
the filing of the complaint or appeal, the Civil 
Service Commission or agency may request that 
the action be stayed or dismissed upon a show­
ing that it has been acting with due diligence, 
that it anticipates issuance of an order within a 
reasonable time on the complaint or appeal, that 
the case or proceeding is exceptional and that 
extension of exclusive jurisdiction of the Civil 
Service Commission or agency is warranted.

S. Rep. Ho. 92-415, supra, at 45-46; Legislative His­
tory at 454-455 (emphasis added).22 There obviously 
would be little point to extending the agency’s or the 
Civil Service Commission’s jurisdiction for an addi­
tional 180 days if Congress had contemplated a de 
novo proceeding in the district court even after a 
final agency or Commission decision. On the contrary, 
the reference to “ exclusive jurisdiction of the Civil

22 On February 15,1972, following the amendment of the Senate 
Committee Bill to eliminate EEOC cease and desist powers and to 
place all private sector enforcement in the district courts, Section 
706(q) was eliminated as unnecessary, the renumbering of Sec­
tions 706(f) through (k) as Sections 706(r) through (w) was 
deleted, and the federal employment provision incorporating



45

Service Commission or agency” strongly indicates 
that review, rather than retrial, of timely agency or 
Commission determinations was contemplated.23

Sections 706 (q) through (w) was changed to incorporate Sections 
706(f) through (k). 118 Cong. Rec. 3980; Legislative History at 
1562. This technical amendment removed the private sector provi­
sion permitting the EEOC to seek additional time from the dis­
trict court in which to issue an order—a provision that was of 
course no longer necessary in view of the removal of EEOC 
authority to issue orders. The amendment, however, inadvertently 
also removed express stay authority from federal agencies and 
the Civil Service Commission, which continued to retain power to 
issue orders. Nevertheless, just prior to passage of the Senate 
bill, Senator Williams submitted a Section-by-'Section Anal­
ysis which reiterated that the Civil Service Commission or 
an agency could seek to stay a district court action filed after the 
elapse of 180 days. 118 Cong. Rcc. 4943-4944 (197 1̂ Nothing 
in the statute as enacted would bar the Commission or an agency 
from seeking such a stay. Even if it is assumed, however, that 
the Civil Service Commission or an agency would not now 
be permitted to stay a district court action, the above-quoted 
excerpt demonstrates that Sections 717(c) and (d) were in­
tended to incorporate into federal employment suits the 
dual characteristics o f private sector court actions found in the 
Senate Committee B ill: trial de novo in the absence of an admin­
istrative order issued after opportunity for a hearing, or sub­
stantial evidence review following such an order.

23 The District of Columbia Circuit, in Hackley v. Roudebush, 
supra, relied on certain statements by Senator Dominick which 
it read to imply that private sector employee rights under the 
Senate Committee Bill contrasted with, rather than paralleled, 
the rights given to federal employees by the bill. 520 F. 2d at ISO- 
131 and n. 85. Arguing against EEOC cease and desist authority, 
Senator Dominick had indicated that the provisions of the Senate 
Committee Bill for such authority in the private sector were not 
comparable to the court enforcement procedures to be available to 
federal employees. See, e.g., 118 Cong. Eec. 595, 697, 3389 (1972) ; 
Legislative History at 683, 693, 1441. Each of these statements



46

This result is also required by the analysis of the 
Senate bill submitted by Senator Williams after the 
Senate had agreed to an amendment removing EEOC 
cease and desist authority and placing all private sec­
tor enforcement actions in the district court without 
an administrative hearing. This analysis relied heavily 
on the language of the earlier Senate Committee Re­
port but, significantly, changed the crucial wording 
discussed above (now erroneous because of the private 
sector amendment) to make clear that review of the

was generally phrased and none specifically indicated the scope 
of review in federal employee actions; all were addressed to a 
separate and distinct issue. Senator Dominick’s extemporaneous 
comments are therefore not authoritative on the question presented 
here and should not be accorded the weight o f explanatory remarks. 
Indeed, it would be improper to do so, since he was speaking in 
opposition to the bill reported out by the Committee, and no 
sponsor of that bill or spokesman for the Committee majority 
reporting it out expressed agreement with his characterizations 
of its effects. Moreover, the lack of authoritativeness of his re­
marks is shown by the fact that at least twice during the 
debate he erroneously attributed some aspect of the assertion of 
federal employee court rights to the Attorney General. See 118 
Cong. Rec. 3389, 3809 (1972) : Legislative History at 1440,1482. At 
most, therefore, Senator Dominick’s statements add an element of 
ambiguity to the floor debates for present purposes. More proba­
tive evidence in the legislative history, discussed in the text above, 
indicates that federal employees, like private sector employees 
under the Senate Committee Bill, were entitled only to judicial 
review on the administrative record when the agency or Civil 
Service Commission had made a determination based upon an 
administrative hearing record.



47

agency record in federal employee cases was still 
contemplated: 24

An important adjunct to the strengthened 
Civil Service Commission responsibilities is the 
statutory provision of a private right of action 
of review of the agency proceedings in the 
courts by Federal employees who are not satis­
fied with the Agency or Commission decision.

* * * The provisions adopted by the Com­
mittee will enable the Commission to grant full 
relief to aggrieved employees, or applicants, in­
cluding back pay and immediate advancement 
as appropriate. Aggrieved employees or appli­
cants will also have the full rights of review 
available in the courts.

118 Cong. Rec. 4923 (1972); Legislative History at 1730 
(emphasis added). Senator Williams’ oral remarks at 
the time he presented this analysis are fully consistent 
with the same conclusion—that where there has been a 
final agency or Civil Service Commission determina­
tion, reached after the opportunity for an administra­

24 For a side-by-side comparison of the two statements, see 
Sperling v. United States, supra, 515 F. 2d at 480, n. 71 (Pet. App. 
70a-7la). The Sperling court noted the changes in wording and 
gave greater credence to the Senate Committee Report, without 
recognizing that the Committee Report referred to private sector 
rights that were significantly different from those provided by the 
bill at the time of Senator Williams’ analysis.



48

tive hearing, a review of the administrative record 
rather than a trial de novo wras intended:

Finally, written expressly into the law is a 
provision enabling an aggrieved Federal em­
ployee to file an action in U.S. District Court 
for a review of the administrative proceeding 
record after a final order by his agency or by 
the Civil Service Commission, if  he is dissat­
isfied with that decision.

118 Cong. Rec. 4922 (1972) ; Legislative History at 1727 
(emphasis added).

Although the Senate Committee Report and these 
statements of Senator Williams, the floor manager of 
the bill, strongly suggest that Congress did not antici­
pate that federal employees would be entitled to a trial 
de novo in every instance, the only statement directly 
addressing the scope of review is that of Senator 
Cranston, who referred to the federal employment pro­
visions of the Senate bill as “ my amendment.”  118 
Cong. Rec. 4929, 4931 (1972) ; Legislative History at 
1744,1749. The Congressional Record recorded Senator 
Cranston as stating on the day that the bill passed the 
Senate:

For the first time, [my Federal EEO amend­
ment would] permit Federal employees to sue 
the Federal Government in discrimination 
cases—under the theory of Federal sovereign 
immunity, courts have not generally allowed 
such suits—and to bring suit either prior to or 
after CSC review of the agency EEO decision 
in the case. As with other cases brought under 
Title Y II  of the Civil Rights Act of 1964, Fed­



49

eral district court review would be based on 
the agency and/or CSC record and would not 
be a trial de novo.

118 Cong. Rec. 4929 (1972) ; Legislative History at 
1744. Almost a year after the debate and ten months 
after the 1972 Amendments had been enacted, Sena­
tor Cranston announced that “ the word ‘not’ was 
misplaced” in the Congressional Record, and that 
when “ set forth * * * in the correct manner” his 
statement would read “ review would not be based on 
the agency and/or CSC record and would be a trial de 
novo.”  119 Cong. Rec. S1219 (daily ed. Jan. 23, 1973). 
We submit that Senator Cranston’s statement as be­
latedly corrected is of little probative value in deter­
mining congressional intent. As the Eighth Circuit 
noted:

While Senator Cranston has clarified his per­
sonal intent, we cannot ignore the fact that 
during the two months following the initial 
statement while the Act went through Confer­
ence Committee and was finally approved, the 
official journal of Congress contained his ex­
plicit and authoritative interpretation rejecting 
any automatic requirement of a de novo trial. 
In considering the intent of Congress, we cannot 
rule out the possibility, if not the probability, 
that Senator Cranston’s remarks as initially re­
ported, especially when read with the comments 
of Senator Williams, were relied upon by many 
congressmen.

Haire v. Callaway, supra, slip op. 6 n. 4.
The legislative history of the 1972 Amendments to



50

Title V II, then, if  viewed as a whole and with an ap­
preciation of the context at each stage o f the debate, 
manifests an intent to require review, not retrial, of 
agency and Civil Service Commission equal employ­
ment opportunity determinations that are based on an 
administrative record following the opportunity for a 
hearing. While not unambiguous on every facet of the 
federal employee provisions, this history at the very 
least refutes petitioner’s contention that Congress 
clearly intended to mandate judicial trials de novo 
in all Title V II  cases.

C. T H E  S T A T U T O R Y  S C H E M E  IS  BEST PROM OTED B Y  C O N F IN IN G

J U D IC IA L  R E V IE W  I N  O R D IN A R Y  CASES TO T H E  A D M IN IS T R A T IV E

RECORD

Although the legislative history outlined above in­
dicates that court review of an administrative record 
was contemplated by Congress, neither it nor the lan­
guage of the statute unequivocally sets forth the scope 
of review to be applied by the district court in federal 
employment discrimination cases. Absent such clear 
guidance, this Court has repeatedly indicated that 
“ de novo review is generally not to be presumed.” 
Consolo v. Federal Maritime Commission, supra, 383 
U.S. at 619, n. 17; United States v. Carlo BiancU & 
Co., Inc., supra, 373 U.S. at 715.

In private sector Title V II  actions, the Court has 
held this presumption against de novo review inap­
plicable, basically because of the limited nature of the 
EEOC administrative investigation or the union griev­
ance-arbitration proceedings conducted prior to the

J



51

institution of the civil suit—neither of which was 
intended, or purports, to be an administrative de­
termination of the Title V II  claim, McDonnell Doug­
las Corp. v. Green, 411 U.S. 792; Alexander v. 
Gardner-Denver Co., 415 U.S. 36. Federal em­
ployees are, by contrast, afforded an effective admin­
istrative remedy for their Title V II  complaints under 
an elaborate and fair procedure, established by an in­
tegrated set of regulations, that is designed specifi­
cally to adduce the salient facts and to compile a full 
evidentiary record for administrative determination 
and, ultimately, judicial review.

Given this administrative remedy, under a pro­
cedure inherently adequate to protect the employee’s 
rights, routine trials de novo would tend to defeat, 
rather than advance, the purposes of the statutory 
scheme. Such duplicative proceedings would conflict 
with the congressional directive that employment dis­
crimination disputes be settled expeditiously, would 
undermine the integrity of the administrative process 
and retard its evolutionary improvement, and would 
add unnecessary expense and delay for all concerned. 
Moreover, little systemic benefit would be gained by 
de novo proceedings, since the employee’s rights are 
fully protected by a fair and complete administrative 
hearing, resulting in findings of fact and an adminis­
trative determination that is subject to prompt 
judicial review.

1. In McDonnell Douglas Corp. v. Green, supra, this 
Court held that in private sector Title V II  actions an



m
EEOC finding of reasonable cause is not a jurisdic­
tional prerequisite to suit and that a finding of no 
reasonable cause is not a bar to suit. 411 U.S. at 798- 
799. The Court further recognized that the court ac­
tion following EEOC consideration must necessarily 
be a de novo proceeding. But, as we have stated, this 
result was not based upon a determination that the 
Act itself requires the district court always to proceed 
de novo. Rather, the result was founded upon a realis­
tic appraisal of the function and limitations of the 
agency proceedings prior to suit. The Court specifi­
cally referred to “ the large volume of complaints be­
fore the [EEOC] and the nonadversary character of 
many of its proceedings.” 411 U.S. at 799. Further­
more, the Court cited with approval the decisions of 
several lower courts that had summarized in greater 
detail the limited nature of EEOC powers and pro­
cedures.25 For example, the Fifth Circuit had noted 
that the EEOC

is neither required nor physically able to con­
duct an “ in depth” investigation in every case; 
apparently the investigative procedure, in the 
instant case was performed on an ex parte basis, 
bereft o f all the advantages which come from 
an adversary proceeding in a court of law. The 
[EEO] Commission possesses no power of en-

25 Robinson v. Lorillard Corp., 444 F. 2d 791, 800 (C.A. 4 ); 
Beverly v. Lone Star Lead Construction Corp., 437 F. 2d 1136 
('C.A. 5 ); Flowers v. Local No. 6, Laborers International Union of 
North America, 431 F. 2d 205 (C.A. 7) ; Fekete v. U.S. Steel Corp., 
424 F. 2d 331 (C.A. 3).



foreement; it cannot fix a penalty, issue a cita­
tion, or grant a cease and desist order.

Beverly v. Lone Star Lead Construction Corp., supra, 
437 U. 2d at 1141 (footnote omitted) ,26

Similarly* in Alexander v. Gardner-Benver Co., 
supra, this Court held that the district court in a Title 
V II  suit should not defer to findings concerning em­
ployer discrimination reached in a grievance arbitra­
tion award under a collective bargaining agreement. 
The primary determinant in Alexander was the im­
portant difference between rights under a labor-man­
agement contract (and their enforcement in an 
arbitration award) and the rights accorded by Title 
V II. 415 U.S. at 52-54, 57. The Court pointed out that 
an arbitrator’s job is to give effect to the contractual 
intent of the parties—“ the law of the shop”—rather 
than to the requirements of the Civil Rights Act— 
“ the law of the land,” 415 U.S. at 57—and that 
the parties’ contaretual intent, or the union’s enforce­
ment of it, may subordinate the interests of an individ­
ual employee to the collective interests of the bargaining 
unit, 415 U.S. at 58, n. 19. Accordingly, a policy of 
judicial deference in Title V II  cases to the largely 
unreviewable awards of arbitrators under collective 
bargaining agreements would leave the employee with-

26 Indeed, the fact that Congress did not intend EEOC proceed­
ings to result in a record suitable for adjudication of a Title V II 
complaint is reflected in the restrictions in Section 706(b), 42 
U.S.C. (Supp. IV ) 2000e-5(b) on the use in court or the making 
public o f anything “said or done during and as a part o f” EEOC s 
conciliation efforts.



out a determination of his statutory claim by either 
court or arbitrator.27

Thus, in both McDonnell Douglas and Alexander 
the proceedings conducted prior to the filing in court 
of the Title Y II  suit did not constitute, or purport to 
be, an administrative determination of the Title Y II  
claim and were not designed to produce a record suit­
able for adjudication of the Title Y II  claim. Accord­
ingly, this Court held that the Title Y II  suit in such 
instances necessarily must proceed as a trial de novo. 
But the Court in those cases in no way addressed the 
question of the proper scope of judicial review of an 
administrative proceeding whose whole purpose was to 
determine the Title Y II  claim, and which has indeed 
resulted in an administrative determination of that 
claim. Much less did this Court hold that, with respect 
to such an administrative determination, any distinc­
tion between agency and district court procedures, 
regardless of the inconsequence of those differences 
upon Title Y II  enforcement, would require a trial de 
novo. To the contrary, it is normally the case that 
judicial review, involving issues as fundamental to the 
individual as those involved here, is confined to a record 
that has not been compiled in a manner identical to 
court proceedings. See, e.g., Butz v. Glover Livestock 
Commission Co., 411 U.S. 182 (suspension of license

27 The Court also noted several respects in which the informal 
arbitration proceeding was unsuited for the resolution of Title Y II 
issues—in particular, the unavailability in most cases of a com­
plete record, discovery, compulsory process, cross-examination or 
testimony under oat h, and the lack of any obligation by arbitrators 
to give reasons for their awards. ;415 U.S. at 57-58.

54



to operate stockyard); Vein v. Selective Service Sys­
tem Local Board No. 7, 405 U.S. 365 (induction into 
Armed F orces); Richardson v. Perales, 402 U.S. 389 
(disability insurance benefits) ; Goldberg v. Kelly, 397 
U.S. 254 (welfare payments) ; W.E.B. DuBois Clubs of 
America v. Clark, 389 U.S. 309 (registration require­
ment for political organization).

The administrative process rarely includes all the 
characteristics o f district court trials—for example, 
formal rules of evidence generally do not apply, see 5 
U.S.C. 556(d) ; Richardson v. Perales, supra, 402 U.S. 
at 400, 409—yet there is no inherent unfairness in 
the absence of such requirements.28 See, e.g., 402 U.S. 
at 402-406. The crucial question in each instance is 
whether the fact-finding mechanism that precedes 
court review is structurally incapable of building an 
adequate record or awarding effective relief.

2. Because the systemic defects found in McDonnell 
Douglas and Alexander are present in every EEOC 
and arbitral proceeding, the Court held that the Title 
V II  complainant in those circumstances has an uncon­
ditional right to a trial de novo, without inquiry into 
whether the administrative or arbitral record compiled 
for other purposes in his ease could adequately serve * VII

28 Indeed, relaxed enforcement o f evidentiary rules by a Title
VII complaints examiner benefits the employee, since a com­
plainant (such as petitioner) who elects not to retain counsel may 
present his own case, with the assistance of the examiner and the 
investigative file, without regard to technical legal rules that 
might inhibit the search for the truth.

- 55

213-385 0  -  76 - 5



56

as a basis for determining his Title V II  claim.29 In 
light o f the significantly different nature of the ad­
ministrative proceedings conducted to determine fed­
eral employment discrimination complaints, however, 
imposition of such an unyielding rule to judicial re­
view of those Title V II  determinations would be in­
appropriate. While there are, of course, differences 
between judicial proceedings and administrative en­
forcement actions supervised by the Civil Service 
Commission, the procedures prescribed by the Com­
mission normally are fully capable of compiling a 
thorough record that can serve as the proper basis for 
judicial review, without sacrifice of legitimate Title 
V II  interests.

The regulations promulgated by the Civil Service 
Commission pursuant to Section 717 of the Act pro­
vide that a federal employee who believes that he has 
been discriminated against on the basis of race, color, 
religion, sex, or national origin must communicate 
with an Equal Employment Opportunity Counselor 
of his agency in an effort to secure informal resolu­
tion,30 and must receive a prompt and thorough in­

29 The Court held in Alexander, however, that the arbitral 
decision is admissible in -the Title V II suit and may be accorded 
such evidentiary weight as the district court deems appropriate. 
415 U.S. at 60, n. 21.

30 The employee must act within 30 days of the occurrence of 
the alleged discriminatory practice. Upon a showing by the em­
ployee of an adequate reason for failing to comply with the 30- 
day rule, the time limits will be extended. 5 C.F.R. 713.214(a) (4). 
Although amicus objects to this time limitation as unreasonable 
(Br. 29, 18a), it is no more stringent than the 30-day limitation 
on filing suit imposed by Section 717(c) of the Act, which has



57

vestigation following the filing of a formal discrimina­
tion complaint if conciliation of his grievance cannot 
be achieved within 21 days.31 5 C.F.R. 713.213-713.216. 
After the complainant has reviewed the completed 
investigatory file (which may contain statements 
under oath), the agency must again provide an oppor­
tunity for informal adjustment of the complaint and, 
if this is not successful, must advise the complainant 
of his right to a formal hearing. 5 C.F.R. 713.217.

At the hearing a complainant is accorded a full 
panoply of procedural rights. The hearing must be 
conducted by a complaints examiner certified as quali­
fied by the Civil Service Commission. Except in nar­

been strictly enforced by the courts. See, e.g., Brown v. General 
Services Administration, 507 F.2d 1300 (C.A. 2), pending on writ 
of certiorari, No. 74-768; Garter v. Lynn, 401 F. Supp. 1383 (D. 
D .C.); Fuqua v. Robinson, 398 F. Supp. 681 (D. N.J.).

31 Amicus (Br. 14a-15a) criticizes this requirement of pre­
complaint counseling, contending that the failure of an employee 
to file a formal complaint after the counseling must indicate that 
a counselor, in violation of regulations, has discouraged him from 
doing so. This argument presupposes that every employee who 
seeks counseling must have been a victim of discrimination. The 
fact is that many of the complaints are nothing more than 
ordinary employee grievances and misunderstandings which can 
and should be resolved in an informal manner. In Fiscal Years 
1972-1974, for example, EEO Counselors were able to obtain 
30,491 corrective actions. (Of course, more than one corrective 
action may be achieved in a single case.) Furthermore, the avail­
ability of these informal procedures encourages employees to come 
forward with their complaints in a conciliatory setting, without 
being cast at the outset into an adversary role with their superiors. 
Indeed, the regulations expressly provide that the counselor may 
not reveal the identity of the employee during preoomplaint proc­
essing unless authorized to do so by the employee. 5 C.F.R. 
7l3.2)A(a).



58

row circumstances, the examiner must be an employee 
of a different agency.32 C.F.R. 713.218(a). The ex­
aminer initially reviews the complete investigative file 
and may order a supplemental investigation before the 
hearing if he feels it necessary. 5 C.F.R. 713.218(b). 
At the hearing, as throughout the entire administra­
tive process, the complainant has the right to be 
accompanied, represented, and advised by a represent­
ative of his own choosing.33 5 C.F.R. 713.214(b). More­
over, the employee must be given ample opportunity to 
elicit all “ [inform ation having a bearing on the com­
plaint or employment policy or practices relevant to 
the complaint * * and all testimony must be under 
oath or by affirmation. 5 C.F.R. 713.218(c)(2). The 
complainant may request the examiner to arrange for 
the presence as a witness of any federal employee who 
is likely to give pertinent testimony. 5 C.F.R. 713.218
(e). The complainant has the right to cross-examine 
witnesses. 5 C.F.R. 713.218(c)(2). The hearing must 
be recorded and transcribed verbatim, and all docu­
ments submitted become part of the record. 5 C.F.R. 
713.218(f).

32 The complaints examiner need not be an employee of another 
agency only when the agency in which the complaint arose is “ (1) 
the government of the District of Columbia, or (2) an agency 
which, by reason of law, is prevented from divulging information 
concerning the matter complained of to a person who has not 
received the security clearance required by that agency.” In these 
circumstances the agency must “ arrange with the [Civil Service] 
Commission for the selection of an impartial employee of the 
agency to serve as complaints examiner.” 5 C.F.R. 713.218(a).

33 Despite this provision, petitioner (Br. 61-62) and amicus (Br. 
26-27) allege that a prime deficiency of the administrative pro­



59

At the conclusion of the hearing, the examiner pre­
pares a complete file, which must consist of the report 
of the EEO Counselor, the complaint, the investiga­
tive file, the record of the hearing, and the examiner’s

ceedings is the failure to provide an attorney for the complainant 
or for attorney’s fees if he prevails. The factual premise of these 
contentions is erroneous, since employees in administrative pro­
ceedings often have available the services of an attorney without 
charge. The Commission’s regulations expressly state that lawyers 
in the complainant’s agency may be allowed a reasonable amount 
of time away from their official responsibilities for the purpose 
of representing an aggrieved employee without fee (5 C.F.R. 
713.214(b)) and certain agencies, such as the Department of 
Justice, operate an EEO Volunteer Representatives Program to 
assist Department employees in administrative proceedings. In­
deed, the Attorney General has authorized Justice Department 
attorneys to represent employees in other federal agencies without 
compensation. The District of Columbia Bar Association, which 
serves the area of greatest concentration of government workers, 
also operates an Employment Discrimination Complaint Service, 
which refers federal employees to private and governmental law­
yers who have agreed to provide free legal representation in dis­
crimination cases.

In any event, appointment of an attorney for the complainant 
in Title V II court actions is discretionary under the statute, not 
absolute. Moreover, payment of attorney’s fees relates only to a 
fringe benefit, not to a substantive or procedural defect of the 
administrative fact-finding process that would prevent the equita­
ble resolution of an employee grievance. It is settled that the 
failure to provide paid attorneys does not render proceedings 
unfair. See Alyeska Pipeline Service Co. v. Wilderness Society, 
421 U.S. 240, 270, n. 46 (attorney’s fees not awardable in civil 
rights actions brought under the Civil Rights Act of 1866,14 Stat. 
27, 42 U.S.C. 1981). Congress could reasonably have determined 
that an award of attorney’s fees to a successful complainant often 
is necessary in expensive and time consuming judicial proceedings, 
but not in administrative proceedings where, under the Commis­
sion’s procedures, both the pre-hearing investigator (5 C.F.R. 
713.216(a)) and the complaints examiner (5 C.F.R. 713.218(c) 
(2)) are under an independent obligation to develop the facts.



60

findings of fact, proposed decision, analysis and (where 
appropriate) recommended remedy. 5 C.F.R. 713.218
(g ). This record is then transmitted to the head of 
the agency or his designee, whose decision-required 
to be in writing—must be based thereon and must be 
sent to the complainant, together with a copy of the 
examiner’s findings and the hearing record. 5 C.F.R. 
713.221. I f  the agency rejects or modifies the ex­
aminer’s recommendation, a specific statement of rea­
sons must be provided.34 I f  on the other hand the 
agency decides that discrimination has been proven, it 
may award such relief as retroactive promotion and 
back pay. 5 C.F.R. 713.271. Following final agency 
action, the complainant must be notified of his right 
to file a civil action or to appeal to the Civil Service 
Commission (and then, if unsuccessful, to file a civil 
action). 5 C.F.R. 713.281. Appeals are considered by 
the Commission’s Appeals Review Board which, after 
reviewing the complaint file and all other relevant 
written representations made to it, must issue a writ­
ten decision that may affirm or reverse the agency, 
remand to the agency for further investigation or 
fact-findings or for a rehearing, or order additional 
investigation to be conducted by Commission person­
nel.35 5 C.F.R. 713.234.

34 Contrary to (milieus’ assertion (Br. 32a, n. 43), the Appeals 
Review Board has on occasion remanded cases to the agency for 
failure to specify the reasons for rejecting the complaints exami­
ner’s decision. See, e.g., Appeals Review Board No. RB071350729 
(June 30, 1975).

35 In Fiscal Year 1975, 749 appeals o f agency EBO decisions 
were decided by the Board. The Board affirmed the agency in 564



61

These administrative proceedings, while not the 
precise equivalent of district court trials, do not suffer 
the severe procedural or substantive limitations found 
in EEOC investigative processes or labor union arbi­
trations, and offer non-judicial remedies unparalleled 
in the private sector. Unlike EEOC proceedings, the 
federal employee has the right to a full hearing before 
an impartial examiner, at which he may be repre­
sented by counsel and may call and cross-examine 
witnesses, and where testimony is transcribed and 
taken under oath; also in contrast with EEOC pro­
ceedings, at the termination of the hearing adjudica­
tive findings are made and a statement of the reasons 
for the decision is provided either by the complaints 
examiner or by the head of the agency. A full admin­
istrative record is created by the investigation and 
the subsequent hearing, and the agency has the power 
to afford complete relief.

cases (75%), reversed in 74 cases (10%), and remanded to the 
agency in 111 cases (15%). These statistics hardly indicate that the 
administrative appeal process is futile. By contrast, in 1974 the 
courts of appeals reversed the judgment in only 18.6 percent of 
their cases. Annual Report of the Director of the Administrative 
Office of the United States Courts, 1974, p. IX —12.

All decisions of the Appeals Review Board since July 1, 1974, 
are available to the general public at Civil Service Commission 
headquarters and at each of the Commission’s ten regional offices. 
The Commission also distributes a quarterly Index to Appeals 
Decisions, which categorizes every Board decision and the reasons 
for the action taken,, and a monthly Digest of Significant Deci­
sions, which "suhimari'zes the noteworthy appeals. The Digest is 
mailed on a regular basis to any interested individual or 
organization.



62

Furthermore, contrary to amicus’  attempt to portray 
agency and Civil Service Commission proceedings as 
suffering the same defects as labor union arbitra­
tions (Br. 20-25), the Commission and federal 
agencies (unlike arbitrators) must follow the sub­
stantive law of Title V II  in reaching their decisions. 
The assertion that in many instances they are in error 
as to that law does not change their responsibilities 
or the nature of the law they are bound to apply.36 37 
Such errors of law—which we can assume will di­
minish as Title V II  is explicated by the courts and as 
administrative responsibility is secured—can be cor­
rected by court review of the administrative decision 
on the administrative record as readily as (or, indeed, 
more readily than) by trial de novoV See, e.g., Amer­
ican Ship Building Co. v. National Labor Relations 
Board, 380 U.S. 300, 318; National Labor Relations 
Board v. Brown, 380 U.S. 278, 292. While such judicial 
review of arbitral awards would be incompatible with

36 See Morton v. Manccen, 417 U.S. 585, 547, noting that “ [i]n 
general, it may be said that the substantive anti-discrimination 
law embraced in Title V II was carried over and applied to the 
Federal Government.” Morton concerned whether certain federal 
employment preferences for Indians survived the enactment of 
Title V II and its extension in 1972 to federal employees. Although 
frequently cited by petitioner, Morton indicates only that the sub­
stantive private sector Title V II law was carried over to the 
federal government, not that the federal and private sector pro­
cedural formats for enforcing Title V II must be identical. This 
Court referred only to the 1972 Amendments’ “ extending the gen­
eral anti-discrimination machinery to federal employment.” 417 
U.S. at 548 (emphasis added).

37 See, e.g., Day v. Weinberger, 8 EPD 9771 (D. D.C.), pend­
ing on appeal, C.A.D.C., No. 75-1085, in which the district court,



63

the utility of informal arbitration procedure “as an 
efficient, inexpensive, and expeditious means for dis­
pute resolution” (Alexander v. Gardner-Denver Co., 
supra, 415 U.S. at 58), it would serve to strengthen 
the administrative procedures for adjudication of fed­
eral Title V II  claims (see pp. 67-68, infra).

without holding a trial de novo, rejected the agency’s legal premise 
that back pay could not be awarded without a finding that the 
complainant would have been promoted absent the discrimination. 
(‘On appeal the government has contended not that federal employ­
ees must make a greater showing than private employees in order 
to receive back pay, but that, as in the private sector, employees 
are entitled to back pay only when they would have been promoted 
or hired but for the prohibited discrimination. 5 C.F.R. 713.271 
(b) (1). See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 
(opinion of the Court), 440 (Marshall, J., concurring), 445 
(Rehnquist, J., concurring).) Similarly, any error in applying the 
proper burden of proof may be remedied by the reviewing court. 
Contrary to amicus’ contention (Br. 21-23), present administra­
tive rules involving the burden of showing discrimination favor 
the complainant. Unlike the situation in court, the agency may not 
move to dismiss an administrative proceeding because of the em­
ployee’s failure to make out a prima facie case. The employee’s 
only burden is to file an administrative complaint and to furnish 
any information available to him. This filing sets into motion the 
entire investigative hearing mechanism, which cannot be termi­
nated before the agency has responded to the charges of discrimi­
nation and produced all relevant evidence within its possession. The 
complaints examiner is then obliged to “evaluate the evidence con­
tained in the investigative file and in the transcript o f the hear­
ing in the light of the agency’s responsibility under the Act and 
the Executive Order,” Office of Federal Equal Employment Op­
portunity Discrimination Complaints Examiners Handbook 
56-57 (1973), and must require the agency to produce evidence 
rebutting a finding of discrimination whenever it appears that 
there has been disparate treatment based on race, color, religion, 
sex, or national origin. I f  the agency cannot persuade the examiner 
that it acted for a non-discriminatory reason, the examiner is 
required to find for the complainant. Id. at 62.



64

Federal Title Y II  administrative proceeding's also 
differ significantly from arbitrations by permitting 
cross-examination, by requiring testimony under oath 
and decisions based on written findings of fact, and 
by allowing the complainant (and not another party 
such as the union, which may have adverse interests) 
to control the presentation of his case.38 See Alexander 
v. Gardner-Denver Go., supra, 415 U.S. at 58, n. 19. 
Administrative hearings under the Civil Service 
Commission’s Equal Opportunity Regulations thus are 
not hindered by the limitations of scope that make 
arbitral proceedings ineffective as a possible forum 
for the resolution of Title Y II  rights.

Although petitioner and amicus allege numerous 
deficiencies in the Commission’s procedures, the short 
answer to these contentions is that if  these alleged 
deficiencies in fact exist and produce an unfair result 
in a given case, the courts have full power to reverse 
the administrative decision and to require adjustment 
and correction of the improper practice.39 See 5 U.S.C.

38 In another effort to analogize federal Title Y II proceedings 
to the arbitration involved in Alexander, amicus contends that the 
agency, not the complainant, controls the administrative process 
(Br. 27-29). Obviously in any such proceeding the agency 
will “control” in the sense that there will normally be no judicial 
involvement during the course of the administrative process. This 
Court’s concern in Alexander, however, was that the union had 
“ control over the manner and extent to which an individual 
grievance is presented.” 415 U.S. at 58, n. 19. At the administrative 
hearing provided by Civil Service Commission regulations, the 
complainant has complete authority over the way his complaint 
is presented. And again, any error in the conduct o f the hearing 
subjects the decision to reversal by the reviewing court.

39 For example, if a complainant makes a reasonable request for 
relevant information in the possession of the agency and the



65

706(2) (D ); Best v. Humboldt Mining Co., 371 U.S. 
334, 339-340. A  district court, for example, has re­
cently invalidated Commission rules that effectively 
prohibited administrative class actions. Barrett v. 
United States Civil Service Commission, D. D.C., Civ. 
No. 74-1694, decided December 10, 1975.40 In the ordi­
nary case, however, there is no reason why the Com­
mission’s procedures are incapable of building a full 
and fair record, which may be adequately reviewed by 
a court, and there is no basis for assuming that the 
complaints examiner, who compiles the record and

request is arbitrarily denied, remand or supplementary judicial 
proceedings may be necessary. A  proper pre-hearing investigation 
by a disinterested investigator (see 5 C.F.R. 713.216), however, 
should normally eliminate the need for an employee to request 
additional information.

40 The Civil Service Commission has now approved in concept 
the propriety of administrative class actions, and we expect that 
draft regulations implementing Barrett will be published before 
the end o f February 1976. Even without formal class actions, how­
ever, the Commission has considered statistical evidence of 
discrimination in adjudicating complaints, and possesses the 
power to remedy systemic or class-wide bias on the administrative 
level. Present regulations instruct the pre-hearing investigator to 
compile statistical data on “the utilization of members of the com­
plainant’s group as compared to the utilization of persons outside 
the complainant’s group,” 5 C.F.R. 713.216(a), and such data 
also are collected in conjunction with agency affirmative action 
programs. 5 C.F.R. 713.302. This evidence has been used on appro­
priate occasions by complaints examiners, agency heads, and the 
Commission’s Appeals Review Board. See, e.g., Evans v. Lynn, 
D. D.C. Civ. No. 630-73, decided October 24, 1974. Nevertheless, 
the propriety of administrative class actions has no bearing on the 
precise issue here—whether judicial review should be confined to 
the administrative record in normal federal Title V II cases. 
Review may be based on the administrative record whether or not 
class actions are permitted, especially when a pattern or practice 
of discrimination in an agency is alleged.



judges demeanor and credibility, will not be impar­
tial. (Here, she ruled in petitioner’s favor.) In addi­
tion, since employment discrimination cases ordinarily 
turn on the testimony of members of the affected 
agency, the examiner’s power to compel the testimony 
of any federal employee should suffice in all but a 
relatively few, atypical cases of alleged discrimina­
tion. 5 C.F.R. 713.218(e).

We recognize that in certain unusual instances the 
statutory scheme may render the administrative pro­
cedures structurally incapable of developing an ade­
quate record. I f  an essential witness is not a govern­
ment employee, and he refuses to attend the hearing, 
there is no subpoena power to require his attendance. 
In such instances, a supplementary hearing in the 
district court, or even a trial de novo, may be re­
quired. Similarly, when an administrative complaint 
has not been timely processed and the employee brings 
suit under the 180-day provision of Section 717(c), 
there may have been no opportunity for an adminis­
trative hearing, and hence the courts would not have 
any administrative record to review. Again, of neces­
sity, a trial de novo may be required/1 But these 
exceptions should not dictate the rule (see S. Rep. No. 
92-415, supra, at 23; Legislative History at 432), 
and where, as here, the claimant’s rights have not been 
shortchanged and an exhaustive administrative com­
plaint file exists, a trial de novo would be inappro­
priate. As we have shown, there is no basis, either in 41

41 As we discuss infra, p. 72, n. 46, in appropriate cases a stay of 
the judicial proceedings may be proper to permit completion of 
the agency record.



67

the structure of the administrative mechanism or in 
the results produced on the administrative level since 
1972, for petitioner’s pervasive assumption that no 
meaningful adjudication of federal Title V II  rights 
can be achieved other than by de novo judicial review.

3. The foregoing discussion illustrates that the ad­
ministrative process can compile a full and fair evi­
dentiary record in the ordinary federal Title V II  case. 
Important policy considerations strongly support a 
rule confining judicial review in such a case to the 
administrative record.

As we have previously noted, the 1972 Amendments 
expressly indicate the intention of Congress that the 
Civil Service Commission and the agencies have pri­
mary responsibility for enforcing nondiscrimination 
in federal employment. Section 717(a) provides that 
“ [a] 11 personnel actions affecting [federal] employees 
or applicants for employment * * * shall be made 
free from any discrimination based on race, color, 
religion, sex, or national origin,”  and subsection (b) 
provides that “ [ejxcept as otherwise provided in this 
subsection, the Civil Service Commission shall have 
authority to enforce the provisions of subsection (a ).” 
Subsection (e) further provides that “ [n]othing con­
tained in this Act shall relieve any Government 
agency or official of its or his primary responsibility to 
assure nondiscrimination in employment * *

To permit de novo proceedings following agency 
determinations would significantly diminish the im­
portant responsibility placed upon the agencies and 
the Civil Service Commission by statute and would



68

severely erode efforts to strengthen an administrative 
process that has been specifically designed to discharge 
that responsibility. Obviously, a decision maker whose 
entire fact-finding and deliberative processes may be 
disregarded or repeated de novo often will not be as 
likely to proceed with the same care as one whose 
findings are subject to scrutiny, and due deference, 
on review. Moreover, an absolute right to trial de novo 
in the district court would decrease a complainant’s 
incentive to prosecute his administrative claim vigor­
ously, thus tending to frustrate the congressional 
determination to retain the agencies and the Civil 
Service Commission as the key influence in eliminating 
discrimination in federal employment. And, because an 
invariable right to trial de novo would preclude judi­
cial review and correction of the agency and Commis­
sion processes, it would sacrifice the improvement of 
administrative proceedings that inevitably accompanies 
penetrating and regular court scrutiny of their fair­
ness, efficacy, and efficiency, and would thus tend to 
fulfill petitioner’s and amicus’  allegations that such 
proceedings are inadequate and incapable of enforcing 
Title V II  rights. See Jaffe & Nathanson, Administra­
tive Law 31 (3d ed. 1968) (“ [j Judicial review, however 
seldom invoked, casts a long shadow, both before and 
after it” ) ; Jaffe, Judicial Control of Administrative 
Action, supra, at 189-190.

Review on the administrative record also avoids 
needless duplication of effort and promotes a prompt 
resolution of discrimination disputes. A prolonged 
civil rights employment controversy harms all con­



69

cerned—not only the complaining employee but also 
his superiors in the agency charged with discrimina­
tion, who must continue to work with each other 
during the course of the dispute. Judicial review on 
the administrative record obviously produces a faster 
and less costly resolution of such disagreements than 
does the conducting of an essentially duplicative trial 
de novo.

The number of federal Title V II  cases is large.42 Of 
course, if federal employees had no fair means of en­
forcing their Title V II  rights other than in a plenary 
judicial trial, the very heavy burden on the federal 
court system imposed by permitting de novo court 
proceedings in all federal employee cases would not 
be a significant consideration. But where, as here, 
aggrieved federal employees are entitled to a com­
plete administrative hearing at which they can present 
and cross-examine witnesses under oath and on the 
record, a requirement of de novo review would waste- 
fully and unnecessarily burden the district courts.

Courts which have held that federal employees are 
entitled to a trial de novo regardless of the underlying 
circumstances have attempted to minimize the need­
less duplication of effort by noting that the district 
judge may always exclude redundant testimony and 
may grant summary judgment under Rule 56, Fed. 
R. Civ. P., in appropriate cases. See, e.g., Hackley v.

42 We cannot state with certainty the precise number of these 
cases, but the Civil Service Commission participated in the defense 
of more than 200 federal employee Title Y II cases in the district 
courts in fiscal year 1975 alone. This appears to be a conservative 
indication of the number of such suits now pending. See also p. 
36, n. 17, supra.



70

RoudebuM, 520 F. 2d at 157 (opinion of the court) 
and 171 (Leversthat, J., concurring). While theo­
retically true, this point ignores the fact that employ­
ment discrimination allegations often may involve 
issues of fact that can be determined only after a 
personal assessment of the credibility of witnesses. 
In such cases, as the District of Columbia Circuit has 
conceded, testimony heard by a complaints examiner 
and recorded verbatim would have to be retaken. 520
E. 2d at 157 (opinion of the court) and 171 (Leven- 
thal, J., concurring). These suggested remedies 
would also be unworkable if a witness, called for the 
first time in the district court proceeding, gives testi­
mony that requires the recall of witnesses who had 
previously testified at the administrative level.

In judicial review of an adjudicatory administrative 
determination based upon a hearing, Congress has 
empowered the courts to set aside agency action that 
is arbitrary, capricious, or “unsupported by substan­
tial evidence.”  5 U.S.C. 706(2).43 This standard takes 
account of the expertise and primary responsibility 
of the agency and, by clearly defining the respective 
roles of the administrator and judge, prevents duplica­
tion of effort, yet it ensures that agency decisions will 
be supported by the evidence adduced, procedurally 
correct, and in accordance with the applicable law. 
Substantial evidence review of the administrative rec­

43 See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 
414-415; Shaughnessy v. Pedreiro, 349 U.S. 48, 50-51; Wong 
Yang Sung v. McGrath, 339 U.S. 33,404L1.



71

ord is a process with which courts are familiar.44 It 
is far from a “ rubber stamp.” National Labor Rela­
tions Board v. Brown, supra, 380 U.S. at 291. Issues 
of law and procedure are of course reviewable inde­
pendently, and if the district court cannot find that 
the evidence supporting the administrative decision is 
substantial, it must reverse.45 Universal Camera Corp. 
v. National Labor Relations Board, 340 U.S. 474, 488. 
Moreover, if the agency or Civil Service Commission 
has rejected findings of the independent complaints 
examiner, the court may take this into consideration 
in determining whether the substantial evidence 
standard has been met. See Universal Camera Corp. v. 
National Labor Relations Board, supra, 340 U.S. at 
496-497; National Labor Relations Board v. Universal 
Camera Corp., 190 F. 2d 429, 430 (C.A. 2).

All of these considerations, we submit, lead to the 
conclusion that judicial review in the ordinary federal

44 Significantly, when this Court determined in McDomwll 
.Douglas and Alexander that court proceedings should be de novo 
in the private sector following EEOC investigations or union 
arbitration awards, the alternative was not substantial evidence 
review of a hearing record and administrative findings of fact, but 
rather deferral to the previous decision or, indeed, preclusion of 
district court jurisdiction altogether.

45 Amicus (Br. 11-12, n. 10) alleges that no district court apply­
ing less than de novo review has overturned an administrative 
decision and granted summary judgment to a plaintiff. This state­
ment is incorrect, See, e.g., Napper v. Schnipke, S93 F, Supp. 
379 (E.D. M ich.); Robinson v. Warner, 8 EPD  ̂9452 (D. D .C .); 
Day v. Weinberger, supra; Davis v. Department of Health, Edu­
cation and, W elfare, 10 EPD 10,341 (E.D. L a .); Palmer v. 
Rogers, 10 EPD *[ 10,265 (D. D .C .); Rios v. Morton, D. Colo., 
Civ. No. C-5499, decided September 25,1975.

213-385 0  -  76 - 6



72

Title Y II  case should be limited to the administrative 
record. An aggrieved employee presumptively would 
be given a full and fair opportunity to present his 
case and to build a record on the administrative level, 
and if  he demonstrates that he did not in fact receive 
that opportunity the reviewing court would reverse 
the administrative decision. In those rare instances, 
discussed above, where judicial review cannot ade­
quately be bottomed on the administrative record, the 
district court possesses the discretion to entertain 
supplementary proceedings, including trial de novo 
where appropriate, while according the administrative 
record the great weight that it deserves. Cf. Alexander 
v. Gardner-Denver Gosupra ,  415 U.S. at 60, n. 21.46

D. T H E  J U D G M E N T  BELO W  IS  CORRECT

Under the standard we have urged above, the court 
of appeals was correct in concluding that petitioner

46 Trial de novo, for example, would normally be required (at 
least in the absence of an agency decision before trial) when suit 
has been instituted after the expiration of 180 days from the filing 
of an administrative complaint without final agency action. In 
circumstances which show that the complainant has delayed the 
administrative process, however, it would be consistent with the 
dual congressional purpose of giving the agency primary responsi­
bility for the elimination of employment discrimination, while 
encouraging speedy agency action, to permit the agency to seek a 
stay o f the court proceedings. The agency would be required to 
demonstrate that it has been acting with due diligence, that it 
anticipates issuance o f an order within a resonable time, and that 
the case or order is exceptional. Such a procedure was originally 
incorporated into the federal employee provisions of the Senate 
Committee Bill, but was inadvertently eliminated when the EE'O'C 
authority to hold administrative hearings was removed. See supra, 
pp. 44-45, n. 22.



73

was not entitled to a trial de novo in the district court 
and that the judgment should be affirmed. This suit 
was filed within 30 days of receipt of notice of 
final action by the Civil Service Commission based 
upon a complete administrative record, and thus does 
not involve the 180-day provisions of Section 717(c). 
Moreover, petitioner requested and received a full 
evidentiary hearing before a complaints examiner.

Nor does the record indicate that exercise of district 
court subpoena power would have produced evidence 
supporting petitioner’s discrimination claim. As the 
court below noted, ‘ ‘there was no offer of proof or 
suggestion that new and material evidence likely to 
produce a different result would be forthcoming if 
the record were reopened” (515 F. 2d at 255; Pet. 
App. 41a). The selecting official testified at length and 
was subject to cross-examination (A.R. 56-69). More­
over, all of the hearing witnesses requested by peti­
tioner were government employees and therefore 
within the complaints examiner’s power to compel 
them to testify (A.R. 143-145). 5 C.F.R. 713.218(e).

Although the examiner initially disapproved 19 of 
the 24 witnesses requested by petitioner because their 
expected testimony did not appear to be relevant to 
the issue of whether petitioner had been discriminated 
against (A.R. 118, 141), the examiner reconsidered 
and approved 4 of the 19 previously-excluded wit­
nesses (A.R. 118).47 It is true that one of these, Mrs.

47 The complaints examiner’s decision not to summon several 
of petitioner’s proposed witnesses itself reflects no procedural un­
fairness. Even in court a party has no right to call every witness



74

Murrell Long, did not appear because she did not 
wish to testify (A.R. 118), hut she had been suggested 
as a witness only because she assertedly had 
“ [rjefused to sign [a] deposition given under oath 
by the EEO Investigator” (A.R. 144). There is no in­
dication in the administrative record that Mrs. Long 
would have given evidence supportive of petitioner’s 
discrimination claim, that petitioner requested the 
hearing examiner to produce Mrs. Long through fur­
ther administrative procedures, or that petitioner 
complained of the absence of Mrs. Long’s live testi­
mony on appeal to the Civil Service Commission. 
Similarly, the examiner’s decision not to call Mr. 
Dineros, the person selected instead of petitioner, was 
within her discretion. Although petitioner contends 
that the selectee could have testified to his qualifica­
tions for the job of Supervisory Claims Examiner, 
those qualifications were not themselves in issue at the 
hearing; the significant factor was the good faith 
belief of the members of the selecting panel and the 
selecting official that Mr. Dineros was better quali­
fied.48 Each member of the panel and the selecting offi­
cial testified fully at the administrative hearing.

he desires. See, e.g-, May v. United States, 175 F. 2d 994, 1010 
(C.A.D.C.), certiorari denied, 338 U.S. 830; Gajewski v. United 
States, 321 F. 2d 261 (C.A. 8), certiorari denied, 375 U.S. 968. 
The examiner’s refusal in this case to allow testimony by persons 
with no apparent knowledge of the contested issues was consistent 
with the discretionary power frequently exercised by trial courts.

48 For example, if the selecting official had chosen a person other 
than petitioner in the honest belief that that person was more



75

Accordingly, no special circumstances exist that 
would justify a departure from the usual substantial 
evidence review of the administrative record, and peti­
tioner was properly refused a trial de novo. While the 
district court and the court of appeals in this case 
apparently applied a somewhat broader standard of 
review than that which we suggest is applicable, both 
courts found that the administrative decision was 
based upon the weight of the evidence, that agency 
procedures were adequate, and that there were no 
errors of law. These conclusions are fully supported 
by the record. The decision below is therefore correct.

CONCLUSION

For the foregoing reasons, it is respectfully sub­
mitted that the judgment of the court of appeals 
should be affirmed.

F ebruary 1976.

R obert H. B ork,
Solicitor General. 

R ex E. Lee,
Assistant Attorney General. 
L awrence G. W allace, 

Deputy Solicitor General. 
K enneth S. (Teller, 

Assistant to the Solicitor General. 
R obert E. K opp,
J ohn M. R ogers,

Attorneys.

qualified, and if that decision was in no way influenced by con­
sideration of race, color, religion, sex, or national origin, peti­
tioner would not be entitled to relief under Title V I I  even if she 
in fact were more capable to fill the position than the selectee.



Appendix A

CIVIL RIGHTS ACT OF 1964 AS AMENDED
AN ACT To enforce the constitutional right to vote, to confer jurisdiction upon 

the district courts of the United States to provide injunctive relief against 
discrimination in public accommodation?, to authorize the Attorney General 
to institute suits to protect constitutional rights in public facilities and public 
education, to extend the Comnaission on Civil Bights, to prevent discrimination 
in federally assisted programs, to establish a Commission on Equal Employ­
ment Opportunity, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United 

States of America in Congress assembled, That this Act may be cited 
as the “ Civil Rights Act of 1964’’ .

* * * * * * *

TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY1

D EFIN ITIO N S

Sec. 701. For the purposes of this title—
(a) The term “ person”  includes one or more individuals, govern­

ments, governmental agencies, political subdivisions, labor unions, part­
nerships, associations, corporations, legal representatives, mutual 
companies, joint-stock companies, trusts, unincorporated organiza­
tions, trustees, trustees in bankruptcy, or receivers.

(b) The term “employer” means a person engaged in an industry 
affecting commerce who has fifteen or more employees for each working 
day in each of twenty or more calendar weeks in the current or pre­
ceding calendar year, and any agent of such a person, but such term 
does not include (1) the United States, a corporation wholly owned by 
the Government of the United States, an Indian tribe, or any depart­
ment or agency of the District of Columbia subject by statute to procedures 
of the competitive service (as defined in section 2102 of title 5 of the United 
States Code), or (2) a bona fide private membership club (other than 
a labor organization) which is exempt from taxation under section 
501(c) of the Internal Revenue Code of 1954, except that during the 
first year after the date of enactment of the Equal Employment Opportunity 
Act of 1972, persons having fewer than twenty-five employees (and 
their agents) shall not be considered employers.

(c) The term “employment agency” means any person regmariy 
undertaking with or without compensation to procure employees for 
an employer or to procure for employees opportunities to work for 
an employer and includes an agent of such a person.

(d) The term “labor organization” means a labor organization en­
gaged in an industry affecting commerce, and any agent of such an 
organization, and includes any organization of any kind, any agency, 
or employee representation committee, group, association, or plan so 
engaged in which employees participate and which exists tor 8

1 Includes 1972 amendments made by P.L. 92—261 printed in italic.

la



2a

purpose, in whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours, or other terms 
or conditions of employment, and any conference, general committee, 
joint or system board, or joint council so engaged which is subordinate 
to a national or international labor organization,

(e) A labor organization shall be deemed to be engaged in an industry 
affecting commerce if (1) it maintains or operates a hiring hall or hiring 
office which procures employees for an employer or procures for em­
ployees opportunities to work for an employer, or (2) the number of its 
members (or, where it is a labor organization composed of other labor 
organizations or their representatives, if the aggregate number of the 
members of such other labor organization) is (A) twenty-five or more 
during the first year after the date of enactment of the Equal Employ­
ment Opportunity Act of 1972, or (B) fifteen or more thereafter, and 
such labor organization—

(1) is the certified representative of employees under the pro­
visions of the National Labor Relations Act, as amended, or the 
Railway Labor Act, as amended;

(2) although not certified, is a national or international labor 
organization or a local labor organization recognized or acting as 
the representative of employees of an employer or employers 
engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body 
which is representing or actively seeking to represent employees 
of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or 
actively seeking to represent employees within the meaning of 
paragraph (1) or (2) as the local or subordinate body through 
which such employees may enjoy membership or become affiliated 
with such labor organization; or

(5) is a conference, general committee, joint or system board, 
or joint council subordinate to a national or international labor 
organization, which includes a labor organization engaged in an 
industry affecting commerce within the meaning of any of the 
preceding paragraphs of this subsection.

(f) The term “ employee” means an individual employed by an 
employer, except that the term ‘employee’ shall not include any person 
elected to public office in any State or political subdivision of any State 
by the qualified voters thereof, or any person chosen by such officer to be 
on such officer’s personal staff, or an appointee on the policymaking level 
or an immediate adviser with respect to the excercise of the constitutional 
or legal powers of the office. The exemption set forth in the preceding 
sentence shall not include employees subject to the civil service laws of a 
State government, governmental agency or political subdivision.

(g) The term “commerce” means trade, traffic, commerce, trans­
portation, transmission, or communication among the several States; 
or between a State and any place outside thereof; or within the 
District of Columbia, or a possession of the United States; or between 
points in the same State but through a point outside thereof.

(h) The term “industry affecting commerce” means any activity, 
business, or industry in commerce or in which a labor dispute would 
hinder or obstruct commerce or the free flow of commerce and includes 
any activity or industry “ affecting commerce” within the meaning of



3a

the Labor-Management Reporting and Disclosure Act of 1959, and 
further includes any governmental industry, business, or activity.

(i) The term “State” includes a State of the United States, _ the 
District of Columbia, Puerto Rico, the Virgin Islands, .American 
Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental 
Shelf lands defined in the Outer Continental Shelf Lands Act.

(j ) The term “religion” includes all aspects of religious observance 
and practice, as well as belief, unless an employer demonstrates that he 
is •unable to reasonably accommodate to an employee’s or prospective 
employee’s, religious observance or practice without undue hardship on. 
the conduct of the employer’s business.

E X E M P T IO N

S e c . 702. This title shall not apply to an employer with respect to 
the employment of aliens outside any State, or to a religious corpora­
tion, association, educational institution, or society with respect to 
the employment of individuals of a particular religion to perform work 
connected with the carrying on by such corporation, association, 
educational institution, or society of its activities.

D ISCRIM IN ATIO N  B ECAU SE OF R A C E , COLOR, R E L IG IO N , S E X , OR
N A T IO N A L  O R IGIN

S e c . 703. (a) It shall be an unlawful employment practice for an 
employer— _ _ . . .

(1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with respect 
to his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or 
national origin; or

(2) to limit, segregate, or classify his employees or applicants for 
employment in any way which w'ould deprive or tend to deprive 
any individual o~f employment opportunities or otherwisê  ad­
versely affect his status as an employee, because of such indi­
vidual’s race, color, religion, sex, or national origin.

(b) It shall be an unlawful employment practice for an employ­
ment agency to fail or refuse to refer for employment, or otherwise 
to discriminate against, any individual because of his race, color, 
religion, sex, or national origin, or to classify or refer for employ­
ment any individual on the basis of his race, color, religion, sex, or 
national origin. . ,

(c) It shall be an unlawful employment practice for a labor
organization— .

(1) to exclude or to expel from its membership, or otherwise 
to discriminate against, any individual because of his race, color, 
religion, sex, or national origin;

(2) to limit, segregate, or classify its membership, or applicants 
for membership or to classify or fail or refuse to refer for employ­
ment any-individual, in any way which would deprive or tend to 
deprive any individual of employment opportunities, or would 
limit such employment opportunities or otherwise adversely aitect 
his status as an employee or as an applicant for employment, be­
cause of such individual’s race, color, religioh, sex, or national 
origin; or



4a

(3) to cause or attempt to cause an employer to discriminate 
against an individual in violation of this section.

(d) It shall be an unlawful employment practice for any employer, 
labor organization, or joint labor-management committee controlling 
apprenticeship or other training or retraining, including on-the-job 
training programs to discriminate against any individual because of 
his race, color, religion, sex, or national origin in admission to, or 
employment in, any program established to provide apprenticeship or 
other training.

(e) Notwithstanding any other provision of this title, (1) it shall 
not be an unlawful employment practice for an employer to hire and 
employ employees, for an employment agency to classify, or refer for 
employment any individual, for a labor organization to classify its 
membership or to classify or refer for employment any individual, or 
for an employer, labor organization, or joint labor-management com- 
mitteemontrolling apprenticeship or other training or retraining pro­
grams to admit or employ any individual in any such program, on the 
basis of his religion, sex, or national origin in those certain instances 
where religion, sex, or national origin is a bona fide occupational quali­
fication reasonably necessary to the normal operation of that particular 
business or enterprise, and (2) it shall not be an unlawful employment 
practice for a school, college, university,, or other educational institu­
tion or institution of learning to hire and employ employees of a_ par­
ticular religion if such school, college, university, or. other educational 
institution or institution of learning is, in whole or in substantial part, 
owned, supported, controlled, or managed by a particular religion or 
by a particular religious corporation, association, or society, or if the 
curriculum of such school, college,_ university, or other educational 
institution or institution of learning is directed toward the propagation 
of a particular religion.

(f) As used in this title, the phrase “unlawful employment practice’ 
shall not be deemed to include any action or measure taken by an 
employer, labor organization, joint labor-management committee, or 
employment agency with respect to an individual who is a member 
of the Communist Party of the United States or of any other organiza­
tion required to register as a Communist-action or Communist-front 
organization by final order of the Subversive Activities Control Board 
pursuant to the Subversive Activities Control Act of 1950.

(g) Notwithstanding any other provision of this title, it shall not 
be an unlawful employment practice for an employer to fail or refuse 
to hire and employ any individual for any position, for an employer 
to discharge any individual from any position, or for an employment 
agency to fail or refuse to refer any individual for employment in any 
position, or for a labor organization to fail or refuse to refer any 
individual for employment in any position, if—

(1) the occupancy of such position, or access to the premises 
in or upon which any part of the duties of such position is per­
formed or is to be performed, is subject to any requirement 
imposed in the interest of the national security of the United 
States under any security program in effect pursuant to or admin­
istered under any statute of the United States or any Executive 
order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that 
requirement.



5a

(h) Notwithstanding any other provision of this title, it! shall not 
be an unlawful employment practice for an employer to apply differ­
ent standards of compensation, or different terms, conditions, or 
privileges of employment pursuant to a bona fide seniority nr merit 
system, or a system which measures earnings by quantity or quality of 
production or to employees who work in different locations, provided 
that such differences are not the result of an intention to discriminate 
because of race, color, religion, sex, or national origin, nor shall it be 
an unlawful employment practice for an employer to give and to act 
upon the results of any professionally developed ability test provided 
that such test, its administration or action upon the results is not 
designed, intended or used to discriminate because of race, color, 
religion, sex or national origin. It shall not be an unlawful employ­
ment practice under this title for any employer to differentiate upon 
the basis of sex in determining the amount of the wages or compen­
sation paid or to be paid to employees of such employer if such 
differentiation is authorized by the provisions of section 6(d) of the 
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).

(i) Nothing contained in this title shall apply to any business or 
enterprise on or near an Indian reservation with respect to any publicly 
announced employment practice of such business or enterprise under 
which a preferential treatment is given to any individual because he 
is an Indian living on or near a reservation.

(j) Nothing contained in this title shall be interpreted to require 
any employer, employment agency, labor organization, or joint labor- 
management committee subject to this title to grant preferential treat­
ment to any individual or to any group because of the race, color, reli­
gion, sex, or national origin of such individual or group on account of 
an imbalance which may exist with respect to the total number or per­
centage of persons of any race, color, religion, sex, or national origin, 
employed by any employer, referred or classified for employment by 
any employment agency or labor organization, admitted to member­
ship or classified by any labor organization, or admitted to, or em­
ployed in, any apprenticeship or other training program, in compari­
son with the total number or percentage of persons of such race, color, 
religion, sex, or national origin in any community, State, section, or 
other area, or in the available work force in any community, State, 
section, or other area.

O TH E R  U N LAW FU L EM PLOYM EN T PR ACTICES

S e c . 704. (a) It shall be an unlawful employment practice for an 
employer to discriminate against any of his employees or applicants 
for employment, for an employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
including on-the-job training programs, to discriminate against any 
individual, or for a labor organization to discriminate against any 
member thereof or applicant for membership, because he has opposed 
any practice made an unlawful employment practice by this title, or 
because he has made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under this title.

(b) It shall be an unlawful employment practice for an employer, 
labor organization, employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining, in­



6a

eluding on-the-job training programs, to print or publish or cause to be 
printed or published any notice or advertisement relating to employ­
ment by such an employer or membership in or any classification or 
referral for employment by such a labor organization, or relating to 
any classification or referral for employment by such an employment 
agency, or relating to admission to, or employment in, any program 
established to provide apprenticeship or other training by such a joint 
labor-management committee indicating any preference, limitation, 
specification, or discrimination, based on race, color, religion, sex, or 
national origin, except tbat such a notice or advertisement may 
indicate a preference, limitation, specification, or discrimination based 
on religion, sex, or national origin when religion, sex, or national 
origin is a bona fide occupational qualification for employment.

E Q U A L  E M PLO YM EN T O PPO BTU N ITY COMM ISSION

Sec. 705. (a) There is hereby created a Commission to be known as 
the Equal Employment Opportunity Commission, which shall be com­
posed of five members, not more than three of whom shall be members 
of the same political party. Members oj the Commission shall be ap­
pointed by the President by and with the advice and consent of the 
Senate for a term of five years. Any individual chosen to fill a vacancy 
shall be appointed only for the unexpired term of the member _ whom, 
he shall succeed, and all members of the Commission shall continue to 
serve until their successors are appointed and qualified, except that no 
such member of the Commission shall continue to serve (/) for more than 
sixty days when the Congress is in session unless a nomination to fill 
such vacancy shall have been submitted to the Senate, or (2) after the 
adjournment sine die of the session of the Senate in which, such nomination, 
was submitted. The President shall designate one member to serve as 
Chairman of the Commission, and one member to serve as Vice Chair­
man. The Chairman shall be responsible on behalf of the Commission 
for the administrative operations of the Commission, and except as 
provided in subsection (6), shall appoint, in accordance with the pro­
visions of title 5, United States Code, governing appointments in the 
competitive service, such officers, agents, attorneys, hearing examiners, and 
employees as he deems necessary to assist it in the performance of its 
functions and to fix their compensation in accordance with the provisions 
of chapter 51 and subchapter III of chapter 53 of title 5, United States 
Code, relating to classification and General Schedule pay rates: Provided, 
That assignment, removal, and compensation of hearing examinerŝ  shall 
be in accordance ivith sections 3105, 3344, 5362, and 7521 of title 5, 
United States Code.

(b)(1) There shall be a General Counsel of the Commission appointed 
by the President, by and with the advice and consent of the Senate, for a 
term of four years. The General Counsel shall have responsibility for the 
conduct of litigation as provided in sections 706 and 707 of this title. The 
General Counsel shall have such other duties as the Commission̂  may 
prescribe or as may be provided by law and shall concur with the Chairman 
of the Commission on the appointment and supervision of regional 
attorneys. The General- Counsel of the Commission on the effective date 
of this Act shall continue in such position and perform the functions 
specified in this subsectionnmtil a successor is appointed and qualified.



7a

(2) Attorneys appointed under this section may, at the direction of 
the Commission, appear for and represent the Commission in any case 
in court, provided that the Attorney General shall conduct all litigation 
to which the Commission is a party in the Supreme Court pursuant to 
this title.

(c) A vacancy in the Commission shall not impair the right of the 
remaining members to exercise all the powers of the Commission and 
three members thereof shall constitute a quorum.

(d) The Commission shall have an official seal which shall be 
judicially noticed.

(e) The Commission shall at the close of each fiscal year report 
to the Congress and to the President concerning the action it has 
taken; the names, salaries, and duties of all individuals in its employ 
and the moneys it has disbursed; and shall make such further reports 
on the cause of and means of eliminating discrimination and such 
recommendations for further legislation as may appear desirable.

(J) The principal office of the Commission shall be in or near the 
District of Columbia, but it may meet or exercise any or all its powers 
at any other place. The Commission may establish such regional or 
State offices as it deems necessary to accomplish the purpose of this 
title.

(g) The Commission shall have power—
(1) to cooperate with and, with their consent, utilize regional, 

State, local, and other agencies, both public and private, and 
individuals;

(2) to pay to witnesses whose depositions are taken or who are 
summoned before the Commission or any of its agents the same 
witness and mileage fees as are paid to witnesses in the courts 
of the United States;

(3) to furnish to persons subject to this title such technical 
assistance as they may request to further their compliance with 
this title or an order issued thereunder;

(4) upon the request of (i) any employer, whose employees
or some of them, or (ii) any labor organization, whose members 
or some of them, refuse or threaten to refuse to cooperate in 
effectuating the provisions of this title, to assist in such effectua­
tion by conciliation or such other remedial action as is provided 
by this title; _ .

(5) to make such technical studies as _ are appropriate to 
effectuate the purposes and policies of this title and to make the 
results of such studies available to the public;

(6) to intervene in a civil action brought under section 706 by an 
aggiieved party against a respondent other than a government, 
governmental agency, or political subdivision.

(h) The Commission shall, in any of its educational or promotional 
activities, cooperate with other departments and agencies in the 
performance of such educational and promotional activities.

(i) All officers, agents, attorneys, and employees of the Commission 
shall be subject to the provisions of section 9 of the Act of August 2, 
1939, as amended (the Hatch Act), notwithstanding any exemption 
contained in such section.



8a

P R E V E N T IO N  OF U N L A W F U L  EM PLO Y M E N T PRACTICES

Sec. 708. (a) The Commission is empowered, as hereinafter provided, 
to prevent any person from engaging in any unlawful employment prac­
tice as set forth in section 703 or 704 of this title.

(b) Whenever a charge is filed by or on behalf of a person claiming 
to be aggrieved, or by a member of the Commission, alleging that an 
employer, employment agency, labor organization, or joint labor- 
management committee controlling apprenticeship or other training or 
retraining, including on-the-job training programs, has engaged in an 
unlawful employment practice, the Commission shall serve a notice 
of the charge (including the date, place and circumstances of the alleged 
unlawful employment practice) on such employer, employment agency, 
labor organization, or joint labor-management committee (hereinafter 
referred to as the “respondent” ) within ten days, and shall make an 
investigation thereof. Charges shall be in writing under oath or affirmation 
and shall contain such information and be in such form as the Commis­
sion requires. Charges shall not be made public by the Commission. 
If the. Commission determines after such investigation that there 
is not reasonable cause to believe that the charge is true, it shall dismiss 
the charge and promptly notify the person claiming to be aggrieved and the 
respondent of its action. In determining whether reasonable cause exists, 
the Commission shall accord substantial weight to final findings and orders 
made by State or local authorities in proceedings commenced under 
State or local law pursuant to the requirements of subsections (c) and 
(d). I f the Commission determines after such investigation that there 
is reasonable cause to believe that the' charge is true, the Commission 
shall endeavor to eliminate any such alleged unlawful employment 
practice by informal methods of conference, conciliation, and persua­
sion. Nothing said or done during and as a part of such informal 
endeavors may be made public by the Commission, its officers or 
employees, or used as evidence in a subsequent proceeding without the 
written consent of the persons concerned. Any person who makes 
public information in violation of this subsection shall be fined not 
more than $1,000 or imprisoned for not more than one year, or both. 
The Commission shall make its determination on reasonable cause as 
promptly as possible and, so far as practicable, not later than one hundred 
and twenty days from the filing of the charge or, where applicable under 
subsection (c) or (d) from the date upon which the Commission is author­
ized to take action with respect to the charge.

(c) In the case of an alleged unlawful employment practice occur­
ring in a State, or political subdivision of a State, which has a State or 
local law prohibiting the unlawful employment practice alleged and 
establishing or authorizing a State or local authority to grant or seek 
relief from such practice or to institute criminal proceedings with 
respect thereto upon receiving notice thereof, no charge may be filed 
under subsection (a) by the person aggrieved before the expiration 
of sixty days after proceedings have been commenced under the State 
or local law, unless such proceedings have been earlier terminated, 
provided that such sixty-day period shall be extended to one hundred 
and twenty days during the first year after the effective date of such 
State or local law. If any requirement for the commencement of such 
proceedings is imposed by a State or local authority other than a 
requirement of the filing of a written and signed statement of the facts



9a

upon which the proceeding is based, the proceeding shall be deemed 
to have been commenced for the purposes of this subsection at the 
time such statement is sent by registered mail to the appropriate 
State or local authority.

(d) In the case of any charge filed by a member of the Commission 
alleging an unlawful employment practice occurring in a State or 
political subdivision of a State which has a State or local law prohibit­
ing the practice alleged and establishing or authorizing a State or local 
authority to grant or seek relief from such practice or to institute 
criminal proceedings with respect thereto upon receiving notice 
thereof, the Commission shall, before taking any action with respect to 
such charge, notify the appropriate State or local officials and, upon 
request, afford them a reasonable time, but not less than sixty days 
(provided that such sixty-day period shall be. extended to one hundred 
and twenty days during the first year after the effective date of such 
State or local law), unless a shorter period is requested, to act under 
such State or local law to remedy the practice alleged.

(e) A charge under this section shall be filed within one hundred and 
eighty clays after the alleged unlawful employment practice occurred 
and notice of the charge (including the date, place and circumstances 
of the alleged unlawful employment practice) shall be served upon the 
person against whom such charge is made within ten days thereafter, 
except that in a case of an unlawful employment practice with respect 
to which the person aggrieved has initially instituted proceedings vnth 
a State or local agency with authority to grant or seek relief from such 
practice or to institute criminal proceedings with respect thereto upon 
receiving notice thereof, such charge shall be filed by or on behalf of 
the person aggrieved within three hundred days after the alleged 
unlawful employment practice occurred, or within thirty days after 
receiving notice that the State or local agency has terminated the 
proceedings under the State or local law, whichever is earlier, and a 
copy of such charge shall be filed by the Commission with the State 
or local agency.

(f) (1) If within thirty days after a charge is filed with the Commis­
sion or within thirty days after expiration of any period of reference 
under subsection (e) or (d), the Commission has been unable to secure 
from the respondent a conciliation agreement acceptable to the Commission, 
the Commission may bring a civil action against any respondent not a 
government, governmental agency, or political subdivision named in the 
charge. In the case of a respondent which is a government, governmental 
agency, or political subdivision, if the Commission has been unable to 
secure from the respondent a conciliation agreement acceptable to the 
Commission, the Commission shall lake no further action and shall 
refer the case to the Attorney General who may bring a civil action against 
such respondent in the appropriate United States district court. The person 
or persons aggrieved shall have.the right to intervene in a civil action 
brought by the Commission or the Attorney General in a case involving a 
government, governmental agency, or political subdivision. If a charge 
filed with the Commission pursuant to subsection (b) is dismissed by the, 
Commission, or if within one hundred and eighty days from the filing_ of 
such charge or the expiration of any period of reference under subsection 
(c) or (d), whichever is later, the Commission has not filed a civil action 
under this section or the Attorney General has notified a civil action in a



10a

case involving a government, governmental agency, or political subdivision, 
or the Commission has not entered into a conciliation agreement to which 
the person aggrieved is a party, the Commission, or the Attorney General 
in a case involving a government, governmental agency, or political sub­
division, shall so notify the person aggrieved and within ninety days after 
the giving of such notice a civil action may be brought against the 
respondent named in the charge (A) by the person claiming to be 
aggrieved, or (B) if such charge was filed by a member of the Com­
mission, by any person whom -the charge alleges was aggrieved by 
the alleged unlawful employment practice. Upon application by 
the complainant and in such circumstances as the court may deem 
just, the court may appoint an attorney for such complainant and 
may authorize the commencement of the action without the payment 
of fees, costs, or security. Upon timely application, the court may, 
in its discretion, permit the Commission, or the Attorney General 
in a case involving a government, governmental agencv, or political 
subdivision, to intervene in such civil action upon certification that 
the case is of general public importance._ Upon request, the court may, 
in its discretion, stay further proceedings for not more than sixty 
days pending the termination of State or local proceedings described 
in subsections (c) or (d) of this section or further efforts of the Com­
mission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission and the Commission 
concludes on the basis of a preliminary investigation that prompt judicial 
action is necessary to carry out the purposes of this Act, the Commission, 
or the Attorney General in a case involving a government, governmental 
agency, or political subdivision, may bring an action for appropriate 
temporary or preliminarŷ  relief pending final disposition of such charge. 
Any temporary restraining order or other order granting preliminary 
or temporary relief shall be issued in accordance with rule 65 of the 
Federal Rules of Civil Procedure. It shall be the duty of a court having 
jurisdiction over proceedings under this section to assign cases for hearing 
at the earliest practicable date and to cause such cases to be in every way 
expedited. .

(8) Each United States district court and each United States court of 
a place subject to the jurisdiction of the United States shall have juris­
diction of actions brought under this title. Such an action may be brought 
in any judicial district in the State in which the unlawful employment 
practice is alleged to have been committed, in the judicial district in which 
the employment records relevant to such practice are maintained and 
administered, or in the judicial district in which the aggrieved person 
would have worked but for the alleged unlawful employment practice, but 
if the respondent is not found within any such district, such an action 
may be brought within the judicial district in which the respondent has 
his principal office. For purposes of sections ljOj and 1406 of title 28 
of the United States Code, the judicial district in which the respondent 
has his principal office shall in all cases be considered a district in which 
the action might have been brought.

(4) It shall be the duty of the chief judge of the district: (or in his 
*absence, the acting chief judge) in which the case is pending immediately 
to designate a judge in such district to hear and determine the case. In 
the event that no judge in the district is available to hear and determine 
the case, the chief judge of the district, or the acting chief judge, as the



11a

case may be, shall certify this fact to the chief judge of the circuit (or in 
his absence, the acting chief judge) who shall then designate a district 
or circuit judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated pursuant to this sub­
section to assign the case for hearing at the earliest practicable date and 
to cause the case to be in every vsay expedited. If such judge has not 
scheduled the case for trial within one hundred and twenty days after 
issue has been joined, that judge may appoint a master pursuant to rule 
53 of the Federal Rules of Civil Procedure.

(g) If the court finds that the respondent has intentionally engaged in 
or is intentionally engaging in an unlawful employment practice charged 
in the complaint, the court may enjoin the respondent from engaging in 
such unlawful employment practice, and order such affirmative action as 
may be appropriate, which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back pay (payable by the 
employer, employment agency, or labor organization, as the case may be, 
responsible for the unlawful employment practice) , or any other equitable 
relief as the court deems appropriate. Back pay liability shall not accrue 
from a date more than two years prior to the filing of a charge with the 
Commission. Interim earnings or amounts eamable with reasonable 
diligence by the person or persons discriminated against shall operate to 
reduce the back pay otherwise allowable. No order of the court shall 
require the admission or reinstatement of an individual as a member of a 
union, or the hiring, reinstatement, or promotion of an individual as an 
employee, or the payment to him of any back pay, if such individual was 
refused admission, suspended, or expelled, or was refused employment 
or advancement or was suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex, or national origin 
or in violation of section 704(a).

(h) The provisions of the Act entitled “An Act to amend the 
Judicial Code and to define and limit the jurisdiction of courts sitting 
in equity, and for other purposes,” approved March 23, 1932 (29 
U.S.C. 101-115), shall not apply with respect to civil actions brought 
under this section.

(i) In any case in which an employer, employment agency, or labor 
organization fails to comply with an order of a_ court issued in a civil 
action brought under this section, the Commission may commence 
proceedings to compel compliance with such order.

(j) Any civil action brought under this section and any proceed­
ings brought under subsection (i) shall be subject to appeal as pro­
vided in sections 1291 and 1292, title 28, United States Code.

(k) In any action or proceeding under this title the court, in its 
discretion, may allow the prevailing party, other than the Commission 
or the United States, a reasonable attorney’s fee as part of the costs, 
and the Commission and the United States shall be liable for costs 
the same as a private person.

S e c . 707. (a) Whenever the Attorney General has reasonable 
cause to believe that any person or group of persons is engaged in a 
pattern or practice of resistance to the full enjoyment of any of the 
rights secured by this title, and that the pattern or practice is of 
such a nature and is intended to deny the full exercise of the rights 
herein described, the Attorney General may bring a civil action m 
the appropriate district court of the United States by filing with it a

213-385 0 - 7 6 - 7



12a

complaint (1) signed by him (or in his absence the Acting Attorney 
General), (2) setting forth facts pertaining to such pattern or prac­
tice, and (3) requesting such relief, including an application for a 
permanent or temporary injunction, restraining order or other order 
against the person or persons responsible for such pattern or practice, 
as he deems necessary to insure the full enjoyment of the rights 
herein described. „ , , , „

(b) The district courts of the United States shall have and shall 
exercise jurisdiction of proceedings instituted pursuant to this sec­
tion, and in any such proceeding the Attorney General may file with 
the clerk of such court a request that a court of three judges be con­
vened to bear and determine the case. Such request by the Attorney 
General shall be accompanied by a certificate that, in his opinion, the 
case is of general public importance. A copy of the certificate and 
request for a three-judge court shall be immediately furnished by such 
clerk to the chief judge of the circuit (or in his absence, the presiding 
circuit judge of the circuit) in which the easels pending. Upon receipt 
of such request it shall be the duty of the chief judge of the circuit or 
the presiding circuit judge, as the case may be, to designate imme­
diately three judges in such circuit, of whom at least one shall be a 
circuit judge and another of whom shall be a district judge of the court 
in which the proceeding was instituted, to hear and determine such 
case, and it shall be the duty of the judges so designated to assign the 
case for hearing at the earliest practicable date, to participate m the 
hearing and determination thereof, and to cause the case to be in 
every way expedited. An appeal from the final judgment of such 
court will lie to the Supreme Court.

In the event the Attorney General fails to file such a request m any 
such proceeding, it shall be the duty of the chief judge of the district 
(or in his absence, the acting chief judge) in which the case is pending 
immediately to designate a judge in such district to hear and deter­
mine the case. In the event that no judge in the district is available 
to hear and determine the case, the chief judge of the district, or the 
acting chief judge, as the case may be, shall certify this fact to the 
chief judge of the circuit (or in his absence, the acting chief judge) 
who shall then designate a district or circuit judge of the circuit to 
hear and determine the case._ _ .

It shall be the duty of the judge designated pursuant to this section 
to assign the case for hearing at the earliest practicable date and to 
cause the case to be in every way expedited.

(c) Effective two years after the date of enactment of the Equal Employ­
ment Opportunity Act of 1972, the functions of the Attorney General under 
this section shall be transferred to the Commission, together with such 
personnel, property, records, and unexpended balances of appropriations, 
allocations, and other funds employed, used, held, available, or to be made 
available in connection with such functions unless the President submits, 
and neither House of Congress vetoes, a reorganization plan pursuant to 
chapter 9, of title 5, United States Code, inconsistent with the provisions 
of this subsection. The Commission shall carry out such functions m 
accordance with subsections (d) and (e) of this section. _

(.d) Upon the transfer of functions provided for in subsection (c) of 
this section, in all suits commenced -pursuant to this section prior to the 
date of such transfer, proceedings shall continue without abatement, all



13a

court orders and decrees shall remain in effect, and the Commission shall 
he substituted as a party for the United States of America, the Attorney 
General, or the Acting Attorney General, as appropriate.

(e) Subsequent to the date of enactment of the Equal Employment 
Opportunity Act of 1972, the Commission shall have authority to in­
vestigate and act on a charge of a pattern or practice of discrimination, 
whether filed by or on behalf of a person claiming to be aggrieved or by 
a member of the Commission. All such actions shall be conducted in 
accordance with the procedures set forth in section 706 of this Act.

E FFEC T ON STATE LAW S

Sec. 708. Nothing in this title shall be deemed to exempt or relieve 
any person from any liability, duty, penalty, or punishment pro­
vided by any present or future law of any State or political subdi­
vision of a State, other than any such law which purports to require 
or permit the doing of any act which would be an unlawful employ­
ment practice under this title.

IN V E ST IG A T IO N S, IN SPE C TIO N S, RECORDS, STATE  A G EN CIES

Sec. 709. (a) In connection with any investigation of a charge filed 
under section 706, the Commission or its designated representative 
shall at all reasonable times have access to, for the purposes of exam­
ination, and the right to copy any evidence of any person being 
investigated or proceeded against that relates to unlawful employ­
ment practices covered by this title and is relevant to the chatge 
under investigation.

(b) The Commission may cooperate with State and local agencies 
charged with the administration of State fair employment practices 
laws and, with the consent of such agencies, may, for the purpose of 
carrying out its functions and duties under this title and within the 
limitation of funds appropriated specifically for such purpose, engage 
in and contribute to the cost of research and other projects of mutual in­
terest undertaken by such agencies, and utilize the services of such 
agencies and their employees, and, notwithstanding any other pro­
vision of law, pay by advance or reimbursement such agencies and 
their employees for services rendered to assist the Commission in 
carrying out this title. In furtherance of such cooperative efforts, 
the Commission may enter into written agreements with such State 
or local agencies and such agreements may include provisions under 
which the Commission shall refrain from processing a charge in any 
cases or class of cases specified in such agreements or under which 
the Commission shall relieve any person or class of persons in such 
State or locality from requirements imposed under this section. The 
Commission shall rescind any such agreement whenever it determines 
that the agreement no longer serves the interest of effective enforce­
ment of this title.

(c) Every employer, employment agency, and labor organization sub­
ject to this title shall (1) make and keep such records relevant to the 
determinations of whether unlawful employment practices have been 
or are being committed, (2) preserve such records for such periods, 
and (3) make such reports therefrom, as the Commission shall pre­
scribe by ''regulation or order, after public hearing, as reasonable,



14a

necessary, or appropriate for the enforcement of this title or the 
regulations or orders thereunder. The Commission shall, by regula­
tion, require each employer, labor organization, and joint labor- 
management committee subject to this title which controls an ap­
prenticeship or other training program to maintain such records as 
are reasonably necessary to carry out the purpose of this title, in­
cluding, but not limited to, a list of applicants who wish to participate 
in such program, including the chronological order in which applica­
tions were received, and to furnish to the Commission upon request, 
a detailed description of the manner in which persons are selected 
to participate in the apprenticeship or other training program. Any 
employer, employment agency, labor organization, or joint labor- 
management committee which believes that the application  ̂to it of 
any regulation or order issued under this section would result in undue 
hardship may apply to the Commission for an exemption from the 
application of such regulation or order, and, if such application for 
an exemption is denied, bring a civil action in the United States 
district court for the district where such records are kept. If the 
Commission or the court, as the case may be, finds that the applica­
tion of the regulation or order to the employer, employment agency, 
or labor organization in question would impose an undue hardship, 
the Commission or the court, as the case may be, may grant appro­
priate relief. I f any person required to comply; with the provisions of 
this subsection fails or refuses to do so, the United States district court 
for the district in which such person is found, resides, or transacts business, 
shall, upon application of the Commission, or the Attorney General in a 
case involving a government, governmental agency or political subdivision, 
have jurisdiction to issue to such person an order requiring him to comply.

(d) In prescribing requirements pursuant to subsection (c) of this sec­
tion, the Commission shall consult with other interested State and Federal 
agencies and shall endeavor to coordinate its requirements with those 
adopted by such agencies. The Commission shall furnish upon request and 
without cost to any State or local agency charged with the administration oj 
a jair employment practice law information obtained pursuant to sub­
section (c) oj this section from any employer, employment agency, labor 
organization, or joint labor-management committee subject to the jurisdic­
tion oj such agency. Such information shall be furnished on condition that 
it not be made public by the recipient agency prior to the institution of a 
proceeding under State or local law involving such information. If this 
condition is violated by a recipient agency, the Commission may decline 
to honor subsequent requests pursuant to this subsection.

(e) It shall be unlawful for any officer or employee of the Commis­
sion to make public in any manner whatever any information obtained 
by the Commission pursuant to its authority under this section prior 
to the institution of any proceeding under this title involving such 
information. Any officer or employee of the Commission who shall 
make public in any manner whatever any information in violation of 
this subsection shall be guilty of a misdemeanor and upon conviction 
thereof, shall be fined not more than $1,000, or imprisoned not more 
than one year.

IN V E S T IG A T O R Y  PO W E RS

Sec. 710. For the purpose oj all hearings and investigations conducted 
by the Commission or its duly authorized agents or agencies, 'section 11 of



15a

the National Labor Relations Act (49 Stat. 455; 29 U.S.C. 161) shall 
apply.

N O TIC ES TO B E  POSTED

Sec. 711. (a) Every employer, employment agency, and labor orga­
nization, as the case may be, shall post and keep posted in conspicuous 
places upon its premises where notices to employees, applicants for 
employment, and members are customarily posted a notice to be pre­
pared or approved by the Commission setting forth excerpts from, or 
summaries of, the pertinent provisions of this title and information 
pertinent to the filing of a complaint.

(b) A willful violation of this section shall be punishable by a fine 
of not more than $100 for each separate offense.

v e t e r a n s ’  p r e f e r e n c e

Sec. 712. Nothing contained in this title shall be construed to re­
peal or modify any Federal, State, territorial, or local law creating 
special rights or preference for veterans.

r u l e s  a n d  r e g u l a t i o n s

Sec. 713. (a) The Commission shall have authority from time to 
time to issue, amend, or rescind suitable procedural regulations to 
carry out the provisions of this title. Regulations issued under the 
section shall be in conformity with the standards and limitations of 
the Administrative Procedure Act.

.(b) In any action or proceeding based on any alleged unlawful 
employment practice, no person shall be subject to any liability or 
punishment for or on account of (1) the commission by such person 
of an unlawful employment practice if he pleads and proves that the 
act or omission complained of was in good faith, in conformity with, 
and in reliance on any written interpretation or opinion of the Com­
mission, or (2) the failure of such person to publish and file any 
information required by any provision of this title if he pleads and 
proves that he failed to publish and file such information in good faith, 
m conformity with the instructions of the Commission issued under 
this title regarding the filing of such information. Such a defense, if 
established, shall be a bar to the action or proceeding, notwithstand­
ing that (A) after such act or omission, such interpretation or opinion 
is modified or rescinded or is determined by judicial authority to be 
invalid or of no legal effect, or (B) after publishing or filing the descrip­
tion and annual reports, such publication or filing is determined by 
judicial authority not to be in conformity with the requirements of 
this title.

f o r c i b l y  r e s i s t i n g  t h e  c o m m i s s i o n  o r  i t s  r e p r e s e n t a t i v e s

Sec: 714. The provisions of sections 111 and 1114 title 18, United 
States Code, shall apply to officers, agents, and employees of the 
Cojnmission in the performance of their official duties. Notwithstanding 
the provisions of sections 111 and 1114 of title 18, United States Code, 
whoever in violation of the provisions of section 1114 of such title kills 
a person 'while engaged in or on account of the performance of his official



16a

functions under this Act shall be 'punished by imprisonment for any 
term of years or for life.

EQUAL EM PLOYM EN T OPPO RTU NITY COORDINATING COUNCIL

S ec. 715. There shall be established an Equal Employment Opportunity 
Coordinating Council (hereinafter referred to in this section as the 
Council) composed of the Secretary of Labor, the Chairman of the Equal 
Employment Opportunity Commission, the Attorney General, the Chair­
man of the United States Civil Service Commission, and the Chairman of 
the United States Civil Rights Commission, or their respective delegates. 
The Council shall have the responsibility for developing and implementing 
agreements, policies and practices designed to maximize effort, promote 
efficiency, and eliminate conflict, competition, duplication and incon­
sistency among the operations, functions and jurisdictions of the various 
departments, agencies arid branches of the Federal government responsible 
for the implementation and enforcement of equal employment opportunity 
legislation, orders, and policies. On or before July 1 of each year, the 
Council shall transmit to the President and to the Congress a report of 
its activities, together with such recommendations for legislative or ad­
ministrative changes as it concludes are desirable to further promote the 
purposes of this section.

E FFEC TIV E  DA TE

Sec. 718. (a) This title shall become effective one year after the date 
of its enactment.

(b) Notwithstanding subsection (a), sections of this title other than 
sections 703, 704, 706, and 707 shall become effective immediately.

(c) The President shall, as soon as feasible after the enactment of 
this title, convene one or more conferences for the purpose of enabling 
the leaders of groups whose members will be affected by this title to 
become familiar with the rights afforded and obligations imposed by 
its provisions, and for the purpose of making plans which will result 
in the fair and effective administration of this title when all of its 
provisions become effective. The President shall invite the participa­
tion in such conference or conferences of (1) the members of the 
President’s Committee on Equal Employment Opportunity, (2) the 
members of the Commission on Civil Eights, (3) representatives of 
State and local agencies engaged in furthering equal employment 
opportunity, (4) representatives of private agencies engaged in fur­
thering equal employment opportunity, and (5) representatives of 
employers, labor organizations, and employment agencies who will be 
subject to this title.

NONDISCRIMINATION IN FEDERAL GOVERNMENT EMPLOYMENT

Sec . 717. (a) All personnel actions affecting employees or applicants 
for employment (except with regard to aliens employed outside the limits 
of the United Stales) in military departments as defined in section 102 of 
title 5, United States Code, in executive agencies (other than the General 
Accounting Office) m s , defined in section 105 of title 6, United States Code 
(■including employefifnmd applicants for employment who are paid from 
nonappropriatedfunds), in the United Stales Postal Service and the Postal 
Rate Commission, in those units of the Government of the District of 
Columbia having positions in the competitive service, and in those units of



17a

the legislative and judicial branches of the Federal Government having 
positions in the competitive service, and in the Library of Congress shall 
be made free from any discrimination based on race, color, religion, sex, 
or national origin.

(&) Except as otherwise provided in this subsection, the Civil Service 
Commission shall have authority to enforce the provisions of subsection 
(a) through appropriate remedies, including reinstatement or hiring of 
employees with or without back pay, as will effectuate the policies of this 
section, and shall issue such rules, regulations, orders, and instructions 
as it deems necessary and appropriate to carry out its responsibilities 
under this section. The Civil Service Commission shall—

(1) be responsible for the annual review and approval of a national 
and regional equal employment opportunity plan which each de­
partment and agency and each appropriate unit referred to in 
subsection (a) of this section shall submit in order to maintain an 
affirmative program of equal employment opportunity for all such 
employees and applicants for employment;

(2) be responsible for the review and evaluation of the operation 
of all agency equal employment opportunity programs, periodically 
obtaining and qmblishing (on at least a semiannual basis) progress 
reports from each such department, agency, or unit; and

(8) consult with and solicit the recommendations of interested 
individuals, groups, and organizations relating to equal employ­
ment opportunity. . l

The head of each such department, agency, or unit shall comply with such 
rules, regulations, orders, and instructions which shall includê  a provision 
that an employee or applicant for employment shall be notified of any 
final action taken on any complaint of discrimination filed by him, 
thereunder. The plan submitted by each department, agency, and unit 
shall include, but not be limited to— _ .

(1) provision for the establishment of training and education 
programs designed to provide a maximum opportunity for employees 
to advance so as to perform at their highest potential; and_ _

(2) a description of the qualifications in terms of training ana,
experience relating to equal employment opportunity for the principal̂  
and opera,ting officials of each such department, agency, or unit, 
responsible for carrying out the equal employment opportunity 
program and, of the allocation of personnel and resources proposed 
by such department, agency, or unit to carry out its equal employ­
ment opportunity program. ,

With respect to employment in the Library of Congress, authorities granted 
in this subsection to the Civil Service Commission shall be exercised by the-
Librarian of Congress. . , . , ,. , , ,

(c) Within thirty days of receipt of notice of jinal action taken by a 
department, agency, or unit referred to in subsection 717(a), or by the 
Civil Service Commission upon an appeal from a, decision or order oj siich 
department, agency, or unit on a complaint oj discrimination based on. 
race, color, religion, sex, or national origin, brought pursuant to subsection 
(a)-of this section, Executive Order 11478 or any succeeding Executive 
orders, or after one hundred and eighty days from the filing o/ the initial 
charge with the department, agency, or unit or with the Cml Service 
"Commission on appeal from a decision or order of such department, agency, 
or unit until such time as final action may be taken by a department



18a

agency, or unit, an employee or applicant for employment, if aggrieved 
by the final disposition of his complaint, or by the failure to take final 
action on his complaint, may file a civil action as provided in section 706, 
in which civil action the head of the department, agency, or unit, as 
appropriate, shall be the defendant.

(d) The provisions of section 706(f) through (k), as applicable, shall 
govern civil actions brought hereunder.

(e) Nothing contained, in this Act shall relieve any Government agency 
or official of its or his primary responsibility to assure nondiscrimination 
in employment as required by the Constitution and statutes or of its or his 
responsibilities under Executive Order 11478 relating to equal employ­
ment opportunity in the Federal Government.

S P E C IA L  PROVISION S W IT H  RESPECT TO D E N IA L , T E R M IN A T IO N , AN D  
SUSPENSION OF GOVERNM ENT CONTRACTS

Sec . 718. No Government contract, or portion thereof, with any em­
ployer, shall be denied, withheld, terminated, or suspended, by any agency 
or officer of the United States under any equal employment opportunity law 
or order, where such employer has an affirmative action plan which_ has 
previously been accepted by the Government for the same facility within 
the past twelve months without first according< such employer full hearing 
and adjudication under the provisions of title 5, United States_ Code, 
section 554, and the following pertinent sections: Provided,, That if such 
employer has deviated substantially from such previously agreed to 
affirmative action plan, this section shall not apply: Provided further, 
ThM for the purposes of this section an affirmative action plan shall be 
deemed to have been accepted by the Government at the time the appropriate 
compliance agency has accepted such plan unless within forty-five days 
thereafter the Office of Federal Contract Compliance has disapproved such 
plan.



A pp e n d ix  B
Th e  Civ il  Se r v ic e  Co m m issio n ’s E q u a l  Op p o r t u n it y

R eg u latio n s

PART 713—EQUAL OPPORTUNITY

Subpart B — E qual O pportunity W ithout R egard to 
R ace, Color, R eligion, Sex, or National O rigin

Subpart B of Part 713 Equal Opportunity is revised 
to implement the Equal Employment Opportunity Act 
of 1972, 86 Stat. 103, and to strengthen the system 
of complaint processing. Among others, these changes 
emphasize the affirmative aspects of agency equal em­
ployment opportunity obligations, set out requirements 
for submission of national and regional plans, extend 
the time limits for contacting a counselor, provide for 
the reasonable accommodation to the religious needs 
of applicants and employees, provide for timely inves­
tigation and resolution of complaints including com­
plaints of coercion and reprisal, set out the remedial 
action available( including back pay), and strengthen 
the third party complaint system.

G eneral P rovisions

Sec.
713.201 Purpose and applicability.
713.202 General policy.
713.203 Agency program.
713.204 Implementation of agency program.
713.205 Commission review and evaluation of agency

program operations.

A gency R egulations for P rocessing Complaints of 
D iscrimination

713.211 General.
713.212 Coverage.
713.213 Precomplaint processing.
713.214 Filing and presentation of complaint.
713.215 Rejection or cancellation of complaint.
713.216 Investigation.
713.217 Adjustment of complaint and offer o f hearing.

19a



2 0 a

Sec.
713.218 Hearing.
712.219 Relationship to other agency appellate proce­

dures.
713.220 Avoidance of delay.
713.221 Decision by head of agency or designee.
713.222 Complaint file.

A ppeal to the Commission

713.231 Entitlement.
713.232 Where to appeal.
713.233 Time limit.
713.234 Appellate procedures.
713.235 Review by the Commissioners.
713.236 Relationship to other appeals.

R eports to the Commission 

713.241 Reports to the Commission on complaints.

T hird-P arty A llegations 

713.251 Third-party allegations of discrimination. 

F reedom F rom R eprisal or I nterference

713.261 Freedom from reprisal.
713.262 Review of allegations of reprisal.

R emedial A ctions 

713.271 Remedial actions.

R ig h t  To F il e  a  C iv il  A c tio n

713.281 Statutory right.
713.282 Notice of right.
713.283 Effect on administrative processing.

A uthority : The provisions of this f?ubpart B issued 
under 5 TJ.S.C. 1301, 3301, 3302, 7151-7154, 7301; 86 
Stat. I l l ;  E.O. 10577; 3 CFR, 1934-58 Comp., p. 218, 
E.O. 11222, 3 CFR 1961-1965 Comp., p. 306, E.O. 11478, 
3 CFR 1969 Comp.



21a

Subpart B — E qual Opportunity W ithout R e­
gard to R ace, Color, R eligion, Sex, or R a­
tional Origin

General Provisions

§ 7 1 3 .2 0 1  PU RPOSE A N D  A P P L IC A B IL IT Y

(a) Purpose. This subpart sets forth the reg­
ulations under which an agency shall establish 
a continuing affirmative program for equal op­
portunity in employment and personnel opera­
tions without regard to race, color, religion, 
sex, or national origin and under which the 
Commission will review an agency’s program 
and entertain an appeal from a person dis­
satisfied with an agency’s decision or other 
final action on his complaint of discrimination 
on grounds of race, color, religion, sex, or na­
tional origin.

(b) Applicability. (1) This subpart applies:
(i) To military department as defined in sec­
tion 102 of title 5, United States Code, execu­
tive agencies (other than the General Account­
ing Office) as defined in section 105 of title 5, 
United States Code, the U.S. Postal Service, 
and the Postal Rate Commission, and to the 
employees thereof, including employees paid 
from nonappropriated funds, and (ii) to those 
portions of the legislative and judicial branches 
of the Federal Government and the government 
of the District of Columbia having positions in 
the competitive service and to the employees 
in those positions.

(2) This subpart does not apply to aliens 
employed outside the limits of the United 
States.

§ 7 1 3 .2 0 2  G E N ERAL P O L IC Y

It is the policy of the Government of the 
United States and of the government of the 
District of Columbia to provide equal oppor­
tunity in employment for all persons, to pro-



22a

Mbit discrimination in employment because of 
race, color, religion, sex, or national origin, 
and to promote the full realization of equal 
employment opportunity through a continuing 
affirmative program in each agency.

§  7 1 3 .2 0 3  A G E N C Y  PR O G R A M

The head of each agency shall exercise per­
sonal leadership in establishing, maintaining, 
and carrying out a continuing affirmative pro­
gram designed to promote equal opportunity in 
every aspect of agency personnel policy and 
practice in the employment, development, ad­
vancement, and treatment of employees. Under 
the terms of its program, an agency shall : _

(a) Provide sufficient resources to administer 
its equal employment opportunity program in 
a positive and effective manner and assure that 
the principal and operating officials responsible 
for carrying out the equal employment oppor­
tunity program meet established qualifications 
requirements;

(b) Conduct a continuing campaign to eradi­
cate every form of prejudice or discrimination 
based upon race, color, religion, sex, or national 
origin, from the agency’s personnel policies and 
practices and working conditions, including dis­
ciplinary action against employees who engage 
in discriminatory practices;

(c) Utilize to the fullest extent the present 
skills of employee by all means, including the 
redesigning of jobs where feasible so that tasks 
not requiring the full utilization of skills of 
incumbents are concentrated in jobs with lower 
skill requirements;

(d) Provide the maximum feasible oppor­
tunity to employees to enhance their skills 
through on-the-job training, work-study pro­
grams, and other training measures so that they 
may perform at their highest potential and 
advance in accordance with their abilities;



2 3 a

(e) Communicate the agency’s equal employ­
ment opportunity policy and program and its 
employment needs to all sources of job candi­
dates without regard to race, color, religion, 
sex, or national origin, and solicit their recruit­
ment assistance on a continuing basis;

( f )  Participate at the community level with 
other employers, with schools and universities, 
and with other public and private groups in co­
operative action to improve employment op­
portunities and community conditions that af­
fect employability;

(g) Review, evaluate, and control managerial 
and supervisory performance in such a manner 
as to insure a continuing affirmative applica­
tion and vigorous enforcement of the policy of 
equal opportunity, and provide orientation, 
training, and advice to managers and super­
visors to assure their understanding and imple­
mentation of the equal employment opportunity 
policy and program;

(h) Provide recognition to employees, super­
visors, managers, and units demonstrating su­
perior aeomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized 
labor organizations of the affirmative equal em­
ployment opportunity policy and program and 
enlist their cooperation;

( j )  Provide for counseling employees and 
applicants who believe they have been discrim­
inated against because of race, color, religion, 
sex, or national origin and for resolving in­
formally the matters raised by them;

(k) Provide for the prompt, fair, and im­
partial consideration and disposition of com­
plaints involving issues of discrimination on 
grounds of race, color, religion, sex, or national 
origin; and

(l) Establish a system for periodically evalu­
ating the effectiveness of the agency’s overall 
equal employment opportunity effort.

213-385 0  -  76 - 8



24a

§  7 1 3 .2 0 4  IM P L E M E N T A T IO N  OF A G E N C Y  PR O G R A M

To implement the program established under 
this subpart, an agency shall:

(a) Develop the plans, procedures, and regu­
lations necessary to carry out its program 
established under this subpart;

(b) Appraise its personnel operations at 
regular intervals to assure their conformity 
with the policy in § 713.202 and its program 
established in accordance with § 713.203;

(c) Designate a Director of Equal Employ­
ment Opportunity and as many Equal Oppor­
tunity Officers, Equal Employment Opportu­
nity Counselors, Federal Women’s Program 
Coordinators, and other persons as may be nec­
essary, to assist the head of the agency to carry 
out the functions described in this subpart in 
all organizational units and locations of the 
agency. The functioning and the qualifications 
of the persons so designated shall be subject to 
review by the Commission. The Director of 
Equal Employment Opportunity shall be under 
the immediate supervision of the head of his 
agency, and shall be given the authority nec­
essary to enable him to carry out his responsi­
bilities under the regulations in this subpart ;

(d) Assign to the Director of Equal Employ­
ment Opportunity the functions o f;

(1) Advising the head of his agency with 
respect to the preparation o f national and 
regional equal employment opportunity 
plans, procedures, regulations, reports, and 
other matters pertaining to the policy in 
§ 713.202 and the agency program required 
to be established under § 713.203;

(2) Evaluating from time to time the 
sufficiency of the total agency program for 
equal employment opportunity and report­
ing thereon to the head of the agency with 
recommendations as to any improvement 
or correction needed, including remedial or



25a

disciplinary action with respect to man­
agerial or supervisory employees who have 
failed in their responsibilities;

(3) When authorized by the head of the 
agency, making changes in programs and 
procedures designed to eliminate discrim­
inatory practices and improve the agency’s 
program for equal employment opportu­
nity;

(4) Providing for counseling by an Equal 
Employment Opportunity Counselor, of 
any aggrieved employee or applicant for 
employment who believes that he has been 
discriminated against because of race, color, 
religion, sex, or national origin and for 
attempting to resolve on an informal basis 
the matter raised by the employee or appli­
cant before a complaint of discrimination 
may be filed under § 713.214;

(5) Providing for the receipt and in­
vestigation of individual complaints of dis­
crimination in personnel matters within the 
agency, subject to §§ 713.211 through 
713.222;

(6) Providing for the receipt, investiga­
tion, and disposition of general allegations 
by organizations or other third parties of 
discrimination in personnel matters within 
the agency subject to § 713.251.

(7) When authorized by the head of the 
agency, making the decision under § 713.221 
for the head of the agency on complaints 
of discrimination and ordering such cor­
rective measures as he may consider nec­
essary, including the recommendation for 
such disciplinary action as is warranted by 
the circumstances when an employee has 
been found to have engaged in a discrim­
inatory practice; and

(8) When not authorized to make the 
decision for the head of the agency on com­
plaints of discrimination, reviewing at his



2 6 a

discretion, the record on any complaint be­
fore the decision is made under § 713.221 
and making such recommendations to the 
head of the agency or his designee as he 
considers desirable, including the recom­
mendation for such disciplinary action as 
is warranted by the circumstances when 
an employee is found to have engaged in a 
discriminatory practice;

(e) Insure that equal opportunity for women 
is an integral part of the agency’s overall pro­
gram by assigning to the Federal Women’s Pro­
gram Coordinators the function of advising the 
Director of Equal Employment Opportunity 
on matters affecting the employment and ad­
vancement of women;

(f )  Publicize to its employees and post per­
manently on official bulletin boards:

(1) The names and addresses of the 
Director of Equal Employment Opportun­
ity and the Federal 'Women’s Program 
Coordinators;

(2) The name and address o f the appro­
priate Equal Employment Opportunity 
Officer;

(3) The name and address o f the Equal 
Employment Opportunity Counselor and 
the organizational units he serves; his avail­
ability to counsel an employee or applicant 
for employment who believes that he has 
been discriminated against because of race, 
color, religion, sex, or national origin; and 
the requirement that an employee or appli­
cant for employment must consult the 
Counselor as provided by § 713.213 about 
his allegation of discrimination because of 
race, color, religion, sex, or national origin 
before a complaint as provided by § 713.214 
may be filed; and

(4) Time limits for contacting an Equal 
Employment Opportunity Counselor.



2 7 a

(g ) Make reasonable accommodations to the 
religious needs of applicants and employees, 
including the needs of those who observe the 
Sabbath' on other than Sunday, when those 
accommodations can be made (by substitution 
of another qualified employee, by a grant of 
leave, a change of a tour of duty, or other 
means) without undue hardship on the business 
of the agency. I f  an agency cannot accommo­
date an employee or applicant, it has a duty in 
a complaint arising under this subpart to dem­
onstrate its inability to do so; ancl

(h) Make readily available to its employees 
a copy of its regulations issued to earry out its 
program of equal employment opportunity.

(i) Submit annually for the review and ap­
proval of the Commission written national and 
regional equal employment opportunity plans 
o f action. Plans shall be submitted in a format 
prescribed by the Commission and shall include, 
but not be limited to—

(1) Provision for the establishment of 
training and education programs designed 
to provide maximum opportunity for em­
ployees to advance so as to perform at their 
highest potential;

(2) Description of the qualifications^ in 
terms of training and experience relating 
to equal employment opportunity, of the 
principal and operating officials concerned 
with administration of the agency’s equal 
employment opportunity program; and

(3) Description of the allocation of per­
sonnel and resources proposed by the 
agency to carry out its equal employment 
opportunity program.

§ 7 1 3 .2 0 5  CO M M ISSIO N " R E V IE W  A N D  E V A L U A T IO N  
OF A G E N C Y  PR O G R A M  O PE R A TIO N S

The Commission shall review and evaluate 
agency program operations periodically, obtain



2 8 a

such reports as it deems necessary, and report 
to the President as appropriate on overall prog­
ress. When it finds that an agency’s program 
operations are not in conformity with the 
policy set forth in § 713.202 and the regulations 
in this subpart, the Commission shall require 
improvement or corrective action to bring the 
agency’s program operations into conformity 
with this policy and the regulations in this sub­
part. The head of each department and agency 
shall comply with the rules, regulations, orders, 
and instructions issued by the Commission.

A gency R egulations for P rocessing 
Complaints of D iscrimination

§  7 1 3 .2 1 1  G E N E R A L

An agency shall insure that its regulations 
governing the processing of complaints of dis­
crimination on grounds o f race, color, religion, 
sex, or national origin comply with the prin­
ciples and requirements in §§ 713.212 through 
713.222.

§  7 1 3 .2 1 2  COVERAGE

(a) The agency shall provide in its regula­
tions for the acceptance of a complaint from 
any aggrieved employee or applicant for em­
ployment with that agency who believes that he 
has been discriminated against because of race, 
color, religion, sex, or national origin. A  com­
plaint may also be filed by an organization for 
the aggrieved person with, his consent

(b) Sections 713.211 through 713.222 do not 
apply to the consideration by an agency of a 
general allegation of discrimination by an orga­
nization or other third party which is unrelated 
to an individual complaint of discrimination 
subject to §§713.211 through 713.222. (Section 
713.251 applies to general allegations by orga­
nizations or other third parties.)



29a

§  7 1 3 .2 1 3  P R E C O M P L A IN T  PRO CE SSIN G

(a) An agency shall require that an 
aggrieved person who believes that he has been 
discriminated against because o f race, color, 
religion, sex, or national origin consult with an 
Equal Employment Opportunity Counselor 
when he wishes to resolve the matter. The 
agency shall require the Equal Employment 
Opportunity Counselor to make whatever in­
quiry he believes necessary into the matter; to 
seek a solution of the matter on an informal 
basis; to counsel the aggrieved person concern­
ing the issues in the matter; to keep a record of 
his counseling activities so as to brief periodi­
cally, the Equal Employment Opportunity Offi­
cer on those activities; and, when advised that 
a complaint of discrimination has been accepted 
from an aggrieved person, to submit a written 
report to the Equal Employment Opportunity 
Officer, with a copy to the aggrieved person, 
summarizing his actions and advice both to the 
agency and the aggrieved person concerning the 
issues in the matter. The Equal Employment 
Opportunity Counselor shall, insofar as is prac­
ticable, conduct his final interview with the 
aggrieved person not later than 21 calendar 
days after the date on which the matter -was 
called to his attention by the aggrieved person. 
I f  the final interview is not concluded within 
21 days and the matter has not previously been 
resolved to the satisfaction of the aggrieved 
person, shall be informed in writing at that 
time of his right to file a complaint of discrimi­
nation. The notice shall inform the complainant 
of his right to file a complaint at any time after 
receipt of the notice up to 15 calendar days 
after the final interview (which shall be so 
identified in writing by the Equal Employment 
Opportunity Counselor) and the appropriate 
official with whom to file a complaint. The 
Counselor shall not attempt in any way to re­



30a

strain the aggrieved person from filing a formal 
complaint. The Equal Employment Opportunity 
Counselor shall not reveal the identity of an 
aggrieved person who has come to him for con­
sultation, except when authorized to do so by 
the aggrieved person, until the agency has 
accepted a complaint of discrimination from 
him.

(b) The agency shall assure that full cooper­
ation is provided by all employees to the Equal 
Employment Opportunity Counselor in the per­
formance of his duties under this section.

(e) The Equal Employment Opportunity 
Counselor shall be free from restraint, inter­
ference, coercion, discrimination, or reprisal in 
connection with the peformance of his duties 
under this section.

§ 7 1 3 .2 1 4  F IL IN G  A N D  P R E S E N T A T IO N  OF 

C O M P L A IN T

(a) Time limits. (1) An agency shall require 
that a complaint be submitted in writing by the 
complainant or his representative and be signed 
by the complainant. The complaint may be de­
livered in person or submitted by mail. The 
agency may accept the complaint for processing 
in accordance with this subpart only if—

(i) The complainant brought to the 
attention of the Equal Employment Op­
portunity Counselor the matter causing 
him to believe he had been discriminated 
against within 30 calendar days of the date 
of that matter, or, if  a personnel action, 
within 30 calendar days of its effective 
date; and

(ii) The complainant or his represent­
ative submitted his written complaint to an 
appropriate official within 15 calendar days 
o f the date of his final interview with the 
Equal Employment Opportunity Counselor.



3 1 a

(2) The appropriate officials to receive com­
plaints are the head of the agency, the agency’s 
Director of Equal Employment Opportunity, 
the head of a field installation, an Equal Em­
ployment Opportunity Officer, a Federal Wom­
en’s Program Coordinator, and such other of­
ficials as the agency may designate for that pur­
pose. Upon receipt of the complaint, the agency 
official shall transmit it to the Director of Equal 
Employment Opportunity or appropriate Equal 
Employment Opportunity Officer who shall ac­
knowledge its receipt in accordance with sub- 
paragraph (3) of this paragraph.

(3) A complaint shall be deemed filed on the 
date it is received, if  delivered to an appropriate 
official, or on the date postmarked if addressed 
to an approuriate official designated to receive 
complaints. The agency shall acknowledge to the 
complainant or his representative in writing 
receipt of the complaint and advise the com- 
plaintant in writing of all his administrative 
rights and of his right to file a civil action as 
set forth in § 713.281, including the time limits 
imposed on the exercise of these rights.

(4) _ The agency shall extend the time limits 
in this section: (i) When the complainant 
shows that he was not notified of the time limits 
and was not otherwise aware of them, or that 
he was prevented by circumstances bevond his 
control from submitting the matter within the 
time limits; or (ii) for other reasons considered 
sufficient by the agency.

(b) Presentation of complaint. At any stage 
in the presentation of a complaint, including 
the counseling stage under § 713.213, the com­
plainant shall have the right to be accompanied, 
represented, and advised by a representative o f 
his own choosing. I f  the complainant is an em­
ployee of the agency, he shall have a reasonable 
amount of official time to present his complaint 
if  he is otherwise in an active duty status. I f  
the complainant is an employee of the agency



32a

and ne designates another employee of the 
agency as his representative, the represent­
ative, shall have a reasonable amount of official 
time, if  he is otherwise in an active duty status, 
to present the complaint.

§ 7 1 3 .2 1 5  R E J E C T IO N  OR C A N C E L L A T IO N  OF 
C O M P L A IN T

The head of the agency or his designee may 
reject a complaint which was not timely filed 
and shall reject those allegations in a complaint 
which are not within the purview of § 713.212 or 
which set forth identical matters as contained in 
a previous complaint filed by the same com­
plainant which is pending in the agency or has 
been decided by the agency. He may cancel a 
complaint because of failure of the complainant 
to prosecute the complaint. He shall transmit 
the decision to reject or cancel by letter to the 
complainant and his representative. The de­
cision letter shall inform the complainant o f his 
right to appeal the decision of the agency to the 
Commission and of the time limit within which 
the appeal may be submitted and of his right to 
file a civil action as described in § 713.281.

§ 7 1 3 .2 1 6  IN V E S T IG A T IO N

(a) The Equal Employment Opportunity 
Officer shall advise the Director of Equal Em­
ployment Opportunity of the acceptance of a 
complaint. The Director of Equal Employment 
Opportunity shall provide for the prompt in­
vestigation of the complaint. The person as­
signed to investigate the complaint shall occupy 
a position in the agency which is not, directly 
or indirectly, under the jurisdiction of the head 
of that part of the agency in which the com­
plaint arose. The agency shall authorize the 
investigator to administer oaths and require 
that statements of witnesses shall be under



33a

oath or affirmation, without a pledge of confi­
dence. The investigation shall include a thor­
ough review of the circumstances under which 
the alleged discrimination occurred, the treat­
ment of members of the complainant’s group 
identified by his complaint as compared with 
the treatment of other employees in the orga­
nizational segment in which the alleged discrim­
ination occurred, and any policies and prac­
tices related to the work situation which may 
constitute, or appear to constitute, discrimina­
tion even though they have not been expressly 
cited by the complainant. Information needed 
for an appraisal of the utilization of members 
of the complainant’s group as compared to the 
utilization of persons outside the complainant’s 
group shall be recorded in statistical form in 
the investigative file, but specific information 
as to a person’s membership or nonmembership 
in the complainant’s group needed to facilitate 
an adjustment of the complaint or to make an 
informed decision on the complaint shall, if 
available, be recorded by name in the investi­
gative file. (As used in this subpart, the term 
“ investigative file”  shall mean the various doc­
uments and information acquired during the 
investigation under this section—including affi­
davits of the complainant, of the alleged dis­
criminating official, and of the witnesses and 
copies of, or extracts from, records, policy 
statements, or regulations of the agency—orga­
nized to show their relevance to the complaint 
or the general environment out of which the 
complaint arose.) I f  necessary, the investigator 
may obtain information regarding the member­
ship or nonmembership of a person in the 
complainant’s group by asking each person con­
cerned to provide the information voluntarily; 
he shall not require or coerce an employee to 
provide this information.

(b) The Director of Equal Employment 
Opportunity shall arrange to furnish to the



34a

person conducting the investigation a written 
authorization: (1) To investigate all aspects 
of complaints of discrimination, (2) to require 
all employees of the agency to cooperate with 
him in the conduct of the investigation, and
(3) to require employees of the agency having 
any knowledge of the matter complained of to 
furnish testimony under oath or affirmation 
without a pledge of confidence.

§ 7 1 3 .2 1 7  A D J U S T M E N T  OF C O M P L A IN T  A N D  
O FFER OF H E A R IN G

(a) The agency shall provide an opportunity 
for adjustment of the complaint on an informal 
basis after the complainant has reviewed the 
investigative file. For this purpose, the agency 
shall furnish the complainant a copy of the 
investigative file promptly after receiving it 
from the investigator, and provide opportunity 
for the complainant to discuss the investigative 
file with appropriate officials. I f  an adjustment 
of the complaint is arrived at, the terms of the 
adjustment shall be reduced to writing and 
made part of the complaint file, with a copy 
of the terms of the adjustment provided the 
complainant. I f  the agency does not carry out, 
or rescinds, any action specified by the terms 
of the adjustment for any reason not attributa­
ble to acts or conduct of the complainant the 
agency shall, upon the complainant’s written 
request, reinstate the complaint for further 
processing from the point processing ceased 
under the terms of the adjustment.

(b) I f  an adjustment of the complaint is not 
arrived at, the complainant shall be notified in 
writing: (1) O f the proposed disposition of 
complaint, (2) of his right to a hearing and 
decision by the agency head or his designee 
if  he notifies the agency in writing within 15 
calendar days of the receipt of the notice that 
he desires a hearing, and (3) of his right to a



35a

decision by the head of the agency or his des­
ignee without a hearing.

(c) I f  the complainant fails to notify the 
agency of his wishes within the 15-day period 
prescribed in paragraph (b) of this section, the 
appropriate Equal Employment Opportunity 
Officer may adopt the disposition of the com­
plaint proposed in the notice sent to the com­
plainant under paragraph (b) of this section 
as the decision of the agency on the complaint 
when delegated the authority to make a de­
cision for the head of the agency under those 
circumstances. When this is done, the Equal 
Employment Opportunity Officer shall transmit 
the decision by letter to the complainant and 
his representative which shall inform the com­
plainant of his right o f appeal to the Commis­
sion and the time limit applicable thereto and 
of his right to file a civil action as described in 
§ 713.231. I f  the Equal Employment Opportu­
nity Officer does not issue a decision under this 
paragraph, the complainant, together with the 
complaint file shall be forwarded to the head 
of the agency, or his designee, for decision 
under § 713.221.

§ 7 1 3 .2 1 8  H E A R IN G .

(a) Complaints examiner. The hearing shall 
be held by a complaints examiner who must be 
an employee of another agency except when the 
agency in which the complaint arose is: (1) 
The government of the District of Columbia, 
or (2) an agency which, by reason of law, is 
prevented from divulging information concern­
ing the matter complained of to a person who 
has not received the security clearance required 
by that agency, in which event the agency shall 
arrange with the Commission for the selection 
of an impartial employee of the agency to 
serve as complaints examiner. (For purposes 
of this paragraph, the Department of Defense



36a

is considered to be a single agency.) The agency 
in which the complaint arose shall request the 
Commission to supply the name of a complaints 
examiner who has been certified by the Com­
mission as qualified to conduct a hearing under 
this section.

(b) Arrangements for hearing. The agency in 
which the complaint arose shall transmit the 
complaint file containing all the documents 
described in § 713.222 which have been acquired 
up to that point in the processing of the com­
plaint, including the original copy of the inves­
tigative file (which shall be considered by the 
complaints examiner in making his recom­
mended decision on the complaint), to the com­
plaints examiner who shall review the complaint 
file to determine whether further investigation 
is needed before scheduling the hearing. When 
the complaints examiner determines that fur­
ther investigation is needed, he shall remand the 
complaint to the Director of Equal Employ­
ment Opportunity for further investigation or 
arrange for the appearance of witnesses neces­
sary to supply the needed information at the 
hearing. The requirements of § 713.216 apply to 
any further investigation by the agency on the 
complaint. The complaints examiner shall sched­
ule the hearing for a convenient time and place.

(c) Conduct of hearing. (1) Attendance at 
the hearing is limited to persons determined by 
the complaints examiner to have a direct con­
nection with the complaint.

(2) The complaints examiner shall conduct 
the hearing so as to bring out pertinent facts, 
including the production of pertinent docu­
ments. Rules of evidence shall not be applied 
strictly, but the complaints examiner shall ex­
clude irrelevant or unduly repetitious evidence. 
Information having a bearing on the complaint 
or employment policy or practices relevant to 
the complaint shall be received in evidence. 
The complainant, his representative, and the



37a

representatives of the agency at the hearing 
shall be given the opportunity to cross-examine 
witnesses who appear and testify. Testimony 
shall be under oath or affirmation.

(d) Powers of complaints examiner. In addi­
tion to the other powers vested in the com­
plaints examiner by the agency in accordance 
with this subpart, the agency shall authorize 
the complaints examiner to:

(1) Administer oaths or affirmations ;
(2) Regulate the course of the hearing;
(3) Rule on offers of proof;
(4) Limit the number of witnesses whose 

testimony would be unduly repetitious; and
(5) Exclude any person from the hear­

ing for contumacious conduct or misbe­
havior that obstructs the hearing.

(e) Witnesses at hearing. The complaints ex­
aminer shall request any agency siibjeet to this 
subpart to make available as a witness at the 
hearing an employee requested by the com­
plainant when he determines that the testimony 
of the employee is necessary. He may also 
request the appearance of an employee of any 
Federal agency whose testimony he determines 
is necessary to furnish information pertinent 
to the complaint under consideration. The com­
plaints examiner shall give the complainant Ms 
reasons for the denial of a request for the ap­
pearance of employees as witnesses and shall 
insert those reasons in the record of the hear­
ing. An agency to whom a request is made 
shall make its employees available as witnesses 
at a hearing on a complaint when requested to 
do so by the complaints examiner and it is not 
administratively impracticable to comply with 
the request. When it is administratively im­
practicable to comply with the request for a 
witness, the agency to whom, request is made 
shall provide an explanation to the complaints 
examiner. I f  the explanation is inadequate, the



38a

complaints examiner shall so advise the agency 
and request it to make the employee available 
as a witness at the hearing. I f  the explanation 
is adequate, the complaints examiner shall in­
sert it in the record of the hearing, provide a 
copy to the complainant, and make arrange­
ments to secure testimony from the employee 
through a written interrogatory. An employee 
of an agency shall be in a duty status (luring 
the time he is made available as a witness.

( f )  Record of hearing. The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, and accepted by, the com­
plaints examiner at the hearing shall be made 
part of the record of the hearing. I f  the agency 
submits a document that is accepted, it shall 
furnish a copy of the document to the complain­
ant. I f  the complainant submits a document 
that is accepted, he shall make the document 
available to the agency representative for 
reproduction.

(g ) Findings, analysis, and recommendations. 
The complaints examiner shall transmit to the 
head of the agency or his designee: (1) The 
complaint file (including the record of the hear­
ing), (2) the foldings and analysis of the com­
plaints examiner with regard to the matter 
which gave rise to the complaint and the gen­
eral environment out of which the complaint 
arose, and (3) the recommended decision of 
the complaints examiner on the merits o f the 
complaint, including recommended remedial ac­
tion, where appropriate, with regard to the 
matter which gave rise to the complaint and 
the general environment out of which the com­
plaint arose. The complaints examiner shall 
notify the complainant of the date on which 
this was done. In addition, the complaints ex­
aminer shall transmit, by separate letter to 
the Director o f Equal Employment Oppor­
tunity, whatever findings and recommendations 
he considers appropriate with respect to con-



39a

clitions in the agency which do not bear directly 
on the matter which gave rise to the complaint 
or which bear on the general environment out 
of which the complaint arose.

§  7 1 3 .2 1 9  R E L A T IO N S H IP  TO O T H E R  A G E N C Y  
A P P E L L A T E  PROCEDU RES

(a) Except as provided in paragraphs (b) 
and (c) of this section, when an employee 
makes a written allegation of discrimination 
on grounds of race, color, religion, sex, or na­
tional origin, in connection with an action that 
would otherwise be processed under a grievance 
or appeals system of the agency, the agency 
may process the allegation of discrimination 
under that system when the system meets the 
principles and requirements in §§ 713.212 
through 713.220 and the head of the agency, 
or his designee, makes the decision o f the 
agency on the issue of discrimination. That 
decision on the issue of discrimination shall be 
incorporated in and become a part of the de­
cision on the grievance or appeal.

(b) An allegation of discrimination made in 
connection with an appeal under Subpart B of 
Part 771 of this chapter shall be processed 
under that subpart.

(c) An allegation of discrimination made in 
connection with a grievance under Subpart C 
of Part 771 of this chapter shall be processed 
under this part.

§  7 1 3 .2 2 0  A V O ID A N C E  OF D E L A Y

(a) The complaint shall be resolved prompt­
ly. To this end, both the complainant and the 
agency shall proceed with the complaint with­
out undue delay so that the complaint is resolved 
within 180 calendar days after it was filed, in­
cluding time spent in the processing of the com­
plaint by the complaints examiner under 
§ 713.218.

213-385 0  -  76 - 9



40a

(b) The head of the agency or his designee 
may cancel a complaint if the complainant fails 
to prosecute the complaint without undue de­
lay. However, instead of canceling for failure 
to prosecute, the complaint may be adjudicated 
if  sufficient information for that purpose is 
available.

(c) The agency shall furnish the Commission 
monthly reports on all complaints pending 
within the agency in a form specified by the 
Commission. I f  an agency has not issued a final 
decision, and has not requested the Commission 
to supply a complaints examiner, within 75 
calendar days from the date a complaint was 
filed, the Commission may require the agency 
to take special measures to insure prompt proc­
essing of the complaint or may assume re­
sponsibility for processing the complaint, in­
cluding supplying an investigator to conduct 
any necessary investigation on behalf of the 
agency. When the Commission supplies an in­
vestigator, the agency shall reimburse the Com­
mission for all expenses incurred in connection 
with the investigation and shall notify the com­
plainant in writing of the proposed disposi­
tion of the complaint no later than 15 calendar 
days after its receipt of the investigative report.

(d) When the complaints examiner has sub­
mitted a recommended decision finding discrim­
ination and the agency has not issued a final 
decision within ISO calendar days after the date 
the complaint was filed, the complaints ex­
aminer’s recommended decision shall become 
a final decision binding on the agency 30 calen­
dar days after its submission to the agency. In 
such event, the agency shall so notify the com­
plainant of the decision and furnish to him a 
copy of the findings, analysis, and recommended 
decision of the complaints examiner under 
§ 713.218(g) and a copy of the hearing record 
and also shall notify him in writing of his right



41a

of appeal to the Commission and the time limits 
applicable thereto and of his right to file a 
civil action as described in § 713,281.

§ 7 1 3 .2 2 1  D E C ISIO N  B Y  H E A D  OF A G E N C Y  OR 
DESIGN EE

(a) The head of the agency, or his designee, 
shall make the decision of the agency on a com­
plaint based on information in the complaint 
file. A  person designated to make the decision 
for the head of the agency shall be one who is 
fair, impartial, and objective.

( b )  (1) The decision of the agency shall be 
in writing and shall be transmitted by letter to 
the complainant and his representative. When 
there has been no hearing, the decision shall 
contain the specific reasons in detail for the 
agency’s action, including any remedial action 
taken.

(2) When there has been a hearing on the 
complaint, the decision letter shall transmit a 
copy of the findings, analysis, and recommended 
decision of the complaints examiner under sec­
tion 713.218(g) and a copy of the hearing 
record. The decision of the agency shall adopt, 
reject, or modify the decision recommended by 
the complaints examiner. I f  the decision is to 
reject or modify the recommended decision, the 
decision letter shall set forth the specific rea­
sons in detail for rejection or modification.

(3) When there has been no hearing and no 
decision under § 713.217(c), the decision letter 
shall set forth the findings, analysis, and deci­
sion of the head of the agency or Ms designee.

(c) The decision of the agency shall require 
any remedial action authorized by law deter­
mined to be necessary or desirable to resolve- 
the issues of discrimination and to promote the 
policy of equal opportunity, whether or not 
there is a finding of discrimination. When dis­
crimination is found, the agency shall require-



42a

remedial action to be taken in accordance with 
§ 713.271, shall review the matter giving rise 
to the complaint to determine whether disciplin­
ary action against alleged discriminatory offi­
cials is appropriate, and shall record the basis 
for its decision to take, or not to take, disciplin­
ary action but this decision shall not be in­
cluded in the complaint file.

(d) The decision letter shall inform the com­
plainant of his right to appeal the decision of 
the agency to the Commission of his right to 
file a civil action in accordance with § 713.281, 
and of the time limits applicable thereto.

§  7 1 3 .2 2 2  C O M P L A IN T  F IL E

The agency shall establish a complaint file. 
Except as provided in § 713.221(c), this file 
shall contain all documents pertinent to the 
complaint. The complaint file shall include 
copies o f: (a) The notice of the Equal Employ­
ment Opportunity Counselor to the aggrieved 
person under § 713.213(a), (b) the written re­
port of the Equal Employment Opportunity 
Counsel under § 713.213 to the Equal Employ­
ment Opportunity Officer on whatever precom­
plaint counseling efforts were made with regard 
to the complainant’s ease, (e) the complaint,
(d ) the investigative file, (e) if the complaint 
is withdrawn by the complainant, a written 
statement of the complainant or his representa­
tive to that effect, ( f ) if adjustment of the com­
plaint is arrived at under § 713.217, the written 
record of the terms o f the adjustment, (g ) if  no 
adjustment of the complaint is arrived at under 
§ 713.217, a copy of the letter notifying the com­
plainant o f the proposed disposition o f the com­
plaint and o f his right to a hearing, (h) if  de­
cision is made under §713.217 (c), a copy of the 
letter to the complainant transmitting that deci­
sion, (i) if a hearing was held, the record of the 
hearing, together with the complaints ex­



43a

aminer’s findings, analysis, and recommended 
decision on the merits of the complaint, ( j )  if 
the Director of Equal Employment Opportu­
nity is not the designee, the recommendations, 
if  any, made by him to the head of the agency 
or his designee, and (k) if decision is made 
under § 713.221, a copy of the letter transmit­
ting the decision o f the head of the agency or 
his designee. The complaint file shall not con­
tain any document that has not been made 
available to the complainant or to his designated 
physician under § 294.401 of this chapter.

A p p e a l  t o  t h e  C o m m i s s i o n

§  7 1 3 .2 3 1  E N T IT L E M E N T

(a) Except as provided by paragraph (b) 
of this section, a complainant may appeal to 
the Commission the decision of the head of the 
agency, or his designee:

(1) To reject his complaint, or a portion 
thereof, for reasons covered by § 713.215; or

(2) To cancel his complaint because of 
the complainant’s failure to prosecute his 
complaint; or

(3) On the merits of the complaint, 
under § 713.217(c) or §713.221, but the 
decision does not resolve the complaint to 
the complainant’s satisfaction.

(b) A  complainant may not appeal to the 
Commission under paragraph (a) of this sec­
tion when the issue of discrimination giving rise 
to the complaint is being considered, or has been 
considered, in connection with any other appeal 
by the complainant to the Commission.

§ 7 1 3 .2 3 2  W H E R E  TO A P P E A L

The complainant shall file his appeal in writ­
ing, either personally or by mail, with the 
Board of Appeals and Review, U.S. Civil Serv­
ice Commission, Washington, D.C. 20415.



4 4 a

§  7 1 3 .2 3 3  T IM E  L IM IT

(a) Except as provided in paragraph (b) o f 
this section, a complainant may file an appeal 
at any time after receipt of his agency’s notice 
of final decision on his complaint but not later 
than 15 calendar days after receipt of that 
notice.

(b) The time limit in paragraph (a) of this 
section may be extended in the discretion of the 
Board of Appeals and Review, upon a show­
ing by the complainant that he was not noti­
fied of the prescribed time limit and was not 
otherwise aware of it or that circumstances, 
beyond his control prevented him from filing an 
appeal within the prescribed time limit.

§  7 1 3 .2 3 4  A P P E L L A T E  PROCEDU RES

Tlie Board of Appeals and Review shall re­
view the complaint file and all relevant written 
representations made to the board. The board 
may remand a complaint to the agency for fur­
ther investigation or a rehearing if it considers 
that action necessary or have additional investi­
gation conducted by Commission personnel. 
This subpart applies to any further investiga­
tion or rehearing resulting from a remand from 
the board. There is no right to a hearing before 
the board. The board shall issue a written deci­
sion setting forth its reasons for the decision 
and shall send copies thereof the complain­
ant, his designated representative, and the 
agency. When corrective action is ordered, the 
agency shall report promptly to the board that 
the corrective action has been taken. The deci­
sion of the board is final, but shall contain a 
notice of the right to file a civil action in ac­
cordance with § 713.282.

§ 7 1 3 .2 3 5  R E V IE W  B Y  T H E  C O M M IS S IO N E R S

The Commissioners may, in their discretion, 
reopen and reconsider any previous decision



45a

when the party requesting reopening submits 
written argument or evidence which tends to 
establish that:

(1) blew and material evidence is avail­
able that was not readily available when the 
previous decision was issued;

(2) The previous decision involves an 
erroneous interpretation of law or regula­
tion or a misapplication of established pol­
icy; or

(3) The previous decision is of a prec­
edential nature involving a new or un­
reviewed policy consideration that may 
have effects beyond the actual case at hand, 
or is otherwise of such an exceptional na­
ture as to merit the personal attention of 
the Commissioners.

§ 7 1 3 .2 3 6  R E L A T IO N S H IP  TO O T H E R  A P P E A L S

When the basis of the complaint of discrimi­
nation because of race, color, religion, sex, or 
national origin involves an action which is 
otherwise appealable to the Commission and the 
complainant having been informed by the agen­
cy of his right to proceed under this subpart 
elects to proceed by appeal to the Commission, 
the case, including the issue of discrimination, 
will be processed under the regulations appro­
priate to that appeal when the complainant 
makes a timely appeal to the Commission in 
accordance with those regulations.

R e p o r t s  t o  t h e  C o m m i s s i o n

§  7 1 3 .2 4 1  REPOR TS TO T H E  C O M M IS S IO N  O N  
C O M P L A IN T S

Each agency shall report to the Commission 
information concerning precomplaint counsel­
ing and the status and disposition of complaints 
under this subpart at such times and in such 
manner as the Commission prescribes.



46a

T h i r d  P a r t y  A l l e g a t i o n s

§ 7 1 3 .2 5 1  T H IR D -P A R T Y  A L L E G A T IO N  OF 
D IS C R IM IN A T IO N

(a) Coverage. This section applies to general 
allegations by organizations or other third, par­
ties o f discrimination in personnel matters with­
in the agency which are unrelated to an indi­
vidual complaint of discrimination subject to 
§§ 713.211 through 713.222.

(b) Agency procedure. The organization or 
other third party shall state the allegation with 
sufficient specificity so that the agency may in­
vestigate the allegation. The agency may re­
quire additional specificity as necessary to pro­
ceed with its investigation. The agency shall 
establish a file on each general allegation, and 
this file shall contain copies o f all material used 
in making the decision on the allegation. The 
agency shall furnish a copy of this file to the 
party submitting the allegation and shall make 
it available to the Commission for review on 
request. The agency shall notify the party sub­
mitting the allegation of its decision, including 
any corrective action taken on the general al­
legations, and shall furnish to the Commission 
on request a copy of its decision.

(c) Commission procedures. I f  the third 
party disagrees with the agency decision, it 
may, within 30 days after receipt of the de­
cision, request the Commission to review it. The 
request shall be in writing and shall set forth 
with particularity the basis for the request. 
When the Commission receives such a request, 
it shall make, or require the agency to make, 
any additional investigations the Commission 
deems necessaiy. The Commission shall issue a 
decision on the allegation ordering such cor­
rective action, with or without back pay, as it  
deems appropriate.



47a

F r e e d o m  F r o m  R e p r i s a l  o r  I n t e r f e r e n c e s

§  7 1 3 .2 6 1  FR E E D O M  F R O M  R E P R IS A L

(a) Complainants, their representatives, and 
witnesses shall be free from restraint interfer­
ence, coercion, discrimination, or reprisal at any 
stage in the presentation and processing of a 
complaint, including the counseling stage under 
section 713, or any time thereafter.

§  7 1 3 .2 6 2  R E V IE W  OF A L L E G A T IO N S  OF R E P R ISA L

(a) Choice of review procedures. A  complain­
ant, his representative, or a witness who alleges 
restraint, interference, coercion, discrimination, 
or renrisal in connection with the presentation 
of a complaint under this subpart, may, if  an 
emplovee or annlicant, have the allegation re­
viewed as an individual complaint of discrimi­
nation subject to §§ 713.211 through 713.222 or 
as a charge subject to paragraph (b) of this 
section.

(b) Procedure for review of charges. (1) An 
employee or applicant may file a charge of 
restraint, interference, coercion, discrimination 
or reprisal, in connection with the presentation 
of a complaint with an. appropriate agency 
official as defined in § 713.214(a) (2) within 15 
calendar days of the date of the alleged occur­
rence. The charge shall be in writing and shall 
contain all pertinent facts. Except as provided 
in subparagraph (2) of this paragraph, the 
agency shall undertake an appropriate inquiry 
into such a charge and shall forward to the 
Commission within 15 calendar days o f the 
date of its receipt a copy of the charge and 
report of action taken. The agency shall also 
provide the charging party with a copy of the 
report o f action taken. When the agency has 
not completed an appropriate inquiry 15 calen­
dar days after receipt of such a charge, the



48a

charging party may submit a written statement 
with all pertinent facts to the Commission, and 
the Commission shall require the agency to take 
whatever action is appropriate.

(c ) When a complainant, after completion 
of the investigation of his complaint under 
§ 713.216, requests a hearing and in connection 
with that complaint alleges restraint, interfer­
ence, coercion, discrimination, or reprisal, the 
complaints examiner assigned to hold the hear­
ing shall consider the allegation as an issue in 
the complaint at hand or refer the matter to 
the agency for further processing under the 
procedure chosen by the complainant pursuant 
to paragraph (a) of this section.

R e m e d i a l  A c t i o n s

§  7 1 3 .2 7 1  R E M E D IA L  A C T IO N S

(a) Remedial action involving an applicant.
(1) When an agency, or the Commission, finds 
that an applicant for employment has been dis­
criminated against and except for that discri­
mination would have been hired, the agency 
shall offer the applicant employment of the 
type and grade denied him. The offer shall be 
made in writing. The individual shall have 15 
calendar days from receipt of the offer within 
which to accept or decline the offer. Failure to 
notify the agency of his decision within the 15- 
day period will be considered a declination of 
the offer, unless the individual can show that 
circumstances beyond his control prevented 
him from responding within the time limit. I f  
the offer is accepted, appointment shall be re­
troactive to the date the applicant would have 
been hired, subject to the limitation in sub- 
paragraph (4) of this paragraph. Backpay, 
computed in the same manner prescribed by 
§ 550.804 of this chapter, shall be awarded from 
the beginning of the retroactive period, subject 
to the same limitation, until the date the indi­



4 9 a

vidual actually enters on duty. The individual 
shall be deemed to have performed service for 
the agency during this period of retroactivity 
for all purposes except for meeting service re­
quirements for completion of a probationary or 
trial period that is required. I f  the offer is 
declined, the agency shall award the individual 
a smn equal to the backpay he would have re­
ceived, computed in the same manner pres­
cribed by § 550.801 of this chapter, from the 
date he would have been appointed until the 
date the offer was made, subject to the limita­
tion of subparagraph (4) of this paragraph. 
The agency shall inform the applicant, in its 
offer, of his right to this award in the event he
declines the offer. . .

(2) When an agency, or the Commission, 
finds that discrimination existed at the time 
the applicant was considered for employment 
but does not find that the individual is the one 
who would have been hired except for discri­
mination, the agency shall consider the indivi­
dual for any existing vacancy o f the type and 
grade for which he had been considered initi­
ally and for which he is qualified before con­
sideration is given to other candidates. I f  the 
individual is not selected, the agency shall 
record the reasons for nonselection. I f  no va­
cancy exists, the agency shall give him this pri­
ority consideration for the next vacancy for 
which he is qualified. This priority shall take 
precedence over priorities provided under other 
regulations in this chapter.

(3) This paragraph shall be cited as the au­
thority under which the above-described ap­
pointments or awards of 'backpay shall be made.

(4) A  period of retroactivity or a period 
for which backpay is awarded under this para­
graph may not extend from a date earlier than 
2 years prior to the date on which the complaint 
was initially filed by the applicant. I f  a finding 
of discrimination was not based on a complaint, 
the period of retroactivity or period for which



50a

backpay is awarded this paragraph may not 
extend earlier than 2 years prior to the date 
the finding o f discrimination was recorded.

(b) Remedial action involving an employee. 
When an agency, or the Commission, finds that 
an employee of the agency was discriminated 
against and as a result of that discrimination 
was denied an employment benefit, or an ad­
ministrative decision adverse to him was made, 
the agency shall take remedial actions which 
shall include one or more of the following, but 
need not be limited to these actions:

(1) Retroactive promotion, with back­
pay computed in the same manner pre­
scribed by § 550.804 of this chapter, when 
the record clearly shows that but for the 
discrimination the employee would have 
been promoted or would have been em­
ployed at a higher grade, except that the 
backpay liability may not accrue from a 
date earlier than 2 years prior to the date 
the discrimination complaint was filed, but, 
in any event, not to exceed the date he 
would have been promoted. I f  a finding of 
discrimination was not based on a com­
plaint, the 'backpay liability may not ac­
crue from a date earlier than 2 years prior 
to the date the finding of discrimination 
was recorded, but, in any event, not to ex­
ceed the date he would have been promoted.

(2) Consideration for promotion to a po­
sition for which he is qualified before con­
sideration is given to other candidates when 
the record shows that discrimination ex­
isted at the time selection for promotion was 
made but it is not clear that except for the 
discrimination the employee would have been 
promoted. I f  the individual is not selected, 
the agency shall record the : reasons for 
nonselection. This priority consideration 
shall take precedence over priorities under 
other regulations in this chapter.



51a

(3) Cancellation of an unwarranted per­
sonnel action and restoration of the 
employee.

(4) Expunction from the agency’s rec­
ords of any reference to or any record of 
an unwarranted disciplinary action that is 
not a personnel action.

(5) Full opportunity to participate in 
the employee benefit denied him (e.g., 
training, preferential work assignments, 
overtime scheduling).

R ight T o F ile a Civil A ction

§  7 1 3 .2 8 1  S T A T U T O R Y  R IG H T

An employee or applicant is authorized by 
section 717 (c) of the Civil Rights Act, as. 
amended, 84 Stat. 112, to file a civil action in an 
appropriate U.S. District Court within:

(a) Thirty (30) calendar days of his receipt 
o f notice of final action taken by his agency on 
a complaint.

(b) One hundred-eighty (180) calendar days 
from the date of filing a complaint with his 
agency if  there has been no decision.

(c) Thirty (30) calendar days of his receipt 
o f notice of final action taken by the Commis­
sion on his complaint, or,

(d) One hundred-eighty (180) calendar days 
from the date of filing an appeal with the Com­
mission if  there has been no Commission 
decision.

§  7 1 3 .2 8 2  N O T IC E  OF R IG H T

An agency shall notify an employee or appli­
cant of his right to file a civil action, and o f the 
30-day time limit for filing, in any final action 
on a complaint under §§ 713.215 and 713.217, or 
§ 713.221. The Commission shall notify an em­
ployee or applicant of his right to file a civil



5 2 a

action, and o f the 30-day time limit for filing, 
in any decision under § 713.234.

§ 7 1 3 .2 8 3  E F F E C T  O N  A D M IN IS T R A T IV E  
PR O CE SSIN G

The filing of a civil action by an employee or 
applicant does not terminate agency processing 
o f a complaint or Commission processing of an 
appeal under this subpart.

U nited States Civil Service Commission,
[seal] J ames C. Spry,

Executive Assistant to the Commissioners.

[FR, Doc. 72-18054 Filed 10-20-72; 8:49 am]

U. S. GOVERN M EN T PRINTING O F F IC E  : 1976 O -  213-385