APPENDIX

STATEMENT OF GRACE E. COOKE, EXECUTIVE SECRETARY, NATIONAL EMPLOYMENT BOARD A BRIEF STATEMENT OF THE NATIONAL EMPLOYMENT BOARD IN OPPOSITION TO PARTS OF S. 984, A BILL TO PROHIBIT DISCRIMINATION IN EMPLOYMENT BECAUSE OF RACE, RELIGION, COLOR, NATIONAL ORIGIN, OR ANCESTRY

To the Members of the Subcommittee of the Committee on Labor and Public Welfare of the United States Senate:

By your leave we beg to file herewith a statement with respect to the aboveentitled matter.

Your petitioner, the National Employment Board, was organized in 1918, and is composed of commercial or fee-charging employment agencies engaged in the negotiation of employment in the specialized fields of educational, technical, commercial, and general office personnel.

Affiliated with the National Employment Board is the Employment Agencies Protective Association of the United States, organized in 1923, and composed of commercial or fee-charging employment agencies of all classifications.

The object or purpose of the National Employment Board is "to promote constructive publicity regarding the fee-charging employment agency service; to create a better understanding, acquaintance, coordination, and cooperation among the agencies serving men and women engaged in technical, educational, and commercial pursuits; to increase the efficiency of the agency service by the promotion of effective methods for serving employers and employees, by the consideration of the relations between employers and employees, and by the investigation and study of industrial and economic conditions; to set and maintain the highest standards of practice; to amply protect its members against all acts, methods, and practices inimical to the best interests of the service."

A FEW SALIENT FACTS WITH RESPECT TO THE COMMERCIAL OR FEE-CHARGING
EMPLOYMENT AGENCY AND ITS PROBLEMS IN SELECTION

In essence, the business of the fee-charging employment agency is the sale of a personal service and differs in no material respect from that of the doctor or the lawyer. The very nature of this service brings it within the confidential class. The agency acts as an intermediary between the employee and the employer. To effectively serve one, the agency must efficiently serve the other. The agency's main interest is to negotiate employment where the employee will remain and be contented. The employee of today may be the employer of tomorrow. Every satisfactory placement is a builder of that something known as good will, and the success of this service is built largely on good will. The great majority of this class of agency makes its service charge to the employee. Matching men or women and jobs by an agency is not as simple a procedure as it may seem. The agency has the requirements and the desires of the employee before it as they appear on the registration form and notations made at the time of a personal interview, or, where a personal interview is not possible, the supplemental statement which usually accompanies the application. The agency likewise has the employer's so-called requisition specifying educational background, ability, and experience. However, factors which are not so easily defined as those contained in the application and requisition forms in a large measure control proper selection. Those who are not familiar with the matchingup process can hardly conceive of the prominent place that personality and types occupy. The first impression of a personnel manager or of those in charge of employing in an organization often determines whether or not a man or woman is to be employed.

Two illustrations of this truth are found in the following incidents.

Two years or so ago a representative of one of the country's outstanding manufacturing companies who was in Boston interviewing graduates of several engineering schools, told a group of vocational counselors something of how he selected trainees. He required that the desk at which he sat when interviewing students should face the door through which the students passed on their approach to his desk. He knew, he said, before the interview opened every student that he was not going to consider favorably regardless of his record. He checked them off in his mind before he considered their scholastic and other background. On the ladder of qualifications he rated personality first and ability to get on with people second. A student might measure up 100 percent when it came to actual knowledge and ability, but if he didn't have personality or that indefinable something, or hadn't through his college years shown ability to get along with his fellow students, he was out of the running for a job with that company.

Not so long ago an internationally known organization placed a blind ad in a local paper for a stenographer-typist. Approximately 200 replies were received. The personnel manager selected from those replies eight applicants to whom tests of performance were given. Four passed but none were hired because the head of the department or the person for whom the typist-stenographer would work did. not like their personalities or personal appearance, or they did not have that "indefinable something."

These are not extreme examples but fairly common, varying with conditions and situations and the person delegated to interview and often to employ.

One of the principal qualifications for a satisfactory fee-charging employment agency placement manager-the man or woman who sits at an agency's placement desk, interviews and selects-is the ability or faculty to size up a person or a situation.

A placement manager might select six applicants for a given job, all having about the same educational and experience qualifications. There would be six applicants all measuring up to the employer's general specifications. Three only are to be sent for an interview, this in accordance with the employer's instructions. The three chosen by the agency may not from the standpoint of experience and knowledge rank as high as two of the other three but they possess that something called personality which the two do not have to the same degree at least. The three selected are the type the personnel manager employs. The agency knowing it, is governed in its selection. If two of the other three happen to be of a so-called minority group, it would be very difficult for the agency to prove that it did not discriminate against those two people on account of race, religion, color, national origin, or ancestry, either by itself or at the request of the employer.

An agency may not direct an applicant to an employer, or in selecting applicants for an interview may not select an applicant even though he has all of the qualifications laid down in the employer's requisition, because the agency is in possession of facts that would disqualify the applicant for a position of trust or responsibility.

Were such an applicant in the group S. 984 is designed to protect and were he to set up the contention that the agency was biased or that it discriminated because of an employer's requirements, the agency could not without divulging its reason and the source of its information protect itself. It could not violate the confidence of the individual or department that gave the reference. When a fee-charging employment agency asks any one, whether it be a former employer, the head of a college or school placement bureau, or others, for references, that agency agrees to hold all information given to it strictly confidential.

EXAMINATION OF PARTS OF S. 984 AND OBJECTIONS THERETO

It would seem that the only two provisions of this proposed bill which could bring a fee-charging employment agency under its provisions, except where an agency is an employer itself, are—

First, the definition of employer, section 3 (b):

"The term 'employer' means a person engaged in commerce or in operations affecting commerce having in his employ 50 or more individuals; any agency or instrumentality of the United States or any Territory or possession thereof; and any person acting in the interest of an employer, directly or indirectly." [Emphasis added.]

However, there is a question whether a court would find that a fee-charging employment agency acting in the capacity of an intermediary fell within the definition of "employer" other than in cases where such an agency is charged by an employer with actually employing, where the agency would be in the same

position with relation to the employer as the employer's personnel manager or head of a department in employing for him.

Second, section 5 (a), subsection (2), would penalize an agency by depriving it of its rights to do business with an employer and without giving that agency an opportunity to defend itself and to prove its innocence.

"SEC. 5 (a) It shall be an unlawful employment practice for an employer—

"(2) to utilize in the hiring or recruitment of individuals for employment any employment agency, placement service, training school or center, labor organization, or other source which discriminates against such individuals because of their race, religion, color, national origin, or ancestry."

It is not altogether clear why the drafters of this bill took the indirect approach to bring an employment agency within the provisions of the law that it did in the foregoing subsection, but whatever the reason may be, it would seriously injure and certainly discredit a service.

While not an objection to any part of the bill, there is a side which should be considered. An employment agency might and probably would have difficulty in determining what employer is and what employer is not engaged in interstate operations, what business this bill if enacted into law would not cover. Decisions of courts interpreting the Fair Labor Standards Act—the wage and hour law-have varied somewhat; in fact, in some cases it has been difficult to distinguish between the factors which have determined that one business: falls within the Fair Labor Standards Act and that another business does not. In States where there are fair employment practice laws it might be difficult. for an agency to know whether it was subject to the Federal, State, or both. laws. Confusion would be bound to result.

CONCLUSION

Inasmuch as the fundamental purpose of this proposed law is to prevent the denial of employment to any one because of his race, religion, color, national origin, or ancestry, the responsibility should rest on the shoulders of the employer, and all prohibitions and regulations should apply to him or to his duly authorized representative who is charged with employing, and should not apply to an employment agency when it acts only as an intermediary to bring the employee and employer together for an interview.

In many cases it would not be possible to prove that either by itself or in the interest of an employer an agency did not discriminate against applicants because of race, religion, color, national origin, or ancestry, where personalities, types, and substandard references were determining factors in an agency's selection.

It should not be expected that any self-respecting individual would assist an employer to violate the law or connive with him to circumvent it. Those engaged in the fee-charging employment agency business are as a class self-respecting, law-abiding citizens doing a worth while piece of work, helping men and women to help themselves. A large number of these employment men and women have given years of their lives to this calling and have built up good will over the years. Their business shows a sizeable financial investment.

Then, too, the applicant, the employee, except in a very small percentage of cases, pays the agency charge. It is inconceivable that these men and women engaged in the fee-charging employment agency service would by themselves or in the interest of the employer discriminate against men and women from whom the agency receives its profits, except possibly in such remote cases as to be a negligible factor.

Any number of men and women sitting in high places and charged with employing the employers of today-got their start through a fee-charging employment agency. Whether as an employer the former employee turns to an agency for service depends largely on the treatment accorded him as an applicant. We submit that so-called discrimination does not exist to the extent that legislation of so sweeping a character as S. 984 provides is necessary. May we suggest that such legislation places an emphasis on the very thing this bill is designed to destroy.

Provided it be the pleasure of your committee to recommend the passage of a fair employment practice law, we ask—

First, that S. 984 should be so written that a fee-charging employment agencies have no place therein when acting as an intermediary between the employer and

the employee in bringing the two together and where the employment agency is not charged by the employer with employing.

Second, provided your committee does not see its way clear to grant this request, which would seem to be reasonable and sound, we ask that whatever provision or provisions of the bill shall include the fee-charging employment agency be so written and so administered as to clearly define the responsibility of the agency and give it an opportunity to defend itself against any charge made under the law.

Third, that the law clearly define all requirements and regulations and that the administrative body shall not be give the authority to make rules and regulations which have the force of law, rules, and regulations which in themselves write new legislation, and which only Congress should prescribe. Respectfully submitted,

NATIONAL EMPLOYMENT BOARD,
GRACE E. COOKE, Executive Secretary.

NOTE. "Employee and "applicant" have been used interchangeably.

STATEMENT OF REV. JOHN W. DARR, JR., EXECUTIVE SECRETARY, UNITED CHRISTIAN COUNCIL FOR DEMOCRACY, NEW YORK, N. Y.

The United Christian Council for Democracy is a federation of five Protestant unofficial social action organizations: The Methodist Federation for Social Action, the Church League for Industrial Democracy (Episcopal), the Rauschenbusch Fellowship of Baptists, the Unitarian Fellowship for Social Justice, and the Evangelical and Reformed Council for Social Reconstruction. These organizations are made up of some 10,000 progressive clergy and laymen in churches throughout the United States. As their titles imply, these groups are devoted to the business of implementing the imperatives of their religious faith through appropriate legislation or other measures of action directed toward the maintenance and extension of democracy at home and abroad. On behalf of each of these organiaztions and in the name of the United Christian Council for Democracy, I come here to speak in favor of resolution S. 984, the measure now under consideration by your committee.

Perhaps the question that committee members would put to church leaders is this: Cannot the ultimate aims of this proposed legislation be better achieved by education-particularly the moral education provided by the churches? "The answer of liberal churchmen is this: We stand for both education and legislation; one is an essential complement of the other. The church will yield to no group in society in recognition of the need for education against discrimination. The church will accept its share of responsibility in providing that education. But liberal churchmen will say that the education against discrimination has now proceeded to the point where the majority of the people of the country are ready to have their convictions written into specific public policy and under law to hold accountable the minority unwilling to accept the policy. They are convinced we are ready for a law prohibiting discrimination in employment.

During the last war, the manpower demands tremendously stepped up the tempo of education against discrimination. Employers took the men and women who could do the work without discriminating as to race, creed, color, or national origin. Many employers testified, as shown in the records of the War Council of the State of New York, to their appreciation of the employees from minority groups at work in their plants, that employees of minority groups have been accepted by other employees, that they have worked shoulder to shoulder in harmony. That is to say, employers were educated by their wartime experience. Prejudices they may have possessed gave way as a result of the compulsory measures of war. What happened to employers also happened to workers. In the comradeship of the bench, they learned wholesome respect for one another and good feeling grew among them.

Since the end of the war democratically minded employers, whom we think to be in the majority, have been willing that the wartime nondiscriminatory practice be made permanent public policy. They have justly insisted, however, that such a policy be practiced by all alike. The minority of employers who insist upon the absolute right to hire and fire irrespective of public interest should under law be held responsible and accept the penalty of their unfair-employment practice. The same thing goes for labor unions. The majority of unions have