It is also conceivable, as we are supposed to have learned from our painful experience with the eighteenth amendment and the Volstead Act, that while legislation regulating people's attitudes can sometimes operate with a fair degre of success at the State and local levels, Federal legislation in this field may be wholly impracticable and unworkable. Of course, it is said by the proponents of S. 984 that what the bill really undertakes to do is not to regulate people's attitudes and abolish race prejudice by legislative fiat, which some of them frankly admit is impossible, but only to prohibit discriminatory practices. But what happens to any law, unless the Government is prepared to resort to mass coercion, which is not supported by majority sentiment? It fails, just as national prohibition failed; and the ill-considered remedy turns out to be worse than the disease it was designed to cure. As the Supreme Court said, "Legislation is powerless to eradicate racial instincts, or to abolish dis tinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties * * We are dealing here with realities. Discrimination in employment on racial and religious grounds has been practiced the world over since the beginning of time. It still exists and ought to be eliminated. And so, for that matter, should man abandon all of his inhumanities to man-including resort to war. But human nature changes slowly and then usually only through the gradual processes of education. The spokesman for various church groups, including the Federal Council of Churches, who have appeared before you know this or they should know it. With all respect, the fact that they come here and ask Congress to pass a statute implementing the Golden Rule with legal sanctions is appalling. It is or so it seems to me-nothing less than a confession of the bankruptcy of their own spiritual and moral leadership. And while freely acknowledging the sincerity of purpose and motive of many of the supporters of this bill, I cannot close this statement without calling attention to the brazen hypocricy and brutal cynicism of some others who also support it. Communist Russia is now engaged in reestablishing the institution of human slavery over large areas of the world. This, it would seem, is the ultimate in discrimination, the supreme affront to human dignity. But did you ever hear one expression of honest, American indignation at this spreading Communist tyranny from the Southern Conference of Human Welfare, or from such liberty-hating "liberals" as Henry Wallace? I haven't and I doubt if you have. Yet they ring all the changes on this country's supposed "loss of face" because, forsooth, it has not succeeded in wholly eliminating certain age-old prejudices which are deeply, though, we hope, not ineradically rooted in human nature. We are confident that when this committee and Congress have thoroughly studied this proposal, it will be emphatically rejected. Senator ELLENDER. Mr. Chairman, I notice in the statement of Mr. Taylor today that he quotes from Mr. Donald Richberg. Mr. Donald Richberg is a most prominent lawyer and familiar with matters of labor relationships, and I am wondering if it would not be a good idea to send him a copy of this statement together with a copy of the statement made by Mr. Frank Looney, an attorney of Louisiana, together with a brief by Mr. Charles Tuttle, and ask him to study these and prepare a statement of his own and any comment he desires to make on the bill, and that he be invited to do so by this committee. Senator DONNELL. I think that is entirely proper that such an invitation be issued. I think inasmuch as they may involve considerable work we should not put it in the form of a request, which may prove embarrassing to both him and the committee, but if there is no objection, and I take it there is not, the clerk will communicate with Mr. Donald Richberg and notify him of the committee's action and invite 1 Plessy v. Ferguson (163 U. S. 537 (1896)). him to extend his views in writing to reach us by as early next week as is convenient and practicable to Mr. Richberg. (Subsequently Mr. Richberg, in response to the committee's invitation, submitted a brief, which appears on p. 794.) Senator ELLENDER. Mr. Chairman, I expect to receive in the course of the next few days, a few statements of southern governors, or their representatives, and I would ask permission to incorporate those in the permanent record. Senator DONNELL. Permission is granted to do so. Now the public hearing will be in recess and the committee will remain in executive session a few minutes. (Whereupon, at 1:30 p. m., the subcommittee went into executivo session, at the conclusion of which the subcommittee adjourned.) 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. 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 be 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 ap proach 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 8. 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 |