EQUAL EMPLOYMENT OPPORTUNITY ENFORCEMENT ACT - S. 2515

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP73B00296R000400100011-5
• Release Decision: RIPPUB
• Original Classification: U
• Document Page Count: 6
• Document Creation Date: December 9, 2016
• Document Release Date: August 17, 2001
• Sequence Number: 11
• Publication Date: December 3, 1971
• Content Type: MFR

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OLC 71-2052
3 December 1971
SUBJECT: Equal Employment Opportunity Enforcement
Act - S. 2515
1. Background:
a. Title VII of the Civil Rights Act of 1964 established the
Equal Employment Opportunity Commission. At present, Federal employ-
ment is excluded from the operation of Title VII (section 701 (b)(1) and (f)).
b. The primary purpose of S. 2515 is to tighten up on the
enforcement powers of the Commission, but it also contains a separate
provision covering Federal employment. It is quite likely that S. 2515
will be approved by the 92nd Congress in some form.
2. Existing Law:
5 U. S. C. 7151 states the policy of the U. S. to insure equal
employment opportunities for Federal employees without discrimination
because of race, color, religion, sex, or national origin. This general
provision of law and the more specific language of Executive Order
No. 11478, "Equal Employment Opportunity in the Federal Government, "
apply to the Agency. Section 4 of the Executive Order provides for
appeal from final agency action to the Civil Service Commission. Appeal
to the courts is apparently available to an aggrieved although court
review is not specified in either 5 U. S. C. 7151 or Executive Order 11478.
3. Proposed Law:
a. The proposed law provides the Civil Service Commission
statutory authority for ordering remedies, such as back pay, reinstatement,
hiring, and.immediate promotion.
INTERNAL U2E O iL'
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b. It also directs Commission involvement in equal
employment programs of executive agencies.
c. Finally, it provides a statutory basis for a civil action
in the U. S." District Court against an agency head following final disposi-
tion of a case by either an agency or the Civil Service Commission.
4. Discussion:
a. The Federal employee provision in the House version of
the proposed law was stricken on the House floor. However, it did not
cover CIA employment as the provision applied solely to the competitive
service.
b. The Senate version of the Federal employee provision (S. 2515,
new section 717) applies to CIA and raises at least the following problems:
(1) The enforcement authority of the Civil Service
Commission and the remedies available to the aggrieved
through court action could conflict with the Director's
authority to terminate employment under section 102(c)
of the National Security Act of 1947. To the extent the
newer authorities prevailed there would be a dilution.-1
of the Director's 102(c) authority.
(2) Proceedings on complaints before either the
Civil Service Commission on appeal or the district courts
may necessarily involve the disclosure of information on
Agency "organization, functions, names, official titles,
salaries, or numbers of personnel employed" in conflict
with section 6 of the CIA Act of 1949 and the Director's
responsibility to protect intelligence sources and methods.
(3) The remedies available to aggrieved employees or
applicants could be used to harass the Agency and its functioning,
with ramifications similar in substance, if not in scope, to
those we have associated with the so-called Ervin bill on
constitutional rights of Federal employees.
(4) There may be a legitimate operational need that
the assignment of personnel by the Agency not be free from
discrimination based on race, color, religion, sex or national
origin.
I
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c. House
The staff director of the House subcommittee having
jurisdiction over the matter is sympathetic with our problem and
feels we could line up support for our position among the members of the
subcommittee, including Chairman Dent who no doubt would be on the
conference committee appointed to iron out differences between the Senate
and House versions of the bill.
Senate
The senior majority and minority staff members of the
Senate subcommittee likewise appear to be sympathetic and have offered
to recommend to Chairman Williams whatever floor amendment or
legislative history we can work up with the Civil Service Commission's
blessing and within the following constraints:
(1) CIA should not be exempted by name (this could
lead to a run of similar requests from other executive agencies).
(2) The provision cannot be limited solely to the
"competitive service" since this would exempt "excepted
positions" other than CIA's which they feel should be
covered. (The provision uses the language of the executive
order in defining its application to executive agencies. The
Civil Service Commission has apparently bought the Senate
provision in a compromise to fend off the transfer of its
present authority over equal employment to the Equal
Employment Opportunity Commission. As a consequence,
the provision is being explained as merely spelling out in
statute what now exists in executive order. This is an
oversimplification in view of the proposed enforcement
authorities of the Civil Service Commission, and the easier
and less costly access to the Federal courts. )
5. Options:
a. Propose a specific exemption for CIA. This is probably
unacceptable to the Senate subcommittee staff and from the Agency's
interest could be misconstrued to give credence to allegations such as
Senator Ervin's that the Agency believes it is beyond the law.
INTERNAL
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b. Prepare an indirect but complete exemption such as:
(1) Restrict the application of the provision to the
"competitive service. " The provision would then have a narrower
application than Executive Order 11478 and may be unacceptable
to the Senate subcommittee staff and the Civil Service Commission.
On the other hand, such limited application would be in line with:
(a) The application provision reported out by
the House committee, and
(b) The application provision proposed by the
Senate committee for the judicial and legislative branches.
(2) Exclude from the application of the provision personnel
actions subject to an explicit statutory authority for terminating
the employment of any Federal officer or employee in the interest
of the United States "notwithstanding the provisions of any other
law" (precedent for exempting security cases is found in 703 (g)
of Title VII).
(3) Authorize the President to designate positions
agencies which would not be subject to the application of the
provision.
c. Attempt to get something short of a full exemption such as:
(1) Assuring that any charge, investigation or proceedings
before the Civil Service Commission cannot be made public and
that nothing said or done during and as a part of such endeavors
may be made public without the written consent of the parties, or
used as evidence in subsequent proceedings (precedent for this is
contained in 706(a) of Title VII); or
(2) Providing a basis for bona fide occupational
exemption (precedent for this is in sec. 703(e)(1) of Title VII).
d. Do nothing on the basis that the foreseeable probable harm
to the Agency is slight and,, in any case, less harmful than adverse publicity
which may result if our interest in bein?56WOnpted becomes a public issue
in the Congress.
Assistant Legislative Counsel
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ROUTING AND RECORD SHEET
SUBJECT, (Optional)
FROM,
EXTENSION
NO.
OLC 71-2052
Acting Legislative Counsel
4151
DATE
6 January 1972
TO: (Officer designation, room number, and
building)
DATE
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
1.
Executive Director
The attached covers legislation
oil
'
which will be the first order of
f
fter it
f
th
S
t
b
i
~+
J
us
ness
e
ena
e a
or
returns on 18 January. . The legis-
lation deals with nondiscrimina-
3. ]
110",- U
tion in Federal employment. It
would give an alleged aggrieved
_.1A
Agency applicant or employee a
4.
right to file a civil action against
Cjy1
the Director and could be viewed
'
5.
s
as subordinating the Director
102(c) termination authority in
such cases. The legislation also
6.
gives the Civil Service Commis-
sion overview, appeal and
enc
owers over A
enforcement
g
y
p
~'
action in this field.
Representatives of DDS, OGC,
B?
IG, OP, and OLC have met on the
paper, concur in its assessment,
and recommend that we seek
indirect, but complete, exemptio
from the legislation by:
h
o are
(a) excluding personnel w
10.
subject to an explicit statutory
authority for termination of
11.
employment in the interest of the
United States; or (b) authorizing
ositions
t
the Pre
ident to exem
p
p
s
1Z'
or agencies; or (c) excluding
personnel who are subject to a
13.
security program pursuant to
executive order or statute, in
that order of preference.
14.
Your concurrence is requested
before proceeding further with
i
d
i
l
ss
on an
Service Comm
the Civi
15.
he Senate Committee.
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ROUTING AND RECORD SHEET
SUBJECT, (Optional)
FROM,
Office of Legislative Counsel
EXTENSION
NO.
7 D 35 Hqs.
6136
DATE
3 December 1971
TO, (Officer designation, room number, and
DATE
building)
OFFICER'S
COMMENTS (Number each comment to show from whom
RECEIVED
FORWARDED
INITIALS
to whom. Draw a line across column after each comment.)
The attached has been pre-
ared as an aid for the formula-
p
tion tion of a new position on S. 2515,
Equal Employment Opportunity
3.
Enforcement Act. As you know
by now, we will have difficulty
in obtaining favorable action on
4?
our initial position i. e. limit
the application of the Federal
l
h
"
5.
emp
oyee provision to t
corn
e
petitive service. ".
6.
We have been informed that
the legislation will probably not
be considered by the Senate this
7`
session but that the leadership
has agreed to make it one of the
8.
first items of business when the
second session of the 92nd Con-
g re s s convenes in January.
9.
25X1A
10.
Assistant Legislative Cou
11.
cc: OGC
PERS Fisher
12.
TATINTL
OIG
4s.4DDS (Wattles) 25X1A
13.
*Would you like to convene a
meeting on this?
14.
15.
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