EQUAL EMPLOYMENT OPPORTUNITIES ENFORCEMENT ACT AMENDMENTS

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CIA-RDP73B00296R000400100017-9
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RIPPUB
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K
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22
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December 9, 2016
Document Release Date: 
August 17, 2001
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17
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Publication Date: 
January 11, 1972
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MF
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Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Second Proposal Nothing in this statute should be construed as requiring the disclosure of information involving the national security otherwise prohibited by law, nor to impair the authority of the Director under Section 102(c) of the National Security Act of 1947, as amended, 61 Stat. 495. Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 11 January 1972 NOTE FOR: Mr. Fisher SUBJECT: Equal Employment Opportunities Enforcement Act Amendments 1. Attached is material on the EEOE Act amendments including: (a) a proposed floor statement for Senator Williams and four alternative amendments to S. 2515 which would serve the purpose of getting an indirect but complete exemption for the Agency without violating the guidelines set down by the Senate Committee staffers; (b) Section 717 of S. 2515; (c) excerpts from current law from Title VII of the Civil Rights Act of 1964 which could be cited as serving as precedent for our proposals; (d) current Executive order on the subject. 2. I believe that the OLC memorandum of 3 December 1971 on this subject contains more than sufficient material to draw on for an aide - memoir for Colonel White if that is what you plan in connection with the White/Colby/Rosen meeting later this week -?, I ~,- J a4l"' I I "r 1.11, 1- 1 /) 11 OAA Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Mr. President: There is also proposed a committee amendment to section 717 of the bill relating to personnel actions affecting Federal employees or applicants for employment. The committee amendment is patterned after language which has been in the Civil Rights Act of 1964 since its inception and like section 703(g) of the Act leaves unfettered the authority to make personnel determinations of a national security nature and resolves any potential conflict in the favor of national security interests. Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Amendments in the Alternative to Section 717 of S. 2515 1. Page 66, line 5, add new subsection (f): "SEC. 717. (f) Notwithstanding any other provision of this section, this section shall not apply to any personnel action if the position involved 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 administered under any statute of the United States or any Executive order of the President. " Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 2. Page 66, line 5, add new subsection (f): "SEC. 717. (f) Notwithstanding any other provision of this section, this section shall not apply to any personnel action if the position involved is subject to any requirement imposed in the interest of the national security of the United States and a determination that the requirement is not fulfilled is made by the head of an executive agency as defined in section 105 of Title 5, United States Code, having discretionary authority to terminate the employment of the incumbent of the position whenever he shall determine such termination necessary or advisable in the interest of the United States or the national security. 11 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 3. Page 63, line 3, insert the underscored: "SEC. 717. (a) All personnel actions affecting employees or applicants for employment... (other than the General Accounting Office or an agency not having any position in the competitive service).... " Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 4. Page 66, line 5, add new subsection (f): "SEC. 717. (f) The President, at any time in the public interest, may-- (1) except any agency (other than the Civil Service Commission) from this section, and (2) withdraw an exception made under this subsection. " Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 S. 2515 Approved For Release 2001/08/2V4 CIA-RDP73B00296R000400100017-9 1 ~ .(78 Stat., 265; 42~;U:S.O. 2000e--14) is' amendet to, read as 2 follows: 3 "SEC. 715. All authw ity, functions, and, responsibilities 4 vested in the Secretary of Labor pursuant4o Executive Order 5' 11246, as amended, relating to nondiscrimination in employ- 6 ment by Government contractors and subcontractors and non- 7 discrimination in federally assisted construction contracts are 8 transferred to the Equal Employment Opportunity Com- 9 mission, together with such personnel, property, records, and 10 unexpended balances of appropriations, allocations, and 11 other funds employed, used, held, available or to be made 12 available in connection with the functions transferred to the 13 Commission hereby as may be necessary to enable the Com- 14 mission to carry out its functions pursuant to this section, 15 and the Commission shall hereafter carry out all such au- 16 thority, functions, and responsibilities pursuant to such 17 order." 18 Sro. 11. Title Vii of the Civil Rights Act of 1964 (78 19 Stat. 253; 42 U.S.C. 2000e et seq.) is amended by adding 20 at the end thereof the following new section: 21 "NONDISCRIMINATION IN FEDERAL GOVERNMENT 22 EMPLOYMENT 23 `SEC. 717. (a) All personnel actions affecting em- 24 ployees or 'applicants for employment ' (except with regard 25 to aliens employed outside the limits of the United States) Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 S. Z515 Approved For Release 2001 /d8/2W,yC4i4~I Rk7,3BaUS61Z00 004,0~0.~ 9-- Y'? Lc4YrGi+?. , ) 1! U ) (J U 63 in military departments as defined in section 102 of title 5, United States Code; - in executive agencies (other than the 3 General Accounting Office) as defined in section 105 of title 4. 5, United States Code (including employees and applicants 5 for employment who are paid from nonappropriated funds), 6 in the United States Postal Service and the Postal Rate 7 Commission, in those units of the Government of the District 8 of Columbia having positions in the competitive service, and 9 in the legislative and judicial branches of the Federal Gov- 10 ernment having positions in the competitive service, shall be 11, made free from any discrimination based on race, color, re- 12 ligion, sex, or national origin. c1lu 13 "(b) The Civil Service Commission shall have authority 14 to enforce the provisions of subsection (a) through appropri- 15 ate remedies, including reinstatement or hiring of employees 16 { with or without back pay, as will effectuate the policies of this 17 section, and shall issue such rules, regulations, orders and 18 instructions as it deems necessary and appropriate to carry 19 out its responsibilities under this section. The Civil Service 20 Commission shall 21 (1) be responsible for the annual review and ap- 22 proval of a national and regional equal employment 23 ,VoV' opportunity plan which each department and agency and 24bpprovea i-oarRer ease Z 001/0 / 8f CIA RDP73B0 29680004001000117-9 23:'+ -ol submit in order to maintain an affirmative program of S.2515 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 64 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 oppor- tunity programs, periodically obtaining and publishing (on at least a semiannual basis) progress reports from each such department, agency, or unit; and (3) consult with and solicit the recommendations 9 of interested individuals, groups, and organizations re- 10 lating to equal employment opportunity. 11 The head of each such department, agency, or unit shall 12 comply with such rules, regulations, orders, and instructions 13 which shall include a provision that an. employee or applicant 14 for employment shall be notified of any final action taken on 15 any complaint of discrimination filed by him thereunder.. The 16 plan submitted by each department, agency, and unit shall 17 include, but not be limited to-- 18 , 20 (1) provision for the establishment of training and education programs designed to provide a maximum op- portunity for employees to advance so as to perform at 21their highest potential; and 22 "(2) a description of the qualifications in terms of 23 , t, \~ training and experience relating io equal employment opportunity for the principal and operating officials of Approved For Release 2001/08/28: CIA-RDP73B00296R000400100017-9 r s % , each such department, agency, or unit' responsible for Approved For Release 2.001/08/28 : CIA-RDP73B00296R000400100017-9 65 1 carrying out the equal employment opportunity program 2- and of the allocation of personnel and resources pro- 3 posed, by such.department, agency, or unit to carry out 4 its equal employment opportunity program. 5 "(c) Within thirty days of receipt of notice of final 6 action taken by a department, agency, or unit referred to in 7 subsection 717(a), or by the Civil Service Commission upon 8 an appeal from a decision or order of such department, 9 agency, or unit on a complaint of discrimination based on 10 race, color, religion, sex or national origin, brought pursuant 11 to subsection (a) of this section, Executive Order 11478 12 or any succeeding Executive orders, or after one hundred 13 and eighty days from the filing of the initial charge with the 14 department, agency, or unit or with the Civil Service Com- 15 mission on appeal from a decision or order of such depart- 16 ment, agency, or unit until such time as final action may 17 be taken by a department, agency, or unit, an employee or 18 applicant for employment, if aggrieved by the final disposition 19 of his complaint, or by the failure to take final action on his 20 complaint, may file a civil action as provided in section 706 21 (q), in which civil action the head of the department, agency, 22 or unit, as appropriate, shall be the defendan4. 23 "(d) The provisions of section 706(q) through (w), 24. as applicable, e@shall govern civil actions bbro~ughht hereunder. roved Fp( 6F~elerao nun 1coB2ntaine1ct inDth Beict Shad? 4retieve 1 any Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 i S. 2515 66 1 Government agency or o f ficial of its or his primary respon- 2 sibility to assu7'e 'nondiscrimination in employment as re- 3 quired by the Constitution and statutes or of its or his respon- 4 sibilities under Executive Order 11478 relating to equal 5 employment opportunity in the Federal Government. 6 SEC. 12. Section 716 of the Civil Rights Act of 1964 7 (42 U.S.C. 2000 (e)-15, 78 Stat. 266) is amended by 8 adding at the end thereof the following new subsection : 9 "(d) In the performance of their responsibilities under 10, this Act, the Attorney General, the Chairman of the Civil 11 Service Commission and the Chairman of the Equal Em- 12 ... plo pment Opportunity Commission shall consult regarding 13 ,'their rules, regulations, and policies." 17 o f,this,Act:, '.'iv\ ~?' SEC. 13. The amendments made by this 4ot to section 15706 of the Civil Rights Act of 1961- shall not be applicable 16 t6,, charges filed with the Commission-, prior to the enactment 14 c,1 \ } '1 ~s+ X1141"1 5 -,Irl 1rl' 1 Y` i, Y i Y 1 1, ,'.iti ,~(;4';,1`1 ~'?1'. Approve{ 4~.,ore RRglOasd12QOl/O:8128',)61A-RDP73BdO'26'6FkOd'O4d0100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 CIVIL RIGHTS ACT OF 1964 Title VII 50 SEC. 703 religion, sex, or national ongint 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, of 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 affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or () 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~. Notwithstanding any other provision of this title, (1) it shall no a 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 it 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- inittee controlling apprenticeship or other training or retraining pro- grains to admit or employ an 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 it 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 seciety, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propaga- lion of it particular religion. (f) As used in tills title, the phrase "unlawful employment prac- tire" shall not be deemed to incltale any action or measure taken by an employer, labor organization, joint labor ulanagerrnut, committee, or einployliicirt agency with respect. Ii) an imidividuid who is it member of time Cornrntill ist Party of the United States or of any other orga- ni7?ation required to register ak it (luuiuluiuFil-action ar Coinuiainist- Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 CIVIL RIGHTS ACT OF 1964 Title VII 703. front or?c,?anizal ion by f i III I owner' of I in' Subversive Acf i v i t ies ('onl l of board pni;snarlt to the Snbwrrsive ko vities ("onlrol Act of 19t0. by Notwithstanding iiiy oilier provision of this title, ii shall slot. it r~linnla\~?I'aal ('I nploynaent. farileti 1' I'or all en1pl0.yer to fail or r(411se. to hire and employ any individual for ally posilio11, for 11.11 employes to discharge ally individual frown ally posit.ioll, or for an employment agency to rail or refuse to refer any 111(11vidnaal for employment, an any organization to fail or refuse to refer any rosition, or for a labor individual for employment ill any position, if- (1) the occupancy of suds 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 im- posed in the interest of the national security of the United States under any security prograln in effect pursuant to or administered 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. (h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different. terms, conditions, or privileges of employment pursuant to it bona fide seniority or merit system, or it system which measures earnings by quantity or quality of production or to employees who wort: in different locations, provided that such differences arc. not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlaw- ful employment practice for an employer to give and to act Upon the results of any professionally developed ability test provided that such test, its adnllnlstrat,ioil or action 1(1)011 the, results is not designed, in- tended or used to discriminate. because of race, color, religion, sex or national origin. It sha.l I not be all rirllitwful employment practice under this title for any employer to diilerentiate upon the basis of sex in determining the ttnlount of the wages or coinpensation paid or to be paid to employees of such employer if such differentiation is author- ized 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 cont.atined in this title shall apply to any business or enterprise on or Hens alt Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which it preferential treatment is given to any individual because lie is till Indian living on or near at reservation. (j) Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor- In till a,gement committee subject to this title to grant preferential treat- ment to any individual or to n.ny grolap because of the race, color, reli- gion, sex, 01? national origin of such individual or group out account of an inibala.nee which --la,y exist with respect to the total number or per- ce11ta.lre of persons of nny race, color, religion, sex, or 1111.tional origin euaployed by any employer, referred or clamified for employment by any eniployuacnt agency Or labor organization, admitted to tnelubor- 8hip or clatisilied by any labor orga.uization, or lullnitted top or eill- ploytid by any h(rprentfac~sliih or other training pvo}tranl, in aoulparl- Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Executive Order 11473 EQUAL EMPLOYMENT OPPORTUNITY IN THE FEDERAL GOVERNMENT It has long been the policy of the United States Government to pro- vide equal op ortunity in Federal employment on the basis of merit and fitness ana without discrimination because of race, color, religion, sex, or national origin. All recent Presidents have fully supported this policy, and have directed department and agency heads to adopt measures to snake it a reality. ks a result, Ilwncll hay becn accomplished through positive agency pro~;'r;uus io sure e(na.lit,y of ol~porf.unity. A hlil ioua,l ;tela5, however are called for ial order to sti engtlleu a,ud assure fully equal elnploymellt opportunity in the Federal (=i overnnlent. NOW, '1'Il:h)ItiI+.I'Olihl, tinier and by virtue of the a'uthori'ty vestcll in me as President of the United States by the Constitution and stat- tites of the United States, it is ordered as :follows : SECTION 1. It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit 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 it each executive department and agency. This policy of equal opportu- nity applies to and must be an integral part of every aspect of person- nel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government. Si.c. 2. The head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment ithlin his jurisdiction in accordance with the policy set forth in sec- wtion 1. It. is the responsibility of each department and agency head, to the maximum extent possible, to provide sufficient resources to admin- ister such a program In a positive and effective manner; assure that recruitment activities reach all sources of job candidates; utilize to the fullest, extent the present skills of each employee; provide the maximum feasible opportunity to employees to enhance their skills so they may perform at their highest, potential and advance in accordance with their abilities; provide training and advice to managers and supervisors to assure their understanding and implementation of the policy ex- pressed in this Order; assure participation at the local level with other employers, schools, and public or private groups in cooperative efforts to Improve community conditions which affect employability= and provide for a system within the department op, gency for periodically evaluating the effectiveness with which the policy of this Order is being carried out. SEC. 3. The Civil Service Commission shall provide leadership and guidance to departments and agencies in the conduct of equal employ- ment opportunity programs for the civilian employees of and appli- cants for employment within the. executive departments and agencies in order to assure that personnel operations in Government depart- nle'llts and agencies carry out the objective of equal opportunity for all persons. The Conlulission shall review and evaluate agency program operations periodically, obtain such reports frolln departments and agencies as it deems necessary, and report to the President as appro- priato on overall progress. The Commission will consult from time to time with such individuals, groups, or organizations as may be of assistance in improving the Federal program and realizing the objectives of this Order. Su;c. 4. The Civil Service Commission shall provide, for the prompt, fair, and impartial consideration of 11,11 eolnplltilnts of discrimination in Federal employment on the basis of race, color, religion, sex, or na- Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Tide 3----Chapter 11 E. 0. 11479 tional origin. Agency systems shall provide access to counseling for employees who feel aggrieved and shall encourage the resolution of employee problems on an informal basi Procedures for the consideira- tion of complaints shall include at least one impartial review Within the executive department or agency and shall provide for appeal to the Civil Service Commission. Su,e,. 5. The Civil Ser lie Commission shall issue such regulations, orders, acid instructions as it deems necessary and appropriate to carry out this Order and assure, that the executive branch of the Government leads the way as an equal opportunity employer, and the head of each executive department and agency shall comply with the regulations, orders, and instructions issued by the, Commission under this Order. Sue. 6. This Order applies (a) to military departments as defined in section 102 of title 5, United States Code, and executive agencies (other Office) as defined in section 105 of title 5, than the General Accounting 11 United States Code, and to the employees thereof (including employees paid from nonappropriated funds), and (b) to those portions of the legislative and judicial branches of the Federal Government and of the Government of the District of Columbia having positions in the com- petitive service and to the employees in those positions. This Order does not apply to aliens employed outside the limits of the United States. Sxc. 7. Part I of Executive Order No. 11246 of September 24, 1965, and those pltrts of Executive Order No. 11375 of October 13, 1967, which apply to Federal employment, are hereby superseded. Trin'WHITE IIo vsa, August 8,1X9. Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2f,41170 $ L,CI~A,V ' )0296R000400100017-9 OLC 71-2052 3 December 1971 MEMORANDUM FOR THE RECORD 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. . 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 (!# ONLY Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 2004ki4N4&iA-0,6 7?kj0 t96R000400100017-9 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 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. Approved For Release 2001/08/288 CIA-RDP73B00296R000400100017-9 INTERNAL. USE ONLY Approved For Release 2001/0:/-LRQ+2BGL9$R000400100017-9 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. 3 INTERNAL USE WNLY Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Approved For Release 20MA!CI,J~,RM, t!10296R000400100017-9 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 being exempted becomes a public issue in the Congress. Assistant Legislative Counsel Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 4 INTERNAL 11 ^E 0 ILY Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 TRANSMITTAL SLIP DATE23 Feb. 1972 TO: Fisher, Bavis ROOM UILDING REMARKS: Here is the EEOC bill as passed by the Senate yesterday. Note section 717. We have ;nse,rted wh_the change p -e~i6lzs section 7, an in t is connection you will note the Senate Committee picked up our recom- mendations with respect to 717(a) which helped them. Now if only they would help us! LLM FROM: ROOM NO. BUILDING EXTENSION I FFEB ORM 55 24 I REPLACES FORM 36-8 WHICH MAY BE USED. Approved For Release 2001/08/28 : CIA-RDP73B00296R000400100017-9 Ap rove UNCLASSIFIED CONFIDENTIAL SECRET STATINTL OFFICIAL ROUTING SLIP TO NAME AND ADDRESS DATE INITIALS 1 2 3 4 5 6 ACTION DIRECT REPLY PREPARE REPLY APPROVAL DISPATCH RECOMMENDATION COMMENT FILE RETURN CONCURRENCE INFORMATION SIGNATURE Remarks : I am returning your package on S. 2515. As we have discussed, it is our position that we offer to the House side two proposals to satisfy our needs. The first proposal would be your item 2 under Tab A which, granted, is broader than the Civil Service Commission4esired. The second proposal would be a modifi d version of what the Commission off attached. STATINTL FOLD HERE TO RET R O SENDER FROM: NAME, ADDRESS AND PHONE NO. DATE Deputy General Counsel 7D01 Hqs 2/4/72 UNCLASSIFIED CONFIDENTIAL SECRET Ap o i i - 1-67