Mr. DENT. As it is now, the Secretary does have under section 13 discretionary power to go under age 45 or over age 65 if he finds reason to do so. If we get background information on the matter we may be able to extend his powers to where he will have less of a decision to make arbitrarily, as it were, when he has a problem affecting the age limitation itself.

I think his willingness to work with us in this matter may make this a better piece of legislation in the end than when it started out, although it is a good piece of legislation in my opinion.

Mr. Burton.

Mr. BURTON. As I understand, the employer must have at least 25 employees?

Secretary WIRTZ. That is right. It would be 50 until June 1968 and after that it would be 25 employers.

Mr. BURTON. How much legislation would be needed to assert primary jurisdiction in this area?"

Secretary WIRTZ. There would be some question as to whether there would be primary jurisdiction under the bill, but I know what you mean and I think that is a matter on which you may wish to have further discussion.

The Senate made some modification on that. The outline for the answer to your question is there are presently 23 States in which the State prohibits discrimination in private organizations.

Mr. BURTON. Does the staff have that data?

Secretary WIRTZ. I think they do and we will be glad to supply it in detail.

Mr. BURTON. The enforcement provisions apparently are directed toward your office and you or your designated agent?

Secretary WIRTZ. Yes.

Mr. BURTON. As distinguished from some kind of commission kind of enforcement?

Secretary WIRTZ. That is correct. There is a point here that the Senate subcommittee has considered in some detail. There is a question as to whether the best enforcement procedure is the one proposed here which is, in general terms, like the NLRB enforcement procedures or whether the better procedure would be that paralleling the Fair Labor Standards Act.

We are willing to consider with the committee what might appear to be its best judgment on that.

Mr. BURTON. Would you briefly spell out the difference between these two procedures?

Secretary WIRTZ. Yes, but if I do it briefly, I may mislead. The detail of it becomes a little complex but under the procedure proposed in this bill, paralleling the NLRB procedures there would be involved in a particular case, first, of course, the persuasion procedures, which I don't mean to pass over lightly because experience indicates that is where most of these matters would be worked out. If they could not be worked out that way, there would be the institution of an administrative proceeding by the Secretary of Labor against the employer or, if it were a case involving the labor union or employment agency, against the union or agency. The Secretary would attempt to get back pay, reinstatement only or reinstatement with back pay.

If a satisfactory settlement did not result, there would be the institution of proceedings in court in order to enforce the administrative decision. The procedure in court would parallel the procedure under the National Labor Relations Act.

In a Fair Labor Standards Act proceeding you have a situation in which you must move more immediately into the court and depend more fully on the court proceeding. There is also authority under FLSA procedure or a private suit to be instituted by an aggrieved employee.

The differences, I think, are not basic. They are more in detail than in the larger effect. In neither case is there a penalty for noncompliance with the Secretary's rulings. You have to go to court for a final decision.

Mr. BURTON. There is a third and fourth mechanism-in some States the age factor in terms of discrimination is included in a general commission type of proceeding whether it is race, religion, or sometimes sex. How do you respond to the query whether we should move in that direction to take advantage of the very limited, classic civil rights equal employment opportunity structure that we already have? Should we put age or include age in that?

Secretary WIRTZ. That has been given serious consideration. You could fit this into the jurisdiction of the Equal Employment Opportunity Commission. Our recommendation, and I think it would be reflected by the Commission's own judgment, is that that would be a mistake. They already have the problem of racial and sex discrimination before them. I think the added business of coverage on this age discrimination for the Equal Opportunity Commission would be a mistake. As for a separate commission possibility, I don't believe that is necessary.

Mr. BURTON. Well, there should be some kind of uniform enforcement standards for all arbitrary and discriminatory employer actions. It is useful if you have one common standard, one common set of ground rules. Except for a few members of this subcommittee and perhaps our counterpart, the other body, the average labor union or employer won't really know quite so clearly which of these forums he is to look to, to get some information. We are liable to have considerable disparity in the yardsticks applied for enforcement.

Secretary WIRTZ. Perhaps but with due respect to that parity, I would suggest this kind of discrimination is entirely different from racial discrimination; the root of racial discrimination is purely bigotry. That is not true here. Age discrimination, I think, develops because of oversight, lack of sense, lack of realization of the capacity of an older person.

I don't believe there are many cases of bigotry, except for some few exploitation situations. I don't believe there are many cases where an employer discriminates against a person because of age out of the ugliness of his spirit. I think it is a wholly different thing. So where education would be a large element here, it would be a lesser element somewhere else.

Mr. BURTON. Do you believe it improper that we should find some kind of financial insurance, or what have you, to deal in certain areas of this age discrimination? As I understand it, other than that

part of the job which can be dealt with in education, there is another part which has to do with an economic basis. The compensation is higher, it has a direct effect on health, welfare, and pensions.

What, if any, cognizance should we take of that economic fact of life?

Secretary WIRTZ. To condone the differentiation on the basis of age?

Mr. BURTON. There is a difference, employers are affected differently in payroll terms when they hire older workers. Do we say that is tough, this is our policy?

Secretary WIRTZ. To whatever extent there is that unavoidable difference, this bill would not prohibit the differentiation.

Mr. BURTON. You mean to tell me if your pension payments are higher, you could then avoid the provisions of this bill?

Secretary WIRTZ. No, I did not mean that and it should be made quite clear that that would not be permitted under the bill.

I think it would be less than frank to disregard the impact of a bill of this kind on some established thinking about pension and welfare plans, even about seniority plans. I suppose the facts of the matter are that some of our thinking about pension plans and seniority has not kept up with the facts either.

Mr. BURTON. Would you suggest the provisions of this law override a collective bargaining agreement with reference to seniority?

Secretary WIRTZ. No, I would not. But I think I could react better to that problem in terms of specifics, which don't occur to me at the moment.

If a seniority clause were so constructed or a retirement clause were so constructed that it unfairly attached significance to age, my answer would be "Yes" to your question.

Mr. BURTON. Who would judge that?

Secretary WIRTZ. The Secretary of Labor.
Mr. BURTON. By what standards?

Secretary WIRTZ. By the standards of whether there is differentiation on the basis of age which the facts do not warrant.

Mr. BURTON. I gather then your response to my immediate preceding question was whether or not the hiring of older workers results in increased workmen's compensation or health, welfare, and pension payments by the employer, you don't suggest that we have any fiscal arrangement that would deal with that?

Secretary WIRTZ. No, nor subsidy to take care of that. You are administering in this bill an area affected by plans that have been established and by collective bargaining agreement provisions. That area is the hardest to deal with. No question about it. And I think it should be made clear that the bill does recognize on the one hand those plans, specifically recognizes those plans that are worked out for rational reasons, so long as they do not result in differentiation just on the basis of age itself where there is not justification in fact.

I know it is hard to state because it is a hard line to follow. I think both tactics have to be recognized.

Mr. BURTON. Must the complaint be verified or under oath of the older person? Can the complaint be brought by an organization in behalf of the complaining individual?

Secretary WIRTZ. If you are talking about informal complaints made to the administrative agency, the answer is "No." Such complaints need not be verified and they may be made by organizations in behalf of an employee.

Mr. BURTON. Is there a burden on the complaining party or the party complained against?

Secretary WIRTZ. There is not a burden of proof established by the bill itself.

Mr. BURTON. What is your understanding of where the burden would be?

Mr. DENT. Would the gentleman yield?

Mr. BURTON. Yes.

Mr. DENT. I think in section 12 it describes the person injured; that could mean labor organization, organized groups, bona fide labor unions, or anything else. I think this follows the regular line of discriminatory laws in the question of appeal or the petition for redress or an interview on the subject. It could be anybody represented by counsel. A representative of an organization could make the complaint to the Secretary and that person would be in standing before the Secretary. The request would have to be in writing. I don't think you can do it by telephone call, if that is what you mean.

Mr. BURTON. There is a reference to 48 Stat. 899; is that the Administrative Procedure Act, page 8?

Secretary WIRTZ. That is the Securities Exchange Act. The reference is to the SEC provision.

Mr. BURTON. What is the rationale that neither party has the burden? The Secretary is not bound to decide this would be the course if the parties were not satisfied.

Secretary WIRTZ. Your point interests me as a lawyer and I have said the statute does not spell it out. In a formal administrative proceeding, the Secretary would have the burden of proving coverage and violations.

Mr. BURTON. Are the numbers of people set forth to meet the definition of employer paralleled with the equal employment numbers?

Secretary WIRTZ. I think the timing is different. I would have to check that. I am not sure about the timing and the specific dates. They do come out to the same end of 25 or more. I believe there is another year, under the 50 or more under the Equal Employment Opportunity Act.

Mr. BURTON. Do the State statutes use the age 45 more commonly than 40?

Secretary WIRTZ. A number of the State statutes did not have an age limitation. I will check the record.

Mr. BURTON. Is the language cast with respect to this age bracket 45 to 65 or are there instances where it is cast in a little bit more sophisticated terms than that?

Mr. RAVIN. In some cases there is no upper or lower age. The States vary all over the lot, particularly for lower age limits, but most around

45.

Mr. BURTON. As I recall my colleague and I had some language in another bill-we didn't lump that age, there was a supplementary

requirement because they were older, it had some interesting ramifications.

Mr. RAVIN. There are several statutes that prohibit discrimination because of age without setting age limits; those are in the minority. Secretary WIRTZ. California is between 40 and 64, the variety of the other 21 States is pretty complete. I see more here starting at 40 than 45. I think some go to 35 or again to 25 or 21.

Mr. BURTON. In any event, that data appears to be in the green sheet and that will be made available to each member of the subcommittee and counsel for both sides, I presume?

Secretary WIRTZ. Yes. The fact is, as I go over it, all except four or five have lower limits than 45.

(The information referred to follows:)

AGE DISCRIMINATION PROHIBITED UNDER STATE LAWS, JUNE 1967 (TABLE) U.S. Department of Labor,

Bureau of Labor Standards,

Washington, D.C., Fact Sheet No. 6-C

INTRODUCTION

At the present time 23* jurisdictions have laws that prohibit discrimination in private employment on the basis of age. In addition, a Maryland law makes such discrimination a "harmful" employment practice, but does not prohibit such a practice or establish specific enforcement procedures or set penalties. Over the years other State legislatures have passed resolutions declaring age discrimination to be against public policy, have prohibited such discrimination in public employment, or have taken other action, including making studies of the problem.

The accompanying charts show the major provisions in the 23 laws that actually prohibit certain practices in private employment. As can be seen from the charts, the purpose of these laws is to eliminate such practices as refusing to interview persons over a certain age regardless of their ability; refusing older employees on-the-job opportunities; discharging employees when they reach a certain age; expelling older workers from a union; and refusing to refer older applicants to employment opportunities. For more information, see Bureau of Labor Standards Fact Sheet No. 6-B, "Brief Summary of State Laws Against Discrimination in Employment Because of Age."

This type of legislation has developed rather recently-the laws in all but 3 jurisdictions have been passed within the last 12 years. In general, the laws follow a pattern. Fourteen of them include a prohibition on the basis of age in their fair employment practice acts, which also prohibit racial or religious discrimination in employment. Most of the laws apply to employers, labor unions, and employment agencies. Usually they cover persons between the ages of 40 and 65, although some cover persons in their twenties and thirties. Most of the laws provide for attempts to eliminate discrimination through informal methods of conference, conciliation, and persuasion; and, if such efforts fail, for the issuance of court-enforceable orders requiring that the discriminatory practice be discontinued and affirmative action taken, such as hiring, reinstating, or upgrading the employee. They also require the administrative agency to set up an educational program to foster the employment of older workers.

*Word was received on August 1, 1967, that a first-time age discrimination law was signed by the Governor of Illinois on July 26, 1967. The effective date is not yet known. When an approved law copy is received, a summary of its provisions will be incorporated in a revised issue of this publication.