Petition — NEW HAMPSHIRE v. UNITED STATES (No. 76-453)

iat

SEP 28 1978

IN THE 122 nova,

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76 453 4q —

STATE OF NEW HAMPSHIRE,

Petitioner

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

David H. Souter

Attorney General

State of New Hampshire

Edward A. Haffer

Assistant Attorney General

State of New Hampshire

State House Annex

Concord, New Hampshire 03301

Counsel for Petitioner

INDEX

Page

Onnen ce coed e eee l

PO A Ne ̃ . Db. Tee .,. Rhee beutess 1

e lei cee Seow Ue coo ves 2

Constitutional provisions, statutes, and

er Pa eer 1 2

Statement of the cage N. 3

Rensons „ Oe WUE anc. cha ch ees cecceytaces 6

I. The First Circuit has decided important

questions of federal law that have not been,

but should be, settled by this Court 6

II. The First Circuit has decided federal questions

in a way that conflicts with applicable decisions

en ane bandit 04 Ke renee 7

A. In purporting to require “race/ethnic

group identifications,” the regulation is

outside the authority of the statute ............ 7

B. Insofar as section 709 (c) purports to

authorize the regulation, it is without

constitutional asi 10

C. Insofar as section 709 (c) purports to

authorize the regulation, it causes violation

of certain constitutional principles 15

o FSFE ie eh PATER ed ot PT 18

G nenen. Ne 19

a.. BEG So che Oh ahd vege ge PHO Sa) 26

ooo. Nase nr 28

r bre 30

CITATIONS

Page

Cases:

Alamo Land & Cattle Co. v. Arizona, 44 L.W. 4217

(CBBL. BOVE iin ais’ Wer vanny a ep seeeeeeueees 16

Anderson v. Martin, 375 U.S. 399 (1964))))))))) 12

Board of Education v. Spangler, 44 L. W. 5114

Gene (OP an kent vans tas 11

Board of Regents v. Roth, 408 U.S. 564 (19/2) 16

Carter v. Greene County, 396 U.S. 320 (1970) .......... 12

DeFunis v. Odegaard, 416 U.S. 312 (1974) .............. 12

Dixon v. United States, 381 U.S. 68 (1965) .............. 7

Erie R. Co. v. New York, 233 U.S. 671 (1914) .......... 14

Evans v. Newton, 382 U.S. 296 (1965) ................. 11

Fitzpatrick v. Bitzer, 44 L. W. 5120 (U.S. S. C. 1976) ... 10, 13

Griggs v. Duke Power Co., 401 U.S. 424 (197) sone

Hughes v. Superior Court, 339 U.S. 460 (1950) ......... 11

Hunter v. Erickson, 393 U.S. 385 (1969) ............... 11

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) 17

Katzen hach v. Morgan, 384 U.S. 641 (1966) ............ 10

Keyes v. School District No. I, 413 U.S. 189 (1973) ...... 6

Korematsu v. United States, 323 U.S. 214 (1944) ......... 13

Mayor v. Educational Equality League, 415 U.S. 605 (1974) 12

McCulloch v. Maryland, 17 U.S. 316 (1819) ............ 13

McDonald v. Santa Fe Transportation Co., 44 L. W. 5067

naeh... .. „. bins 8

McDonnell Douglas Co. v. Green, 411 U.S. 792 (1978) ... 8

National League of Cities v. Usery, 44 L. W. 4974

/ ⁵¼ð r 17

North American Co. v. SEC, 327 U.S. 686 (1946) ........ 14

Oklahoma ex rel. Phillips v. Atkinson, 313 U.S. 508

CLOG asin bi vb nis. ,v neers Gridinhy rSie'es ooo e00- 16

Olmstead v. United States, 277 U.S. 438 (1928) .... . 15, 16

Plessy v. Ferguson, 163 U.S. 587 (1898)·ũ·.ꝑ t 11

Polish National Alliance v. NLRB, 322 U.S. 643 (1943) 14

Reid v. Memphis Publishing Co., 521 F.2d 512 (6th Cir.

1975), petition for cert. filed, No. 75-1105, 44 L. W.

re ene. 7

Ristaino v. Ross, 44 L. W. 4305 (U.S. S. C. 19760): 10

See v. Seattle, 387 U.S. 541 (19670 17

Shapiro v. Thompson, 394 U.S. 618 (1969) ........ II, 15

Shelley v. Kramer, 334 U.. 1 (194ù)n „ 11

South Carolina v. Katzenbach, 383 U.S. 301 (1966) 16

Swann v. Board of Education, 401 U.S. 1 (1971) ......... 11

Tijerina v. Henry, 48 F. R. D. 274 (D. N. M. 1969) ,

appeal dismissed 398 U.S. 922 (1970) ................ 9

Townsend v. Swank, 404 U.S. 282 (1971) .......... II, 15

United States v. Chicago, M., St. P. & Pac. R. R.,

e een 18

United States v. Rock-Royal Cooperative, 307 U.S. 533

een ere 14

Washington v. Davis, 44 L. W. 4789 (U.SS.C. 1976) ...... 8

Constitutional provisions, statutes, and regulations:

U. S. Const. Article I section 2, 18

U. S. Const. Article I section 8 .................. 2, 13, 18

U. S. Const. Article I section 8 clause 3 ................. 2

U. S. Const. Article I section 8 clause 18 ................ 2

U. S. Const. Fourth Amendment ...................... 17

U. S. Const. Fifth Amendment 2. 15, 16

U. S. Const. Tenth Amendment 2. 17

U. S. Const. Thirteenth Amendment 2. 15, 17-18

U. S. Const. Fourteenth Amendment 2, 10-13, 14, 15, 16

U. S. Const. Fourteenth Amendment section 1 .... .... 2, 10

U. S. Const. Fourteenth Amendment section .... .... 2, 10

ua sev cscerscceaeiowiian l

TB USL. BIG o.oo ..... „„ „% 5

Title VII of the Civil Rights Act of 1964, as amended

by the Equal Employment Opportunity Act of 1972

(42 U.S.C. §§20006 et seq.) )))) ee passim

Section 701 (a) of Title VII (42 U.S.C. §2000e(a)) ...... 3

Section 701 (b) of Title VII (42 U.S.C. §2000e(b)) ...... 3

Section 703 (a) of Title VII (42 U.S.C. §2000e-2(a))... 2, 8

Section 703(a) (2) of Title VII (42 U.S.C. §2000e-2(a) (2)) 8

Section 703 (j) of Title VII (42 U.S.C. §2000e-2(j))... 2, 8

Section 704 of Title VII (42 U.S.C. §2000e-3) .......... 3

Section 705 (g) (2) of Title VII (42 U.S.C. §2000¢ -

TIEF eee ee e, 3. 9

Section 706 of Title VII (42 U.S.C. §2000e-5) ......... 3. 9

iv

cre — n * 1 erer n J iw WS. ar Ae!” 2 ie ae 7

— * —— N Sl we : yt oS N RAS — Sane: ~¥ ee eae * oc _—. = “> a ae ‘a...’ sae f 4am D |

Section 707 of Title VII (42 U.S.C. §2000e- 6) .... ... 3. 9

Section 707 (e) of Title VII (42 U.S.C. §2000¢ - 6 (e)) 9

Section 709 (a) of Title VII (42 U.S.C. §2000e-8(a)) .... 3

Section 709 (c) of Title VII (42 U.S.C. §2000e 8 (c)) . passim

Section 710 of Title VII (42 U.S.C. §2000e-9) ......... 3, 9

29 C. F. R. Part 1602 .... 2... 446 2, 3. 5

29 C. F. R. Section 1602.7 6

29 C. F. R. Section 1602. 2ꝶ7 6

29 C. F. R. Section 1602.3ᷣ0or9 .. 3. 4

29 C. F. R. Section 1602.3ũßʒ . 3

29 C. F. R. Section 1602.v·%2222 see ceeeeee 4

29 C. F. N. Part 10ũꝙß7 . 7

Miscellaneous:

eh cece ec ees ceceeee 3

$B F. R. 12600 q ¶jm 3

41 F. R. 17601 ůuꝶůuinin1!XUwnnnununun e neko eeeees 3

House Judiciary Committees Report No. 914, Part 2,

88th Cong. Ist Sess. (1963)))))))) œ 2 cence e creer 8

110 Cong. Rec. 7207 (1960)))0i cece cece cece renee 8

110 Cong. Rec. 7212 (1964) ..... i 8

110 Cong. Rec. 8921 (1964)))))):1:ͤ);j „„ 8

110 Cong. Rec. 12723 (1964) .......-.cece „öͤ 8

: LATE

4?

IN THE |

a Court of the United States

OCTOBER TERM, 1976

No.

STATE OF NEW HAMPSHIRE,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

OPINION BELOW

The opinion of the United States Court of Appeals for the

First Circuit is not yet generally reported, but appears in Ap-

pendix I hereto. No opinion was rendered by the United States

District Court for the District of New Hampshire.

The judgment of the court of appeals was entered on 5

August 1976; no rehearing was sought. This petition has

brought within ninety days of that judgment. The Supreme

Court has jurisdiction under 28 U.S.C. §1254 (1).

q

QUESTIONS PRESENTED

1. In purporting to require employers to make race / ethnic

group identifications” of employees, is 29 C.F.R. Part 1602

authorized by section 709(c) of Title VII of the Civil Rights

Act of 1964, as amended by the Equal Employment Opportu-

nity Act of 1972 (42 U.S.C. §2000e-8 (c))?

2. Insofar as section 709 (c) purports to authorize such a regu-

lation, is section 709 (c) a constitutional extension of Congress's

power to enforce equal protection of the laws, under the Four-

teenth Amendment sections 1 and 5, or to regulate interstate

commerce, under Article I section 8 clauses 3 and 18?

3. Insofar as section 709 (c) purports to authorize such a regu-

lation, does section 709 (c) cause violation of: the right of pri-

vacy guaranteed by the penumbras of the Bill of Rights; liberty

guaranteed by the Fifth and Fourteenth Amendments; powers

reserved to the states under the doctrine of intergovernmental

immunity and the Tenth Amendment; prohibitions implicit in

the Thirteenth Amendment against racial badging; and prohi-

bitions implicit in Article I sections 1 and 8 against delegation

of legislative powers?

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

The constitutional provisions involved are the Fourteenth

Amendment sections | and 5, Article I section 8 clauses 3 and

18, as well as the Fifth, Tenth, and Thirteenth Amendmenis,

and Article I section 1. These provisions are set out in Appen-

dix II hereto.

The principal statute involved is section 709 (c) of Title VII

of the Civil Rights Act of 1964, as amended by the Equal Em-

ployment Opportunity Act of 1972 (42 U.S.C. §2000e-8 (c))

This section and parts of a relevant, related section — section

703 (a) and (j) (42 U.S.C. §2000e-2 (a) and (j)) — are set out

in Appendix III hereto.

The regulation involved is 29 C. F. R. Part 1602 — more par-

ticularly, its sections 1602.30 and 1602.32, together with related

instructions promulgated in 38 F.R. 5659-66 and 12604-05 and

41 F. R. 17601-02. ————————

of the instructions are set out in Appendix IV hereto.

STATEMENT OF THE sR

The State of New Hampshire is an employer within the

meaning of Title VII of the Civil Rights Act of 1964, as amended

by the Equal Employment Opportunity Act of 1972 (42 U.S.C.

882000e et seq.) . Section 701 (a) and (b) (42 U.S.C. §20006¢ (a)

and (b)). On this point, there has never been any dispute.

Title VII, which is administered by the Equal Employment

—— Commission (EEOC), prohibits such employers

from engaging in certain “unlawful employment practices; i. e.,

it prohibits them from making certain employment decisions on

the basis of race, color, religion, sex, or national origin. ener

703 (a) and 704 (42 U.S.C. §§2000e-2 (a) and 2000e-3) . Section

709 (c) (42 U.S.C. §2000e-8 (c)), the central statute in this case,

requires employers to make records that are “relevant” to issues

of unlawful employment practices and to make such reports

from those records as the EEOC prescribes as “reasonable, neces-

sary, or appropriate” for enforcement of Title VII. Under sec-

tions 705 (g) (2) , 706, 707, 70° (a), and 710 (42 U.S.C. §§2000e-

4 (g) (2) , 2000e-5, 2000e-6, 2000e-8 (a), and 2000e-9) , the EEOC

has power to investigate alleged violations of Title VII and to

enforce Title VII.

The regulations that purport to implement section 709 (c)

are contained in 29 C.F.R. Part 1602. These regulations require

employers to make and record “race/ethnic group identifica-

tions” of their employees, and to report the identifications annu-

ally to the EEOC. For . employers, 29

C.F.R. §§1602.30 et seq. are the controlling regulatory provi-

sions, and they require these employers to submit their identi-

fication reports on EEOC forms, called “State and Local Govern-

ment Information Reports EEO4.” (A. 3.) To make the

identifications themselves, an employer either visually 0

each employee or takes racial information from each

post-employment records. (A. 41, 56.) An employee himself, how

ever, is not required to give such information to the employer.

The reports to the EEOC purport to show, for every job cate-

gory, the number of employees of certain racial categories. (A.

24-31.) The reports are in gross; i. e., they do not identify any

individual employee by name or racial category. Such identifica-

tions and reports are required of all employers within the mean-

ing of the statute and regulation — even those for whom there

is no allegation or reason to believe that they are committing

any unlawful employment practice.

New Hampshire did not seek an exemption, under 29 C.F.R.

§1602.35, from filing such reports. But believing “race/ethnic

group identifications” to be unlawful and unconstitutional, it

refused to make, record, and report such identifications for cal-

endar years 1973, 1974, and 1975. (A. 3.) For 1973, however,

New Hampshire did file a report on the EEOC forms; but rather

than use the ethnic designations there provided, it used the word

“American” to designate the ethnic category of all its employees.

(A. 8, 74.) The EEOC found this report unacceptable and re-

turned it; New Hampshire did not file any further report for

that year. (A. 8, 74.) For 1974 and 1975, New Hampshire filed

no report at all. All other states — except Hawaii, which has been

subject to different requirements — filed acceptable reports for

1973 and 1974 (A. 8, 74.) ; the record contains no information

on 1975 filings.

On 24 September 1973, New Hampshire Governor Thomson

wrote as follows to an official of the EEOC:

If you want a breakdown of our American employees, then I sug-

gtx you let ws find ous by the shape waathed-48 allen or tenis

2It has, however, complied with the order of the district court,

affirmed at the court of appeals, regarding identifications for those

years.

them volunteer the information. Otherwise, we would ee,

nnn. . [A.

And on at least three other occasions similar views were ex-

pressed to federal officials by either the Governor or the State's

Personne! Director. (A. 15, 19, 21.) The federal officials replied,

however, that although voluntary self-identifications were per-

missible, reports would still have to show identifications for all

employees, not only those who [would] voluntarily identify

themselves.” (A. 23.)

On 8 July 1975, at the United States District Court for the

District of New Hampshire, the United States filed the com-

plaint, together with a request for admissions and an interroga-

tory, (A. 2, 4, 66.) It claimed jurisdiction under section 709 (c

and 28 U.S.C. §1345. The gravamen of the complaint was that,

for calendar years 1973 and 1974, New Hampshire had violated

29 C. F. R. Part 1602 and section 709 (c) by not filing reports on

the “race/ethnic group identifications” of its employees. The

United States prayed for an order that New Hampshire file such

reports and for such other relief as might be just.

New Hampshire answered that: insofar as 29 C.F.R. Part 1602

purported to require the State to make, record, and report race /

ethnic group identifications” of its employees, the regulation was

not authorized by section 709(c); and (2) insofar as section

709 (c) purported to authorize the EEOC to require the State

to make, record, and report such identifications, section 709 (c)

was unconstitutional. (A. 69-71.) The reasons asserted for both

parts of New Hampshire's answer are summarized here at pp.

6-18. Subject to its defenses of law and to certain qualifications

of fact not material to this petition, New Hampshire admitted

the facts alleged in the complaint and the request for admissions,

and admitted also the genuineness of the documents filed with

the United States’ request. (A. 69, 71.)

On 22 December 1975, the district court entered summary

judgement for the United States. (A. 77, 78.) The Court ordered

New Hampshire to file within a month the “race/ethnic group

identifications” of its employees for calendar years 1973, 1974,

and 1975. It further ordered New Hampshire to file like

for subsequent years, in accordance with 29 C.F.R. Part 1602.

5

New Hampshire appealed to the United States Court of Ap-

peals for the First Circuit. On 5 August 1976, that court entered

judgment affirming the decision below.

REASONS FOR GRANTING THE WRIT

I. THE FIRST CIRCUIT HAS DECIDED IMPORTANT

QUESTIONS OF FEDERAL LAW THAT HAVE

NOT BEEN, BUT SHOULD BE, SETTLED

BY THIS COURT.

The requirement for “race/ethnic group identifications”

binds each and every employer — as well as each and every labor

organization — that is subject to Title VII and 29 C.F.R. Part

1602. That kind of nondiscrimination, however, is not a virtue

but a vice. It proceeds from the cynical assumption that the

fairest employer cannot be trusted any more than the most

biased. And it ends in treating every employer as if he were a

suspected bigot and lawbreaker.

New Hampshire is one of a handful of states whose policies

historically have been free of racial discrimination. See Keyes v.

School District No. 1,413 U.S. 189, 228 n. 12 (1973) (Powell, J.,

concurring in part and dissenting in part). The record in the

present case, moreover, does not even hint that such discrimina-

tion has ever been practiced by New Hampshire. Racial discrimi-

nation, therefore, is not the cause of this controversy, although,

unhappily, it is the context. The cause is federal bureaucratic

abuse.

New Hampshire asks the Court to consider this possibility:

that a federal agency, in its preoccupation with one worthy end,

may include in its general program specific requirements that

The regulation here contested has virtually identical counterparts

for private employers and for labor organizations. The he require

ment applies to employers — private, state governmen

government — having at least 100 emp 8 (29 CF. C.F. K. Heer 7

and 1602.32) and to labor organizations having at least 100 mem-

bers (29 C.F.R. §1602.22) .

are: (1) superfluous to the end in mind, and (2) abusive, albeit

not purposely, of other worthy ends not in mind. New

shire submits chat that possibility has materialized in this case:

the regulation in question adds nothing essential to the program

PE AA ys ³ —

itous layer of accountability to the federal government, without

. —— ͤ — e

ing federal power.

II. THE FIRST CIRCUIT HAS DECIDED FEDERAL

QUESTIONS IN A WAY THAT CONFLICTS WITH

- APPLICABLE DECISIONS OF THIS COURT.

A. In Purporting to Require Ruce / Ethnic Group Identifica-

tions,” the Regulation is Outside the Authority of the

Statute.

For a regulation to be valid, it must be reasonable and must

carry out the Congressional will expressed in the pertinent stat-

ute; otherwise it is a nullity. See, e.g. Dixon v. United States,

381 U.S. 68 (1965) ; and Reid v. Memphis Publishing Co., 521

F.2d 512 (6th Cir. 1975) (holding 29 C.F.R. Part 1605 (EEOC

Guidelines on Discrimination Because of Religion) to be incon-

sistent with Title VII) , petition for cert. filed, No. 75-1105, 44

L. W. 3480 (U.S.S.C. 1976) . By that test, the regulation in ques

tion is void.

Section 709 (c), which supposedly authorizes the regulation,

requires every employer to “make and keep such records rele-

vant to the determinations of whether unlawful employment

practices have been or are being committed,” and to “make such

reports therefrom as the Commission shall prescribe by regula-

tion . . . as reasonable, necessary, or appropriate for the en-

forcement” of Title VII. The relevant definition of “unlawful

employment practice appears in Section 703 (f). See p. 28

hereof.

By requiring each and every employer to classify his employees

by racial and ethnic background, the regulation is, in relation

to Title VII, not only incongruous but contradictory. It would

have each and every employer — even the ones who are utterly

without bias — become color-conscious rather than color-blind.

7

The regulation is, in short, a means turned against Title VII's

end. For the natural consequence of thinking, or being forced to

think, in terms of color is to act in terms of color. And once such

action begins — however subtle its form or benign its objective

— it becomes a practice which, in tending to benefit one individ-

ual because of his color, tends to deprive another because of his

color. Such a “racially differential impact” — even apart from

any discriminatory purpose — runs afoul of section 703 (a).

Washington v. Davis, 44 L.W. 4789, 4792 (U.S.S.C. 1976) . More-

over, the classification leading to that result is itself contrary to

section 703 (a)(2). Title VII sweeps wide: it “tolerates no

racial discrimination, subtle or otherwise.” McDonnell Douglas

Co. v. Green, 411 U.S. 792, 801 (1973) (emphasis added) ; see

also McDonald v. Santa Fe Transportation Co., 44 L.W. 5067

(U.S.S.C. 1976).

The regulation is also inconsistent with section 703 (j). See

p. 28 hereof. That section is an expression of Congressional

disfavor with quotas. The legislative history of the 1964 Civil

Rights Act, in which section 708 (j) was enacted, leaves no doubt

that Congress rejected numerical formulas as responses to unlaw-

ful employment practices. See, e.g. House Judiciary Committee's

Report No. 914 Part 2, 88th Cong. Ist Sess. (1963) (additional

views on H. R. 7152 (Title VII) of Reps. McCulloch et al.) ; 110

Cong. Rec. 7207 (1964) (remarks of bill co-manager, Sen.

Clark); 110 Cong. Rec. 7212 (1964) (interpretive memoran-

dum of Sens. Clark and Case); 110 Cong. Rec. 8921 (1964)

(remarks of Sen. Williams) ; and 110 Cong. Rec. 12723 (1964)

(remarks of Sen. Humphrey). See also Griggs v. Duke Power

Co., 401 U.S. 424, 430-31 (1971).

Quotas are an impermissible end. And, accordingly, so too

should be the means to that end. Yet the regulation in question

unmistakably institutionalizes such a means; indeed if quotas

were permissible, the regulation would probably be called a

perfect enforcement tool.

Quite apart from its inconsistency with section 703 (a) and

J) the regulation is inherently unreasonable. This failing fol-

lows from the conceptual crudeness of the regulation’s instruc-

tions — to which the Court's attention is respectfully directed.

See pp. 31-34 hereof. Following are some of the kinds of

“identify with” an ethnic group? Must a community regard each

of its members as “belonging” with an ethnic group? How valid

are “visual surveys” in identifying the ethnic group that a per-

son “identifies with, or is regarded in the community as belong-

ing”? Relevant to the last question is the fact that Court

let stand the reasoning of a ii aerict collar tn Tijerina

v. Henry, 48 F.R.D. 274 (D. N. M. 1969), appeal dismissed 398

U.S. 922 (1970) :

„ [The complaint is silent as to whether with some

eee

are of some other extraction, i. e., French, Danish, etc.,

would be included as members of the class. considerations

New Hampshire is acutely aware of the legion of cases that

have sanctioned the use of racial statistics, New Hampshire

understands also that racial statistics could be used in dealing

with pattern-and-practice problems under section 707. But the

regulation in question is not needed for the acquisition of such

statistics. In any problem with a particular employer, the EEOC

could easily get such statistics - merely by invoking its investi-

gatory under the statute. See sections 707 (e), 706,

709 (a) , 710, and 705 (g) (2).

The question here is not whether statistics can be required of

a particular employer in a particular enforcement action; the

question is whether statistics can be required of virtually every

employer by general regulation of the EEOC. New Hampshire's

position is this: given a particular enforcement problem and

given Title VII's investigation provisions, the EEOC could

justify getting racial statistics by means of particularized in-

quiries of particular employers; but given no particular enforce-

ment problem and given Title VII's anti-classification and anti.

quota provisions, the EEOC cannot justify getting racial

statistics by means of generalized demands on virtually every

employer, as by means of the regulation in question. What can

9

be “reasonable, necessary, or appropriate” in the particular can

be — and, in this matter, is — unreasonable, unnecessary, and

in the universal. Cf. Ristaino v. Ross, 44 L.W.

inappropriate

4305 (U.S. S. C. 1976) (NB n8 at 4307-08 and accompanying

text) .

That which would be (1) “relevant” to the determination of

an unlawful employment practice, and (2) “reasonable, neces-

sary, or appropriate” for the enforcement of Title VII, and there-

fore (3) a proper subject of records and reports under section

709 (c) is this: records setting out for each applicant or employee

the reasons why he or she was the object of a favorable or un-

favorable employment determination by the employer, and re-

ports summarizing those records. Congress gave a useful signal

of what it expected when, in the same statutory subsection, it set

out a more specific description of the records to be kept for

apprenticeship and training programs. See p. 29 hereof.

B. Insofar As Section oc) Purports To Authorize The Regu-

lation, It Is Without Constitutional Basis.

Citing Fitzpatrick v. Bitzer, 44 L.W. 5120 (U.SS.C. 1976),

the First Circuit held that section 5 of the Fourteenth Amend-

ment is the constitutional basis for the requirement that state

employers make “race/ethnic group identifications.” It reasoned

that the requirement is an appropriate means to the end of

equal protection of the laws, guaranteed by section 1 of the

Fourteenth Amendment. In fact, however, the requirement is

quite to the contrary. See Katzenbach v. Morgan, 384 U.S. 641,

650 (1966) .

This, again, is not merely a matter where a particular allega-

tion or determination is made that a particular employer has

committed acts of discrimination; and where, because of such

allegation or determination, that employer is told he must make

certain kinds of race / ethnic group identifications” for a certain

period. In such a case, the identifications might be used in in-

vestigating the alleged injury or, if injury is found, in providing

the needed relief. The present case is different. It concerns, not

exceptions to the rule, but the rule itself. We are told in effect

that, as a matter of universal policy of indefinite duration,

all employers are to become, and remain, color-conscious, in

10

pected.

6 . . »” Plessy v. Ferguson,

’ (Harlan, ., dissenting) . Except when

facet Preedvesd gone Ainge morose, Ay 7

any public authority to know the race of those entitled to be

CCC (Harlan,

Section 709 (c) makes a mockery of these principles: its require-

ment that every state employer N

equal protection clause. See, e. g. Evans v. Newton, 382 U.S. 296

(1965) , and Shelley v. Kramer, $34 U.S. 1 (1948) . Congress has

absolutely no power to authorize such action. Townsend v.

Swank, 404 U.S. 282 (1971); Shapiro v. Thompson, 394 U.S.

618 (1969) .

The recurring requirement on all employers for race / ethnic

group identifications” should be no more tolerated than the

quotas to which they are conducive. Cf. Board of Education v.

gler, 44 L. W. 5144 (U.S.S.C. 1976); Swann v. Board of

Education, 401 U.S. 1, 24, 31-82 (1971). In Hughes v. Superior

[The] background of California's policy is relevant to the

8 i LA ners’ efforts

ng, to give constitu to

subject the opportunity of a to a quota system.

view of that Coan ts Ok st cen welan )

daly wpon indivichenl quelitension. Sense Wath, taee eames

which we condemned in the Marinship case. . . . The fact

cticed as to all employees of a particular employer dimin-

shes in no respect the ‘unlawfuiness of their purpose they

would, to the extent of the fixed right to

work for . . . [the employer] t not on fitness for the

B —

other races, w 12

ts to demand discrimina on a racial basis. Yet

dae fs precisely che type of dctisinaston

av object.” 32 at 856, 198 P2d at 889.

These considerations are most pertinent in regard to a popula-

tion made up of so many diverse groups as ours. To deny to

tenia Oe ee See ee ing in the circumstances of

case would mean that there could be no prohibition of the pres-

— — — on ancestral

grounds of HH ians in ol in Buffalo, of Ger-

mans in Milwaukee, of

d through the whole A Tack and religious

and so on w ut con-

centrations in various cities. States well believe that such

constitutional sheltering would i — — nd

eting to compel employment on the basis of racial

In disallowing such picketing States act under the belief that

otherwise community tensions and would be exacerbated.

The differences in cultural traditions instead of adding flavor and

variety to our common citizenry might well be hardened into

hostilities by leave of the law.

Compare DeFunis v. Odegaard, 416 U.S. 312, 33148 (1974)

(Douglas, J. dissenting) ; cf. Carter v. Greene County, 396 U.S.

320 (1970); Mayor v. Educational Equality League, 415 US.

605 (1974)

In Anderson v. Martin, 375 U.S. 399 (1964) , this Court struck

dowr. a Louisana statute which required that, in all state elec-

12

:

.

|

E

:

F

|

the candidates. Writing for a unanimous Court, Mr. Justice

Clark said: © 5 n.

Ih dire the citizens attention to the considera-

tn Tce clr the Sate inden that» cana Te

the citizen's choic influence the citizen to

. The vice lies not in the

find 1 42 es racial the

pole. We tee no relevance in the State's pointing up the

race candidate as bearing upon office

atter and purpose” of the statute. at 402-08

quence of thinking in those terms is to act in those terms.

From the same premise — that race does not matter — the

Fourteenth Amendment and section 709 (c) proceed to opposite

conclusions: the Fourteenth Amendment's is that state action

should not have a “purely racial character and purpose,”

section 709 (c) 's is that state action should have a purely racial

character and purpose.” The Fourteenth Amendment conforms

to logic; section 709 (c) does not.

attractive in any setting but it is a free

who have ) set forth in Con-

r 5

in some way by blood or culture to a foreign land. Yet are

3 new distinct civiliza-

2 of the

tion of United States. [Korematsu v.

214, 242 (1944) (Murphy, J., dissenting) .)

Just as the requirement for “race/ethnic group identifica-

tions” has no constitutional warrant under the Fourteenth

tion 8. See Fitzpatrick v. Bitzer, supra at 5122 n. 9, NB con-

curring opinions of Brennan, J., and Stevens, J.; see also, Mc-

Culloch v. Maryland, 17 U.S. 316,421 (1819).

13

In United States v. Rock-Royal Cooperative, 307 US. 533,

569-70 (1938), this Court said: “The authority of the Federal

government over interstate commerce does not differ in extent

for employers in intrastate commerce to report on the “race/

ethnic group identifications” of their employees. The true mo-

tive for the legislation might have been to keep tabs on, and

possibly the’ teams ene ee AOU HE

nesses. But the state could have professed that the

statute was intended to police and prevent employment practices

based on racial and ethnic prejudices. One has difficulty imagin-

ing, however, that this Court would have looked favorably upon

such a statute or such an argument. One may fairly speculate

that the Court would have minced no words in striking the

statute down. The Court might have said that the statute was a

crude abuse of the state's power to regulate intrastate commerce;

and it might have added that the statute was an affront to the

ethic of color-blindness that is the essence of the equal i

clause of the Fourteenth Amendment. Cf. Anderson v. Martin,

375 U.S. 399 (1964) . If this speculation is not awry, why should

a court now uphold a like statute for interstate commerce, one

enacted and amended by the federal government? Given the

Rock-Royal statement, why should “race/ethnic group identifi-

cations” be constitutional under a federal statute regulating

interstate commerce, if they would have been unconstitutional

under a state statute regulating intrastate commerce? Asked

another way, why should color-consciousness be any less offensive

as a federal requirement now than it would have been as a state

requirement in the early 1960's?

“Commerce . . . is an intensely practical matter.” North

American Co. v. SEC, 327 U.S. 686, 705 (1946) ; cf. Polish Na-

tional Alliance v. NLRB, 322 U.S. 643 (19438). Its regulation

should likewise be “intensely practical”; “[rjegulation is not in-

tended to be a mere wanton exercise of power.” Erie R. Co. v.

New York, 233 U.S. 671, 683 (1914) . Section 709 (c), however,

defies practicality; its only justification is unrefined reason and

raw power.

14

C. Insofar As Section 709{c) Purports To Authorize The Reg

ulation, It Causes Violation Of Certain Constitutional

Principles.

By following the mandate derived from section 709 (c). New

Hampshire violates the right of p of its employees. Con-

gress has no power to force such state action. Cf.

Townsend v. Swank, 404 U.S. 282 (1971); Shapiro v. Thomp-

son, 394 U.S. 618 (1969) .

The “right to be let alone” is “the most comprehensive of

rights and the right most valued by civilized men.” Olmstead v.

United States, 277 U.S. 438, 478 (1928) (Brandeis, I., dissent-

ing). So “ a righi should include the right to

refuse to inform the government of one’s racial/ethnic back-

ground. Referring to the Fifth, Thirteenth, and Fourteenth

Amendments specifically and also to the Bill of Rights generally,

one could fairly tell the government — state or federal — that

the color of his or her skin is simply none of the government's

business. And if the government would lack the power to compel

that information Jirectly, from the individual concerned, it

should likewise lack the power to compel that information in-

directly, from the employer of such individual.

It is no answer to this argument to say that the reports here

required are merely in gross, that they do not identify any par-

ticular employee by race, and that they therefore invade no one’s

privacy. Saying this ignores what precedes the reports; it ignores

the offending acts — the visual surveys of individuals or the

making of certain post-employment records on individuals.

With similar voids in logic, the government could profess to

justify in-gross reports on the frequency with which persons have

psychiatric treatment or the frequency with which they have

sexual relations. Psychiatric and sexual in-gross reports, in and

of themselves, might not offend anyone’s privacy; but that simply

is not the point. What is the point is the personal prying that

would have to precede such reports — 27

7ͤĩ7k'

to become a statistic within these reports. Whether directly, or

indirectly through agents, government cannot lightly intrude

neee ak tailed a naans et ls

15

applies no less to racial and ethnic background than to psychi-

atric needs and sexual habits.

Liberty, under both the Fifth and Fourteenth Amendments,

is given a broad construction. Board of Regents v. Roth, 408

U.S. 564, 571 (1972) . It denotes not only freedom from bodily

restraint but also the right “to enjoy those privileges long recog-

nized . . . as essential to the orderly pursuit of happiness by

free men.” Id. at 572. One of these privileges, we submit, stems

from the constitutional doctrine of limitation of powers: it is a

freedom from governmental obtrusions that are excessive in

demand and attenuated in justification. More specifically, for

an employer“, it is a freedom from such offensive federal com-

mands as that to “eyeball,” record, and report the skin color of

human beings; and, for an employee, it is a freedom from having

his or her own skin color “eyeballed,” recorded, and reported

for the state and federal governments.

It is these freedoms which section 709 (c) infringes without

due process. In its indiscriminate sweep, in its failure to provide

for traditional procedural safeguards, it entrenches on the lib-

erty of persons who are not even the subject of a particular

enforcement action.

The implementation of section 709 (c) illustrates what Mr.

Justice Brandeis warned against in his dissent in Olmstead v.

United States, 277 U.S. 438, 479 (1928) :

Experience should teach us to be most on our to protect

liberty when the government's purposes are t. Men born

to freedom are naturally alert to repel invasion of their liberty by

‘The treatment of states as private for of the Fifth

Amendment is not new. In Ok ex rel. Phillips v. Guy F.

Atkinson, Co., 313 U.S. 508 (1941), the Court that state

y was to be treated like pri property for of

Fifth Amendment takings by the federal t. also

Alamo Land & Cattle Co. v. Arizona, 44 L. W. 4217 (CU. 8.8. C.

1976) . If a state qua landowner is by the Fifth Amend-

ment, then a state qua employer likewise be protected by

the Fifth Amendment. Contrast a state qua sovereign. South Caro-

lina v. Katzenbach, 383 U.S. 301 (1966) . :

16

tantamount to an administrative and should, there-

fore, be subject to the same Fourth Amendment limitations that

apply to such a subpoena. See See v. Seattle, 387 U.S. 541

(1967). But section 709(c) rolls over the Fourth Amend-

ment. With no reference to “probable cause,” with no allowance

for an employer to “obtain judicial review of the reasonableness

of the demand [for ‘race/ethnic group identification’ reports]

“rather minimal limitations on administrative action” discussed

in See. Id. at 544-45.

Amendment does not protect states from capricious and exces-

sive federal actions, such as the one in issue here, states should

be able to take refuge elsewhere — namely, in the constitutional

doctrine of intergovernmental immunity and in the Tenth

Amendment. Cf. National League of Cities v. Usery, 44 L. W.

4974 (U.S.S.C. 1976). When non-government employers and

eral irrationality by invoking the Bill of Rights, states too

should be able to resist — by invoking their own constitutional

protections. To conclude otherwise would be nonsensical: it

would be to conclude that with respect to states — but no one

else — the federal government can be irrational.

Under the Thirteenth Amendment, “Congress has the power

to determine what are the badges and incidents of slavery, and

the authority to translate that determination into effective legis-

lation.” Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 440 (1968) .

17

Title VII evidences that Congress has determined that unlawful

employment practices are “badges and incidents” of slavery. But

section 709 (c), ironically, rather intensifies than alleviates the

undesired badging. Indeed, the “race/ethnic group identifica-

tions” it requires come close to being a literally “badging” pro-

cess. Because section 709 (c) makes employers focus, not on the

ens et ee a ee

skin. it. . . isarelicof slavery.” Id. at 442.

“Congress cannot delegate any part of its legislative power

except under the limitation of a prescribed standard.” United

States v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 282 US.

311, 324 (1934); Article I sections 1 and 8. Section 709 (c).

however, fails to set out any rational standards for “race/ethnic

group identifications.” The identifications, then, are not merely

a matter of the EEOC’s “filling up the details” in Title VII.

They are a matter of the EEOC’s engrafting thereon its own sub-

stantive law — a result beyond Congress’s power to authorize.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue to

review the judgment and opinion of the First Circuit.

Respectfully submitted,

THE STATE OF NEW HAMPSHIRE

David H. Souter

Attorney General

Edward A. Haffer

Assistant Attorney General

18

APPENDIX 1

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 76-1018

UNITED STATES OF AMERICA,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Ho. Hen H. Bowness, U. S. District Judge]

Before Corrin, Chief Judge,

McEnrtee and CamMpseLL, Circuit Judges.

Edward A. Haffer, Assistant Attorney General, with whom David

H. Souter, Attorney General, was on brief, for appellant.

Herbert A. Goldsmith, Jr., Attorney, Department of Justice, with

EK, tery aay pron ngess y Soe William J.

Deachman, III, United States Attorney, and id L. Rose, Attor-

ney, Department of Justice, were on brief, for appellee.

August 5, 1976

McEnt#e, Circuit Judge. On July 8, 1975, the United

States brought suit against the State of New Hampshire to en-

force compliance with the provisions of § 709 (c) of Title VII

19

of the Civil Rights Act of 1964, as amended by the Equal Em-

ployment Opportunity Act of 1972, 42 U.S.C. § 2000e-8 (c)

(1970 ed., Supp. IV) , and the regulations of the Equal Employ-

ment Opportunity Commission (EEOC) published in 29 C.F.R.

Part 1602. Specifically, the United States alleged that New

Hampshire had failed to file acceptable “EEO-4” reports' for the

calendar year 1973? and had failed to file any report for the

calendar year 1974.

The State admitted each of the factual allegations in the com-

plaint, but asserted as defenses that to the extent that the regula-

tions in issue required the reporting of certain “race/ethnic

group identifications,” the regulations were not authorized by

§ 709 (c); and that if § 709 (c) did in fact authorize the imposi-

tion of such reporting requirements on the State of New Hamp-

shire, then it was unconstitutional for various reasons. On De-

cember 22, 1975, the district court granted the motion of the

United States for summary judgment, and this appeal followed.

We are not persuaded by the State’s arguments concerning either

the scope or the constitutionality of § 709 (c), and accordingly

we affirm the judgment of the district court.

I

Section 709 (c) of Title VII provides in pertinent part:

Every employer . . . subject to this subchapter shall (1)

make and keep such records relevant to the determinations of

whether unlawful employment practices have been or are

being committed, (2) preserve such records for such periods,

and (3) make such reports therefrom as the Commission shall

_ prescribe by regulation or order, after public hearing, as rea-

tional origin, and sex of in various job ca Regu-

lations published Lo t to § 709 N mandate

the annual filing of EEO4 — 29 C. F. R. Part l

The EE OA reports for 1973 were found unacceptable since the

— did not indicate on them the race or national origin of its

employees, but had simply inserted the word American in place

of the various ethnic designations on the form.

20

We must decide whether the EEOC regulations which mandate

submission of the EEO4 report are reasonable and are consis

tent with this statute from which they purportedly derive their

authority. See Commissioner v. South Texas Lumber Co., 333

U.S. 496, 501 (1948) .

Unquestionably Congress can delegate certain nonlegislative

powers to those charged with administering statutory enact-

ments. “[W]hen Congress [has] legislated and indicated its will,

it ſcan] give to those who [are] to act under such general provi-

sions ‘power to fill up the details’ by the establishment of admin-

istrative rules and regulations.. United States v. Grimaud,

220 U.S. 506, 517 (1911), quoting Wayman v. Southard, 23 US.

(10 Wheat.) 1,43 (1825) (Marshall, C. J.) . In our opinion, the

regulations represent a reasonable administrative

effort “to fill up the details” which Title VII implied but did

not specify. The information which the regulations require a

state to furnish on the EEO form is essentially raw statistical

data which, properly interpreted, can provide an intelligent

basis for determining whether the state may be guilty of an

unlawful employment practice within the purview of Title VII.

See 42 U.S.C. § § 2000e-2 and 3.4 Information like that which

the EEO- form seeks to accumulate is often highly useful when

an agency or court attempts to make the often difficult inference

that illegal discrimination is or is not present in a particular

factual context. As the Fifth Circuit has observed:

In the problem of racial discrimination, statistics often

tell much, and Courts listen.’ Atos tes aber eee

cases involving racial discrimination in education,

ment, and other segments of society have [sic] led us to rely

heavily in Title VII cases on the empirical data which show

an employer's overall pattern of conduct in determining

In addition, this statistical data t ly be 2 by the

Commission t to its authorization to make

such technical studies as are appropriate to éffectuate the purposes

and of this su and to make the results of

studies available to the public . . .” 42 U.S.C. § 2000e4 (g)

whether he has discriminated against particular individuals

or a Class as a whole.” Burns v. Thiokol Chemical Corp. 483

F.2d 300, 305 (Sch Cir. 1973) (citations omitted), quoting

Alabama v. United States, 304 F.2d 583, 586 (5th Cir.) , aff'd

371 U.S. 37 (1962).

See also Castro v. Beecher, 459 F.2d 725, 731 (Ist Cir. 1972);

United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th

Cir.) , cert. denied, 404 U.S. 984 (1971) . We have no doubt but

that the information sought on the EEO form is both reason-

able and fully consistent with the overall purpose of Title VII,

viz. to achieve equality of employment opportunities and re-

move barriers that have operated. in the past . . Griggs v.

Duke Power Co., 401 U.S. 424, 429-30 (1971).

The State argues that because the information gleaned from

the EEO4 reports might be misused in a relief program im-

properly relying on quotas‘ or in a program violative of § 708(j)

of Title VII, 42 U.S.C. § 2000e-2 (j), the EEO4 reporting re-

quirement cannot be sustained. The short answer is, however,

that possible and purely hypothetical misuse of data does not

require the banning of reasonable procedures to acquire such

data. Statistical information as such is a rather neutral entity

The permissible scope of the use of quotas as a in discrim-

ination cases remains a delicate . Com Cc

ter N. A A. C. P., Inc. v. Beecher, F.2d 1017, 1026-27 (Ist

1974) , cert. denied 421 U.S. 910 (1975) ; Associated General Con-

tractors, Inc. v. Altshuler, 490 F.2d 9, 18 (Ist Cir. 1973), cert.

denied, 416 U.S. 957 1974) ; Castro v. Beecher, 459 F.2d 782

(Ist Cir. 2 with Chance v. Board of Examiners, 44 U.S. L. W.

2343 (2d Cir. Jan. 19, 1976) ; Kirkland v. New York State t

of C Services, 520 F.2d 420, 427 & nn. 1922 (2d

‘dina See also De Funis v. Odegaard, 416 U.S. 312, $20 1s?)

Fein of Begin 3): Hughes v. Superior

We have recently vg nes of the scope of §

— baw —— view ol the ma in Rios v.

Ass'n 2 638 of U.A., 501 F.2d 622 28 ar 5

D ad tr

cone, Se Sa ter NA „ Inc. v.

at .

which only becomes meaningful when it is interpreted. And any

positive steps which the United States might subsequently take

as a result of its interpretation of the data in question remain

subject to law and judicial scrutiny.

II

The constitutional basis of § 709 (c) — at least insofar as state

and local governments are concerned - is the fifth section of tbe

fourteenth amendment:

ne Congress shall | have power io enforce, by appropriate

legislation, the provisions of this article.”

The Supreme Court has consistently held this section to mean

that “Congress is authorized to enforce the prohibitions [of the

fourteenth amendment] by appropriate legislation.” Ex Parte

Virginia, 100 U.S. 339, 345 (1880) (emphasis in orinal [sic]). See

also Katzenbach v. Morgan, 384 U.S. 641, 648-51 (1966). It is

clear that when, by the Equal Employment Opportunity Act of

1972, Congress extended the coverage of Title VII to state and

local government employees, that was an exercise of the power

granted Congress by the fifth section of the fourteenth amend-

ment. The House Report on the 1972 act explicitly states:

The expansion of Title VII coverage to State and local

government employment is firmly embodied in the principles

of the Constitution of the United States. The Constitution

has recognized that it is inimical to the democratic form of

government to allow the existence of discrimination in those

bureaucratic systems which most directly affect the daily inter-

actions of this Nation's citizens. The clear intention of the

Constitution embodied in the Thirteenth and Fourteenth

Amendments, is to prohibit all forms of discrimination.

“Legislation to implement this aspect of the Fourteenth

rene

an appropriate remedy has been fashioned in the bill. Inclu-

sion of state and local employees among those enjoying the

protection of Title VII provides an alternate administrative

remedy to the existing prohibition against discrimination

perpetuated ‘under color of state law’ as embodied in the

ute st ae

Civil Rights Act of 1871, 42 U.S.C. § 19838. H.R.Rep.

No. 92-238, 92d Cong., 2d Sess. 19.

Senator Javits, one of the managers of the 1972 bill in the Senate,

also pointed to the fourteenth amendment as the ultimate source

of the legislation’s authority: eae

One of the greatest-reforms at (hid bill is its applicability

to those who are engaged in State and local employment.

It anybody. is entitled to equal employment opportunity,

it certainly is those people; and the only way they can get it,

because the authority so far as they are concerned is the State,

is at the hands of the United States, under the 14th amend-

ment. Section 5 of the 14th amendment, giving the power to

Congress to enforce by appropriate legislation the provisions

of this article, it seems to me, makes it mandatory, not discre-

tionary, . . . that we act affirmatively on this aspect of this

bill.” 118 Cong. Rec. 1840 (1972) .

See also Fitzpatrick v. Bitzer, 44 U.S.L.W. 5120, 5122 &n.9 (U.S.

June 28, 1976) ; United States v. City of Milwaukee, 395 F.Supp.

725, 727-28 (E.D. Wisc. 1975).

Given this plain reliance by Congress on the fourteenth

amendment, we need not pause for long to inquire whether §

709 (c) constitutes “appropriate legislation” for the enforcement

of the provisions of that amendment. Title VII was enacted to

assure equality of employment opportunities by eliminating

those practices and devices that discriminate on the basis of race,

color, religion, sex, or national origin.” Alexander v. Gardner-

Denver Co., 415 U.S. 36, 44 (1974) (citations omitted) . In our

view, when Congress extended these assurances to state and local

government employees in 1972, it was simply enforcing the

guarantee of “the equal protection of the laws” accorded by the

first section of the fourteenth amendment. See Fitzpatrick v.

Bitzer, supra at 5123. And, as the challenged record keeping and

reporting provision. § 709 (c), is a reasonable and proper means

of assuring equality in employment, see Part I supra, it too

would be authorized by the fifth section of the fourteenth

amendment.

The State also argues vigorously that § 709 (c) is an invalid

exercise of Congressional power under the commerce clause

24

(Art. I, § 8). This argument is beside the point, however, be-

cause Congress princi relied on the fourteenth amendment

when in 1972 it incl states within the purview of Title VII.

“While Congress had to draw its power from the commerce

clause in ordgr to regulaee ‘private’ *eniployers, “the ‘enabling

clause of the Fourteenth Amendment specifically enables Con-

gress to enforce the Fourteenth Amendment by ‘appropriate

legislation.’ Therefore, since state and local government em-

ployers are subject to the Fourteenth Amendment, Congress has

the power to regulate these entities by appropriate legislation

independent from any affect [sic] upon interstate commerce.”

United States v. City of Milwaukee, supra at 1 <8. See also Fitz-

patrick v. Bitzer, supra at 5122 & n.9. New Hampshire of course

lacks standing to contest whether any given private employer is

properly included within the scope of Title VII“.

In sum, we hold that the State's constitutional objections to

§ 709 (c) must be rejected as failing to give sufficient weight to

the very broad enforcement power which the fifth section of

the fourteenth amendment accords :o Congress.

III

Finally, the State claims that the district court erred in award-

ing costs in favor of the United States. It is true, as the State

points out, that Title VII does not explicitly provide for the

awarding of costs when the United States is the prevailing party,

but neither does it prohibit such an award. Under these circum-

stances and in the light of our extensive discussion in Boston

Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1028-29

(1974) , cert. denied, 421 U.S. 910 (1975) , the court did not err

in awarding costs to the United States.

3

Article. I. — — ee

we 26 S - awit s ae

iin. I. All legislative Powers herein granted shall be

vested in a Congress of the United States, which shall consist of

a Senate and House of Representatives.

Section. 8. The Congress shall have Power . . .

To regulate Commerce with foreign Nations, and among the

several States, and with the Indian Tribes;

To make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers and all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof.

AMENDMENT V.]

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due

of law; nor shall private property be taken for public use, with-

out just compensation.

AMENDMENT [X.]

en The pincers dune UCM ur thre CRANE Mes F

tution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.

AMENDMENT XIII.

Section I. Neither slavery nor involuntary servitude, except

as a punishment for crime whereof the party shall have been

duly convicted, shall exist within the United States, or any

place subject to their jurisdiction. —

Section 2. Congress shall have power to enforce this article

by appropriate legislation.

AMENDMENT XIV.

Section. I. All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

27

APPENDIX III

ere + ICLP A A DE AAA AD

an employer —

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employ-

ment, because of such individual's race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to

deprive any individual of employment opportunities or other-

wise adversely affect his status as an employee, because of such

individual's race, color, religion, sex, or national origin.

(j) Nothing contained in this title shall be interpreted to re-

quire any employer, employment agency, labor organization, or

joint labor-management committee subject to this title to grant

preferential treatment to any individual or to any group be-

cause of the race, color, religion, sex, or national origin of such

individual or group on account of an imbalance which may exist

with respect to the total number or percentage of persons of any

race, color, religion, sex, or national origin employed by any

employer, referred or classified for employment by any employ-

ment agency or labor organization, admitted to membership or

classified by any labor organization, or admitted to, or employed

in, any apprenticeship or other training program, in comparison

with the total number or percentage of persons of such race,

color, religion, sex, or national origin in any community, State,

section, or other area, or in the available work force in any

community, State, section, or other area.

Sec. 709. (c) Every employer, employment agency, and labor

organization subject to this title shall (1) make and keep such

records relevant to the determinations of whether unlawful em-

28

rere fi Eee

ployment practices have been or are being committed, (2) pre-

sev doth — eodheinae (3) make such reports

TELLER FEL TORO

order, after public hearing, as reasonable, necessary, op

priate for the enforcement of this title or the

orders thereunder. The Commission shall, by regulation, require

each employer, labor organization, and joint labor-management

committee subject to this title which controls an apprenticeship

or other training program to maintain such records as are rea-

sonably necessary to carry out the purposes of this title, includ-

ing, but not limited to, a list of applicants who wish to partici-

pate in such program, including the chronological order in

which applications were received, and to furnish to the Com-

mission upon request, a detailed description of the manner in

which persons are selected to participate in the apprenticeship

or other training program. Any employer, employment agency,

labor organization, or joint labor-management committee which

believes that the application to it of any regulation or order

issued under this section would result in undue hardship may

apply to the Commission for an exemption from the application

of such regulation or order, and, if such application for an ex-

emption is denied, bring a civil action in the United States

district court for the district where such records are kept. If the

Commission or the court, as the case may be, finds that the

application of the regulation or order to the employer, employ-

ment agency, or labor organization in question would impose an

undue hardship, the Commission or the court, as the case may

be, may grant appropriate relief. If any person required to com-

ply with the provisions of this subsection fails or refuses to do

so, the United States district court for the district in which such

person is found, resides, or transacts business, shall, upon appli-

cation of the Commission, or the Attorney General in a case

involving a governmental agency or political subdivision, have

jurisdiction to issue to such person an order requiring him to

comply.

„

„

APPENDIX IV

§ 1602.30 Records to be made or kept.

APF ROR ser ~On..rz.befors. September 30. 1974, and ann

roo ually thereafter,

every political jurisdiction ‘wi dr more D N te

quired to make or keep records and the information therefrom

which are or would be necessary for the completion of report

EEO4 under the circumstances set forth in the instructions

thereto, whether or not the political jurisdiction is required to

file such report under § 1602.32 of the regulations in this part.

The instructions are specifically incorporated herein by refer-

ence and have the same force and effect as other sections of this

part. Such records and the information therefrom shall be re-

tained at all times for a period of 3 years at the central office of

the political jurisdiction and shall be made available if requested

by an officer, agent, or employee of the Commission under sec-

tion 710 of title VII, as amended. Although agency data are

aggregated by functions for purposes of reporting, separate data

for each agency must be maintained either by the agency itself

or by the office of the political jurisdiction responsible for pre-

paring the EEO4 form. It is the responsibility of every political

jurisdiction to obtain from the Commission or its delegate nec-

essary instructions in order to comply with the requirements of

this section.

§ 1602.32 Requirement for filing and

preserving copy of report.

(a) On or before September 30, 1974 and annually thereafter,

certain political jurisdictions subject to title VII of the Civil

Rights Act of 1964, as amended, shall file with the Commission

or its delegate executed copies of State and Local Government

Information Report EEO4” in conformity with the directions

set forth in the form and accompanying instructions. The politi-

cal jurisdictions covered by this regulation are (1) those which

have 100 or more employees, and (2) those other political juris-

dictions which have 15 or more employees from whom the Com-

mission requests the filing of reports. Every such political juris-

diction shall retain at all times a copy of the most recently filed

30

2 „32 1

EE O- at the central office of the political jurisdiction for a

period of 3 years and shall make the same available if

by an officer, agent, or employee of the Commission under the

authority of section 710 of title VII, as amended.

7 Ter Calendar yt 1975, the requirements of

(a) of this section shall be carried out on or before October 31,

1973.

APPENDIX I

EQuaL EMPLOYMENT OPPORTUNITY

_ COMMISSION

STATE AND LOCAL GOVERNMENT INFORMATION

REPORT EEO-4

2. Race/Ethnic identification. An employer may acquire the

race/ethnic information necessary for this section either by

visual surveys of the work force, or from postemployment records

as to the identity of employees. An employee may be included

in the minority group to which he or she appears to belong, or

is regarded in the community as belonging.

Since visual surveys are permitted, the fact that race/ethnic

identifications are not present or agency records is not an excuse

for failure to provide the data called for.

Moreover, the fact that employees may be located at different

addresses does not provide an acceptable reason for failure to

comply with the reporting requirements. In such cases, it is rec-

ommended that visual surveys be conducted for the employer by

persons such as supervisors who are responsible for the work of

the employees or to whom the employees report for instructions

or otherwise.

Please note that conducting a visual survey and keeping post-

employment records of the race or ethnic origin of employees is

legal in all jurisdictions and under all Federal and State laws.

State laws prohibiting inquiries and recordkeeping as to race,

etc., relate only to applicants for jobs, not to employees.

31

The concept of race as used by the Equal Employment Oppor-

tunity Commission does not denote clearcut scientific definitions

of anthropological origins. For the purposes of this report, an

employee may be included in the group to which he or she

appears to belong, identifies with, or is regarded in the com-

munity as belonging. However, no person should be counted in

more than one race/ethnic category. NoTE: The category Span-

ish Surnamed,” while not a race identification, is included as a

separate ethnic category because of the employment discrimina-

tion often encountered by this group; for this reason do not

include Spanish Surnamed under either “white” or black

The category “White” should include persons of Indo-Euro-

pean descent, including Pakistani and East Indian.

The category “Black” should include persons of African de-

scent as well as those identified as Jamaician; Trinidadian, and

West Indian.

The category “Spanish Surnamed” should include all persons

of Mexican, Puerto Rican, Cuban, Latin American or Spanish

descent. The category “American Indian” should include per-

sons who identify themselves or are known as such by virtue of

tribal association.

The category “Asian American” should include persons of

Japanese, Chinese, Korean, or Filipino descent.

The category “Other” should include Aleuts, Eskimos, Ma-

layans, Thais, and others not covered by the specific categories

on the form. [38 F.R. 5661.]

Preamble. In memoranda from the Office of Management and

Budget and the General Accounting Office dated April 15, 1975

and September 9, 1975 respectively the Commission was advised

that its survey forms must use the standard race/ethnic cat-

egories. This change does not require new recordkeeping. The

changes to the standard race / ethnic categories on the EEO-1,

EEO-2, EEO-2E, and EEO-3 is primarily one of nomenclature

and does not involve radical departures from the current defini-

tions. The changes are as follows:

32

1, The category “White not of Hispanic origin” is added as a

specific category, FC

Subcontinent. Otherwise this category corresponds to the resid-

ual group, that is, all those persons who were not classified into

one of the four specific minority categories on the survey forms.

2. “Negro” is changed to read “Black not of Hispanic origin

The definition remains the same except that the title itself now

excludes those persons of hispanic origin who might otherwise

have been reported as Black by virtue of race.

3. “Spanish Surnamed American” is changed to “Hispanic”

and includes in addition to persons of Mexican, Puerto Rican,

and Cuban or Spanish origin, as defined in the former

ports of Caneel of Siete Aaeelah aud ctther Spunidh culvane

regardless of race.

4. “Oriental” is replaced by the category “Asian or Pacific

Islander”, and expressly includes persons of South East Asian

and Pacific Island origins, who previously might or might not

have been reported in the “Oriental” category.

5. “American Indian” is replaced by “American Indian or

Alaskan Native”. The definition for this category is restricted

to persons having origins in any of the original peoples of North

America.

As these changes are minor, employers should have no difficulty

implementing them, and will have ample time to change their

internal records to reflect the new categories.

Notice. The Equal Employment Opportunity Commission

hereby gives notice that the Equal Employment Opportunity

Employer Information Report EEO-1 as required by 29 CFR

1602.07 for 1977 and for subsequent years will reflect five (5)

new race/ethnic categories. The same race/ethnic categories will

also be reflected on the Apprenticeship Information Reports EO-

2 [sic] and EEO-2E, 29 CFR 1602.15, and the Local Union Re-

port EEO-3, 29 CFR 1602.22 for 1976 and subsequent years.

The five race/ethnic categories are defined as follows:

1, White (not of Hispanic origin): All persons having origins

in any of the original peoples of Europe, North Africa, the

Middle East, or the Indian subcontinent.

33

2. Black (not of Hispanic origin): All persons having origins

in any of the black racial groups.

3. Hispanic: All persons of Mexican, Puerto Rican, Cuban,

Central or South American, or other Spanish culture or origin,

regardless of race.

4. Asian or Pacific Islanders: All persons having origins in any

of the original peoples of the Far East, Southeast Asia, or the

Pacific Islands. This area includes, for example, China, Japan,

Korea, the Philippine Islands, and Samoa.

5. American Indian or Alaskan Native: All persons having

origins in any of the original peoples of North America. [41 F.R.

17601-02.}*

Although the provisions of 41 F.R. 17601-02 do not expressly refer

to the State and Local Government Reports EEO-4, counsel for

New Hampshire has been informed by an official of the EEOC

that these provisions will nevertheless be applied to the EEO-4

Reports.

34