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derogatory information that might cause his dismissal, he is informed that he is entitled to counsel. Also, an employee who has a hearing either in his agency or in the Commission under the Civil Service regulations is entitled to counsel or other representation and is so informed.
Our objection to subsection (k) is that it makes no distinction between formal hearings and informal fact-finding discussions. The courts have recognized this distinction and have held there is no right to counsel in informal fact-finding meetings. Angilly v. United States, 105 F. Supp. 257, Erenreich v. United States. 161 Ot. Cl. 214, Smith v. United States, 250 F. Supp. 803. It is in regard to these informal meetings that we fear the subsection will cause harm.
Consider, for example, the situation in which a supervisor may want to ask an employee to explain his recent and numerous late arrivals for work. Disciplinary action could follow this discussion. In our view it is not reasonable to conclude that this employee should have counsel during such an informal discussion. Before any supervisor could discuss an employee's unsatisfactory conduct or job performance, the employee would first have to be offered the right to obtain counsel. Then, if he decided he wanted counsel, presumably the meeting would have to be postponed until counsel was engaged and was able to appear. One needs little imagination to see how such a provision of law would tie up the normal processes of Government. Informal discussions or resolutions of on-the-job incidents will be converted into an expensive and timeconsuming legal confrontation procedure. We believe this to be unnecessary and fear that enactment of such a provision would handicap a supervisor in his normal relations with subordinates.
Subsection (1) would make it unlawful for an officer to discharge, discipline, or deny a promotion to an employee because of the latter's refusal or failure to rubmit to any requirement, request, or action made unlawful by the bill. This means it would be a crime for an officer to discipline an employee for the latter's refusal to submit to what is already a criminal act by the former. It is difficult to conceive of such a situation. This is particularly so under this bill which would seriously inhibit Federal managers in the performance of their assigned and proper functions. A mistake in managerial judgment could re"uilt in a criminal prosecution. The result will be undue restraint in the exercise of managerial discretion. This provision which emphasizes the criminality of such actions, only adds to the adverse impact. We respectfully suggest its deletion. The Bureau of the Budget advises that from the standpoint of the Administration's program there is no objection to the submission of this report. By direction of the Commission: Sincerely yours,
JOHN W. MACY, Jr., Chairman. Mr. AUTRY. Mr. Chairman, the next witness is Mr. Lawrence Speiser, director of the Washington office of the American Civil Liberties Union.
Senator Ervin. Mr. Speiser, I want to welcome you to the committee and express our deep appreciation for your willingness to give us the benefit of your views and the views of the organization which you represent. I have read your statement and I consider it a very able statement on the subject that is embraced by this bill.
STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON
OFFICE, AMERICAN CIVIL LIBERTIES UNION
Mr. SPEISER. Thank you, Mr. Chairman, I won't read all of my statement, because I think it is somewhat lengthy, but I will try to cover all of the points and summarize them in oral testimony.
First of all, I would like to compliment the subcommittee for the veoman's work it has done in the entire 11 years of its existence, in focusing attention on the rights of Federal employees and the way in which these rights have been infringed by governmental practices.
These practices are not self-initiating, yet they have multiplied with little or no consideration being given to the effect they have on the rights and privacy of Federal employees.
They always come into being for good purposes. They are not the products of malevolent minds.
I think the sincerity of Chairman Macy and the other Commissioners of the Civil Service Commission is self-evident. Nevertheless, the kind of practices which have grown up not only just during their tenure are the kind that Justice Brandeis warned against so eloquently in his famous dissent in Olmstead v. United States (277 U.S. 438 (1928) at 479) when he said:
... Experience should teach us to be most on our guard to protect liberts when the Government's purposes are beneficient. Men born to freedom are naturally alert to repel invasions of their liberties by evil-minded rulers. The greatest dangers to liberty, lurk in the insidious encroachment by men of zeal, wellmeaning but without understanding.
S. 3779 is an admirable bill in seeking to provide protection for ernmental employees against many of these “invasions." We do have reservations about some of its provisions which I will discuss during my testimony. We also have some amendments to suggest to more fully effectuate the purposes of the bill. However, in general, we support the bill and urge its enactment.
Section 1(a) would ban questions of applicants or employees forcing them to disclose their religion or the religion of their forebears.
Section 1(g) is somewhat broader in barring any interrogation or examination or psychological or polygraph test which would elicit enployee's or applicant's religious beliefs or practices.
These provisions would help, we hope, eliminate a constantly recurring problem involving those new Government employees who prefer to affirm their allegiance rather than swearing to it. All Government employees must sign an appointment affidavit and take an oath or affirmation of office.
A problem arises not just when new employees enter Government employment but in all situations where the Government requires an oath, and there is an attempt made on the part of those who prefer to affirm. It is amazing the intransigence that arises on the part of clerks or those who require the filling out of these forms, or the giving of the statement in permitting individuals to affirm.
The excuses that are made vary tremendously, either that the form can only be signed and they cannot accept a form in which "so help me God” is struck out, because that is an amendment, and they are bound by their instructions which do not permit any changes to be made on the forms at all.
Also, in connection with the giving of oaths, I have had one case in which an investigator asked a young man this question: "For the purposes of administering the oath, do you believe in God?”
It is to be hoped that the provisions of this bill would bar practices of that kind. The law should be clear at this time. Title I, United States Code, section 1 has a number of rules of construction, one of which says that wherever the word "oath” appears, that includes affirmation, and wherever the word "swear" appears, that includes “affirm."
But in spite of that, problems still arise. I have had a case in which a young ROTC student wanted to affirm his allegiance. He was not permitted to, and the Air Force subsequently specifically changed their regulations, in order to cover that situation. But that same young man the next year was barred from Christmas employment by the Post Office for trying to do exactly the same thing on his appointment affidavit. Subsequently, the Post Office Department admitted that an error was made, but by that time it was too late for him to get Christmas employment. The problem came up, as I mention in my statement, for example, in the debate on the bill changing the oath of allegiance for enlisted men. The question was:
"Did it absolutely require them to say "So help me God'?” or could some of them affirm their allegiance rather than taking an oath? The problem was thoroughly confused in the debate on the floor, to the extent that newspapers, in their articles about the passage of the bill, said the oath was changed to require every enlisted man to say, “So help me God” when he went into the service. That is not the law; it should not be the law, and yet there was that confusion.
The Civil Servce Commission took only, I believe, 4 years from the time that I first wrote them about this problem until they revised their instructions, as they did in April of this year, with a note explaining how a person can affirm. My fear is that this does not cure the problem because not all clerks have the Federal Personnel Manuel at hand, and the problem arises in a very quick fashion, with clerks unprepared for it, and their immediate reaction is, “Oh, no, you can't strike out the words 'So help me God. You have to sign the appointment affidavit in the form in which it is presented to you."
I would like to suggest that the wording in secton 1(a) be changed by replacing the word “religion” with the words “religious beliefs or lack of religious beliefs."
This issue also comes up sometimes when clerks will ask, “Why do Tou want to affirm? Do you belong to a religious group that requires an affirmation rather than taking an oath ?” And unless the individual gives the right answer, the clerks won't let him affirm. It is clear under the Torcaso case that religious beliefs and lack of religious beliefs are equally entitled to the protection of the first amendment. Therefore, I would suggest broadening the language of section 1(a) as I have suggested.
On the question of race, the present policy of the American Civil Liberties Union, which was adopted in 1963, is as follows:
The collection and dissemination of information about race creates a conflict among several equally important civil liberties: the right of free speech and free inquiry, on the one hand and the rights of privacy and of equality of treatment and of opportunity, on the other. The ACLU approves them all. But at this time in human history, when the principle of equality and non-discrimination must be vigorously defended, it is necessary that the Union oppose collection and dissemination of information regarding race, except only where rigorous justification is shown for such action. Where such collection and dissemination is shown to be justified, the gathering of information should be kept to the most limited form, wherever possible by use of the headcount method, and the confidential nature of original records should be protected as far as possible.
This policy is presently under review by our equality committee which will make recommendation to our national board of directors Thether we should retain our present policy or whether we should
Senator ERVIN. I might state that the committee has received many complaints about the questionnaire. I think that it is summed up pretty well by an article in the Washington Sunday Star of July 17. 1966, by Joseph Young. He said in his article:
Negro as well as white Government employees are voicing increasing concern and resentment over the Johnson Administration's use of the race question in the Federal service. The Postal Service, which employs the largest number of Negroes in Government, as well as other Federal agencies, are receiving increasing complaints from Negro employees over the use of the questionnaires. Employees are asked to list their race and national origin, White employees previously registered protest.
Many of them listed themselves as American Indians to show their disapproval of the program. Negro employees are now complaining also, many of them, on the basis that such information could be used by supervisors and management to discriminate against them in promotions.
Ironically, the Administration says that the race questionnaire is, in the words of the Civil Service Commission Chairman John Macy, essential for agency management in fulfilling its responsibility to assure equal employment opportunity in the Federal service.
White employees are suspicious that the purpose is to set up a quota system for promotions that will show Negroes a specific percentage of promotions whether they are qualified for them or not. Negro employees are suspicious that such data on race and ethnic groups would fall into the hands of the wrong people who would use such data to deny them promotions.
Of course, the ideal situation as far as Government employment is concerned is that a person shall be given Federal employment on the basis, solely upon the basis, of merit, which means capacity to perform the work to which they are to be assigned, irrespective of all other considerations. That is, I think, one of the fundamental objections that can be voiced to this racial questionnaire.
Mr. SPEISER. I quite agree with your statement that individuals should get Government employment solely on the basis of merit. I think it has been substantiated far too well and too often, the fact that this policy has not been followed by the Federal Government, among others, that disproportionate opportunities have been shown to be available, for example, for Negroes who are concentrated in the lower grades; that over periods of years no Negroes have risen above certain grade levels. I think something more than a strong suspicion that discrimination has existed in Government employment, and has for many years.
But I think the problem that is posed here, and I can sympathize somewhat with Chairman Macy and the Commission, is proving that discrimination exists. How do you find out about it, first of all, before you take corrective action to prevent it in the future?
I think it is true that posing questions to individuals about their race is an invasion of privacy. The question is whether there is some greater public good that requires that kind of infringement. One of the problems that come to mind includes for example, those individuals who are not considered part of the Negro community, but have some Negro ancesters. How should they respond to such a question ?
Hawaii is a classic example of trying to define terms, where it is impossible to define terms. I think Chairman Macy's statement as to why the Commission stopped doing it in Hawaii is a little too bland. I think the statistics would have been meaningless. There also was a great deal of complaint from Hawaii on this.
Head count is one method. I think there is a problem as to whether head count provides all the statistics necessary. I think that for Chairman Macy to say that they abandoned the head-count method or that they replaced it so that they wouldn't infringe on the rights of the individuals is to state the problem backward.
I think that to ask people their race in things of this kind does infringe on their rights. The question is whether the governmental policy needs to do this, in order to effectuate the policy of nondiscrimination. I think that is the basic problem. If the head-count method works, then I would think the answer is "No," you don't need any other method.
I think that there was a problem under the head count method in getting the statistics. For example, for many years, there was the recurrent rumor that the FBI discriminated against Negroes in hiring them for special agents, and attempts to find out from what was then called the President's Committee on Equal Employment Opportunities as to how many Negro special agents there were, were completely unsuccessful, although every department of Government was supposed to provide head count statistics about how many Negroes were in each grade within their departments. You couldn't get that information out of the FBI, and you couldn't get it from the Justice Department.
Finally, facts started to filter out, and finally I think by 1962 or 1963 was the first time that I found out how many Negro special agents there were, and I think at that time there were 15 out of a total of 6,000. They have subsequently increased the number. I think that they probably have engaged in a recruiting campaign, but that knowledge was not available. But that, I think, showed that the head count method was not being utilized as it should have been, and it could have provided the information and could have helped in the corrective nieasures, as far as the FBI was concerned.
Let me go on to questions which are asked of applicants and Federal employees. Since this bill is aimed at protecting the constitutional rights of Federal employees, it is wholly appropriate to consider other inquiries presently being made by the Civil Service Commission of all applirants for Federal employment.
Without any congressional authorization, the Civil Service Commission asks all applicants questions about their political beliefs and associations and asserts the right to investigate them and their beliefs and associations under the guise of determining their suitability. This is a form of "McCarthyism" which has no business in a democratic country.
The only law presently in effect which denies public employment on the basis of political beliefs or associations is Public Law 330—84th Congress (5 U.S.C. 118(p)) which bars from Federal employment any individual who(1) advocates the overthrow of our constitutional form of Government in the (2) is knowingly a member of an organization that so advocatesAnd they know the purposes of the organization(3) participates in any strike or asserts the right to strike against the GovFinment of the United States; or