The Supreme Court in Phillips v. Martin Marietta Corp. holds that Title VII's prohibition against sex discrimination means that employers cannot discriminate on the basis of sex plus other factors such as having school age children. In practical terms, EEOC's policy forbids employers from using one hiring policy for women with small children and a different policy for males with children of a similar age.
In Griggs v. Duke Power Co., the Supreme Court decides that where an employer uses a neutral policy or rule, or utilizes a neutral test, and this policy or test disproportionately affects minorities or women in an adverse manner, then the employer must justify the neutral rule or test by proving it is justified by business necessity. The Court reasons that Congress directed the thrust of Title VII to the consequences of employment practices, not simply the motivation. This decision paves the way for EEOC and charging parties to challenge employment practices that shut out groups if the employer cannot show the policy is justified by business necessity.
Congress holds hearings on amending Title VII. A Senate Report declares, "During the six years since its inception, EEOC has made a heroic attempt to reduce the incidence of employment discrimination in the nation . . . ." The Senate report states that, "employment discrimination is even more pervasive and tenacious than the Congress had assumed it to be at the time it passed the 1964 Act. It affects employees in both the private and the public sectors as well as those working in large and small establishments." Congress finds little progress by minorities in any occupational field and significant pay disparities for women. A consensus grows that the "voluntary conciliation approach" of the 1964 Act is inadequate to the task, as the number of charges filed grows dramatically each year while EEOC "presents largely an ineffectual threat" to employers. There is disagreement, however, on what enforcement powers should be given to EEOC. Bills are introduced granting EEOC authority to issue mandatory "cease and desist" orders.
The final public hearings held by the Commission between 1965 and 1972 take place in Washington, D.C. in November 1971 examining the employment practices of the gas and utilities industry. Research papers resulting from the hearing show the general underutilization of women and minorities in these industries. As a result, nine Commissioner charges are filed against utility firms; one charge is referred to the Department of Justice for suit and technical assistance is provided to six firms.
EEOC now has seven regional offices and 27 district offices nationwide. Field directors are delegated authority to issue Findings of Fact to the parties to a charge. The parties then have the right to file exceptions to the Findings before the Commission makes its decision.