made against a Commissioner. To determine Congressional intent, if they specifically considered the question, we must look to the overall purpose of the Act.
It is obvious on the face of the statute that relief was being given primarily to employees being discriminated against on the basis of race, religion, sex, and national origin. The legislative history reflects that the primary relief was to be through the arbitration and conciliation powers of the Commission.
Congress hoped that by providing a sounding board for complaints by employees, amicable settlements could be effectuated by the Commission to end discriminatory employment practices.
Congress also provided for enforcement provisions in District Courts where conciliation, conference, and persuasion failed to solve alleged unlawful employment practices.
Keeping in mind that Sec. 2000e-12(b) has legal effect, and understanding that purposeful persuasion is the statute's primary concern, Congress must have intended judicial review under the present circumstances.
Employers, such as the present plaintiffs, would be more disposed to settlement under the influential forces of an impartial Commission.
The argument advanced by the defendants that plaintiffs could attack an interpretative ruling in a District Court 2000e-5 action, is rejected as impractical. If this Court refuses jurisdiction here, and if the ruling is introduced in evidence12 the trial court would then have to consider both the alleged unlawful employment practice and the administrative procedure by which this particular ruling was formulated. Again, the legislative history as well as the over-all purpose of the Act indicates Congress intended the District Court to try de novo the unlawful employment practice issue only.
The second major inquiry for this Court is whether or not Aileen Hernandez should be disqualified from sitting in these particular proceedings before the E.E.O.C. Plaintiffs contend that Mrs. Hernandez should be disqualified on the grounds of interest, although they do not specify the nature of that interest.
Prior to May 10, 1966, Northwest Orient Airlines requested the Commission to determine whether sex was a bona fide occupational qualification for the position of air line cabin attendant. The Commission, in the exercise of its discretion, decided to entertain this question and on May 10th a full hearing was held. Both sides were granted extensions of time in which to file further written arguments.
On September 6, 1966, Mrs. Hernandez circulated among the Commissioners her Memorandum stating that the Northwest Orient case had been pending for too long a period of time and requested immediate action.
Mrs. Hernandez submitted her resignation as a member of the Commission to the President of the United States on October 10, 1966, to become effective November 10, 1966.
Sometime during the period between October 14 to October 29, Mrs. Hernandez had a conversation in her office with Pauli Murray concerning the formation of a women's civil rights group called the National Organization of Women.
Subsequently, on October 29 or 30, the National Organization of Women held its organization meeting and issued a policy statement concerning the issue still pending before the Commission, and adverse to the interests of the Air Transport Association. The press release announcing the formation of N.O.W. also stated that Mrs. Hernandez had been elected Executive Vice-President, "subject to her consent." An additional press release on or about November 11, 1966, stated, "The Conference named Aileen Hernandez, former Senior Commissioner of the Equal Employment Opportunity Commission, as executive vice president. Richard Graham, director of the National Teacher Corps and former Equal Employment Opportunity Commissioner, was elected vice president." Both former "Commissioners'" names were printed on N.O.W. stationery, which was circulated prior to the effective date of Commissioner Hernandez's resignation.
On November 9, counsel for plaintiffs, Mr. Jesse Freiden, appeared before the entire Commission and requested that Mrs. Hernandez be disqualified from voting on the question on the grounds that it was improper for a Commissioner to vote on an interpretive ruling on her next to last day in office when it appeared that she was about to take, or was considering taking, a high office in an organization which had taken an affirmative policy position relating to the question on which the Commission was about to vote. The Commission Chairman refused to disqualify her and Mrs. Hernandez declined to disqualify herself. Later, on the afternoon of November 9, she and the other three members of the Commission voted.
In Mrs. Hernandez's deposition she denies that any prospective position with N.O.W. influenced her decision in this matter, and states she had made her determination by at least May of 1966.
She also indicates that because Commission had been lenient in granting permission for both parties to submit data to them, both plaintiff and presumably defendants had "been submitting things up until November. . . ."
It is sufficient for the purposes of this litigation to say that procedural due process is denied where a member of a government agency votes on an issue having legal substance if that member is considering taking a non-pecuniary position with an organization which has taken an affirmative stand concerning the issue, and the member is aware of that stand. This is true where, as here, the vote on the issue is to be taken on that member's next to the last day in office. Regardless of the fact that Mrs. Hernandez may have already come to a decision prior to her knowledge of N.O.W.'s activities,
she was not called on to actually vote on the issue until such time as all pertinent data was received from interested parties in the litigation, and she had knowledge of N.O.W.'s activities and was considering taking the office of executive vice president. The law is clear that where a present interest in maintaining an earlier position inhibits the free exercise of the decider's mind when the moment of determination arrives, disqualification is an appropriate remedy.
The "very appearance of complete fairness" on the part of Mrs. Hernandez was not present as required by law.
This opinion has no conclusive effect on the Commission. It may, at its discretion, rehear the issue or refuse to issue an interpretive ruling as requested by the Airlines. This Court holds only that the legislature intended judicial review of the Commission's interpretative rulings which create immunity from suit under 42 U.S.C. § 2000e-12(b), where a Commissioner is challenged, and that procedural due process under the Equal Employment Opportunities Section of the Civil Rights Act of 1964 requires the disqualification of a member of that Commission where there is not on its face the appearance of fairness in voting on issues before the Commission. This is especially true when it is understood that the Commission's primary purpose is conciliation and persuasion.
For the above reasons the motion for the preliminary injunction will be granted, and the Commission enjoined from disclosing its interpretative ruling on whether or not sex is a bona fide occupational qualification for the position of flight attendant, which ruling was participated in by Aileen Hernandez; and defendants' motion to dismiss the complaint, or in the alternative for summary judgment, will be denied.