An Unfair Play Against Bias

June 24, 2005

My son Patrick was promoted recently to a management position for a large national company. He just went through his first 360-degree performance review. One man--many years older than Patrick--commented that he had never had a boss who worked as hard or tried to be as fair as Patrick. If I taught my kids nothing else while growing up, I think I imparted those values to them. I remember writing on our kitchen chalkboard the motto that I wanted them to live by: "Play hard, play fair." That message stayed there until the last Rupe kid graduated from high school and moved away.

    But in the world of work, my sense of playing fair is violated by a ploy used against employers by nonprofit organizations and our federal government, and approved by many courts. That ploy is the use of "testers"--individuals who, armed with fake résumés, letters of reference and training in deception, apply for a job. A pair of testers, one a minority whose résumé and qualifications are slightly better, apply for the same job at the same employer, then compare notes and report back to human rights agencies and courts what they believe are the unsuspecting employer’s discriminatory practices.

    Perhaps because discrimination is no longer as obvious as separate drinking fountains, many people believe that discrimination has been eradicated (or at least greatly curbed). The Equal Employment Opportunity Commission and state human rights agencies have been instrumental in curbing that illegal behavior. Unfortunately, human behavior is nearly impossible to completely regulate, and there are certainly occasions when qualified applicants are not hired because of their race. But trained testers who deliberately mislead employers into making a wrong decision, who have decided that the end justifies the means, are too Machiavellian for my sense of fair play.

    The use of testers is most prevalent in housing. In 1982, the U.S. Supreme Court held in the case of Havens Realty Corp. v. Coleman that both individual testers and organizations have standing to sue for violations of the Fair Housing Act. Despite the fact that the testers were not actually injured when they did not receive an apartment they had no desire to possess, the Supreme Court found that they were sufficiently injured by the discrimination itself. The court also found that the Fair Housing Act gives testers standing, given its broad remedial purpose in eradicating racial discrimination in housing.

    The EEOC recognized the utility of testers many years ago and has issued enforcement guidance to employers. The EEOC’s position is that testers have legal standing to file charges and litigate claims of employment discrimination.

    In December 1997, the EEOC announced that it had contracted with two agencies, the Fair Employment Council of Greater Washington, D.C., and the Legal Assistance Foundation of Chicago to conduct pilot testing programs. Under these contracts, the agencies would receive $100,000 each to train and send testers into the employment market. The EEOC’s efforts at expanding tester utility were hampered by Rep. Newt Gingrich in 1998. As speaker of the House, Gingrich conditioned Republican support of President Clinton’s request for an additional $37 million for the EEOC on the agency’s promise to withdraw funding for testers.

    But lack of funding has not stopped testers employed by private agencies from going about their work. Where testers have standing, they file lawsuits in the most egregious cases. Where they do not have standing, testers turn their results over to the EEOC for use as corroborative evidence of discrimination in what may be an otherwise weak employment discrimination case.

    Some courts authorize and approve testers to sue under applicable employment discrimination laws. Those courts generally rely on the U.S. Supreme Court decision supporting the use of testers in housing. They note that employment discrimination laws, like the housing statutes, authorize "private attorneys general" to enforce law: Both sets of laws reveal Congress’ intent to allow all persons who are injured by discrimination to bring forth their suit. These courts acknowledge the EEOC’s guidance documents and defer to the agency’s expertise in the area. The courts that have permitted testing determined that being turned down because of a discriminatory bias on the part of the employer is enough injury to trigger discrimination-law protections.

Consider the experiences of two pairs of trained testers:
    A Caucasian man and a black man were sent to suburban Chicago auto dealerships to apply for an advertised position. The Caucasian tester reported that the red carpet was rolled out for him before he barely entered the door, while the minority tester was forced to wait hours in waiting rooms and was otherwise given the "brushoff." The Caucasian tester was offered the job every time. The black tester was never even given an interview.

    Two other testers, one Caucasian woman and one black woman, applied for jobs at several retail clothing stores. The black woman was often required to have several follow-up interviews; she received fewer offers, at less pay; and she was sometimes told she would have to take training at a distant facility. But because the potential employers treated the minority tester in a pleasant manner, the tester reported she would not have known that she was being discriminated against if she had not compared notes with her partner on how she was treated at the same stores.

    Many other judges, meanwhile, throw testers out of court for a number of reasons. In those cases, the courts rule that testers are not genuinely applying for a job, and therefore, when denied the job, they are not "injured" within the meaning of employment discrimination laws. Courts also raise questions concerning whether or not testers themselves may be breaking the law when they apply for a job with fake résumés. Both the federal government and some states criminalize false statements on employment applications.

    Employers who take part in unlawful employment practices should be held accountable. But it sure offends my sense of fair play when employers are bamboozled by actors trained to tip the scales in favor of discrimination.

    No matter how I feel, though, testing goes on. And so I would tell employers to treat every applicant as if he or she is a tester. Train the people who interview applicants on what the law is. Be objective in hiring. Remember that hiring the best person for the job is the best practice.

    Invest some time and money in training supervisors and human resource people in the art of interviewing. Build "equal opportunity" into the recruiting process. Use alternative advertising forums such as foreign-language publications, radio or television outlets. Solicit participation from groups who advocate for the disabled or for ethnic minorities. Sponsor activities hosted by advocacy groups. Make identification and exploration of minority and ethnic sources of applicants a regular part of the recruitment process. And, finally, document all efforts made to diversify the recruiting process. In other words, employers should work hard at hiring and play fair in the selection process.

Workforce Management, July 2005, pp. 10-11 --Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.