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An Unfair Play Against Bias

Alan Rupe (/authors/421-alan-rupe/articles)
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.
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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
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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
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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.
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