Testing to uncover unfair hiring

Margaret A. Kennedy

The federal agency that policies employers’ hiring practices has adopted an aggressive policy to ferret out illegal discrimination. The Equal Employment Opportunity Commission (EEOC) decided in November 1990 to accept job-discrimination charges based on information obtained through testers–individuals who look for illegal hiring practices by applying for jobs they never intend to take.

The EEOC’s decision to accept discrimination cases based on tester information is a major change in the way the agency enforces Title VII of the Civil Rights Act of 1964. Prior to this, the agency accepted discrimination cases only from actual job applicants.

In making the policy change, the EEOC said that “both Congress and the courts have recognized the effectiveness of testing as a means of identifying and combating discrimination.” Evan J. Kemp Jr., the EEOC’s chairman, characterizes the change as a significant step forward in the national effort to end illegal employment discrimination.

The first charge filed following the EEOC policy change came in December 1990 and involved alleged employment discrimination by a Miami department store. Suspecting widespread illegal hiring practices in the area, the local chapter of the National Association for the Advancement of Colored People (NAACP) sent pairs of similarly qualified black and white testers posing as job applicants to eight different department stores. The pairs showed up at the same store at different times on the same day and applied for the same job.

In one test, a black female law student with extensive work experience applied for a sales job but got no offer. The same day, a white female undergraduate student with some work experience also applied for the same job at the same store and received an offer immediately. In a follow-up test at that store, a black college student with some experience was offered a job for two weeks while a white college student with no experience who applied for a similar job later in the day was offered the same type of work for a month.

Based on these results, the NAACP filed charges with the EEOC, alleging illegal hiring practices by the department store involved.

Pending the outcoe of an EEOC investigation, the store could be required to sign a consent agreement to eliminate bias in hiring, or even adopt an affirmative-action plan designed to result in the hiring of more minorities.

Since this case was filed, the EEOC has said that it is considering hiring its own testers to investigate job discrimination. The Office of Legal Counse, the EEOC’s in-house legal team, is analyzing the issue. Questions being examined include the EEOC’s authority to use testers, the possible use of volunteer testers, and the liability the agency may face if it developed an in-house approach.

The obstacles in resolving these issues cast doubt on the agency’s ability to proceed with an in-house tester program.

While rarely used previously in the employment setting, the use of testers is well established as a way to uncover racially discriminatory practices in apartment rentals and house sales.

Just as testers have been used in housing-discrimination cases, testers sent from private organizations such as the NAACP can be expected to apply for jobs with a particular company or employment agency. The sponsoring groups would ensure that testers sent to a particular establishment would differ only in race or some other characteristic–such as age, sex, religion, or national origin–and that their applications would show them to be virtually equal in other respects, such as their employment histories, educational backgrounds, and references. Afterward, the company’s or employment agency’s treatment of the testers would be compared.

Since testers do not actually want the positions for which they apply, critics question whether testers are truly victims of discrimination. In legal circles, this raises the issue of ‘standing,” a principle that only those individuals who are injured can bring a claim seeking redress. Without standing, an individual may not pursue a claim.

In a policy statement issued in November 1990, the EEOC concluded that testers do have standing to bring charges of discrimination under Title VII of the Civil Rights Act. EEOC Chairman Kemp stated that even testers have the right not to be rejected on the basis of race, color, religion, sex, age, or national origin.

Whether business can use the “standing” issue as a defense to discrimination claims based on tester evidence is being litigated in federal court in Washington, D.C. In Fair employment Council of Greater Washington vs. BMC Marketing Corp., the council alleges racially discriminatory hiring practices based on tester evidence. As a preliminary matter, the parties involved are litigating whether the testers involved have “standing” to be before the court. The EEOC has joined the case as a friend of the court, supporting the standing of testers.

Business groups view the EEOC initiative with concern. Peter Eide, manager of labor law for the U.S. Chamber of Commerce, points out that testers need not be qualified for the job they are seeking and that by definition they are not genuinely interested in taking it. “But the employer has to process the application. It’s a waste of valuable time and money.”

Moreover, for every tester who is offered a job, a genuine applicant is turned away. Eide says he suspects people who are denied work in favor of testers “would have a cause for legal action against the tester.”

The Equal Employment Advisory Council, a group that tracks job-discrimination issues and is sponsored by 300 large corporations, also objects to testers. In a letter to Kemp, the group cited concerns about tester deception and problems with the methods of identifying discriminatory hiring practices.

John S. Irving, former general counsel of the National Labor Relations Board and now a management and labor lawyer with Kirkland and Ellis in Washington, D.C., says he thinks testers can be foiled. He suggests that employers require job applicants to sign a statement certifying that they are genuinely interested in the job and that the application has not been made under false pretenses.

In response, Kemp says that the use of testers is neither a novel nor an improper investigative technique. In addition, Kemp states that covert law-enforcement efforts, to be effective, require misrepresentation. What’s important to the EEOC, says Kemp, is the quality and reliability of the evidence provided by testers.

For employers, the best defense against testers is to ensure that the job-selection process is nondiscriminatory. There are three major steps that the employer should take:

* First, analyze your work force to determine whether certain groups are disproportionately represented. If so, analyze your hiring practices to determine whether whites or males, for example, are hired in significantly higher numbers than blacks or females even though many applicants are black or female.

Let’s say an employer has three vacancies, interviews 10 qualified applicants–five of them black–and hires three of the white applicants. An inference of discriminatory hiring can be made.

* Second, the review process should include a thorough examination of the specific qualifications required for each job. If qualifications can be measured objectively through means such as typing tests, an employer should have no concern about testers–unless, of course, the employer is applying the objective requirements in a discriminatory fashion.

In reality, however, most employers use a combination of objective and subjective criteria in deciding on job applicants. Although the use of subjective criteria is acceptable, employers rarely define the impact that subjective qualifications will have on their decision making. As a safeguard, an employer should clearly delineate the subjective qualifications required, such as leadership, teamwork, or oral communication skills. The employer then should document the specific reasons for hiring or not hiring each job applicant.

* Third, an employer must ensure that individuals responsible for or participating in the selection processes are adequately trained and carefully monitored. These individuals should understand the company’s equal-employment-opportunity obligations and should be evaluated based on compliance with the laws.

Under the EEOC’s current policy, professionally trained testers are given a green light to gather information in an effort to make a case that an employer has engaged in discriminatory hiring practices. Rarely will true job applicants be able to do so as effectively because the true job applicant is interested in being hired, not in analyzing whether an employer discriminates.

All U.S. companies would be wise to review their hiring procedures. If problems are found, it will be much easier and more cost-effective to make appropriate changes now without the involvement of testers, the EEOC, or the courts.

Margaret A. Kennedy is a partner in the Akron, Ohio, law firm of Benesch, Friedlander; Coplan & Aronoff. She has extensive experience in employment law and business employment practices.

COPYRIGHT 1992 U.S. Chamber of Commerce

COPYRIGHT 2004 Gale Group

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