The U.S. Equal Employment Opportunity Commission
EEOC NOTICE Number 915.002 Date 5-22-96 1. SUBJECT: Enforcement Guidance: Whether "testers" can file charges and litigate claims of employment discrimination. 1 2. PURPOSE: To set forth the Commission's position that testers and organizations that send testers to respondents may file charges and litigate their claims. 3. EFFECTIVE DATE: Upon issuance. 4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded. 5. ORIGINATOR: Title VII/EPA Division, Office of Legal Counsel. 6. INSTRUCTIONS: File after § 605 of Volume II of the Compliance Manual. 7. SUBJECT MATTER: I. Introduction This document reiterates the Commission's view that testers (persons who apply for employment for the purpose of testing for discriminatory hiring practices, but do not intend to accept such employment), and the organizations that send testers to respondents, may challenge any discrimination to which they were subjected while conducting the tests. The document describes the legal developments that have occurred since the issuance of the 1990 document on tester standing and discusses their impact on the issue. The discussion focuses on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because employment testing to date has focused on race. However, the analysis applies to any basis covered by Title VII as well as to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., which incorporates Title VII procedures and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., whose language is, in relevant part, virtually identical to that of Title VII. 2 II. Definition and Function of "Testers" Testers are individuals who apply for employment which they do not intend to accept, for the sole purpose of uncovering unlawful discriminatory hiring practices. Testers are matched to appear equally qualified with respect to their employment histories, educational backgrounds, references, and other relevant factors. The basis being tested, e.g., race, national origin, disability etc.,3 should be the only significant difference between the testers. Matched testers apply for the same job[s] and their treatment is compared at each stage of the application and selection process. In other words, the comparison is not limited to whether the testers were ultimately offered jobs. It also includes whether, for example, each tester was given the same information about job availability or length of time before a selection decision would be made; whether interviews of the testers were comparable in duration and content; and how far in the hiring process each tester progressed. 4 If the testers are properly matched, unequal treatment of them will evidence discrimination. Several sets of testers may be sent to the same employment provider to establish a pattern of discriminatory treatment and to assure that the different treatment was not an individual "fluke," oversight, or personality conflict. 5 Similarly, testers will make follow-up calls to receive updated information about the status of the vacancy to assure that discrimination is the likely explanation for any different treatment. For example, a phone call could verify that a vacancy continued to exist after a Black applicant was told that the job had been filled. III. "Testers" Have Standing To Enforce Civil Rights Laws A. Individual Testers The Commission concludes that individual testers who were subjected to employment discrimination have standing to seek both monetary and appropriate injunctive relief. This conclusion is based on a considerable body of law addressing tester standing in a variety of contexts, on statutory construction and on sound enforcement policy. 1. Standing Is Broad Under Civil Rights Laws Standing is generally interpreted broadly under employment discrimination laws to achieve the statutory goal of equal employment opportunity. Hackett v. McGuire Bros., Inc., 445 F.2d 442, 3 EPD Par. 8,276 (3d Cir. 1971)("[t]he national public policy reflected . . . in Title VII . . . may not be frustrated by the development of overly technical judicial doctrines of standing or election of remedies"). 6 Cf. McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885, 65 EPD Par. 43,368 (1995) (regarding the ADEA: "[t]he disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry wide significance"). The civil rights movement has a long history of using testers to uncover and illustrate discrimination. In Pierson v. Ray, 386 U.S. 547 (1967), the Supreme Court held that a group of Black clergymen who were removed from a segregated bus terminal in Jackson, Mississippi, had standing to seek redress under 42 U.S.C. § 1983. The Court ruled that plaintiffs had been discriminated against by being ejected from the terminal, despite the fact that the plaintiffs' sole purpose was to test the law rather than to actually use the terminal. Similarly, in Evers v. Dwyer, 358 U.S. 202 (1958), the Supreme Court recognized the standing of a Black plaintiff who sat in the White section of a Memphis bus and was removed from the bus by local authorities. The plaintiff had never before ridden a bus in Memphis and had done so solely for the purpose of testing the legality of the state's segregation laws. Testers have most frequently been used to detect housing discrimination. More than a decade ago, the Supreme Court held that a tester who was given inaccurate or incomplete information with respect to available housing had standing to sue the realtor under Section 804 of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3604 et seq. 7 Havens Realty Corp. v. Coleman, 455 U.S. 363, 374 (1982). The Havens Court relied on Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972), in which the Court unanimously concluded that the term "person aggrieved" should be interpreted broadly where: 1) actions brought by private persons are the primary method of obtaining compliance with the statute; 2) the statutory language indicates a congressional intent to construe standing as broadly and inclusively as allowed by Article III of the Constitution; 3) the legislative history of the statute indicates a congressional intent to broadly construe standing; and/or 4) the governmental agency charged with enforcing the statute broadly construes standing. 409 U.S. at 209-211. 8 The Havens Court concluded that, in enacting section 804(d), Congress "conferred on all 'persons' a legal right to truthful information about available housing," regardless of race, color, religion, sex, or national origin. 455 U.S. at 373.9 Accord Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), cert. denied, 115 S. Ct. 205 (1994); United States v. Balistrieri, 981 F.2d 916 (7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993); Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir. 1990); Watts v. Boyd Properties, Inc., 758 F.2d 1482, 1485 (11th Cir. 1985); Village of Bellwood v. Gorey & Associates, 664 F. Supp. 320 (N.D. Ill. 1987).10 2. Title VII Language Similar to Housing Discrimination Statutes Significantly, the language relied upon by the courts to find standing under Title VIII is paralleled in Title VII. As the Ninth Circuit observed, the purpose and structure of Titles VII and VIII are "functionally identical." Waters v. Heublein, Inc., 547 F.2d 466, 469, 12 EPD Par. 11,238 (1976), cert. denied, 433 U.S. 915, 14 EPD Par. 7,635 (1977). 11 Like Section 810(a) of Title VIII, which authorizes suit by "person[s] aggrieved,"12 Section 706(b) of Title VII, 42 U.S.C § 2000e- 5(b), authorizes the Commission to accept charges of employment discrimination "filed by or on behalf of a person claiming to be aggrieved." 13 Indeed, the Supreme Court's holding in Trafficante, 409 U.S. 205, 209 (1972), that Title VIII's "person aggrieved" language conferred "standing as broad as is permitted by Article III of the Constitution,'" was based on a Title VII case, Hackett, 445 F.2d 442. As the Sixth Circuit observed: "[t]he fact that Trafficante . . . approved the reasoning of this Title VII case further demonstrates that on this issue of standing the Supreme Court does not conceive Titles VII and VIII to be different . . . ." EEOC v. Bailey Co., Inc., 563 F.2d 439, 453, 15 EPD Par. 7,840 (6th Cir. 1977), cert. denied, 435 U.S. 915, 16 EPD Par. 8,148 (1978). Similarly, the discrimination prohibitions set forth in sections 703 of Title VII and 804 of Title VIII are comparable. 14 Like an applicant for housing, an applicant for employment has a statutory right to be referred and selected without regard to race, color, religion, sex, or national origin, even if the applicant does not intend to accept the position. The injury is disparate treatment based on race, color, religion, sex, or national origin, rather than the loss of employment or housing. 3. Employment Testers Are Private Attorneys General Although the issue of employment tester standing has not often been the subject of litigation, standing to function as Title VII testers was recognized as long as twenty-five years ago. Lea v. Cone Mills Corp., 301 F. Supp. 97, 2 EPD Par. 10,052 (M.D.N.C. 1969), aff'd in relevant part, 438 F.2d 86, 3 EPD Par. 8,102 (4th Cir. 1971). The plaintiffs were Black women who were organized to apply for positions with employers who were reputed not to hire Black women. The plaintiffs expected to be rejected and intended to file charges against those who illegally discriminated against them. The court concluded that the plaintiffs' primary motive was to test for discrimination, but did not determine whether any of the plaintiffs would have accepted a position, if offered, at the time that they applied. The court held that the plaintiffs' Title VII rights had been violated, whether or not they intended to accept the jobs,15 because they had not been considered for employment due to their race and sex. 16 The Commission agrees that individual testers have broad standing to challenge discrimination to which they were subjected and disagrees with the limitations on standing expressed in Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corporation, 28 F.3d 1268 (D.C. Cir. 1994)("FEC"). 17 The court there ruled that the individual Black testers lacked standing to challenge an employment agency's allegedly discriminatory refusal to refer them for jobs on the ground that they could not demonstrate likelihood of future injury. 18 The court distinguished the Supreme Court's holding, in Havens, that housing testers had standing under 42 U.S.C. § 1982 on the ground that, unlike § 1982, damages were not available under Title VII. 19 Of course, since damages are now available under Title VII and the ADA, the court's rationale means that testers seeking damages under those statutes for discriminatory conduct which occurred after November 21, 1991, would not be barred. However, in ruling that individual testers lack standing to obtain injunctive relief unless they allege likely future harm, the FEC court overlooked several important factors. Namely, 1) the statutory language contradicts that interpretation; 2) the individual testers have suffered very real injury and, 3) such construction undermines the fundamental precept that individual plaintiffs serve as private attorneys general. First, on its face, Title VII permits a court to award an injunction based on past discrimination without requiring the plaintiff to make a separate showing of likely future harm. Section 706(g) of Title VII grants authority to impose injunctive relief whenever "the Respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice," indicating that injunctions are appropriate even where the discrimination occurred in the past. 42 U.S.C. § 2000e-5(g) (emphasis added). Though not mandatory, injunctions for prior discrimination can be issued and are particularly appropriate where a pattern or practice of discrimination is proven and the discrimination is likely to continue. Tester evidence by its nature tends to show a pattern or practice of discrimination. 20 Second, plaintiff testers are entitled to relief because they are individual victims of discrimination. Justice White has observed that "any discrimination in employment based upon sexual or racial characteristics aggrieves an employee or an applicant for employment having such characteristics by stigmatization and explicit or implicit application of a badge of inferiority . . . ." Sosna v. Iowa, 419 U.S. 393, 413 n.1 (1975) (dissenting from the Court's holding that a class challenge to a residency requirement could survive even though the issue was moot as to the named plaintiff and distinguishing Title VII). "Congress gave [persons aggrieved by employment discrimination] standing by statute to continue an attack upon such discrimination even though they fail to establish particular injury to themselves in being denied employment unlawfully." Ibid. (emphasis added). Third, to deny injunctive relief to individuals who prove that they were victims of a pattern of discrimination undermines congressional intent to deter discrimination by permitting individuals to function as private attorneys general. See Lea v. Cone Mills, 438 F.2d at 88 (if a "[tester] obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority"), citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968); 21 Briscoe v. Fred's Dollar Store, 24 F.3d 1026, 1029 (8th Cir. 1994) (even though the individual plaintiff was denied reinstatement and would not benefit from it, a permanent injunction was imposed because the evidence revealed the employer's "consistent practice" of discrimination against Black employees); EEOC v. Corinth, Inc., 824 F. Supp. 1302, 1312 (N.D. Ill. 1993) (injunction issued because there was evidence of a pattern of discrimination against pregnant employees, even though the named plaintiff was not reinstated and would not benefit from the injunction). 22 B. Organizations Sponsoring Testers An organization that uses testers to identify a pattern or practice of discrimination by employers and employment agencies has standing to file charges on behalf of the testers. Furthermore, an organization that sponsors testers has standing on its own behalf if it can demonstrate a perceptible injury to its activities which is fairly traceable to the alleged illegal action. The D.C. Circuit, for example, held that the Fair Employment Council, which sent testers to the defendant's employment agency (BMC) to test for discriminatory job referrals, had standing to contest the damage to the organization caused by BMC's alleged discrimination. The court ruled that organizations sponsoring testers have a cause of action under Title VII to the extent that alleged discrimination has "perceptibly impaired" the organization's programs. 23 According to the court, the organization must demonstrate that the defendant's conduct caused it "injury in its own right" by draining its resources in order to counteract the unlawful employment practices. 28 F.3d at 1277. The court stated that the FEC's "standing stems from BMC's actions against bona fide employment candidates, not from BMC's actions against the testers," because any drain on the Council's resources flows from BMC's refusal to refer genuine job-seekers for employment. Id. BMC's treatment of the testers provided evidence of a pattern or practice of discrimination by BMC. IV. Remedies As a matter of statutory construction, testers who are subjected to unlawful employment practices may be entitled to compensatory and punitive damages pursuant to the Civil Rights Act of 1991, 42 U.S.C. § 1981a (1994). Compensatory and/or punitive damages have been awarded to testers in housing discrimination cases where the tester demonstrated that s/he suffered humiliation and degradation as a result of the discriminatory treatment and/or that the defendant acted with reckless disregard of federally protected rights. See Saunders v. General Serv. Corp., 659 F. Supp. 1042, 1061 (E.D. Va. 1987)(compensatory damages award of $2,500 to tester was appropriate); Davis v. Mansards, Inc., 597 F. Supp. 334, 347 (N.D. Ind. 1984)(awarding $5,000 and $2,500 to testers for emotional distress caused by discriminatory rejection of housing application). One court has suggested that, because testers are "investigators," they are less likely than the bona fide home or job seeker to feel humiliated by discrimination. United States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992). Nevertheless, the court concluded that the jury was "in the best position to evaluate both the humiliation inherent in the circumstances and the witness's explanation of his injury." Id. at 933. Accordingly, in that case, the court upheld a $2,000 award made to each of the testers. Id. Compensatory and/or punitive damages have also been awarded to the civil rights organizations that sponsored the housing testers. The compensatory damages were based on diversion of the organizations' resources and frustration of their missions. See, e.g., Chicago v. Matchmaker Real Estate Sales Center, Inc., U.S. Dist. LEXIS 4435 (N.D. Ill. April 5, 1991), aff'd in relevant part and rev'd in part, 982 F.2d 1086 (7th Cir. 1992), cert. denied sub nom. Ernst v. Leadership Council, __ U.S. __, 113 S.Ct 2961 (1993); Saunders v. General Serv. Corp., 659 F. Supp. at 1061; Davis v. Mansards, Inc., 597 F. Supp. at 347-48. See also United States v. Balistrieri, 981 F.2d at 933. The rationale applied in those cases applies equally in the employment context. An organization that sends out employment testers may establish eligibility for damages by showing that it diverted resources from other programs in order to identify and counteract the defendant's unlawful employment practices. A state court jury recently awarded compensatory and punitive damages in an EEO tester case brought under the District of Columbia's Human Rights Act. The female testers, sent by the FEC, and a bona fide applicant had encountered sex discrimination upon seeking the services of the defendant employment agency. The jury awarded $79,000 in compensatory and punitive damages to the FEC, its testers, and the bona fide applicant. Fair Employment Council et al. v. Molovinsky, Civil Action No. 91-7202 (Sup. Ct. D.C. Aug. 12, 1993) (discussed at 155 DLR A-15 (Aug. 13, 1993)). See also 1 Merrick T. Rossein, Employment Discrimination Law and Litigation, §§ 15.4(6), 19.8(1) (1990)(discussing availability of damages for testers). Whether it is appropriate to seek compensatory and/or punitive damages during conciliation must be decided case by case. For further guidance on evaluating compensatory and punitive damages, see EEOC Enforcement Guidance: "Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991," July 7, 1992. Testers may also be entitled to injunctive relief24 and attorney's fees. Testers are not, however, entitled to reinstatement or back pay because they did not intend to take the jobs. The goal of the federal employment discrimination statutes is to try to put the plaintiff in the same position s/he would have been in absent the discrimination.25 V. Charge Processing A. Charges filed by individual testers 1. Accept charge from the tester(s) aggrieved by the discrimination. 2. At intake, obtain sworn statement from both the aggrieved and the non-aggrieved tester(s) who serve as comparator(s). If the comparator(s) are not present at intake, obtain their names, addresses, and phone numbers and contact them as promptly as possible to obtain sworn statements. The comparator(s) are not charging parties, but are witnesses to the discriminatory conduct. 3. Obtain any contemporaneous notes made by the testers during or immediately after the testing occurred. 4. Determine the scope of the investigation -- Was a specific job or a wider class of jobs tested? 5. Review applications of persons hired and rejected for the relevant jobs and time frame and compare qualifications. This review may result in the identification of actual victims of hiring discrimination. 6. Investigate as you would any disparate treatment case, See CM sections 604.3 through 604.6. 26 7. Carefully evaluate the respondent's articulated explanation for the possibility of pretext, focusing on whether each pair of testers was successfully matched so as to be "similarly situated." For example, if the respondent asserts that Tester A seemed more ambitious and therefore was more impressive in the job interview than Tester B, determine whether an effort was made to match the two testers in terms of their demeanor. Also, look at the interviewer's notes to determine if a notation was made as to Tester A's alleged ambition or Tester B's alleged lack of ambition. Review other applicant's files to determine whether minority applicants were subjected to different standards and whether "ambition" was a determinative standard. 8. Tester evidence typically constitutes evidence of a pattern or practice of discrimination and, as such, should be evaluated for possible systemic processing and a Commissioner's charge or, in an ADEA case, a directed investigation. Analyze statistical data regarding disparities between minority representation in the qualified available labor market and in the job in question. B. Charges filed by organizations 1. If organization seeks to file a charge on its own behalf, determine whether it meets appropriate criteria (i.e., did it use resources to counteract respondent's allegedly unlawful employment practices). If organization seeks to file "on behalf of" the testers, the procedures in 29 C.F.R. § 1601.7 should be followed. 2. Obtain identifying information about both the aggrieved tester(s) and the comparator(s). 3. Inquire whether the organization "debriefed" the testers after the testing situation. Obtain debriefing documents and other evidence held by the organization. 4. Investigate as usual. See A.6 and A.7 above. 5. As noted at A.8 above, evaluate for systemic processing and Commissioner's charge or directed investigation. C. Remedies 1. Injunctive relief should be sought. 2. Attorney's fees are available during conciliation. 3. Because they did not actually intend to take the job, reinstatement or back pay are not appropriate remedies for the testers. 4. For the reason set forth in #3, immediately above, compensation for costs associated with not getting the job also is not available. 5. Other monetary damages for the testers and for the organization may be sought if warranted. Non-pecuniary compensatory and punitive damages may be available. Date: 5-22-96 Approved: Gilbert Casellas Chairman 1. 1 This Enforcement Guidance supersedes Policy Guidance No. 915-062, issued on November 20, 1990, entitled: "Whether 'Testers' have standing to file charges of employment discrimination against employers, employment agencies and/or labor organizations which have discriminated against them because of their race, color, religion or national origin." 2. Compare Section 7(c)(1) of the ADEA with Section 706(b) of Title VII. 3. Since, as noted above, most discrimination testing has focused on race -- and for the sake of editorial convenience -- references in this document will generally be to Black and White testers. Of course, the theories discussed in this document are equally applicable to testers challenging discrimination on the basis of color, religion, sex, national origin, age, or disability. 4. Federal and state governmental agencies are also increasingly using testing as an enforcement technique to detect discrimination in employment, housing, and mortgage lending. For example, the Office of Federal Compliance Programs recently announced that it has begun a pilot tester program. Employment Discrimination Report (BNA) at 142-43 (Feb. 7, 1996). See also Massachusetts Agency Settles Job Tester Cases, 177 Daily Lab. Rep. A-18 (1993) (Massachusetts Commission Against Discrimination settled with two clothing stores after testers hired by agency reported that White applicants were informed of hiring opportunities while Black applicants with the same qualifications were told that no positions were available); Justice 'Sting' Finds Housing Discrimination, Wash. Post, June 22, 1993, at A-6 (Department of Justice obtained the largest civil penalty ever in housing discrimination case -- $350,000 -- after undercover testing showed that two apartment complex owners in Detroit refused to rent to Blacks; program has produced five other complaints in Detroit area and testing project will now be expanded to approximately six cities); U.S. to Use Agents to Detect Mortgage Bias, N.Y. Times, May 6, 1993, at D1 (government to use undercover agents to test whether mortgage lenders are illegally discriminating among borrowers). 5. While tester pairs in the housing area need only show that they are qualified to pay for the housing, employment tester pairs have the more complicated assignment of appearing qualified for the particular jobs. 6. See also Murphy v. Derwinski, 990 F.2d 540, 543-44, 61 EPD Par. 42,231 (10th Cir. 1993)(female has right to challenge a gender-based barrier to consideration for employment, even though removing the barrier may not result in her being employed); EEOC v. Mississippi College, 626 F.2d 477, 482, 24 EPD Par. 31,268 (5th Cir. 1980)(White faculty member granted standing to challenge discriminatory hiring practices against Blacks), cert. denied, 453 U.S. 912, 26 EPD Par. 31,901 (1981); Waters v. Heublein, Inc., 547 F.2d 466, 469-70, 12 EPD Par. 11,238 (1976), cert. denied, 433 U.S. 915, 14 EPD Par. 7,635 (1977) (White employee had standing to sue for discriminatory hiring practices which excluded Blacks and Hispanics because it deprived her of interpersonal contacts with persons of other races in her work environment). 7. In relevant part, Section 804 makes it unlawful: (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because or race, color, religion, sex . . . or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith because of race, color, religion, sex . . . or national origin. ... (d) To represent to any person because of race, color, religion, sex . . . or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. 8. The Court also cited Pierson and Evers for the proposition that a person need not have intended to buy or rent in order to have been injured within the meaning of Title VIII. 9. The Court noted that section 804(a) differs from 804(d) in that 804(a) makes it unlawful to refuse to rent or sell after the making of a bona fide offer; it proceeded to find standing under section 804(d) without further discussing 804(a). Neither Title VII, the ADEA nor the ADA requires that the applicant have a bona fide intent to accept an offer of employment. 10. Courts have also concluded that testers have standing to challenge discriminatory housing practices under the Civil Rights Act of 1866, 42 U.S.C. § 1982, which provides that "[a]ll citizens shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property." See, e.g., Watts v. Boyd Properties, Inc., 758 F.2d at 1484-85, and Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894, 898 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656 (1987). As with section 804, the fact that the Black testers did not actually intend to rent the apartments in question was deemed irrelevant in determining whether their statutory rights had been violated. Unlike § 804(a) of Title VIII, and like Title VII, Section 1982 contains no language about the need for a bona fide offer as a condition for some challenges. 11. The Ninth Circuit stressed that extending the Title VIII definition of "person aggrieved" to Title VII made "no new law." Waters v. Heublein, Inc., 547 F.2d at 470. 12. At the time of the Trafficante decision, the "person aggrieved" language was defined in Section 810, 42 U.S.C. § 3610. That definition has been recodified at 42 U.S.C. § 3602(i). 13. Note that only the tester who is discriminated against can file the charge as a "person aggrieved." The tester of the opposite class who functions as the comparator is a witness, not a charging party. Havens Realty Corp. v. Coleman, 455 U.S. 363, 374-75 (1982); Nur v. Blake Development Corp., 655 F. Supp. 158 (N.D. Ind. 1987). 14. Under Section 703(a) of Title VII, it is unlawful for employers to: fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. Similarly, section 703(b) provides that employment agencies may not: refuse to refer . . . or classify individuals on [the prohibited bases]; and, in section 703(c), labor organizations may not: (1) exclude or expel [individuals] from . . . membership on [the prohibited bases]; (2) limit, segregate, or classify its membership, . . . or fail or refuse to refer for employment any individual, in any way which would deprive . . . [or limit] employment opportunities, . . . . or otherwise adversely affect [the employment status on the prohibited bases]; or (3) cause or attempt to cause an employer to discriminate against an individual in violation of this section. 15. In fact, some of the non-plaintiff applicants in the original group of testers did accept employment which was offered after the discrimination charges were filed. 16. Cf. NAACP v. City of Clifton, New Jersey, 1990 U.S. Dist. LEXIS 17512, at *19 - 20 (D. N.J. Dec. 27, 1990) (applicant need not have a genuine interest in a job to establish standing to challenge, as violative of Title VII, a hiring policy that allegedly discriminated on the basis of race) (unpublished). But see Parr v. Woodmen of the World Life Ins. Society, 657 F.Supp. 1022, 43 EPD Par. 37,199 (M.D. Ga. 1987) (plaintiff whose primary purpose in obtaining a pre-application job interview was to create a basis for a Title VII claim, and who did not actually formally apply for a job, failed to establish prima facie case of hiring discrimination; court stated in dicta that, even if plaintiff had formally applied for the job and been rejected, he would not have been harmed because he did not want the job). 17. Of course, testers may file charges with the Commission and the Commission may investigate -- and, if appropriate, litigate -- the claims whether or not the individual testers have standing to litigate. General Telephone Co. of Northwest, Inc. v. EEOC, 446 U.S. 318, 326 (1980)(the EEOC has a statutory mission of eliminating discrimination; "[it] is not merely a proxy for victims of discrimination." See also, EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291-92 (7th Cir. 1993)(Commission may pursue an enforcement action for injunctive relief even when no individual could pursue a suit on her own behalf). Accord, EEOC v. United Parcel Service, 860 F.2d 372, 374 (10th Cir. 1988); EEOC v. Goodyear Aerospace Corp., 813 F.2d 23, 25 (5th Cir. 1982). 18. The FEC Court explicitly declined to address defendant's argument that only bona fide job applicants had standing to sue. 19. The alleged discriminatory conduct occurred before the effective date of the Civil Rights Act of 1991. Pub. L. No. 102- 166, 105 Stat. 445. 20. The 1991 Title VII amendments further belie the idea that injunctive relief necessarily depends upon proof that the plaintiff will likely suffer future harm. The amendments provide that an employer who takes an adverse action against an employee for both discriminatory and nondiscriminatory reasons is subject to an injunction even when Respondent proves that it would have taken the same action in the absence of the unlawful reason. In other words, the court may enjoin the employer from future discrimination even though the individual plaintiff may have been lawfully terminated and cannot, therefore, be affected by any of Respondent's future actions. Section 706(g)(2)(B), 42 U.S.C. § 2000e-5(g)(2)(B). 21. Recently, the Supreme Court unanimously reaffirmed the idea that individuals should be encouraged to function as private attorneys general, in holding that after-acquired evidence of the plaintiff's wrongdoing does not bar relief for earlier violations of the Act and stating that "[t]he objectives of [the federal employment discrimination laws] are furthered when even a single [person] establishes that an employer has discriminated against him or her. . . [w]e have rejected the unclean hands defense 'where a private suit serves important public purposes'." McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885, 65 EPD Par. 43,368 (1995) (citation omitted). 22. Injunctions have also been upheld in "tester" cases under fair housing laws. See, e.g., Cabrera v. Fischler, 814 F. Supp. 269, 281 (E.D.N.Y. 1993) (injunctive relief granted in a fair housing tester case because the defendants will likely engage in future discriminatory activity), aff'd in relevant part, 24 F.3d 372 (2d Cir. 1994), cert. denied, 115 S. Ct. 205 (1994); United States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992) (court upheld an injunction because the defendant had engaged in a pattern or practice of discrimination and had not shown that the discriminatory practices had ceased), cert. denied, __ U.S. __, 114 S. Ct. 58 (1993); Davis v. Mansards, 597 F.Supp. 334, 348 (N.D. Ind. 1984) (injunction granted in a fair housing tester case because the "public interest in abolishing racial discrimination dictates that the defendants be held to a continuing high standard of fair dealing"). 23. Similarly, in Havens, 455 U.S. at 378-79, an organization that sent out testers to test defendants' housing practices had standing in its own right under the Fair Housing Act based on its allegation that the defendants' steering practices impaired its ability to provide counseling and referral services for low and moderate income homeseekers. This concrete and demonstrable injury to its activities constituted far more than simply a setback to its abstract social interests. See also Chicago v. Matchmaker Real Estate Sales Center, 982 F.2d 1086, 1095 (7th Cir. 1992)(organization had standing to challenge Fair Housing Act violations uncovered by its testers based on showing that it deflected its time and money from counseling to efforts directed against discrimination), cert. denied sub nom., Ernst v. Leadership Council, __ U.S. __, 113 S.Ct. 2961 (1993). Cf. Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corporation, 28 F.3d 1268 (D.C. Cir. 1994) (rejecting Seventh Circuit rule that the expense of testing constitutes the requisite injury in fact). 24. But see discussion of the FEC case at pages 8 - 10. For the reasons discussed there, the Commission disagrees with the conclusion of the FEC court that the testers lacked standing to seek an injunction. 25. See Lea, 438 F.2d at 87-88 (upheld lower court's award of injunctive relief and denial of back pay in EEO tester case, and overruled lower court's refusal to award attorney's fees). See also Sledge v. J.P. Stevens & Co., 585 F.2d 625, 641, 18 EPD Par. 8657 (4th Cir. 1978) (reiterating holding in Lea that "test plaintiffs are not eligible for back pay"), cert. denied, 440 U.S. 981 (1979). 26. The Employment Discrimination Testing Manual, developed by the International Association of Official Human Rights Agencies, also has useful information on investigating and assessing tester charges.
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