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remain in effect until rescinded or superseded.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.
