Group using testers to seek out job bias Job bias case will set a legal precedent.

November 12, 1991|By Michelle Singletary | Michelle Singletary,Evening Sun Staff LHC SbB

The four young men who went into a Washington-based employment agency had similar resumes.

When they left BMC Marketing Corp., a local franchise of Snelling & Snelling, two were sent on job interviews; the other two were sent home.

The two who received referrals for the entry-level jobs were white. The two who did not were black.

What BMC didn't know at the time was that none of the men was actually seeking employment. Their resumes, educational and work histories were all fabricated. They had been paid to be employment "testers" for the Fair Employment Council of Greater Washington.

Now, their experience is the basis of a lawsuit pending in U.S. District Court for the District of Columbia that may ultimately decide whether job testers can be an effective tool in revealing discriminatory hiring practices.

The outcome of the Washington case is also likely to have major influence on how the Maryland Commission on Human Relations conducts its investigations.

"I view our job as eliminating discrimination and if testing is something that helps us, that is what we will be looking at," said Michael L. Foreman, general counsel for the commission.

Foreman said he will be watching the Washington case closely as a guide for the commission . He is doing a legal analysis of the issue and in the next few months he expects to issue recommendations on whether the commission should take an active role in using employment testers.

In the last four years, the commission has increased the award amounts for victims of discrimination, even though the total number of people receiving money didn't change dramatically. In 1988 the agency assisted in getting either settlements or judgments in the amount of $297,898. In fiscal year 1991, the agency saw that figure jump to $1.87 million, a six-fold increase. "We have become more aggressive in getting settlements," Foreman said.

"The issue is should we take another step forward and become more aggressive with the use of testers," he said.

Testers pose as job applicants to gather evidence of discrimination. Community groups such as Baltimore Neighbors Inc. and civil rights organizations like the National Association for the Advancement of Colored People have long used testers in housing discrimination suits. However, the use of testers to detect employment discrimination has not been traditionally used, Foreman said.

Unlike housing testers, those posing as test job applicants must use an elaborate system that includes fictionalized resumes and false job references. They come carefully trained to catch any discriminatory practices that true applicants may not be able to detect.

"Testers have been used in housing cases for years and it's been proven that they can sue and collect damages," Foreman said. "As employment discrimination gets harder to prove, civil rights groups are looking for ways to get more solid evidence. Testers make better witnesses."

But the Washington suit is being challenged by attorneys for major employer groups who have argued that since the testers are not themselves victims of employment discrimination, they lack standing to file suit under the civil rights laws.

"I think the use of testers in employment will have to be mucmore limited than in housing," said Stephen Silvestri, a partner with the Baltimore law firm Semmes Bowen & Semmes. Silvestri is a management attorney.

"If an interviewer asks the right questions, I think it would be very difficult for a tester to make it through the process except for entry-level positions," he said.

Silvestri said the issue has come up with clients and he advises them to train their interviewers to ask the right questions.

"I think in limited situations testers might be able to get some solid proof, but employers shouldn't have to worry about who is coming in to apply if they have a good employment process," Silvestri said.

In the past, Foreman said, the commission has made limited use of testers after complaints were filed with the agency.

For example, in a former employee of Tri-State Credit Corp. filed a complaint with the commission in 1986 alleging that her former company prevented her from obtaining other employment by giving prospective employers poor references by indicating that she had filed a discrimination complaint claim. She had filed a claim in 1985 alleging she was fired because she was pregnant. The first complaint was dismissed.

However, the commission found evidence for the second complaint after getting collaborating information from an investigator who called the company to obtain a reference.

In January, an administrative law judge ruled in favor of the employee, rulng that Tri-State had informed prospective employers that the former employee had filed a complaint, which is against the law. That decision is under appeal.

The Washington suit represents the first time that tester evidence has been used in an employment discrimination case in federal court since the concept was endorsed by the Equal Employment Opportunity Commission.

Under the EEOC policy approved last year, the agency said it will accept charges of discrimination filed by civil rights organizations on behalf of individuals who pose as job applicants to test an employer's compliance with federal job bias laws.

While EEOC's policy makes it clear it will accept charges filed by or on behalf of testers, the agency avoided the more controversial issue of whether, as an agency policy, it will use testers.

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