Undercover 'testers' to be used in effort to detect bias in hiring Equal employment agency announces pilot projects aimed at entry-level jobs


WASHINGTON -- The Equal Employment Opportunity Commission has announced that it will employ undercover "testers" in two pilot projects to detect discrimination in hiring, particularly at the entry level.

In announcing that the commission will take a more active role in ferreting out job discrimination, officials said the need for such testers has increased because new welfare-to-work laws are bringing a large number of new employees, many of them minorities and women, into the marketplace.

The practice of using testers -- people who have equivalent qualifications but who differ in characteristics such as race -- is a long-standing one in civil rights law, particularly in the areas of housing and money-lending. The Supreme Court upheld the use of testers in 1982 in housing-discrimination cases.

But the technique has been used less often to establish hiring discrimination, a complex arena in which it can be difficult to prove bias because hiring can be so subjective.

The commission said that it had let contracts to two private groups -- the Fair Employment Council of Greater Washington and the Legal Assistance Foundation of Chicago -- for a combined total of $200,000 to "study the use of employment testers to detect hiring discrimination."

The commission, which is the federal agency responsible for prosecuting discrimination cases, said in 1990 that it would consider claims of job discrimination originating with testers, and called on civil rights groups to use the practice more.

And again in 1991, the commission chairman, Evan J. Kemp Jr., repeated that the agency had received so many allegations of employment discrimination that it would accept charges from civil rights groups that used testers to uncover discrimination.

But the commission's announcement Friday that it would pay for pilot projects with testers marked its first active entry into the field of hiring.

'An important step'

Gilbert Casellas, chairman of the bipartisan commission, which unanimously supported the action, stated: "If we can shed light on barriers to fair hiring in entry-level jobs, which are the gateway to self-sufficiency and economic independence, we will have made an important step in assuring equal opportunity for everyone."

Civil rights analysts hailed the move.

"It's about time," said Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights Under Law, a Washington-based group that frequently prosecutes such cases. "Our long experience in fair housing has demonstrated repeatedly that testing is one of the most effective methodologies that you can use to expose racial stereotypes."

But other legal experts said they expected employers to challenge the legality of testers in job cases, just as landlords challenged the legality of testers in housing cases. Testers who pose for jobs or housing can create questions of entrapment, and employers can contend that applicants who are turned down are not harmed -- because they are only testers and not, in reality, people seeking jobs.

The practice could also draw criticism from Republicans in Congress who are trying to abolish affirmative action programs.

The commission has not yet picked the cities where the tests are to be conducted or decided whether to test for discrimination based on race, age, sex, national origin or disability. Nor has it decided whether to send the testers to employers in the private sector or government.

Ellen Vargyas, legal counsel to the commission, said that the purpose was to try to find problems that job applicants might never know because they were unaware of who else had applied for a job or why they were rejected.

But she cautioned that this was not a "gotcha" project, saying that the commission was more interested in learning about how employers discriminate rather than which employers discriminate. If the commission uncovers discrimination, though, she said, it will pursue it.

The commission resolved 106,000 discrimination cases in the fiscal year that ended in September, but Vargyas had no breakdown of how many were related to entry-level hiring. Of the cases resolved, the commission found that 11 percent had merit, and the plaintiffs received a total of $178 million. In 60 percent of the cases, no discrimination was found. The rest were dismissed for administrative reasons such as late filing.

Earlier testing

In the early 1990s, some groups responded to the commission's call for using undercover testers. The Urban Institute found that whites were offered jobs 15 percent more often than equally qualified blacks and 52 percent more often than Hispanics.

The Fair Employment Council found that whites received job interviews 22 percent more often than blacks.

Pub Date: 12/07/97

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