The case against employment tester standing under Title VII and 42 U.S.C. s. 1981.

• Author: Bowling, Michael

TABLE OF CONTENTS INTRODUCTION I. EMPLOYMENT TESTER STANDING UNDER TITLE VII A. Injury-in-Fact and Compensatory Damages 1. Umbrella of Statutory Protection 2. Pro-Standing Policy Arguments: Begging the Question B. Redressability and Prospective Relief C. EEOC's Enforcement Guidance and Judicial Deference II. EMPLOYMENT TESTER STANDING UNDER 42 U.S.C. [section] 1981 A. Applicability of Prudential Standing Requirements B. Statutory Zone of Interests 1. Statutory Text 2. Congressional Intent C. Pro-Standing Policy Arguments: Missing the Mark III. LIMITED ROLE OF THE JUDICIARY AND STANDING FOR EMPLOYMENT TESTERS A. Valuing the Separation-of-Powers Principle B. Recognizing Congressional Responsibility CONCLUSION INTRODUCTION

In 1964, Congress passed comprehensive legislation aimed at eradicating discrimination in employment, public accommodations, public facilities, public schools, and federal benefit programs. (1) Title VII of this Act directed its aim specifically at stamping out prejudice in employment. (2) Four years later, the Supreme Court resurrected (3) the provisions of [section] 1 of the Civil Rights Act of 1866, (4) which, among other things, protects citizens, regardless of race or color, in their right to "make and enforce [employment] contracts" (5) Together, Title VII and [section] 1981 serve as the primary legal bases for challenging racially discriminatory actions by private employers. More than thirty years after the passage of Title VII and the Court's resurrection of [section] 1981, though, society continues to feel the lingering effects of America's history of slavery and segregation in the field of employment. (6) A study by the Urban Institute in the late 1980s and early 1990s determined that black job applicants continued to face discriminatory treatment at all levels of the hiring process. (7) In view of the continuing effects of discrimination in employment, a number of civil rights organizations around the country have employed testing as a means of ferreting out discrimination in the hiring process. (8)

"[A] `tester' is an individual who, without the intent to accept an offer of employment, poses as a job applicant in order to gather evidence of discriminatory hiring practices." (9) The testing process usually involves the dispatch of pairs of equally credentialed candidates, one black and one white, to job interviews. (10) Organizations that conduct employment testing ensure equivalency within the pairs by selecting testers with similar personalities and providing them with similar backgrounds, credentials, and interview techniques. (11) These testers report back regarding their experiences in the interview process, and the organization analyzes these reports, combined with the outcomes of the interview process, to determine whether the employer is engaging in discriminatory hiring practices. (12) The information provided by these testers can constitute invaluable evidence of discrimination in the job market. Whereas the single applicant can provide only anecdotal evidence regarding her experience, testing provides comparative evidence that can strengthen an individual plaintiff's initial complaint under Title VII or [section] 1981. (13)

While testing serves as a useful tool in the fight against employment discrimination, many employers have challenged the practice as unethical, deceptive, detrimental, and costly. (14) They argue that testing increases the costs of hiring, as employers must expend valuable interviewing resources on candidates who have no interest in actual employment. (15) Whereas the costs associated with finding each qualified candidate may be limited in some industries, for example, food service, these costs can be quite high in areas such as professional services. In these areas, employers spend significant monies to attract each candidate; the loss of a qualified applicant to maintain a spot for a covert tester can result in an inability to fill the spot with a suitably qualified candidate. (16) Moreover, employers have characterized testing as entrapment, because testers, like undercover agents, utilize false credentials to misrepresent themselves to the intended object of the entrapment. (17)

These policy arguments regarding the merits of employment testing, though valuable to social discourse about the proper means of achieving a colorblind society, fail to reach the primary legal question currently surrounding employment testing--the question of standing for employment testers. The doctrine of standing encompasses two distinct sets of limitations upon the ability of prospective plaintiffs to maintain discrimination suits in federal court: judicially-created prudential requirements (18) and constitutionally-mandated limitations. (19) The circuits that have considered whether testers can meet either the constitutional or prudential standing requirements to sue for damages or prospective relief (20) have split, failing to achieve consensus on the ability of testers to satisfy the standing requirements under either Title VII of the Civil Rights Act of 1964 (21) or 42 U.S.C. [section] 1981. (22) The Fourth Circuit has determined that testers do not possess standing under Title VII, (23) while the Seventh Circuit has found the requisite basis for standing under the statute. (24) The D.C. Circuit has also held against standing for testers under Title VII, but, so far, only with regard to their ability to seek prospective relief. (25) With regard to standing under [section] 1981, the Seventh and D.C. Circuits have ruled against testers, (26) while the Eleventh and Third Circuits have accorded testers standing to pursue their claims. (27)

This Note argues that, while employment testing may serve a laudable purpose in identifying discrimination and in gathering evidence of discriminatory treatment, employment testers do not meet the requirements for standing under either Title VII or [section] 1981. Part I maintains that employment testers do not suffer the requisite injury-in-fact (28) necessary for standing to seek compensatory damages under Title VII and further that testers cannot meet the redressability (29) requirements for prospective relief. Part II contends that testers also may not seek standing under [section] 1981, as they fall outside the zone of interests (30) that Congress sought to protect with the statute. Finally, Part III argues that the purposes of the standing doctrine--to maintain proper respect for separation of powers between the coequal branches of the federal government (31)--require that standing for employment testers be granted not by judicial flat but only through congressional action. This Note concludes that employment testers cannot satisfy the standing requirements to pursue suits under either Title VII or [section] 1981; moreover, in light of the courts' responsibility to defer to Congress as creator of statutory bases for standing, any close question regarding tester standing should be resolved against a recognition of standing.

1. EMPLOYMENT TESTER STANDING UNDER TITLE VII

   This Part contends that employment testers fail to meet the minimum requirements necessary for standing to seek either compensatory damages or prospective relief under Title VII. Section I.A argues that employment testers do not suffer the injury-in-fact necessary to pursue Title VII compensatory damages, while Section I.B maintains that employment testers cannot meet the redressability prong essential to achieve standing for prospective relief.

   1. Injury-in-Fact and Compensatory Damages

      Though most plaintiffs face the prospect of satisfying both the constitutional and prudential standing hurdles, (32) in the Title VII context, Congress has waived the prudential standing requirements (33) so that litigants may assert standing to the "outermost limits of Article III." (34) Congress, however, may not waive the Article III standing requirements. (35) Thus, in order to maintain standing under Title VII, employment testers must plead sufficient facts to demonstrate injury-in-fact, causation, and redressability. (36) The injury alleged by employment testers, discriminatory treatment at the hands of an employer or employment agency, meets the causation requirement, as the injury can be directly traced to the alleged actions of the defendant. (37) In addition, taking into consideration the purpose of compensatory damages under Title VII, to provide a "meaningful monetary remed[y] for all forms of workplace harassment," (38) a favorable damage award could redress the alleged injury of an employment tester. (39) Nevertheless, while the injury alleged by an employment tester satisfies both the causation and redressability prongs of the Article III standing requirements, this Part demonstrates that employment testers do not suffer an injury-in-fact cognizable under Title VII.

      1. Umbrella of Statutory Protection

         In order to satisfy the injury-in-fact aspect of the Article III standing, employment testers must show the invasion of a legal right created either by the Constitution or a statute. (40) Because no constitutional provision, absent congressional action, directly provides protection against private discriminatory action in employment, the Constitution itself cannot provide an independent foundation for employment tester standing. (41) Pursuant to its power under the Commerce Clause, however, Congress may make private discrimination unlawful in the economic realm. (42) Nevertheless, in creating statutory rights, the invasion of which would create standing, "Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit." (43) In crafting Title VII, Congress failed to create a specific statutory interest that would protect testers; (44) Title VII, by its very terms, extends its protection only to those seeking employment. (45) Employment testers do not seek employment; rather, they...