Contents Features 17 Investigative Testing. Under certain conditions, antidiscrimination agencies can ethically and legally send persons posing as job applicants to find biases in employment screening practices. 24 Sexual Orientation. Certain voter initiatives would curb civil rights protections for lesbians, gay men, and bisexuals in such areas as employment screening and selection. State courts, however , have recentiy upheld such protections. Departments 32 Case Law Assorted Testing; Drug Testing; HIV Infection 34 Federal Regulation Drug Testing 36 News Briefs Assorted Testing; Genetic Testing How Ethical Is Investigative Testing? by John T. Sanders, Ph.D. An ethicist contends that the pmctice of sending in "testers"-persons posing as job applicants-to ferret out workplace discrimination is easier to defend from an ethical standpoint i f an agency's investigation stems from an actual complaint. By contrast, defendants may rightfully challenge the legitimacy of the procedures used for choosing "test" subjects when an investigation is based solely on the general goals of an an tidiscrimination agency Introduction The growing body of antidiscrimination law has brought with it an enforcement problem. On the one hand, people who are discriminated against are bquently among the most vulnerable members of society and are thus least likely to avail themselves of their right to complain to enforcement agencies or to bring suit. On the other hand, even when complaints or suits are brought to light, the cases are inherently hard to prove. The only evidence readily available is the anecdotal report of the aggrieved party, and such evidence is plainly weak when confronted with the adamant denials of respondents who are typically better armed, both socially and legally. This problem is especially acute in decisions made about employee recruitment, referral, and hiring. Victims of discrimination at employment agencies and personnel offices are extraordinarily unlikely to be in touch with one another, and the support that could in other situations be gathered through mutuality of experience is thus, practically speaking, unavailable. Yet employment decisions are of unparalleled importance to the overall objective of undermining various forms of unreasonable and unfair discrimination in society . Substantively, it is necessary to end discrimination in recruitment , referral, and hiring so that people may fend for themselves and live their lives decently. Perceptually , it is necessary to end such discrimination so that potential discriminators are not led to false generalizations about others born of unfamiliarity and the mistaken presumption that all truly competent people get the jobs for which they are qualified. Indeed, John T. Sanders is a professor in the Department of Philosophy at Rochester Institute of Technology, Rochester, N.Y. Prof. Sanders specializes in ethics and social-political philosophy. He has edited several books and written numerous articles on such topics as professional ethics and ethics in public affairs. Continued on next page Investigative Testing Continued from previous page Editor Rosemary Orthmann, Ph.D. Contributing Editor Sandra N. Hurd, J.D. Associate Professor of Law and Public Policy School of Management Syracuse University Editorial Board Gerald V. Barren, Ph.D., J.D. Professor and Department Head Department of Psychology University of Akron Ronald Eayer. Ph.D. Professor School of Public Health Columbia University Erline Belton, M.M. President and CEO The Lyceum Group Chagrin Falls, Ohio Jana Howard Carey, Esq. Venable. Baetjer 8 Howard Baltimore, Maryland Garen E. Dodge, Esq. Keller and Heckman Washington, D.C. Robert B. Fitzpetrick, Esq. Fitzpatrick & Verstegen Washington, D.C. Sandra N. Hurd, J.D. Associate Professor of Law and Public Policy School of Management Syracuse University Arthur S. Leonard, Esq. Professor of Law New York Law School Mark A. Rothstein, J.D. Law Foundation Professor of Law Director of the Health Law and Policy Institute University of Houston 1 ~ t rwng (ISSN 1065-2531) is published twelve times a year by University Publications of America. 4520 East-West Highway, Bethesda, MD is an imprint of Congressional Information Setvia?, Inc.) The annual subscription rate for €mp/oyment Testhgis $295. Please direct all subscription inquiries to the UPA customer setvice department. The editorwelcomes submissions and editorial comments or questions. 20814-3389; (301) 657-3200/(800) 692-6300. (UPA I I efforts to end employment discrimination are best understood as attempts to make the latter presumption come true. The challenge is thus to expose discrimination in agency referral and hiring, while at the same time attempting to build a better evidentiary base for cases that are actually brought to adjudication. To this end, both public and private antidiscrimination agencies have begun to adopt the technique of investigative "testing." Rather than rely only upon anecdotal accounts of people genuinely seeking jobs and alleging discriminatory practices , agencies send their own employees into the field to examine the employment practices of firms. To secure the reliability of information thus obtained, antidiscrimination agencies send several testers. Where racial discrimination against African-Americans is being examined, for example, the agency may send out two AfricanAmerican testers and two Caucasian testers. Where it is gender discrimination that is the subject of the test, the agency will use two males and two females. The agencies will then compare the agents' stories for evidence of discriminatory practices. Was there consistency among the accounts? If there were differences, do the differences support a claim of discriminatory practices? In principle, it is plain that the technique could be revised and sharpened in a variety of ways. If the number of testers was held to be inadequate for determining discriminatory patterns in hiring and referring applicants for employment , there is no reason why the number could not be increased. Other potential improvements in the technique could be envisioned as well. Such investigative practices, however, raise questions not only about legality but also about compliance with legitimate ethical standards. While it is not always easy to separate these two realms, what follows is intended as an examination of various ethical questions raised by the use of investigative testing. Although the technique is new, there are three cases that have been brought and to varying extents resolved in 1993, and these will serve as illustrations in the discussion. Entrapment One concern that critics of investigative testing have raised is that such a practice constitutes entrapment. Entrapment entails luring or cajoling a person into committing a crime for the purpose of prosecution. I Public Enforcement Agency In August 1992 the Massachusetts Commission Against Discrimination sent a n AfricanAmerican male tester into a retail clothing store in Boston to apply for a job.' The commission was acting in conformity with its charge to "attempt to bring about compliance with the state's antidiscrimination laws without resort to a public hearing." This first tester claimed on his application form that he had experience as a sales clerk. During an interview, the business manager told him that nothing was available. 0 1994 by Univmly RhlcahaM of Amsnca Vol. 3 I NO. 2 I a1994 19 On the same day, the commission sent a Caucasian male tester into the same store to apply for a job. Before filling out an application , this applicant was told in an interview with the same business manager that there was an opening for an assistant store manager. The manager told the second tester to take his application home, fill it out, and return it to the store later along with a rbsumb. When this applicant returned with the materials four days later, he indicated no sales experience whatsoever on his application. Neither applicant, in the end, was offered the job as assistant store manager. The store filled the position about a week later. The complaint against the store stemmed from the perception that the two testers were treated differently as they applied tor work. The ethical basis of antipathy to entrapment stems from the plain wrongfulness of an enforcement agency luring or cajoling a party to break a law where none would have been broken otherwise, and where the enforcement agency had no independent reason to suspect noncompliance with the law. While it is plain that the particular African-American tester sent in by the Massachusetts Commission Against Discrimination would not have been discriminated against had the commission not acted, it is not at all clear that the law would not have been broken in other cases. But neither is it clear that it would have. Indeed, since this particular case was settled out of court (as per the mandate under which the commission operates), it is not even clear that the law was broken in this case.2 But the claim of entrapment remains an interesting one in the abstract. Enforcement agencies are often charged with investigative activities that require some degree of deception. While all such deception might in principle be called into question on ethical grounds, it is not likely that all deception would be ruled out. Sometimes it is not only ethically Sometimes it is not acceptable but also morally obligatory to lie and deceive. only ethically acceptAn entrapment charge is, in any case, a special one. Where investigative practices cannot plausibly be construed as luring or cajoling, it seems likely that the entrapment charge would (and should) fail. testers merely place themselves in situations in which members of the public often find themselves and act in ways in which members of the public have a right to actor even, as in the case of advertised jobs, in ways in which members of the public are invited to act-they do not entrap. Although unethical entrapment is surely possible in such settings, it by no means follows that all usages of investigative testing are cases of entrapment. Because the Massachusetts Commission Against Discrimination expected, as of April 1993, that it would be expanding its testing practice sevenfold in 1994, it is likely that further legal and ethical able but also morally obligatory to lie Thus, where enforcement agency and deceive. Continued on next page 20 Vol. 3 I NO. 2 I 2/1994 0 1994 by University PuMiitim of America Investigative Testing Continued from previous page I exploration of this issue will be forthcoming. One may hope for clearer lines of distinction between acceptable and unacceptable practices. The charge of entrapment has relevance, though, only in cases brought to adjudication by legally constituted enforcement agencies and especially in cases where no independent reason exists to suspect an employer or employment agency of discriminatory activity. The two remaining cases that have reached some manner of resolution involve situations in which one or both of these conditions fail to be met and in which entrapment is therefore not the issue. I Private Antidiscrimination Agency A federal district judge in the District of Columbia addressed several important questions concerning the right of private corporate agencies to bring suit against an employment agency for violation of federal and local civil rights law. In June 1993 the judge issued a carefully detailed memorandum and order i n Fair Employment Council (FECI of Greater Washington , Inc. v. BMC Marketing Corpo- tio on.^ In this case, it is not easy to draw a sharp line dividing ethical from legal issues. The FEC is a nonprofit corporation whose principal goal is to promote equal employment opportunities for all members of the diverse work force in the greater Washington, D.C., area. Thus the FEC is not a legally constituted enforcement agency, and its activity is to be understood in accordance with its corporate interests. One primary element in these interests is, however, compliance with civil rights law on the part of employers and employment agencies. The FECI in the course of its attempts to check compliance with the law, sent two African-American testers to a local employment agency to seek referral to prospective employers. Later, the FEC sent two Caucasian testers. On the basis of a comparison of the treatment given to the four testers, the FEC and its African-American testers sued the agency for violation of civil rights. The defendants filed motions to dismiss the case on several grounds, among them that the plaintiffs had no legal right to sue. Present standards concerning who may bring suit in federal court include the following features: a litigant must show some actual or threatened injury'; the injury must be fairly capable of being traced to a challenged action; the injury must be likely to be redressed by a favorable decision5; the plaintiff must not assert a generalized grievance6; the plaintiff's interest must be within the zone of interests protected by the statute under which the claim is made'; and plaintiffs must assert their own claims, not those ofthird parties8 The employment agency argued that the claims should be dismissed o n the ground that the testers were not injured by the agency's activity since they were not really seeking jobs. The judge responded that the testers were injured because of the plain wording 0 1994by unnecjlhl pvbhcatlonsof Amsncs Vol. 3 I NO. 2 I a1994 21 of the statute under which they brought suit: It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment , or otherwise to discriminate against, a n y individual because of his race, color, religion, sex, or national rig in.^ The statute creates rights regarding nondiscriminatory referral for all persons, not just persons who are really seeking employment. The defendant cited an earlier case involving a plaintiff who sued an airline for placing newspaper advertisements seeking female (but not male) flight attendants . In that case, the fifth federal circuit ruled that, in order to have standing to file suit , a person "must be able to demonstrate that he has a real, present interest in the type of employment advertised ."l0 In response to this argument , the district judge observed that the fifth circuit case had been based on a different subsection of the law that did not contain the "every individual" wording of the subsection at issue here and that this difference in wording made a difference in who was empowered to sue under the two subsections. Moreover, the fifth circuit case involved advertisements, and the court had reason to-avoid empowering every casual reader of a discriminatory newspaper ad with the standing to sue the advertiser. The defense argued that in yet a different case, a district judge had decided that a "plaintiff whose primary purpose in interviewing for a job is to create the basis for a Title VI1 EEOC [Equal Employment Opportunity Commission] charge and lawsuit, is not a bona fide applicant for a job [and] that he must be to establish a prima facie case."" The BMC Marketing judge observed that that case was based on yet a third subsection of the law in question. That case invo lve d discriminatory hiring, while the subsection at issue in the present case specifically addresses discriminatory referral by employment agencies. While it is true that the FEC testers were not really seeking jobs, they were really seeking referrals. In being denied referrals, it may be that the FEC testers were denied something to which they had a right, namely, nondiscriminatory referrals. I n being denied Finally, the defendants argued that the FEC itself should not have referrals, it may be that the FEC testers been allowed to bring suit. An organization can have standing to it can show a "concrete and debring litigation in federal court if were denied something to which they had a right. monstrable injury to [its] activities ," rather than just "a setback to interests."12 The FEC argued that it sources to the investigation of the employment agency. The agency responded that the allocation of the organization's abstract social was forced to devote scarce reresources to investigative activities had occurred long before any of the alleged incidents had taken place. Thus it could not be argued that the FEC's allocation of scarce resources was caused by any activity of the employment agency. The court responded in two ways. First, it argued, on the basis of precedent,I3 that groups do suffer cognizable injury when they Continued on next page 22 Vol. 3 I NO. 2 I a1994 ~~ Thus it was at least possible that the FEC was required, because of the illegal actions of the employment agency, to reallocate resources. Investigative Testing Continued from previous page expend resources in order to identify discrimination. While this may be a correct citation of legal precedent, it does not seem particularly responsive to the argument of the defendants. Second, and much more plausible in the present case, the court observed that the defendants' arguments failed to take into account the second set of testers that the FEC decided to send in after the first tests were completed. It is at least possible that the second set of testers (the Caucasian testers) would not have been sent in had the first set been treated differently. Thus it was at least possible that the FEC was required, because of the illegal actions of the employment agency, to reallocate resources in its investigatory activities differently than it would have in other circumstances. As responses to dispositive motions , these arguments are strong ones. The questions concerning whether the agency actually did engage in discriminatory activity or otherwise violate anyone's rights remains, of course, to be seen. And whether equally strong rebuttal arguments can be made by the defendants also remains to be seen, since the federal circuit court for the District of Columbia has agreed to review the case on the issue of standing. Leg it i macy It would appear that claims of entrapment, in particular, lose their relevance in cases like this, where the party bringing the claim to court is not a legally constituted enforcement agency but rather a private individual or organization. The principal ethical issues that remain in such cases involve (1) the legitimacy of the suit as it relates to the standing of the claimants , as in the case just discussed, and (2) the legitimacy of the procedures used to pick out any particular employer or employment agency for investigation. In the case just discussed, the employment agency was able to claim that the FEC had no prior reason to suspect the employment agency of discriminatory activity. The agency just fell into the FEC's investigative net, as it were. If the federal district judge's orders on the dispositive motions are sustained , and if the litigation proceeds , this is bound to be an issue. The FEC has provided another example of litigation inspired by the investigative testing of employment -related businesses, and this one involves an importantly different modus operandi. In Fair Employment Council of Greater Washington v. Mol ovinski, l4 the FEC sent out testers in response to a genuine prior complaint. This case involved a complaint of sexual harassment and gender discrimination made against an agency in the business of providing lists of potential employers to job seekers. In this case, a woman actually seeking employment went to the defendant agency and was subjected to overt and covert offers of employment assistance in exchange for sex. She left and eventually brought the matter to the attention of the FEC. I Vol. 3 NO. 2 D 2/1994 El 23 The FEC sent in a total of four testers, two female and two male, all of whom were interviewed by the person who had interviewed the original complainant. The female testers were subjected to overtures and vocabulary consistent with what the complainant had reported. The male testers reported nothing similar. The FEC, just as in the other case, argued that its rights had been violated too, especially insofar as it had to reallocate resources to this investigation that could have been directed in other ways. This case has been resolved. A jury ordered the defendant to pay $27,000 in compensatory and punitive damages to the original complainant, $15,000 each to the two female testers for compensatory and punitive damages, and $22,000 to the FEC for compensatory damages. The defendant has appealed the verdict. Conclusion What emerges from these three cases in terms of legal precedent is not entirely clear, but the results make some sense from an ethical point of view. The only case to have reached resolution is, in most respects, the clearest one. Where claims are brought by private individuals and corporations , rather than by legally constituted enforcement agencies, questions of entrapment do not arise. Questions of standing to bring civil suit are legal matters and can expect legal resolution. So far, what resolution has been offered seems consistent with any ethical principle that may be applied. 1 Cases in which discrimination is ferreted out through no original complaint, but instead via the general investigative activities of some agency, are likely to be somewhat less persuasive from an ethical point of view than those in which the investigation comes in response to an independent complaint or series of complaints. In the former instance, but not the latter, defendants can plausibly complain that agencies were fishing for parties against whom to SO far, what r e s o h bring charges. The three 1993 cases discussed tion has been offered here merely set the stage for the huge number of cases that will Seems consistent with inevitably follow in the coming months and years. If anything is any ethical principle clear, it is that the ethical and legal challenges posed by the use of inthat may be applied. vestigative testing in employment discrimination cases will increase both in number and in subtlety. For now, it would appear that these techniques, if used with discipline , can offer an ethically acceptable tool for investigating and providing an evidentiary basis for preexisting cases, and, to a lesser extent, for the ferreting out of discriminatory practices in general. Endnotes 1. Mass-C MCAD v. Brooks Brothers, Inc., No. 92-BEM-1191, Probable Cause Finding, 27 November 1992. 2. The respondents agreed to make payments to a Massachusetts state trust for equal employment rights and to institute internal affirmative action and minority outreach programs. They admitted no wrongdoing. 3. Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Cop., Civil Action No. 91-0989 (NHJ) (D. D.C., 18 June 1993). Continued on page 35 Vol. 3 I NO. 2 I a1994 Fa 35 Investigative Testing Continued from page 23 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Valley Forge Christian College v. Americans United for Separation of Church 8, State, 454 U.S. 464,472 (1 982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)). These cites are taken from the district court decision of 18 June 1993, written by Judge Norma Holloway Johnson. VFCC v. AUSCS, ibid., quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38,41 (1 976). Warth v. Seldin, 422 US. 490,499 (1975). Gray v. Greyhound Lines, fast, 545 F.2d 169,175 (D.C. Cir. 1976). Sierra Club v. Morton, 405 U.S. 727, 735 (1 972). 42 U.S.C.A. 9 2000e-2(b) (West 1981), emphasis added by Judge Johnson in her order of 18 June 1993. Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972). Parr v. Woodmen of the World Life Insurance Society, 657 F. Supp. 1022 (M.D. Ga. 1987). Havens Realty Corp. v. Coleman, 455 US. 363,379 (1982). Ibid. Fair Employment Council of Greater Washington, Inc. v. Molovinsky, Civil Action No. 91-CA7202 (D.C. Super. Ct., 12 August 1993). This paper has profited from the commentary and suggestions of Victoria L. Varga. 5 J