Few heads turned last year when the Equal Employment Opportunity Commission quietly launched a pilot program to ferret out hiring discrimination by using “spies.”
Under the program, non-profit groups in Chicago and Washington, D.C. were selected to discreetly send “testers”–people with similar qualifications but of different races or sexes–to apply for the same position at random companies in an effort to look for hiring bias.
Though it was a small step, costing just $200,000 out of the agency’s $242 million budget, the initiative has put the EEOC on a collision course with powerful congressional Republicans who want the program ended.
The dispute, ratcheted up in recent months by signs the White House is determined to preserve the testers program, now threatens to engulf the agency’s budget for next year in a pitched policy battle.
At issue is the EEOC’s effort to adapt a technique commonly used to uncover housing bias to the murky realm of hiring, where civil rights activists believe much discrimination occurs but where evidence is often hard to come by.
The value of using testers for hiring is similar to using them for housing: Without any background from dealing with a company, whether an employer or a landlord, it is difficult for an individual to know whether bias is to blame for adverse outcomes.
The outcome of the pilot program could reveal whether hiring bias is widespread, and whether further testing is warranted. Both the EEOC and the Employment Discrimination Project of the Legal Assistance Foundation, the Chicago group selected to administer the program, refused to give any details about the status or results of the tests.
“This is really a learning process for us,” said Diana Johnston, an assistant legal counsel who oversees the program at the EEOC.
Lawyers representing both employers and labor generally agree that hiring discrimination is a nebulous area of employment law, and that such cases are among the most difficult to prove.
For instance, though employers can’t reject an applicant on the basis of race or sex, it is assumed they can discriminate on the basis of, say, grammatical skills.
“No two people are identical,” said Daniel Kinsella, an attorney who represents employers for Chicago law firm Burditt & Radzius, describing why proving illegal discrimination can be difficult.
Kinsella said there are also high legal hurdles to clear. “(A plaintiff has) to eliminate all other explanations” for the disparity, he noted.
The culture of job-seeking is also a problem, lawyers said. Job applicants tend to see rejection as part of the employment process and often don’t know when bias prevents them from getting work. When they suspect discrimination, they don’t necessarily see a strong case.
“People don’t bring these cases, for the most part, because if they don’t have smoking-gun proof, they don’t think they’ve got anything there,” L. Steven Platt, an attorney with Arnold & Kadjan in Chicago who represents employees in job discrimination suits.
EEOC figures show discrimination in hiring accounts for about 8 percent of the complaints filed annually with the agency, which in a typical year receives anywhere from 65,000 to 100,000 complaints of employment-related discrimination. The balance of complaints tends to fall into either of two categories: unreasonable terms and conditions of employment, and wrongful job termination.
Republican lawmakers contend the agency should not be using testers to hunt for wrongdoing while an enormous backlog remains of unresolved cases–about 65,000.
“It would obviously be better for them to get their house in order in terms of the complaints they already have,” said Rep. Harris Fawell (R-Ill.), chairman of the House subcommittee that oversees the agency.
In an April letter to the agency, Fawell, joined by House Speaker Newt Gingrich and Education and Workforce Committee Chairman Bill Goodling (R-Pa.), demanded that six changes be made by the EEOC–including ending the testers program.
In return, the leaders said they would back an additional $37 million the commission said it needs, mainly for new personnel.
The agency agreed to five of the conditions. “The one condition we’re still trying to work out is testing,” acting EEOC Chairman Paul Igasaki said in an interview.
Igasaki pointed out that the agency, which expects a report from the non-profit groups conducting the tester program as early as September, has not requested funding for the program in the next fiscal year, which begins Oct. 1.
And he said the agency now has no plans to continue testing after the trial period. But he added, “Whether we do anything more” will depend on the outcome of the pilot program.
Critics want specific assurances that it won’t be resumed. They note that the pilot program, which began last September, was undertaken even though it wasn’t included in the last EEOC budget.
