Back in March 1991, Gale S. Molovinsky, head of the Executive Suite employment agency in Washington, D.C., welcomed Karen Baker into his office for a warm chat about her career. She couldn't afford his fee? No matter. Why not let him be her "sugar daddy," she recalled him saying.
Baker left, having heard enough. She was not the eager job seeker she seemed. She was a "tester," a college student hired by the Fair Employment Council of Greater Washington to check another woman's complaint of sexual harassment and discrimination by Molovinsky. When a male tester saw Molovinsky later and said he had not been mistreated, the council filed suit. Molovinsky denied the claims. The case ended in a mistrial but will be retried in 1993.
This may seem an underhanded way to catch wrongdoers, but this form of organized deceit has become an increasingly popular legal weapon against bias of many kinds. Civil-rights leaders who once organized marches and lobbied Congress now train and dispatch testers in hopes of obtaining evidence of misconduct that ususally takes place without witnesses present and without documentary evidence.
Testers have been around since the beginning of the civil-rights movement. In 1958, the U.S. Supreme Court gave initial approval to the principle of using testers in a Memphis, Tenn., bus-seating case. In 1977 and again in 1989, the U.S. Department of Housing and Urban Development unleashed hundreds of testers, who found housing discrimination throughout the country against both blacks and Hispanics.
Now the urge to gauge the most subtle forms of discrimination has led lawyers and social scientists to experiment with testers posing as job applicants, taxi customers, health enthusiasts, credit applicants and virtually any other role where bias might intrude. In 1988, the Washington Lawyers' Committee for Civil Rights Under Law had testers hail cabs in the nation's capital and found that blacks were almost nine times as likely as whites to be passed by. In a 1989 HUD-sponsored study of 3,800 realty offices in 25 cities, Syracuse University and the Urban Institute discovered that 58.9 percent of black home buyers, 55.9 percent of Hispanic home buyers, 53.3 percent of black renters and 46.1 percent of Hispanic renters suffer some incidence of discrimination. Earlier this year the Fair Employment Council of Greater Washington conducted 468 tests of telephone and mail job applications, with each Hispanic applicant matched with a non-Hispanic white with a slightly weaker resume. The Hispanics encountered discrimination 22.4 percent of the time.
Phyllis Spiro, deputy director of New York's Open Housing Center and a tester since 1963, fondly remembers the old days when complainants and testers would return to confront the landlords. This often produced shouting, and sometimes scuffles over the lease papers, a key piece of evidence. Today testers are told to leave quietly and write a report for their sponsors.
"I remind testers to be observant," says Cherina Champlain, a trainer for the center. "I tell them not to think there is a sign on their forehead saying they are testers, and to take it all seriously." Spiro warns that landlords are as discriminatory as ever, but "less blatant" and full of deceivingly soft words and good manners.
Kevin Grant, a 29-year-old Long Island, N.Y., dentist, testified as a tester in court this year against a Brooklyn landlady who had shown him a $550-a-month apartment. He said she had assured him he wouldn't have any trouble in the neighborhood "because you're so light-skinned," but she warned that local youths might trash his car. According to Grant, she also said she already had a $400 deposit from another prospective tenant. A white tester arrived later and said he was quickly offered the apartment, no vandalism threats or previous applicants mentioned.
The case was settled, as are most tester-backed suits, in favor of the complainant, who split $50,000 in damages with the Open Housing Center. The landlady also agreed to offer some leases to people on the center's long list of blacks looking for good housing.
Joseph Sellers of the Washington Lawyers' Committee says he hadn't realized how far the tester idea had traveled until he discovered that Holiday Spas, a health-club chain, had hired blacks and whites to test its own membership-application process. Sellers said the chain "wanted to be sure their discriminatory policies against blacks were still in force." The committee sued, and the chain agreed to pay $9.5 million in damages and do away with the practice.
Critics say the method, even when used with the best intentions, is time-wasting and legally flawed, because the students hired as $8-an-hour testers do not actually want the job or service they seek. What's more, the testers themselves may be guilty of a form of bias. Testers are so eager to sniff out prejudice, Washington attorneys Robert E. Williams and Douglas S. McDowell argued in a recent employment-agency-discrimination case, that they are "sufficiently motivated to fabricate their credentials, misrepresent their status to prospective employers and then sue those employers for compensatory and punitive damages." Those reasons and a fear that testing might appear to involve entrapment led the Federal Reserve Board to reject plans for a national mortgage-discrimination testing program last year.
Controversy over police stings and undercover drug busts has raised the issue of entrapment, but tester advocates say they are doing exactly the opposite. "Our testers are not in any way encouraging employers to behave illegally," said labor economist Marc Bendick. "We are encouraging them to behave legally."