Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs

Part I of this Article concludes that the current enforcement scheme under Title VII has resulted in underenforcement of the Act in the context of hiring for lower-skilled, entry-level jobs and that testers should be used to fill that enforcement void. Part II agrees with the EEOC’s conclusion that testers have standing to sue under Title VII.

Parts III and IV assert that the EEOC cannot rely on private testers to fill the enforcement void. First, under current doctrine, prevailing testers can obtain only “de minimis” or “technical” relief from an offending employer and therefore cannot recover attorneys’ fees. Moreover, opponents of testing may use state common-law causes of action and attorney disciplinary rules against testers and their counsel to deter the use of testers.

Parts V and VI conclude that the EEOC currently is not authorized to conduct its own testing program, but that the problems associated with the private use of testers would be solved if Congress amended Title VII to give the EEOC the power to use testers to uncover discrimination in hiring for lower-skilled, entry-level positions. State common law and statutory causes of action would be preempted, and Congress could limit the use of testers specifically to remedy discrimination in hiring for lower-skilled, entry-level positions where the benefits of testing outweigh its potential costs. The EEOC could issue rules and regulations prescribing the methods to be used for testing, including the employer-targeting process. Finally, the Article concludes in Part VII that testing by the EEOC would not constitute entrapment and would not upset the EEOC’s relationship with respondent employers or otherwise undermine the agency’s effectiveness.