Salvaging the Opportunity: A Response to Professor Clark

In this Article, Professor Yelnosky responds to Professor Clark’s critique of his previous article, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs. Professor Yelnosky first clarifies that Professor Clark has adopted several of the points Professor Yelnosky originally made in his earlier article. He then responds to the portions of Professor Clark’s article that challenge his prior conclusions. He builds on and defends his previous arguments that: (1) testing is best suited to uncover hiring discrimination for lower-skilled jobs; (2) disincentives to bringing tester lawsuits make it unwise to rely on private parties and organizations to use testers sufficiently; (3) the EEOC currently lacks the statutory authority to engage in or fund testing for employment discrimination; and (4) Congress should amend Title VII to expressly authorize EEOC participation in testing. Professor Yelnosky discusses the Fair Housing Initiatives Program (FHIPJ as a potential model statutory framework. FHIP authorized the United States Department of Housing and Urban Development to fund testing by private groups and individuals and has proven to be an effective and popular program for combatting housing discrimination.