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A federal jury in Chicago on Sept. 15 refused to believe that two paid African-American “testers” posing as job applicants were discriminated against by Chicago’s Guardian Security Services when the two were passed over for receptionist positions in favor of white applicants. Kyra Kyles and Lolita Pierce v. J.K. Guardian Security Services, Inc., d/b/a Guardian Security Services, No. 97C8311. Nevertheless, the nationally watched case will likely be long remembered as having earlier set an important precedent allowing other such lawsuits brought by so-called “testers” to be decided by a jury. Indeed, it was just this June that the 7th U.S. Circuit Court of Appeals ruled that the plaintiffs could pursue a discrimination claim under Title VII of the Civil Rights Act, even though the pair had no intention of taking a job at Guardian should one be offered. It should not matter under Title VII whether or not the testers were “truly interested in employment,” Judge Ilana Diamond Rovner opined on behalf of a unanimous three-judge panel. If the black testers’ allegations are true, she concluded, then Guardian violated their federally protected right to employment and “the plaintiffs suffered an actual injury that gave them the right to sue.” Both the U.S. Supreme Court and the federal appeals court in Chicago have ruled in other cases that the use of testers was lawful to show violations of the federal Fair Housing Act. But Kyles was the first time the use of testers was decided in an employment case. Still, despite this major victory before the appeals court, the jurors in U.S. District Judge Suzanne B. Conlon’s courtroom never saw Guardian’s hiring practices in the same light as the complaining black testers. According to the lawsuit, the Legal Assistance Foundation of Chicago hired the plaintiffs, Kyra Kyles and Lolita Pierce, in 1995 as employment testers solely for the purpose of gathering evidence of racial discrimination in hiring practices. The two were allegedly paired with white testers when applying for a secretarial position at Guardian. Although neither Kyles nor Pierce made it past the initial interview process, the lawsuit maintains, the white testers did and, in fact, were offered jobs. In 1998, Conlon granted summary judgment in favor of Guardian. But the federal appeals court decision reversed that ruling and remanded the case for trial. In a prepared statement, Douglas Darch, an attorney for Guardian and a partner in Chicago’s Seyfarth, Shaw, Fairweather & Geraldson, said that the verdict “sends a clear message that claims of discrimination will need more than just the fact that African-Americans did not receive job offers.” Added Beth Golub, another Seyfarth Shaw partner: “The verdict calls into question the legitimacy of discrimination testing and the underlying assumption that fictitious job applicants can be trained to behave exactly alike in an interview situation.” Timothy Huizenga, an attorney with the foundation who represented the plaintiffs at trial, conceded on Tuesday that the lack of a plaintiff who was actually deprived of a job due to discrimination might have played into the jury’s decision. Huizenga also speculated that the jury might have been influenced by the defense telling them during the trial that other African-Americans had been hired as security guards, and that Hispanics had worked for the firm. “They may [also] have felt that Guardian was at a disadvantage because the people involved in the hiring had forgotten about the testers,” Huizenga added. Still, cautioned Huizenga: “Another jury may not feel that way. We can’t read too much significance into one jury verdict.” Nor will the plaintiffs’ legal team be able to ask the jurors what went wrong with their case thanks to a Conlon order forbidding either side’s attorneys from talking with the jurors after the trial ended. Still, Huizenga had much to be consoled about. He said the win on appeal was much more significant than any verdict the jury could have given. “It opened the door to allow testers to bring lawsuits and will have much more significance for employment hiring” in the future, Huizenga concluded. “It will be a springboard for other civil rights testers.”

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