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In an opinion that could have wide-ranging implications for employers, a federal appeals court here has ruled that “testers” posing as job applicants have standing to sue under the federal employment discrimination law even if they have no intention to accept the job they apply for. In reversing a lower court ruling, the 7th U.S. Circuit Court of Appeals said Wednesday that because two African-American college students were not interested in working for Guardian Security Services when they applied there in 1995 does not rule out that they were injured when they did not get past the initial interview. Kyra Kyles and Lolita Pierce were hired by the Legal Assistance Foundation of Chicago as employment testers to gather evidence of racial discrimination in hiring practices. They were 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 white testers were offered jobs. “The (Title VII) statute confers upon all individuals a right to be free from racial discriminatory practices in employment,” the opinion said. “If the plaintiffs’ allegations are true, then Guardian violated that right and the plaintiffs suffered an actual injury that gave them the right to sue, whether or not Kyles or Pierce were truly interested in employment.” Kyra Kyles and Lolita Pierce v. J.K. Guardian Security Services, Inc., d/b/a Guardian Security Services, No. 98-3652. Judge Ilana Diamond Rovner wrote the opinion, joined by Judges John L. Coffey and Kenneth F. Ripple. The ruling is important because it opens up to the employment arena the use of testers, persons posing as job applicants to gather evidence of discrimination. Both the U.S. Supreme Court and the 7th Circuit have ruled in other cases that the use of testers is lawful to show violations of the federal Fair Housing Act. Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S. Ct. 1114, 1121 (1982); Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7thCir. 1990). Douglas A. Darch and Cassandra Curry, of Seyfarth, Shaw, Fairweather & Geraldson, the attorneys who represented Guardian Security, were not immediately available for comment on the opinion. Guardian’s defense in the case was that the women had misrepresented themselves in applying for jobs at the company. Guardian sued Kyles and Pierce in Cook County Circuit Court alleging fraud, but that case was tossed out in April. Legal Assistance Foundation Executive Director Sheldon Roodman also was not immediately available for comment on the opinion. In the view of at least one attorney who handles employment cases, employers should take heed at the court’s ruling. “This does enable certain organizations to go forward with programs to use testers to ferret out racial discrimination,” said Burr Ridge, Ill., attorney Donald S. Rothschild, the immediate past chairman of the Illinois State Bar Association’s Labor and Employment Law section. “There may be a marked increase in the number of testers used by legal aid organizations and civil rights organizations. “For employers this is not a favorable development,” added Rothschild, of counsel at Goldstine, Skrodzki, Russian, Nemec & Hoff Ltd. “Some of the disparities due to size and resources will be leveled a bit because agencies like the LAF can take them on instead of it being a single individual.” The Legal Assistance Foundation and the two women filed suit against Guardian in 1997 under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, gender, national origin, and religious beliefs in the workplace; and Section 1981 of the Civil Rights Act of 1866, which prohibits discrimination based on race involving entering into public and private contracts. U.S. District Judge Suzanne B. Conlon, of the Northern District of Illinois, granted summary judgment in favor of Guardian in 1998 saying that since they had no genuine interest in working for Guardian, Kyles and Pierce had no standing to sue the company. But the court rejected the argument that the women could not sue under Title VII, saying instead that a tester’s standing was consistent with the intent of the statute to eliminate discrimination in the workplace. “Testers advance (the) public interest,” the opinion said. “Indeed, because proof of discrimination is often quite difficult to muster — especially so in the hiring process — testers provide evidence that, we have recognized, “is frequently valuable, if not indispensable.” Richardson v. Howard, 712 F.2d 319, 321 (7th Cir. 1983). The fact that testers have no interest in a job does not diminish the deterrent role they play by filing suit under Title VII.” The court, however, agreed with Conlon in that the women had no right to sue under Section 1981 because they had no intention of accepting a job at Guardian if one was offered, even though they may have suffered distress due to Guardian’s discrimination. “But in terms of the essential right that section 1981 protects — the right to make and enforce a contract — Kyles and Pierce suffered no injury,” the opinion said. “Their goal in approaching Guardian was not to enter into a contract with the company.”

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