Enforcement Guidance: Whether "testers" can file charges and litigate claims of employment discrimination

EEOC NOTICE
Number 915.002
Date 5-22-96



1.     SUBJECT: Enforcement Guidance:  Whether "testers" can 
file charges and litigate claims of employment discrimination. 1 

2.     PURPOSE: To set forth the Commission's position that 
testers and organizations that send testers to respondents may 
file charges and litigate their claims.

3.     EFFECTIVE DATE: Upon issuance.

4.     EXPIRATION DATE: As an exception to EEOC Order 
205.001, Appendix B, Attachment 4, § a(5), this Notice will 
remain in effect until rescinded or superseded.

5.     ORIGINATOR: Title VII/EPA Division, Office of Legal 
Counsel.

6.     INSTRUCTIONS: File after § 605 of Volume II of 
the Compliance Manual.

7.     SUBJECT MATTER:


I.  Introduction

     This document reiterates the Commission's view that testers 
(persons who apply for employment for the purpose of testing for 
discriminatory hiring practices, but do not intend to accept such 
employment), and the organizations that send testers to 
respondents, may challenge any discrimination to which they were 
subjected while conducting the tests.  The document describes the 
legal developments that have occurred since the issuance of the 
1990 document on tester standing and discusses their impact on 
the issue.  

     The discussion focuses on Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e et seq., because employment 
testing to date has focused on race.   However, the analysis 
applies to any basis covered by Title VII as well as to the 
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et 
seq., which incorporates Title VII procedures and the Age 
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 
621 et seq., whose language is, in relevant part, virtually 
identical to that of Title VII. 2 

II.     Definition and Function of "Testers"


     Testers are individuals who apply for employment which they 
do not intend to accept, for the sole purpose of uncovering 
unlawful discriminatory hiring practices.  Testers are matched to 
appear equally qualified with respect to their employment 
histories, educational backgrounds, references, and other 
relevant factors.  The basis being tested, e.g., race, national 
origin, disability etc.,3 should be the only significant 
difference between the testers.  

     Matched testers apply for the same job[s] and their 
treatment is compared at each stage of the application and 
selection process.  In other words, the comparison is not limited 
to whether the testers were ultimately offered jobs.  It also 
includes whether, for example, each tester was given the same 
information about job availability or length of time before a 
selection decision would be made; whether interviews of the 
testers were comparable in duration and content; and how far in 
the hiring process each tester progressed. 4  If the testers are 
properly matched, unequal treatment of them will evidence 
discrimination.  

     Several sets of testers may be sent to the same employment 
provider to establish a pattern of discriminatory treatment and 
to assure that the different treatment was not an individual 
"fluke," oversight, or personality conflict. 5  Similarly, 
testers will make follow-up calls to receive updated information 
about the status of the vacancy to assure that discrimination is 
the likely explanation for any different treatment.  For example, 
a phone call could verify that a vacancy continued to exist after 
a Black applicant was told that the job had been filled. 

III.     "Testers" Have Standing To Enforce Civil Rights Laws

       A. Individual Testers

     The Commission concludes that individual testers who were 
subjected to employment discrimination have standing to seek both 
monetary and appropriate injunctive relief.  This conclusion is 
based on a considerable body of law addressing tester standing in 
a variety of contexts, on statutory construction and on sound 
enforcement policy. 

     1. Standing Is Broad Under Civil Rights Laws


     Standing is generally interpreted broadly under employment 
discrimination laws to achieve the statutory goal of equal 
employment opportunity.  Hackett v. McGuire Bros., Inc., 445 F.2d 
442, 3 EPD Par. 8,276 (3d Cir. 1971)("[t]he national public 
policy reflected . . . in Title VII . . . may not be frustrated 
by the development of overly technical judicial doctrines of 
standing or election of remedies"). 6  Cf. McKennon v. Nashville 
Banner Publishing Co., 115 S.Ct. 879, 885, 65 EPD Par. 43,368 
(1995) (regarding the ADEA: "[t]he disclosure through litigation 
of incidents or practices which violate national policies 
respecting nondiscrimination in the work force is itself 
important, for the occurrence of violations may disclose patterns 
of noncompliance resulting from a misappreciation of the Act's 
operation or entrenched resistance to its commands, either of 
which can be of industry wide significance").
  
     The civil rights movement has a long history of using 
testers to uncover and illustrate discrimination.  In Pierson v. 
Ray, 386 U.S. 547 (1967), the Supreme Court held that a group of 
Black clergymen who were removed from a segregated bus terminal 
in Jackson, Mississippi, had standing to seek redress under 42 
U.S.C. § 1983.  The Court ruled that plaintiffs had been 
discriminated against by being ejected from the terminal, despite 
the fact that the plaintiffs' sole purpose was to test the law 
rather than to actually use the terminal.  Similarly, in Evers v. 
Dwyer, 358 U.S. 202 (1958), the Supreme Court recognized the 
standing of a Black plaintiff who sat in the White section of a 
Memphis bus and was removed from the bus by local authorities.  
The plaintiff had never before ridden a bus in Memphis and had 
done so solely for the purpose of testing the legality of the 
state's segregation laws. 

     Testers have most frequently been used to detect housing 
discrimination.  More than a decade ago, the Supreme Court held 
that a tester who was given inaccurate or incomplete information 
with respect to available housing had standing to sue the realtor 
under Section 804 of Title VIII of the Civil Rights Act of 1968, 
42 U.S.C. § 3604 et seq. 7  Havens Realty Corp. v. Coleman, 
455 U.S. 363, 374 (1982).  The Havens Court relied on Trafficante 
v. Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972), in 
which the Court unanimously concluded that the term "person 
aggrieved" should be interpreted broadly where: 1) actions 
brought by private persons are the primary method of obtaining 
compliance with the statute; 2) the statutory language indicates 
a congressional intent to construe standing as broadly and 
inclusively as allowed by Article III of the Constitution; 3) the 
legislative history of the statute indicates a congressional 
intent to broadly construe standing; and/or 4) the governmental 
agency charged with enforcing the statute broadly construes 
standing. 409 U.S. at 209-211. 8  


     The Havens Court concluded that, in enacting section 804(d), 
Congress "conferred on all 'persons' a legal right to truthful 
information about available housing," regardless of race, color, 
religion, sex, or national origin.  455 U.S. at 373.9  Accord 
Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), cert. denied, 
115 S. Ct. 205 (1994); United States v. Balistrieri, 981 F.2d 916 
(7th Cir. 1992), cert. denied, 114 S. Ct. 58 (1993);  Village of 
Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir. 1990); Watts v. Boyd 
Properties, Inc., 758 F.2d 1482, 1485 (11th Cir. 1985); Village 
of Bellwood v. Gorey & Associates, 664 F. Supp. 320 (N.D. Ill. 
1987).10 

     2.     Title VII Language Similar to Housing Discrimination 
Statutes
 
     Significantly, the language relied upon by the courts to 
find standing under Title VIII is paralleled in Title VII.  As 
the Ninth Circuit observed, the purpose and structure of Titles 
VII and VIII are "functionally identical." Waters  v. Heublein, 
Inc., 547 F.2d 466, 469, 12 EPD Par. 11,238  (1976), cert. 
denied,  433 U.S. 915, 14 EPD Par. 7,635 (1977). 11  Like Section 
810(a) of Title VIII, which authorizes suit by "person[s] 
aggrieved,"12 Section 706(b) of Title VII, 42 U.S.C § 2000e-
5(b), authorizes the Commission to accept charges of employment 
discrimination "filed by or on behalf of a person claiming to be 
aggrieved." 13  Indeed, the Supreme Court's holding in 
Trafficante, 409 U.S. 205, 209 (1972), that Title VIII's "person 
aggrieved" language conferred "standing as broad[] as is 
permitted by Article III of the Constitution,'" was based on a 
Title VII case, Hackett, 445 F.2d 442.   As the Sixth Circuit 
observed: "[t]he fact that Trafficante . . . approved the 
reasoning of this Title VII case further demonstrates that on 
this issue of standing the Supreme Court does not conceive Titles 
VII and VIII to be different . . . ."  EEOC v. Bailey Co., Inc., 
563 F.2d 439, 453, 15 EPD Par. 7,840 (6th Cir. 1977), cert. 
denied, 435 U.S. 915, 16 EPD Par. 8,148 (1978).

     Similarly, the discrimination prohibitions set forth in 
sections 703 of Title VII and 804 of Title VIII are comparable. 
14  Like an applicant for housing, an applicant for employment 
has a statutory right to be referred and selected without regard 
to  race, color, religion, sex, or national origin, even if the 
applicant does not intend to accept the position.  The injury is 
disparate treatment based on race, color, religion, sex, or 
national origin, rather than the loss of employment or housing.    


     3.     Employment Testers Are Private Attorneys General


     Although the issue of employment tester standing has not 
often been the subject of litigation, standing to function as 
Title VII testers was recognized as long as twenty-five years 
ago.  Lea v. Cone Mills Corp., 301 F. Supp. 97, 2 EPD Par. 10,052 
(M.D.N.C. 1969), aff'd in relevant part, 438 F.2d 86, 3 EPD Par. 
8,102 (4th Cir. 1971).  The plaintiffs were Black women who were 
organized to apply for positions with employers who were reputed 
not to hire Black women.  The plaintiffs expected to be rejected 
and intended to file charges against those who illegally 
discriminated against them.  The court concluded that the 
plaintiffs' primary motive was to test for discrimination, but 
did not determine whether any of the plaintiffs would have 
accepted a position, if offered, at the time that they applied.  
The court held that the plaintiffs' Title VII rights had been 
violated, whether or not they intended to accept the jobs,15 
because they had not been considered for employment due to their 
race and sex. 16

     The Commission agrees that individual testers have broad 
standing to challenge discrimination to which they were subjected 
and disagrees with the limitations on standing expressed in Fair 
Employment Council of Greater Washington, Inc. v. BMC Marketing 
Corporation, 28 F.3d 1268 (D.C. Cir. 1994)("FEC"). 17  The court 
there ruled that the individual Black testers lacked standing to 
challenge an employment agency's allegedly discriminatory refusal 
to refer them for jobs on the ground that they could not 
demonstrate likelihood of future injury. 18  The court 
distinguished the Supreme Court's holding, in Havens, that 
housing testers had standing under 42 U.S.C. § 1982 on the 
ground that, unlike § 1982, damages were not available under 
Title VII. 19  Of course, since damages are now available under 
Title VII and the ADA, the court's rationale means that testers 
seeking damages under those statutes for discriminatory conduct 
which occurred after November 21, 1991, would not be barred.

     However, in ruling that individual testers lack standing to 
obtain injunctive relief unless they allege likely future harm, 
the FEC court overlooked several important factors.  Namely, 1) 
the statutory language contradicts that interpretation; 2) the 
individual testers have suffered very real injury and, 3) such 
construction undermines the fundamental precept that individual 
plaintiffs serve as private attorneys general.


     First, on its face, Title VII permits a court to award an 
injunction based on past discrimination without requiring the 
plaintiff to make a separate showing of likely future harm.  
Section 706(g) of Title VII grants authority to impose injunctive 
relief whenever "the Respondent has intentionally engaged in or 
is intentionally engaging in an unlawful employment practice," 
indicating that injunctions are appropriate even where the 
discrimination occurred in the past. 42 U.S.C. § 2000e-5(g) 
(emphasis added).  Though not mandatory, injunctions for prior 
discrimination can be issued and are particularly appropriate 
where a pattern or practice of discrimination is proven and the 
discrimination is likely to continue.  Tester evidence by its 
nature tends to show a pattern or practice of discrimination. 20

     Second, plaintiff testers are entitled to relief because 
they are individual victims of discrimination.  Justice White has 
observed that "any discrimination in employment based upon sexual 
or racial characteristics aggrieves an employee or an applicant 
for employment having such characteristics by stigmatization and 
explicit or implicit application of a badge of inferiority . . . 
."  Sosna v. Iowa, 419 U.S. 393, 413 n.1 (1975) (dissenting from 
the Court's holding that a class challenge to a residency 
requirement could survive even though the issue was moot as to 
the named plaintiff and distinguishing Title VII).  "Congress 
gave [persons aggrieved by employment discrimination] standing by 
statute to continue an attack upon such discrimination even 
though they fail to establish particular injury to themselves in 
being denied employment unlawfully." Ibid. (emphasis added).

     Third, to deny injunctive relief to individuals who prove 
that they were victims of a pattern of discrimination undermines 
congressional intent to deter discrimination by permitting 
individuals to function as private attorneys general.  See Lea v. 
Cone Mills, 438 F.2d at 88 (if a "[tester] obtains an injunction, 
he does so not for himself alone but also as a 'private attorney 
general,' vindicating a policy that Congress considered of the 
highest priority"), citing Newman v. Piggie Park Enterprises, 
Inc., 390 U.S. 400 (1968); 21  Briscoe v. Fred's Dollar Store, 24 
F.3d 1026, 1029 (8th Cir. 1994) (even though the individual 
plaintiff was denied reinstatement and would not benefit from it, 
a permanent injunction was imposed because the evidence revealed 
the employer's "consistent practice" of discrimination against 
Black employees); EEOC v. Corinth, Inc., 824 F. Supp. 1302, 1312 
(N.D. Ill. 1993) (injunction issued because there was evidence of 
a pattern of discrimination against pregnant employees, even 
though the named plaintiff was not reinstated and would not 
benefit from the injunction). 22



     B.  Organizations Sponsoring Testers


     An organization that uses testers to identify a pattern or 
practice of discrimination by employers and employment agencies 
has standing to file charges on behalf of the testers.  
Furthermore, an organization that sponsors testers has standing 
on its own behalf if it can demonstrate a perceptible injury to 
its activities which is fairly traceable to the alleged illegal 
action.

     The D.C. Circuit, for example, held that the Fair Employment 
Council, which sent testers to the defendant's employment agency 
(BMC) to test for discriminatory job referrals, had standing to 
contest the damage to the organization caused by BMC's alleged 
discrimination.  The court ruled that organizations sponsoring 
testers have a cause of action under Title VII to the extent that 
alleged discrimination has "perceptibly impaired" the 
organization's programs. 23  According to the court, the 
organization must demonstrate that the defendant's conduct caused 
it "injury in its own right" by draining its resources in order 
to counteract the unlawful employment practices.  28 F.3d at 
1277.  The court stated that the FEC's "standing stems from BMC's 
actions against bona fide employment candidates, not from BMC's 
actions against the testers," because any drain on the Council's 
resources flows from BMC's refusal to refer genuine job-seekers 
for employment. Id.   BMC's treatment of the testers provided 
evidence of a pattern or practice of discrimination by BMC.   
     
IV.  Remedies

     As a matter of statutory construction, testers who are 
subjected to unlawful employment practices may be entitled to 
compensatory and punitive damages pursuant to the Civil Rights 
Act of 1991, 42 U.S.C. § 1981a (1994).  
 

     Compensatory and/or punitive damages have been awarded to 
testers in housing discrimination cases where the tester 
demonstrated that s/he suffered humiliation and degradation as a 
result of the discriminatory treatment and/or that the defendant 
acted with reckless disregard of federally protected rights.  See 
Saunders v. General Serv. Corp., 659 F. Supp. 1042, 1061 (E.D. 
Va. 1987)(compensatory damages award of $2,500 to tester was 
appropriate); Davis v. Mansards, Inc., 597 F. Supp. 334, 347 
(N.D. Ind. 1984)(awarding $5,000 and $2,500 to testers for 
emotional distress caused by discriminatory rejection of housing 
application).  One court has suggested that, because testers are 
"investigators," they are less likely than the bona fide home or 
job seeker to feel humiliated by discrimination.  United States 
v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992).  Nevertheless, 
the court concluded that the jury was "in the best position to 
evaluate both the humiliation inherent in the circumstances and 
the witness's explanation of his injury." Id. at 933.  
Accordingly, in that case, the court upheld a $2,000 award made 
to each of the testers. Id.

     Compensatory and/or punitive damages have also been awarded 
to the civil rights organizations that sponsored the housing 
testers.  The compensatory damages were based on diversion of the 
organizations' resources and frustration of their missions.  See, 
e.g., Chicago v. Matchmaker Real Estate Sales Center, Inc., U.S. 
Dist. LEXIS 4435 (N.D. Ill. April 5, 1991), aff'd in relevant 
part and rev'd in part, 982 F.2d 1086 (7th Cir. 1992), cert. 
denied sub nom. Ernst v. Leadership Council, __ U.S. __, 113 S.Ct 
2961 (1993); Saunders v. General Serv. Corp., 659 F. Supp. at 
1061; Davis v. Mansards, Inc., 597 F. Supp. at 347-48.  See also 
United States v. Balistrieri, 981 F.2d at 933.  

     The rationale applied in those cases applies equally in the 
employment context.  An organization that sends out employment 
testers may establish eligibility for damages by showing that it 
diverted resources from other programs in order to identify and 
counteract the defendant's unlawful employment practices.  A 
state court jury recently awarded compensatory and punitive 
damages in an EEO tester case brought under the District of 
Columbia's Human Rights Act.  The female testers, sent by the 
FEC, and a bona fide applicant had encountered sex discrimination 
upon seeking the services of the defendant employment agency.  
The jury awarded $79,000 in compensatory and punitive damages to 
the FEC, its testers, and the bona fide applicant.  Fair 
Employment Council et al. v. Molovinsky, Civil Action No. 91-7202 
(Sup. Ct. D.C. Aug. 12, 1993) (discussed at 155 DLR A-15 (Aug. 
13, 1993)). See also 1 Merrick T. Rossein, Employment 
Discrimination Law and Litigation, §§ 15.4(6), 19.8(1) 
(1990)(discussing availability of damages for testers).

     Whether it is appropriate to seek compensatory and/or 
punitive damages during conciliation must be decided case by 
case.  For further guidance on evaluating compensatory and 
punitive damages, see EEOC Enforcement Guidance: "Compensatory 
and Punitive Damages Available Under § 102 of the Civil 
Rights Act of 1991," July 7, 1992.

     Testers may also be entitled to injunctive relief24 and 
attorney's fees.  Testers are not, however, entitled to 
reinstatement or back pay because they did not intend to take the 
jobs.  The goal of the federal employment discrimination statutes 
is to try to put the plaintiff in the same position s/he would 
have been in absent the discrimination.25



V. Charge Processing

     A.     Charges filed by individual testers

          1.     Accept charge from the tester(s) aggrieved by 
the discrimination. 

          2.      At intake, obtain sworn statement from both the 
aggrieved and the non-aggrieved tester(s) who serve as 
comparator(s).  If the comparator(s) are not present at intake, 
obtain their names, addresses, and phone numbers and contact them 
as promptly as possible to obtain sworn statements.  The 
comparator(s) are not charging parties, but are witnesses to the 
discriminatory conduct. 

          3.     Obtain any contemporaneous notes made by the 
testers during or immediately after the testing  occurred.

          4.     Determine the scope of the investigation -- Was 
a specific job or a wider class of jobs tested?

          5.     Review applications of persons hired and 
rejected for the relevant jobs and time frame and compare 
qualifications.  This review may result in the identification of 
actual victims of hiring discrimination.

          6.     Investigate as you would any disparate treatment 
case, See CM sections 604.3 through 604.6. 26

          7.     Carefully evaluate the respondent's articulated 
explanation for the possibility of pretext, focusing on whether 
each pair of testers was successfully matched so as to be 
"similarly situated."  For example, if the respondent asserts 
that Tester A seemed more ambitious and therefore was more 
impressive in the job interview than Tester B, determine whether 
an effort was made to match the two testers in terms of their 
demeanor.  Also, look at the interviewer's notes to determine if 
a notation was made as to Tester A's alleged ambition or Tester 
B's alleged lack of ambition.  Review other applicant's files to 
determine whether minority applicants were subjected to different 
standards and whether "ambition" was a determinative standard.


          8.     Tester evidence typically constitutes evidence 
of a pattern or practice of discrimination and, as such, should 
be evaluated for possible systemic processing and a 
Commissioner's charge or, in an ADEA case, a directed 
investigation.  Analyze statistical data regarding disparities 
between minority representation in the qualified available labor 
market and in the job in question.

     B.     Charges filed by organizations

          1.     If organization seeks to file a charge on its 
own behalf, determine whether it meets appropriate criteria 
(i.e., did it use resources to counteract respondent's allegedly 
unlawful employment practices).  If organization seeks to file 
"on behalf of" the testers, the procedures in 29 C.F.R. § 
1601.7 should be followed.

          2.     Obtain identifying information about both the 
aggrieved tester(s) and the comparator(s).

          3.     Inquire whether the organization "debriefed" the 
testers after the testing situation.  Obtain debriefing documents 
and other evidence held by the organization.

          4.     Investigate as usual.  See A.6 and A.7 above.

          5.     As noted at A.8 above, evaluate for systemic 
processing and Commissioner's charge or directed investigation.

     C.     Remedies

          1.     Injunctive relief should be sought.

          2.     Attorney's fees are available during 
conciliation.

          3.     Because they did not actually intend to take the 
job, reinstatement or back pay are not appropriate remedies for 
the testers.  

          4.     For the reason set forth in #3, immediately 
above, compensation for costs associated with not getting the job 
also is not available.

          5.     Other monetary damages for the testers and for 
the organization may be sought if warranted.  Non-pecuniary 
compensatory and punitive damages may be available.




Date: 5-22-96            Approved: Gilbert Casellas
                                   Chairman

1.     1  This Enforcement Guidance supersedes Policy Guidance 
No. 915-062, issued on November 20, 1990, entitled: "Whether 
'Testers' have standing to file charges of employment 
discrimination against employers, employment agencies and/or 
labor organizations which have discriminated against them because 
of their race, color, religion or national origin."     

2.     Compare Section 7(c)(1) of the ADEA with Section 706(b) of 
Title VII.

3.     Since, as noted above, most discrimination testing has 
focused on race -- and for the sake of editorial convenience --  
references in this document will generally be to Black and White 
testers. Of course, the theories discussed in this document are 
equally applicable to testers challenging discrimination on the 
basis of color, religion, sex, national origin, age, or 
disability. 

4.     Federal and state governmental agencies are also 
increasingly using testing as an enforcement technique to detect 
discrimination in employment, housing, and mortgage lending.  For 
example, the Office of Federal Compliance Programs recently 
announced that it has begun a pilot tester program.  Employment 
Discrimination Report (BNA) at 142-43 (Feb. 7, 1996).  See also 
Massachusetts Agency Settles Job Tester Cases, 177 Daily Lab. 
Rep. A-18 (1993) (Massachusetts Commission Against Discrimination 
settled with two clothing stores after testers hired by agency 
reported that White applicants were informed of hiring
opportunities while Black applicants with the  same 
qualifications were told that no positions were available); 
Justice 'Sting' Finds Housing Discrimination, Wash. Post, June 
22, 1993, at A-6 (Department of Justice obtained the largest 
civil penalty ever in housing discrimination case -- $350,000 -- 
after undercover testing showed that two apartment complex owners 
in Detroit refused to rent to Blacks; program has produced five 
other complaints in Detroit area and testing project will now be 
expanded to approximately six cities); U.S. to Use Agents to 
Detect Mortgage Bias, N.Y. Times, May 6, 1993, at D1 (government 
to use undercover agents to test whether mortgage lenders are 
illegally discriminating among borrowers).

5.     While tester pairs in the housing area need only show that 
they are qualified to pay for the housing, employment tester 
pairs have the more complicated assignment of appearing qualified 
for the particular jobs.

6.     See also  Murphy v. Derwinski, 990 F.2d 540, 543-44, 61 
EPD Par. 42,231 (10th Cir. 1993)(female has right to challenge a 
gender-based barrier to consideration for employment, even though 
removing the barrier may not result in her being employed); EEOC  
v. Mississippi College, 626 F.2d 477, 482, 24 EPD Par. 31,268 
(5th Cir. 1980)(White faculty member granted standing to 
challenge discriminatory hiring practices against Blacks), cert. 
denied, 453 U.S. 912, 26 EPD Par. 31,901 (1981); Waters  v. 
Heublein, Inc., 547 F.2d 466, 469-70, 12 EPD Par. 11,238  (1976), 
cert. denied,  433 U.S. 915, 14 EPD Par. 7,635 (1977) (White 
employee had standing to sue for discriminatory hiring practices 
which excluded Blacks and Hispanics because it deprived her of 
interpersonal contacts with persons of other races in her work 
environment).

7.     In relevant part, Section 804 makes it unlawful:

(a)     To refuse to sell or rent after the making of a bona fide 
offer, or to refuse to negotiate for the sale or rental of, or 
otherwise make unavailable or deny, a dwelling to any person 
because or race, color, religion, sex . . . or national origin.

(b)     To discriminate against any person in the terms, 
conditions, or privileges of sale or rental of a dwelling, or in 
the provision of services or facilities in connection therewith 
because of race, color, religion, sex . . . or national origin.
                              ...

(d)     To represent to any person because of race, color, 
religion, sex . . . or national origin that any dwelling is not 
available for inspection, sale, or rental when such dwelling is 
in fact so available.

8.     The Court also cited Pierson and Evers for the proposition 
that a person need not have intended to buy or rent in order to 
have been injured within the meaning of Title VIII.

9.     The Court noted that section 804(a) differs from 804(d) in 
that 804(a) makes it unlawful to refuse to rent or sell after
the making of a bona fide offer; it proceeded to find standing 
under section 804(d) without further discussing 804(a).  Neither 
Title VII, the ADEA nor the ADA requires that the applicant have 
a bona fide intent to accept an offer of employment.

10.     Courts have also concluded that testers have standing to 
challenge discriminatory housing practices under the Civil Rights 
Act of 1866, 42 U.S.C. § 1982, which provides that "[a]ll 
citizens shall have the same right . . . as is enjoyed by white 
citizens . . . to inherit, purchase, lease, sell, hold, and 
convey real and personal property."  See, e.g., Watts v. Boyd 
Properties, Inc., 758 F.2d at 1484-85, and Meyers v. Pennypack 
Woods Home Ownership Association, 559 F.2d 894, 898 (3d Cir. 
1977), overruled on other grounds, Goodman v. Lukens Steel Co., 
777 F.2d 113 (3d Cir. 1985), aff'd, 482 U.S. 656 (1987).  As with 
section 804, the fact that the Black testers did not actually 
intend to rent the apartments in question was deemed irrelevant 
in determining whether their statutory rights had been violated.  
Unlike § 804(a) of Title VIII, and like Title VII, Section 
1982 contains no language about the need for a bona fide offer as 
a condition for some challenges.

11.     The Ninth Circuit stressed that extending the Title VIII 
definition of "person aggrieved" to Title VII made "no new law."  
Waters v. Heublein, Inc., 547 F.2d at 470.

12.     At the time of the Trafficante decision, the "person 
aggrieved" language was defined in Section 810, 42 U.S.C. § 
3610.  That definition has been recodified at 42 U.S.C. § 
3602(i).

13.     Note that only the tester who is discriminated against 
can file the charge as a "person aggrieved."  The tester of the 
opposite class who functions as the comparator is a witness, not 
a charging party.  Havens Realty Corp. v. Coleman, 455 U.S. 363, 
374-75 (1982); Nur v. Blake Development Corp., 655 F. Supp. 158 
(N.D. Ind. 1987).

14.     Under Section 703(a) of Title VII, it is unlawful for 
employers to:

fail or refuse to hire or to discharge any individual, or 
otherwise to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of employment, 
because of such individual's race, color, religion, sex, or 
national origin.

Similarly, section 703(b) provides that employment agencies may 
not:
 		refuse to refer . . . or classify individuals on
[the prohibited bases];

and, in section 703(c), labor organizations may not:

(1) exclude or expel [individuals] from . . . membership on [the 
prohibited bases];

(2) limit, segregate, or classify its membership, . . . or fail 
or refuse to refer
for employment any individual, in any way which would deprive . . 
. [or limit] employment opportunities, . . . .  or otherwise 
adversely affect [the employment status on the prohibited bases]; 
or

(3) cause or attempt to cause an employer to discriminate against 
an individual in violation of this section. 

15.  In fact, some of the non-plaintiff applicants in the 
original group of testers did accept employment which was offered 
after the discrimination charges were filed.

16.     Cf. NAACP v. City of Clifton, New Jersey, 1990 U.S. Dist. 
LEXIS 17512, at *19 - 20 (D. N.J. Dec. 27, 1990) (applicant need 
not have a genuine interest in a job to establish standing to 
challenge, as violative of Title VII, a hiring policy that 
allegedly discriminated on the basis of race) (unpublished). But 
see Parr v. Woodmen of the World Life Ins. Society, 657 F.Supp.
1022, 43 EPD Par. 37,199 (M.D. Ga. 1987) (plaintiff whose primary 
purpose in obtaining a pre-application job interview was to 
create a basis for a Title VII claim, and who did not actually 
formally apply for a job, failed to establish prima facie case of 
hiring discrimination; court stated in dicta that, even if 
plaintiff had formally applied for the job and been rejected, he 
would not have been harmed because he did not want the job).

17.     Of course, testers may file charges with the Commission 
and the Commission may investigate -- and, if appropriate, 
litigate -- the claims whether or not the individual testers have 
standing to litigate.  General Telephone Co. of Northwest, Inc. 
v. EEOC, 446 U.S. 318, 326 (1980)(the EEOC has a statutory 
mission of eliminating discrimination; "[it] is not merely a 
proxy for victims of discrimination."  See also, EEOC v. Harris 
Chernin, Inc., 10 F.3d 1286, 1291-92 (7th Cir. 1993)(Commission 
may pursue an enforcement action for injunctive relief even when 
no individual could pursue a suit on her own behalf).  Accord, 
EEOC v. United Parcel Service, 860 F.2d 372, 374 (10th Cir. 
1988);  EEOC v. Goodyear Aerospace Corp., 813 F.2d 23, 25 (5th 
Cir. 1982).

18.     The FEC Court explicitly declined to address defendant's 
argument that only bona fide job applicants had standing to sue.

19.     The alleged discriminatory conduct occurred before the 
effective date of the Civil Rights Act of 1991.  Pub. L. No. 102-
166, 105 Stat. 445.     

20.     The 1991 Title VII amendments further belie the idea that 
injunctive relief necessarily depends upon proof that the 
plaintiff will likely suffer future harm.  The amendments provide 
that an employer who takes an adverse action against an employee 
for both discriminatory and nondiscriminatory reasons is subject 
to an injunction even when Respondent proves that it would have 
taken the same action in the absence of the unlawful reason.  In 
other words, the court may enjoin the employer from future 
discrimination even though the individual plaintiff may have been 
lawfully terminated and cannot, therefore, be affected by any of 
Respondent's future actions.  Section 706(g)(2)(B), 42 U.S.C. 
§ 2000e-5(g)(2)(B).

21.     Recently, the Supreme Court unanimously reaffirmed the 
idea that individuals should be encouraged to function as private 
attorneys general, in holding that after-acquired evidence of the 
plaintiff's wrongdoing does not bar relief for earlier violations 
of the Act and stating that "[t]he objectives of [the federal 
employment discrimination laws] are furthered when even a single 
[person] establishes that an employer has discriminated against 
him or her. . . [w]e have rejected the unclean hands defense 
'where a private suit serves important public purposes'."  
McKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 885, 
65 EPD Par. 43,368 (1995) (citation omitted).

22.     Injunctions have also been upheld in "tester" cases under 
fair housing laws.  See, e.g., Cabrera v. Fischler, 814 F. Supp. 
269, 281 (E.D.N.Y. 1993) (injunctive relief granted in a fair 
housing tester case because the defendants will likely engage in 
future discriminatory activity), aff'd in relevant part, 24 F.3d 
372 (2d Cir. 1994), cert. denied, 115 S. Ct. 205 (1994); United 
States v. Balistrieri, 981 F.2d 916, 932 (7th Cir. 1992) (court 
upheld an injunction because the defendant had engaged in a 
pattern or practice of discrimination and had not shown that the 
discriminatory practices had ceased), cert. denied, __ U.S. __, 
114 S. Ct. 58 (1993); Davis v. Mansards, 597 F.Supp. 334, 348 
(N.D. Ind. 1984) (injunction granted in a fair housing tester 
case because the "public interest in abolishing racial 
discrimination dictates that the defendants be held to a 
continuing high standard of fair dealing"). 

23.     Similarly, in Havens, 455 U.S. at 378-79, an organization 
that sent out testers to test defendants' housing practices had 
standing in its own right under the Fair Housing Act based on its 
allegation that the defendants' steering practices impaired its 
ability to provide counseling and referral services for low and 
moderate income homeseekers.  This concrete and demonstrable 
injury to its activities constituted far more than simply a 
setback to its abstract social interests.  See also Chicago v. 
Matchmaker Real Estate Sales Center, 982 F.2d 1086, 1095 (7th 
Cir. 1992)(organization had standing to challenge Fair Housing 
Act violations uncovered by its testers based on showing that it 
deflected its time and money from counseling to efforts directed 
against discrimination), cert. denied sub nom., Ernst v. 
Leadership Council, __ U.S. __, 113 S.Ct. 2961 (1993).  Cf. Fair 
Employment Council of Greater Washington, Inc. v. BMC Marketing 
Corporation, 28 F.3d 1268 (D.C. Cir. 1994) (rejecting Seventh 
Circuit rule that the expense of testing constitutes the 
requisite injury in fact).

24.     But see discussion of the FEC case at pages 8 - 10.  For 
the reasons discussed there, the Commission disagrees with the 
conclusion of the FEC court that the testers lacked standing to 
seek an injunction.

25.     See Lea, 438 F.2d at 87-88 (upheld lower court's award of 
injunctive relief and denial of back pay in EEO tester case, and 
overruled lower court's refusal to award attorney's fees).  See 
also Sledge v. J.P. Stevens & Co., 585 F.2d 625, 641, 18 EPD Par. 
8657 (4th Cir. 1978) (reiterating holding in Lea that "test 
plaintiffs are not eligible for back pay"), cert. denied, 440 
U.S. 981 (1979).

26.     The Employment Discrimination Testing Manual, developed 
by the International Association of Official Human Rights 
Agencies, also has useful information on investigating and 
assessing tester charges.