Kyles v. Guardian Security Services Brief - EEAC

No. 98-3652
_________________________

IN THE
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
________________________

KYRA KYLES and LOLITA PIERCE,

Plaintiffs-Appellants,

v.

J.K. GUARDIAN SECURITY SERVICES, INC.
(d/b/a GUARDIAN SECURITY SERVICES),

Defendant-Appellee.

________________________

On Appeal from the United States District Court
for the Northern District of Illinois
No. 97-C-8311
Honorable Suzanne B. Conlon
_________________________

BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF APPELLEE AND IN SUPPORT OF AFFIRMANCE

_________________________

December 29, 1998 Robert E. Williams
McGUINESS & WILLIAMS
1015 Fifteenth St., N.W.
Suite 1200
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
Equal Employment Advisory
Council

CORPORATE DISCLOSURE STATEMENT
Cause No: 98-3652

Short Title: Kyles v. J.K. Guardian Security Services

To enable the judges to determine whether recusal is necessary or appropriate, an
attorney for a non-governmental party or amicus curiae, or a private attorney representing
a government party, must furnish a certificate of interest stating the following
information:

(1) The full name of every party or amicus the attorney represents in the case:

___Equal Employment Advisory Council

(2) If such party or amicus is a corporation:
i) Its parent corporation, if any:

None

ii) A list of its stockholders which are publicly held companies owning 10% or
more of the stock in the party or amicus:
None

(3) The names of all law firms whose partners or associates have appeared for the party
in the district court or are expected to appear for the party in this court:

McGuiness & Williams

This certificate shall be filed with the appearance form or upon the filing of a
motion in this court, whichever occurs first. The text of the certificate (i.e., caption
omitted) shall also be included in front of the table of contents of the party’s main brief.*

*If an attorney changes law firm affiliation after the filing of the main brief, an amended
certificate of interest must be filed.

Attorney’s Signature:

Date:

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................ ii

INTEREST OF THE AMICUS CURIAE ..................................................... 1

STATEMENT OF THE CASE ..................................................................... 4

SUMMARY OF ARGUMENT ..................................................................... 5

ARGUMENT ................................................................................................ 7

THE DISTRICT COURT’S HOLDING THAT TESTERS LACK
STANDING TO SUE FOR EMPLOYMENT DISCRIMINATION IS
SUPPORTED BY SETTLED LAW AND SOUND PUBLIC POLICY....... 7

A. Testers Who Pose as Job Applicants With No Intention of
Accepting Employment Suffer No “Injury in Fact” When They
Are Not Offered Employment ................................................ 7

B. The Use of Testers to Detect Employment Discrimination
Represents Bad Science and Bad Public Policy ...................... 9

1. Bad Science .................................................................. 9

2. Bad Public Policy ........................................................ 12

CONCLUSION ........................................................................................... 15

TABLE OF AUTHORITIES

CASES

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) .............................................................................................12

Fair Employment Council v. BMC Marketing Corp.,
829 F. Supp. 402 (D.D.C. 1993), affd in part and rev'd in part, remanded,
28 F.3d 1268 (D.C. Cir. 1994) .............................................................................3

Kyles v. J.K. Guardian Security Services, Inc.,
No. 97-C-8311 (N.D. Ill. Sept. 22, 1998) ........................................................4, 8

Ryan v. CFTC,
125 F.3d 1062 (7th Cir. 1997) ..............................................................................1

STATUTES

Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. .........................................................................................2

Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. .....................................................................................2

Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. .....................................................................................2
42 U.S.C. § 2000e-5(b) ...............................................................................6, 12

42 U.S.C. § 1981 ....................................................................................................3

MISCELLANEOUS

Equal Employment Advisory Council Letter on Proposed Testing Policy at
EEOC, Daily Lab. Rep. (BNA) No. 31, Feb. 14, 1991, at E-1 ............................13

EEOC, Enforcement Guidance: Compensatory and Punitive Damages Available
Under § 102 of the Civil Rights Act of 1991, EEOC Notice No. 914-002 (July
14, 1992), reprinted in, EEOC Compliance Manual (BNA) .................................9

ii

EEOC, EEOC Enforcement Guidance on “Testers” and Employment
Discrimination Claims, EEOC Notice No. 213 (May 22, 1996), reprinted
in, EEOC Compliance Manual (BNA) ...........................................................3, 11

iii

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_________________________

No. 98-3652
_____________________

KYRA KYLES and LOLITA PIERCE,

Plaintiffs-Appellants,

v.

J.K GUARDIAN SECURITY SERVICES, INC.
(d/b/a GUARDIAN SECURITY SERVICES),

Defendant-Appellee.

_________________________

BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF APPELLEE AND IN SUPPORT OF AFFIRMANCE

_________________________

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC) has perspective

and experience that can help the Court assess issues of law and public policy

that have been raised in this case, beyond the help that the lawyers for the

parties can provide. Cf. Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997).

EEAC, therefore, respectfully submits this brief as amicus curiae with the

consent of all parties. The brief supports the position of the Defendant-

Appellee that the decision of the court below should be affirmed.

EEAC is a nationwide association of employers organized in 1976 to
promote sound programs to eliminate employment discrimination. Its
membership now includes more than 300 of the nation’s largest private
companies. They all are employers subject to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq.; the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., and other antidiscrimination laws.

Collectively, EEAC’s 300-plus member companies recruit, screen,
interview and hire several million individuals each year. Even though
EEAC members are firmly committed to the principle of equal employment
opportunity, each of these transactions is a potential subject of one or more
charges and/or lawsuits alleging discrimination. Consequently, EEAC
members have an ongoing, substantial interest in the standing requirements
that govern the filing of such charges and suits.

Because of this interest, EEAC repeatedly has expressed concerns to
the U.S. Equal Employment Opportunity Commission (EEOC) about
problems and dangers inherent in accepting discrimination charges filed by
“testers” − i.e., undercover operatives who pose as job applicants to acquire
information on which to base discrimination charges, with no real intention
of actually accepting employment if it is offered to them. EEAC also filed

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an amicus curiae brief in Fair Employment Council v. BMC Mktg. Corp.,
829 F. Supp. 402 (D.D.C. 1993), aff’d in part and rev’d in part, remanded,
28 F.3d 1268 (D.C. Cir. 1994), urging the court to hold, as the D.C. Circuit
ultimately did, that testers had no standing to sue for employment
discrimination under Title VII or 42 U.S.C. § 1981.

Despite EEAC’s concerns and the court’s holding in the BMC case,
however, the EEOC has persisted in its policy of accepting charges filed by
testers. See EEOC, EEOC Enforcement Guidance on “Testers” and
Employment Discrimination Claims, EEOC Notice No. 213 (May 22, 1996),
reprinted in, EEOC Compliance Manual (BNA) N:6025. Moreover, the
EEOC has filed an amicus curiae brief in this case supporting the Plaintiffs-
Appellants and arguing that “there are public policy considerations which
warrant holding that testers have standing.” (EEOC br. at 6, 15-16.) EEAC
strongly disagrees and believes that compelling public policy considerations
weigh against such a holding.

Accordingly, EEAC submits this amicus curiae brief to bring these
countervailing policy considerations to the Court’s attention and assist the
Court in putting the arguments of the Plaintiffs-Appellants and the EEOC
into proper perspective. Mindful of this Court’s admonitions in Ryan, this
amicus brief does not rehash legal arguments addressed in the parties’ briefs.

3

Rather, it offers observations and perspectives on the issues, based on the
collective experience of EEAC’s member companies.

STATEMENT OF THE CASE
The relevant facts, for purposes of this brief, can
be summarized quite simply. The Plaintiffs-Appellees, Kyra Kyles and
Lolita Pierce, are African-Americans who worked during the summer of
1995 for the Legal Assistance Foundation of Chicago (LAFC) as
employment discrimination testers. Aided by the LAFC staff, they
concocted resumes embellished with false work histories and other fictitious
information designed to make them more attractive to employers.
In response to a help-wanted ad for a receptionist, LAFC sent Kyles,
Pierce, and two white testers to J.K. Guardian Security Services (Guardian),
where they presented their phony resumes and filled out job applications.
Kyles’ and Pierce’s resumes had been crafted to show stronger credentials
than the white testers’ resumes. Guardian interviewed all four.
It is undisputed that none of the testers ever had any intention of
accepting a job with Guardian. In fact, LAFC required them to refuse any
job offers they received in connection with their testing activities. Rather,
the sole purpose of their efforts was to acquire information that could be
used for filing discrimination charges and/or lawsuits against employers.

4

After the initial interviews, Guardian invited the white testers back for
second interviews and eventually offered them jobs. It did not ask Kyles or
Pierce back. Kyles and Pierce then filed discrimination charges with the
EEOC and obtained “right to sue” letters. Then they filed this lawsuit,
charging Guardian with discriminatory hiring practices violative of Title VII
and 42 U.S.C. § 1981.

The district court granted summary judgment dismissing Kyles’ and
Pierce’s claims. The court concluded that the testers lacked standing under
Article III of the U.S. Constitution, because they could not allege any
“personal, redressable injury.” Kyles v. J.K. Guardian Sec. Servs., Inc., No.
97 C 8311, slip op. at 5 (N.D. Ill. Sept. 22, 1998). In the court’s view, “not
receiving an offer for a job they neither wanted nor intended to accept” was
not a “concrete and personal” injury conferring standing on the testers. Id. at
4-5. Rather, the court concluded, the testers essentially were seeking an
advisory opinion of a sort that federal courts have long refused to provide.
Id. at 6. This appeal followed.

SUMMARY OF ARGUMENT
The district court was correct. Testers have no standing to sue an
employer for discrimination for not offering them jobs they neither wanted
nor intended to accept. For clearly, such testers have suffered no

5

constitutionally cognizable injury. Quite the contrary, when they precipitate
acts that can be portrayed as discrimination, testers have succeeded in their
mission.

In arguing that public policy considerations warrant holding that
testers do have standing to sue for employment discrimination, amicus
EEOC overlooks serious problems, both conceptual and practical, with the
use of testers. First, the EEOC uncritically accepts the flawed notion that
testers are engaged in a controlled experiment in which race is the only
variable. But the experiment is fundamentally bad science. The testers
themselves have an interest in the outcome, and they can skew the results of
the experiment through their own conscious or unconscious behavior. This
is especially so when testers are granted job interviews, as they were in this
case.

The EEOC also overlooks the corrosive effect its support for testers
has on employers’ confidence in the fairness of federal equal employment
opportunity enforcement mechanisms. The effectiveness of those processes
depends in large measure on the willingness of employers to cooperate with
the EEOC and resolve complaints of discrimination through the “informal
methods of conference, conciliation, and persuasion” that Title VII favors.
See 42 U.S.C. § 2000e-5(b). Such cooperation is stifled, however, when

6

employers perceive discrimination charges as products of entrapment and
the EEOC as complicit in deception and chicanery.

Finally, in arguing that public policy supports the use of testers, the
EEOC also totally ignores the costs to law-abiding employers and job-
seekers. Employers incur significant costs in wasted time and lost
productivity each time they are misled into interviewing phony job
applicants. At the same time, legitimate job-seekers may lose opportunities,
as hiring officials pass over them to pursue testers whose fake credentials
make them appear more attractive. For, by the time the ruse is over and the
testers have moved on, the legitimate applicants may have moved on as well,
and perhaps settled for other, less desirable jobs.

ARGUMENT
THE DISTRICT COURT’S HOLDING THAT TESTERS LACK
STANDING TO SUE FOR EMPLOYMENT DISCRIMINATION
IS SUPPORTED BY SETTLED LAW AND SOUND PUBLIC
POLICY
A. Testers Who Pose as Job Applicants With No Intention of

Accepting Employment Suffer No “Injury in Fact” When
They Are Not Offered Employment
As the district court recognized, the Supreme Court has made clear in
a long line of cases that, in order to have standing under Article III of the
Constitution, a plaintiff first must be able to allege a specific “injury in fact”

7

that is redressable under the law. See Kyles, slip op. at 4 and cases there
cited. The testers in this case simply cannot meet this threshold requirement.

There is no contention that Kyles or Pierce suffered any economic
injury when Guardian did not hire them. For, like most testers, they
admittedly had no intention of accepting the jobs they applied for. Indeed,
they already had jobs with LAFC and had agreed not to accept employment
with any of the companies that LAFC targeted for testing.

Further, contrary to the assertion in EEOC’s amicus brief, there is no
basis in this case on which to conclude that the testers were “injured by the
pain and humiliation that discrimination causes.” (EEOC br. at 6.) To the
contrary, there is every reason to believe that what Kyles and Pierce felt,
when they learned that Guardian had not invited them back for second
interviews but had invited the white testers back, was not pain and
humiliation but satisfaction − the satisfaction of a mission accomplished.
For clearly, their purpose in serving as testers was to find evidence that
could be used to support discrimination claims. It is more likely that they
would have experienced pain and frustration had they not encountered any
treatment they could characterize as discriminatory, for then their summer
would have been spent in vain.

8

This Court need not speculate about testers’ feelings, however. The
EEOC itself has acknowledged elsewhere that it is improper to infer pain
and humiliation in the absence of specific proof. In guidance to its field
offices, EEOC states, “Emotional harm will not be presumed simply because
the complaining party is a victim of discrimination. The existence, nature,
and severity of emotional harm must be proved.” EEOC, Enforcement
Guidance: Compensatory and Punitive Damages Available Under § 102 of
the Civil Rights Act of 1991, EEOC Notice No. 914-002 (July 14, 1992),
reprinted in, EEOC Compliance Manual (BNA) N:6071, N:6080. By the
same reasoning, unsupported assertions of pain and humiliation cannot
substitute for the specific “injury in fact” without which a plaintiff has no
standing.

B. The Use of Testers to Detect Employment Discrimination
Represents Bad Science and Bad Public Policy
1. Bad Science

The Plaintiffs-Appellees and their amici attempt to portray the use of
testers to detect hiring discrimination as a controlled experiment in which
the only variable is race. But the experiment is fundamentally flawed,
because the testers themselves have an interest in the outcome and can affect
the results of the experiment through their own conscious or unconscious

9

behavior during the application and hiring process. Hence, to accept the
results of the experiment as evidence of discrimination is bad science.

Amicus EEAC’s members know from long experience in filling
millions of job vacancies each year that choosing the right person to fill a
job is a complicated process. It is entirely different from renting an
apartment or selling a home; hence, comparisons to use of testers in the
housing context are inapposite. In filling a job, an employer is entering into
an ongoing relationship that typically will involve direct, personal
interaction with the individual on a daily basis. Accordingly, employers
look beyond the credentials and qualifications that appear on resumes and
application forms. They look also for personal qualities that they know
correlate with successful employment relationships. That is why nearly all
employers conduct personal interviews with applicants before making final
hiring selections.

One of the personal qualities that experienced hiring officers learn to
detect is the sincerity (or lack thereof) of an applicant’s interest in and
enthusiasm for the job. Sincerity of interest is a quality that is difficult to
quantify but essential to success in nearly all employment relationships.
Sincerity is also difficult to fake in an interview with an experienced

10

personnel officer, especially when the applicant does not really want to
emerge from the interview with an offer of employment.

The case at bar is typical, in that the testers were sent forth by a
plaintiffs’ advocacy group that was seeking evidence that could be used to
file discrimination claims. That fact apparently is of no concern to the
EEOC. See EEOC, EEOC Enforcement Guidance on “Testers” and
Employment Discrimination Claims, EEOC Notice No. 213 (May 22, 1996),
reprinted in, EEOC Compliance Manual (BNA) N:6025, N:6028 (“An
organization that uses testers to identify a pattern or practice of
discrimination by employers . . . has standing to file charges on behalf of the
testers.”). But testers unquestionably are aware of, and must be presumed to
support, the objectives of the organization that employs them. And that is
what taints their experiments.

Having set out to find discrimination, minority testers inevitably go
into their job interviews hoping, consciously or unconsciously, that the
targeted employer will not offer to hire them. In contrast, their non-minority
counterparts go into their interviews genuinely hoping they will receive job
offers (even though they have no intention of accepting those offers). Any
other outcome for either tester would be unsupportive of the goals of the
advocacy group that runs the program and pays the testers’ salaries.

11

Given this difference in the interviewees’ aims, it should hardly be
surprising when a targeted employer’s interviewers receive the impression
that a minority tester is not as sincerely interested in or enthusiastic about a
job as his or her non-minority counterpart. The experiment may be a good
test of an interviewer’s perceptiveness, but it is not a valid test for
discrimination.

2. Bad Public Policy
Even if the use of testers in the employment context did not offend
elementary principles of good science, it still would offend public policy.
One of the bedrock policies underlying Title VII is that the favored means of
resolving employment discrimination issues is not through litigation, but
through voluntary compliance and cooperation. See, e.g., Alexander v.
Gardner-Denver Co., 415 U.S. 36, 52 (1974). Indeed, Title VII expressly
directs the EEOC to attempt to eliminate unlawful employment practices
through “informal methods of conference, conciliation, and persuasion”
before resorting to litigation. See 42 U.S.C. § 2000e-5(b).
Voluntary compliance and cooperation depend in large part on public
acceptance of the law and confidence in the fairness of its administration.
Likewise, the EEOC’s effectiveness in conciliation depends to a great degree
on its credibility and persuasiveness with employers. But, as amicus EEAC

12

has pointed out to the EEOC on numerous occasions, those conditions
cannot exist if the EEOC and/or the courts are perceived as complicit in
schemes to entrap employers. See, e.g., Equal Employment Advisory
Council Letter on Proposed Testing Policy at EEOC, Daily Lab. Rep. (BNA)
No. 31, Feb. 14, 1991, at E-1. Thus, the use of undercover operatives, fake
credentials, fictitious work histories, and other tactics of deception
associated with tester programs are simply incompatible with the goals of
Title VII.

The use of testers also is bad public policy, because it inevitably
causes harm to law-abiding employers, and often to innocent job-seekers as
well. As EEAC members know from experience, employers expend
significant time and effort and incur significant costs each time they process
an employment application or interview a job applicant. That time, effort
and expense are all wasted when the applicant actually has no real interest in
the job the employer is attempting to fill. Meanwhile, the job remains
vacant and the employer incurs additional costs in lost productivity until it
can find a sincere job applicant who is qualified and willing to accept the
position.

Moreover, because testers routinely operate in pairs, these wastes of
time and effort come in multiples of at least two, and often four or more.

13

For example, in this case, the targeted employer reviewed applications and
conducted initial interviews with four testers, and follow-up interviews with
two of them, only to find in the end that none of the four ever really was
interested in the job.

At the same time, serious job-seekers may be passed over and
ultimately lose out on work opportunities, while the employer pursues testers
whose fake credentials and bogus work histories make them appear more
attractive to the employer. In some instances, the serious job-seekers still
will be available after the testers have rejected the position and moved on.
In many cases, however, the serious job-seekers will have made other
commitments by that time − perhaps commitments to accept other jobs that
are not as attractive to them as the positions the targeted employer is seeking
to fill.

In sum, while testers suffer no “injury in fact” from the discrimination
they purport to expose, their activities can and do cause real harm to law-
abiding employers and to legitimate job-seekers, as well as to public
confidence in the enforcement mechanisms of the nation’s equal
employment opportunity laws. For all of these reasons, we believe that the
district court’s ruling that the testers in this case lacked standing to sue for

14

employment discrimination was grounded in sound public policy, as well as
good law.

CONCLUSION
For the reasons stated above, amicus curiae EEAC submits that the
district court’s order granting J.K. Guardian’s motion for summary judgment
dismissing the testers claims should be affirmed.

Respectfully submitted,

______________________
Robert E. Williams
McGUINESS & WILLIAMS
1015 Fifteenth St., N.W.
Suite 1200
Washington, D.C. 20005
Tel. (202) 789-8600
Fax (202) 789-1708
Attorneys for Amicus Curiae
Equal Employment Advisory
Council

December 29, 1998

15

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)(7)(B)

I hereby certify that the Brief Amicus Curiae of the Equal Employment

Advisory Council In Support of Appellees and In Support of Affirmance complies

with Fed. R. App. P. 32(a)(7)(B). The brief uses 14 point proportionally-spaced

typeface and has 3,703 words.

______________________
Robert E. Williams

McGuiness & Williams
1015 15th Street, N.W.
Washington, D.C. 20005
(202) 789-8600

Attorneys for Amicus Curiae
Equal Employment
Advisory Council

CERTIFICATE OF SERVICE

I hereby certify that two (2) paper copies, and one copy on computer

disk, of the Brief Amicus Curiae of the Equal Employment Advisory

Council In Support of Appellees and In Support of Affirmance were served

today on the parties by postage prepaid, first-class U.S. mail addressed as

follows:

Tim Huizenga Cassandra L. Curry
Legal Foundation of Chicago Seyfarth, Shaw, Fairweather &
111 West Jackson Boulevard
3rd Floor Geraldson
Chicago, IL 60604 55 East Monroe Street, Suite
4200
C. Gregory Stewart Chicago, IL 60606
Philip B. Sklover
Carolyn L. Wheeler Roderic V.O. Boggs
Brian Owsley Avis E. Buchanan
Equal Employment Opportunity Linda A. Rosenthal
Washington Lawyers’ Committee
Commission
Office of General Counsel for Civil Rights & Urban Affairs
1801 L Street, NW, Room 7030 1300 19th Street, NW
Washington, DC 20507 Suite 500
Washington, DC 20036

December 29, 1998 ____________________

Robert E. Williams

McGuiness & Williams

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

`

Attorneys for Amicus Curiae

Equal Employment Advisory Council