Should HR Managers Worry About ‘Testers’

Editor’s Note: On a whim, Workforce Department Editor Scott Hays signed up for a class titled “Human Resources Management,” as part of the HR/Management Certificate Program at the University of California, Irvine. Each week, he’ll visit one nugget of knowledge from the course, helping you move slowly in the direction of becoming a more strategic partner.

It’s not paranoid to think a potential job candidate may be working undercover to ferret out unlawful discriminatory hiring practices.

In one lawsuit, for example, a female job applicant alleged that she had been propositioned during a job interview with an employment-referral agency after she reported that she had no money to pay the agency’s referral fee. “Testers” were then sent to the same interviewer, all of whom claimed that they did not have the money for the referral fee. Female testers were routinely propositioned. A Superior Court jury in Washington D.C. heard the tester evidence and returned a verdict in favor of the plaintiffs.

As many of you already know, Title VII of the 1964 Civil Rights Act states that all public and private employers of 15 or more persons cannot discriminate on the basis of race, color, religion, sex or national origin with respect to employment.

Gary Dessler, in his book, “Human Resource Management” (Prentice-Hall Inc., 1997), makes the point that the increasing use of employment discrimination testers has made it that much more important for hiring mangers to avoid asking questions concerning, for instance, a candidate’s marital status, child-care arrangements, ethnic background, or workers’ compensation history.

“Although they’re not really seeking employment, testers have legal standing, both with the courts and with the EEOC,” writes Dessler.

Two years ago, the EEOC announced that it had contracted with two agencies to conduct pilot testing programs. Under the contracts, the agencies each received $100,000 to train and send testers to various employers.

A judicious human resources manager will take steps in planning the interview process and conducting the actual interviews to ensure that its interviewers avoid discrimination and tester claims. Dr. James Fharf is president of Fharf & Associations, an Alexandria, Virginia-based consulting firm. Fharf is the former chief psychologist at the EEOC and author of several sections of The Civil Rights Act of 1991. He says that since the advent of various tester programs, some companies have been motivated to begin training their managers and supervisors in nondiscriminatory hiring practices. Here are his suggestions for HR managers who are worried about testers:

1. At a minimum, avoid using unstructured interviews. It’s hard to score the quality of each answer under this conversational-style approach. Also, a potential job candidate (or tester) may be able to prove that you treated him or her differently.
2. Instead, use pattern or structured interviews. By asking the same questions of every job candidate, an employer can avoid the appearance of “disparate treatment,” the intentional disparity between the proportion of a protected group and the proportion getting the job.
3. Revisit EEOC guidelines, and all local employment opportunity laws.
4. Build an internal audit system to ensure that interviewers are treating all job candidates uniformly and consistently. Also, make sure they’re focusing on the skill requirements of the job and not on personal characteristics.

Source: “Human Resource Management” (Prentice-Hall Inc., 1997) by Gary Dessler.