The Case Against Employment Tester Standing Under Title VII and 42 U.S.C. § 1981

In 1964, Congress passed comprehensive legislation aimed at eradicating discrimination in employment, public accommodations, public facilities, public schools, and federal benefit programs. Title VII of this Act directed its aim specifically at stamping out prejudice in employment. Four years later, the Supreme Court resurrected the provisions of § 1 of the Civil Rights Act of 1866, which, among other things, protects citizens, regardless of race or color, in their right to “make and enforce [employment] contracts.” Together, Title VII and § 1981 serve as the primary legal bases for challenging racially discriminatory actioris by private employers. More than thirty years after the passage of Title VII and the Court’s resurrection of § 1981, though, society continues to feel the lingering effects of America’s history of slavery and segregation in the field of employment. A study by the Urban Institute in the late 1980s and early 1990s determined that black job applicants continued to face discriminatory treatment at all levels of the hiring process. In view of the continuing effects of discrimination in employment, a number of civil rights organizations around the country have employed testing as a means of ferreting out discrimination in the hiring process.