Employment Testers Revisited

This paper was prepared for the 62nd NYU Annual Conference on Labor, which focused on labor and employment law initiatives in the Obama administration. The paper discusses the Equal Employment Opportunity Commission’s recent announcement that it will consider whether and how to integrate “matched-pair” testing into its enforcement regime. The paper summarizes the history of the EEOC’s consideration of the use of testers and the use of testers by public and private groups to both enforce Title VII and measure the incidence of discrimination in particular labor markets. The paper concludes with a discussion of some of the issues that will face the EEOC this time around: 1. What are the justifications for using testers to supplement the existing enforcement regime? 2. Does the EEOC have the authority to implement its own enforcement-based testers program? 3. How can the EEOC design a program that will produce results that are sufficiently reliable to justify imposing liability on employers for disparate treatment of testers?