Kyles, Kyra v. JK Guardian Security ( 2000 )

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.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 8311--Suzanne B. Conlon, Judge.
Argued February 23, 1999--Decided July 5, 2000
Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Kyra Kyles and Lolita
Pierce worked for the Legal Assistance Foundation
of Chicago ("LAF") as employment testers./1 In
that capacity, they applied for work as a
receptionist with Guardian Security Services
("Guardian"). Although each of their white
counterparts was offered the job, neither Kyles
nor Pierce, both of whom are African-American,
got past the initial interview. They sued
Guardian for race discrimination under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. sec.
2000e, as well as section 1 of the Civil Rights
Act of 1866, 42 U.S.C. sec. 1981. The district
court granted summary judgment in favor of
Guardian, reasoning that, as testers with no
genuine interest in employment with Guardian,
Kyles and Pierce lacked standing to sue. We
conclude that testers do have standing to sue for
violations of Title VII, but not section 1981.
I.
Because the district court entered summary
judgment in favor of Guardian, we owe Kyles and
Pierce a favorable summary of the facts. See
Frobose v. American Sav. & Loan Ass’n of
Danville, 152 F.3d 602, 604 (7th Cir. 1998).
LAF is a public-interest law firm that provides
legal assistance to individuals who lack the
means to retain counsel privately. Its employment
testing project aims to detect discrimination in
the employment sector using testing methods that
have been used for years to assess compliance
with the nation’s fair housing laws.
Specifically, in order to detect racial
discrimination, LAF pairs a white tester with one
of color, provides them both with fictitious
credentials designed to be comparable in all
pertinent respects (and perhaps somewhat more
favorable to the non-white tester/2), trains
them to interview similarly, and then sends them
to apply for work with the same employer. The
testers later prepare detailed reports of their
experiences. The project director reviews the
data, and when it appears that an employer is
engaged in discrimination, informs the testers.
Alone or in conjunction with bona fide job
applicants, the testers who were rejected for
employment may then pursue administrative and
judicial remedies, as they did in this case. In
order to remove questions about their objectivity
and neutrality, however, the testers assigned
their right to damages to LAF, and later to the
Chicago Lawyers’ Committee for Civil Rights Under
Law and the Public Interest Law Initiative.
Kyles and Pierce were college students in 1995
when they took summer jobs with the LAF’s
employment testing project. As a condition of
their employment with the project, they agreed to
refuse any job offer extended to them in the
course of their testing activities. With the help
of LAF staff members, Kyles and Pierce then
prepared fictitious resumes that supplemented
their actual experiences with additional
employment, education, and other data aimed at
making them attractive to prospective employers.
In the Spring of 1995, Guardian placed an
advertisement in the Chicago Tribune soliciting
applications for the position of receptionist.
LAF sent a pair of resumes to Guardian in
response to the advertisement--one on behalf of
a white candidate and one on behalf of an
African-American candidate. Each of the resumes
included information that permitted the reader to
discern the race of the applicant. The African-
American’s resume reflected credentials that were
comparable to, if not better than, the white
applicant. Guardian did not respond to the
African-American’s application at all, but
telephoned three times for the white candidate.
LAF subsequently sent Kyles and Pierce to
Guardian to apply in person for the receptionist
opening. Each was paired with a white tester.
Although Kyles and Pierce were assigned
credentials that were comparable or superior to
those of their white counterparts, neither one of
them fared as well in the application process.
Kyles had an interview with Guardian’s director
of human resources, Martin Labno, who told her
that after consulting with Guardian’s president
and vice-president, he would ultimately select a
group of three to four individuals to call back
for a second interview. When Kyles’ white
counterpart applied for the job the following
day, she interviewed not only with Labno but with
Guardian’s vice-president, Michael Malinowski,
returned a day later for a typing test, and was
offered the job on the spot. Soon after the white
tester turned the offer down, Kyles called
Guardian to check on the status of her
application and was told that Labno had not yet
decided whom to summon for a second interview.
She never heard from Guardian again.
Within a few days, Pierce applied for the job.
Labno interviewed her and told her that, after
consulting with the company’s president or its
vice-president, he would be conducting follow-up
interviews over the next few days. He promised to
call her within a day or two. Pierce’s white
partner applied for the job on the same day,
interviewed with Labno, and took a typing test.
One week later, Guardian summoned the white
tester for a second interview and offered her the
job. When Pierce telephoned around that time to
inquire about the status of the selection
process, Labno told her that the company was
"running behind." The white tester turned down
the job offer, but Guardian never followed up
with Pierce.
After securing right-to-sue letters from the
Equal Employment Opportunity Commission
("EEOC"),/3 Kyles and Pierce filed suit against
Guardian alleging that the company had engaged in
racial discrimination in violation of both Title
VII and section 1981. Guardian counterclaimed,
alleging that Kyles and Pierce had fraudulently
misrepresented their interest in employment with
the company. On summary judgment, Judge Conlon
held that, as testers, Kyles and Pierce lacked
standing to maintain the suit. Kyles v. J.K.
Guardian Security Servs., Inc., 77 Fair Empl. Prac.
Cas. (BNA) 1473, 1998 WL 677165 (N.D. Ill. Sept.
22, 1998). They were not interested in working
for Guardian and would not have accepted
employment had the company offered it to them.
Consequently, they did not suffer the type of
personal, redressable injury that would satisfy
the "case or controversy" requirement found in
Article III of the Constitution. Id., at *2. At
best, the plaintiffs were asserting the rights of
a "hypothetical third-party applicant who would
have been harmed in a similar situation." Id., at
*3. Judge Conlon also found standing wanting as
a statutory matter. Id., at *3-*4. Both Title VII
and section 1981 condition the right to sue on a
bona fide application for employment, she
reasoned. Id., at *3. In that regard, they stand
apart from the Fair Housing Act, under which
courts have acknowledged tester standing. Id.
Having found that the plaintiffs lacked standing
to pursue their federal claims, Judge Conlon
relinquished jurisdiction over Guardian’s state-
law counterclaims. Id., at *4; see 28 U.S.C. sec.
1367(c)(3).
II.
The Constitution confines the federal judicial
power to "Cases" or "Controversies." U.S. Const. Art.
III, sec. 2. Implicit in that limitation is the
requirement that the party invoking the court’s
jurisdiction have standing. Arizonans for
Official English v. Arizona, 520 U.S. 43, 64, 117
S. Ct. 1055, 1067 (1997); Gillespie v. City of
Indianapolis, 185 F.3d 693, 701 (7th Cir. 1999),
cert. denied, 120 S. Ct. 934 (2000). Broadly
speaking, standing turns on one’s personal stake
in the dispute. See Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59, 72,
98 S. Ct. 2620, 2630 (1978). In order to
establish that interest, the plaintiff must show
that: (1) she has suffered an "injury in fact"
that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable
to the challenged action of the defendant; and
(3) it is likely, as opposed to merely
speculative, that the injury will be redressed by
a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130,
2136 (1992); Gillespie, 185 F.3d at 701.
A plaintiff’s claim might satisfy each of these
Article III criteria and yet run afoul of
judicially-imposed, prudential limitations on
standing. The injury that she claims, for
example, may be one that is indistinct from
effects felt by many or all citizens, depriving
her of a unique stake in the controversy. See
Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct.
2197, 2205 (1975). Her claim may rest on the
legal rights of third parties, rather than her
own. Id. at 499, 95 S. Ct. at 2205; see Singleton
v. Wulff, 428 U.S. 106, 114, 96 S. Ct. 2868, 2874
(1976). Or her interest, although real, may not
fall within the zone of interests protected by
the statute she invokes. See Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26, 39
n.19, 96 S. Ct. 1917, 1925 n.19 (1976), citing
Association of Data Processing Serv. Orgs., Inc.
v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 830
(1970). Using these prudential considerations,
"the judiciary seeks to avoid deciding questions
of broad social import where no individual rights
would be vindicated and to limit access to the
federal courts to those litigants best suited to
assert a particular claim." Gladstone, Realtors
v. Village of Bellwood, 441 U.S. 91, 99-100, 99
S. Ct. 1601, 1608 (1979); see also Massey v.
Helman, 196 F.3d 727, 739 (7th Cir. 1999),
petition for cert. filed (May 30, 2000) (No. 99-
1918).
Where federal statutory rights are at issue,
however, Congress has considerable authority to
shape the assessment of standing. First, although
it may not lower the threshold for standing below
the minimum requirements imposed by the
Constitution, Raines v. Byrd, 521 U.S. 811, 820
n.3, 117 S.Ct. 2312, 2318 n.3 (1997), Congress
can extend standing to the outermost limits of
Article III. For example, it may permit an
individual who suffers an injury-in-fact to bring
suit for a statutory violation even if one
normally would not think of that person as an
intended beneficiary of the statute; or it can
permit someone to seek relief based on the legal
rights of individuals other than himself. See
Warth, 422 U.S. at 500-01, 95 S. Ct. at 2206;
North Shore Gas Co. v. E.P.A., 930 F.2d 1239,
1243-44 (7th Cir. 1991). When Congress confers
such a broad right to sue, the judiciary may not
close the doors to the courthouse by invoking
prudential considerations. See Raines, 521 U.S.
at 820 n.3, 117 S.Ct. at 2318 n.3; Havens Realty
Corp. v. Coleman, 455 U.S. 363, 372, 102 S. Ct.
1114, 1121 (1982). Second, Congress has the power
to "enact statutes creating legal rights, the
invasion of which creates standing, even though
no injury would exist without the statute." Linda
R. S. v. Richard D., 410 U.S. 614, 617 n.3, 93 S.
Ct. 1146, 1148 n.3 (1973).
As we shall see, then, whether a person has
Article III standing to sue under either Title
VII or section 1981 depends in great measure on
the particular rights conferred by those
statutes. See Warth, 422 U.S. at 500-01, 95 S.
Ct. at 2206. Family & Children’s Center, Inc. v.
School City of Mishawaka, 13 F.3d 1052, 1059-60
(7th Cir.), cert. denied, 513 U.S. 961, 115 S. Ct.
420 (1994). We will proceed to examine each
statute in turn.
III.
A.
Title VII provides that "[i]t shall be an
unlawful employment practice for an employer--(1)
to fail or refuse to hire . . . any individual .
. . because of such individual’s race . . . ; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any way
which would deprive or tend to deprive any
individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual’s race. . .
." 42 U.S.C. sec. 2000e-2(a). Congress granted
the EEOC authority to enforce the provisions of
the statute, but it did not stop there; it also
enabled individuals to act as "private attorneys
general" by pursuing their own claims of
employment discrimination. Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 402, 88 S. Ct. 964,
966 (1968) (per curiam). The statute thus
expressly permits a charge to be filed with the
Commission "by or on behalf of a person claiming
to be aggrieved," sec. 2000e-5(b), and likewise
a civil action in court "by the person claiming
to be aggrieved," sec. 2000e-5(f)(1). That
language signals a congressional intent to extend
standing to the outermost limits of Article III.
See Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205, 209, 93 S. Ct. 364, 366-67 (1972),
citing Hackett v. McGuire Bros., Inc., 445 F.2d
442, 446 (3d Cir. 1971); Anjelino v. New York
Times Co., 200 F.3d 73, 91 & n.25 (3d Cir. 1999);
Stewart v. Hannon, 675 F.2d 846, 849 (7th Cir.
1982); E.E.O.C. v. Mississippi College, 626 F.2d
477, 482-83 & n.7 (5th Cir. 1980), cert. denied,
453 U.S. 912, 101 S. Ct. 3143 (1981); E.E.O.C. v.
Bailey Co., 563 F.2d 439, 452-54 (6th Cir. 1977),
cert. denied, 435 U.S. 915, 98 S. Ct. 1468(1978); Waters v. Heublein, Inc., 547 F.2d 466,
469-70 (9th Cir. 1976), cert. denied, 433 U.S.
915, 97 S. Ct. 2988 (1977); Gray v. Greyhound
Lines, East, 545 F.2d 169, 176 (D.C. Cir. 1976).
The essential question before us, then, is
whether a tester "claiming to be aggrieved" by an
employment practice that Title VII proscribes has
suffered the injury-in-fact that Article III
demands.
For guidance in answering this question, we
turn first to case law concerning Title VIII of
the Civil Rights Act of 1968, 42 U.S.C. sec.
3601, et seq., which prohibits discrimination in
the housing sector and is more commonly known as
the Fair Housing Act. Courts have recognized that
Title VIII is the functional equivalent of Title
VII, Bailey Co., 563 F.2d at 452-53; Waters, 547
F.2d at 469, and so the provisions of these two
statutes are given like construction and
application. See Stewart, 675 F.2d at 849;
Metropolitan Housing Dev. Corp. v. Village of
Arlington Heights, 558 F.2d 1283, 1289 (7th Cir.
1977), cert. denied, 434 U.S. 1025, 98 S. Ct. 752(1978); see also Anjelino, 200 F.3d at 90-91 &
nn. 23, 25; Betsey v. Turtle Creek Assocs., 736
F.2d 983, 987 (4th Cir. 1984); Mississippi
College, 626 F.2d at 482-83 & n.7; Bailey Co.,
563 F.2d at 452-53; Waters, 547 F.2d at 469-70.
Like its companion, Title VIII permits a charge
and a civil action to be filed by any person
"aggrieved" by a violation of the statute. 42
U.S.C. sec.sec. 3610(a)(1)(A)(i), 3602(i); see
Trafficante, 409 U.S. at 209, 95 S. Ct. at 366-67(1972). Courts have construed those provisions to
confer standing on testers challenging a variety
of unlawful housing practices.
In Havens Realty Corp. v. Coleman, the Supreme
Court held that testers have standing to bring
suit for alleged violations of section 804(d) of
the Fair Housing Act, which makes it an unlawful
practice "[t]o 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." 42 U.S.C. sec. 3604(d).
The complaint in Havens Realty alleged that the
defendant realty firm engaged in racial steering
by misinforming African-Americans that no
apartments were available in one of its
complexes. The plaintiffs included an African-
American man who had unsuccessfully sought
housing from the defendant, as well as a local
organization that promoted equal housing
opportunities and two testers that the
organization had engaged specifically to
determine whether the defendant was engaging in
unlawful steering. The district court had
dismissed the testers from the case, but the
Supreme Court concluded that one of them had
standing to sue.
Citing its earlier decision in Gladstone,
Realtors v. Village of Bellwood, supra, 441 U.S.
91, 99 S. Ct. 1601, the Court at the outset
emphasized:
"Congress intended standing under [the Fair
Housing Act] to extend to the full limits of Art.
III" and . . . the courts accordingly lack the
authority to create prudential barriers to
standing in suits brought under that section. Id.
at 103, n.9, 109, 99 S. Ct. at 1609, n.9, 1612.
Thus the sole requirement for standing to sue
under [the Fair Housing Act] is the Art. III
minima of injury in fact: that the plaintiff
allege that as a result of the defendant’s
actions he has suffered "a distinct and palpable
injury," Warth v. Seldin, 422 U.S. 490, 501, 95
S. Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).
455 U.S. at 372, 102 S. Ct. at 1121. When
Congress enacted the Fair Housing Act, the Court
went on to explain, it conferred upon "any
person" a right to truthful information about the
availability of housing; and it made that and the
other provisions of the Act enforceable by means
of a private civil suit. Id. at 373, 102 S. Ct.
at 1121, citing 42 U.S.C. sec. 3604(d).
In this way, Congress had created a legal
right, the denial of which would, in and of
itself, give rise to the type of injury necessary
to establish standing in conformance with Article
III. Ibid. Thus, any person given false
information about the availability of housing has
standing to sue, irrespective of her intent in
inquiring about the housing in question.
A tester who has been the object of a
misrepresentation made unlawful under sec. 804(d)
has suffered injury in precisely the form the
statute was intended to guard against, and
therefore has standing to maintain a claim for
damages under the Act’s provisions. That the
tester may have approached the real estate agent
fully expecting that he would receive false
information, and without any intention of buying
or renting a home, does not negate the simple
fact of injury within the meaning of sec. 804(d).
See Pierson v. Ray, 386 U.S. 547, 558, 87 S. Ct.
1213, 1219, 18 L. Ed. 2d 288 (1967); Evers v.
Dwyer, 358 U.S. 202, 204, 79 S. Ct. 178, 179, 3
L. Ed. 2d 222 (1985) (per curiam).
455 U.S. at 373-74, 102 S.Ct. at 1121-22./4 The
Court thus concluded that one--but not both--of
the testers had standing to sue under the
statute. The African-American tester alleged that
she had been wrongly informed on four separate
occasions that an apartment was unavailable at
the defendant’s properties; whereas her Caucasian
counterpart had been told that apartments were
available. The former thus suffered an injury
cognizable under the statute, while the latter
did not. Id. at 374-75; 102 S. Ct. at 1122.
Following Havens, this court concluded in
Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th
Cir. 1990), that testers have standing to sue
under other provisions of the Fair Housing Act.
Although section 804(d) forbids false statements
that housing is unavailable, as we noted above,
section 804(a) makes it illegal, inter alia, for
one to make housing unavailable to a person
because of his race (see n.6, infra), and section
804(b) proscribes racial discrimination in the
provision of services in connection with the sale
of a dwelling. The plaintiffs in Dwivedi, who
again included testers, alleged that a real
estate brokerage firm, its owner, and two of its
employees had engaged in racial steering by
encouraging African-American home seekers toward
areas with a substantial African-American
population while encouraging Caucasian buyers
toward areas that did not. Although we thought
the standing of the testers, "as an original
matter," to be "dubious," 895 F.2d at 1526, we
acknowledged Havens’ holding that testers have
standing to sue for violations of section 804(d).
No misrepresentations as the availability of
housing actionable under that section were proven
in Dwivedi. But the essential point of Havens was
that "Congress can create new substantive rights,
such as a right to be free from
misrepresentations, and if that right is invaded
the holder of the right can sue without running
afoul of Article III, even if he incurs no other
injury (for example, the loss of a home-buying
opportunity)." Id. at 1526-27. We were therefore
convinced that testers had standing to sue, not
just for receipt of false information in
violation of section 804(d), but for other
violations of the statute as well:
[T]he logic of Havens embraces discrimination in
the provision of services, forbidden explicitly
by section [804(b)] and implicitly by section
[804(a)]. If the plaintiffs’ evidence is
believed, the testers were treated in a racially
discriminatory fashion, even though they
sustained no harm beyond the discrimination
itself, just as testers are not fooled by the
misrepresentations made to them.
Id. at 1527.
Since Dwivedi was decided, we have twice
confirmed its holding expressly. See United
States v. Balistrieri, 981 F.2d 916, 929 (7th Cir.
1992) ("offering black testers apartments at
higher rental rates than those offered to white
testers discriminates in the terms of rentals and
violates the Act"), cert. denied, 510 U.S. 812,
114 S. Ct. 58 (1993); City of Chicago v.
Matchmaker Real Estate Sales Center, Inc., 982
F.2d 1086, 1095 (7th Cir. 1992) ("the testers were
treated in a ’racially discriminatory fashion,
even though they sustained no harm beyond the
discrimination itself’") (quoting Dwivedi, 895
F.2d at 1527), cert. denied, 508 U.S. 972, 113 S.
Ct. 2961 (1993). Notwithstanding our initial
skepticism on the subject, then, it is now well
established in this circuit that testers who
experience housing discrimination suffer a
cognizable injury that gives them standing to sue
for a variety of Fair Housing Act violations. See
id. at 1095 (finding that testers have standing
to sue for violations of sections 804(a), (b),
and (d) of the Fair Housing Act); Balistrieri,
981 F.2d at 929 (showing black testers fewer
apartments, and quoting them higher rents and/or
later dates of availability, constituted
cognizable violations of sections 804(b) and (d)
of the Fair Housing Act, notwithstanding the fact
that testers were not bona fide apartment
seekers); see also Timm v. Progressive Steel
Treating, Inc., 137 F.3d 1008, 1010 (7th Cir.
1998) ("’Testers’ in housing discrimination cases
are allowed to recover exemplary damages even
though they do not want to occupy the apartments
for which they apply . . . .").
Title VII contains no provision comparable to
section 804(d) of the Fair Housing Act. The
district court seized upon that point of
distinction as a basis for holding that testers
lack standing to complain of employment
discrimination under Title VII. 1998 WL 677165,
at *3. In the other key respects we have
mentioned, however, the statutes are quite
similar: Both take broad aim at discrimination in
their respective sectors and in that sense are
the functional equivalents of one another;
E.E.O.C. v. Bailey Co., supra, 563 F.2d at 453,
454; both authorize individuals to bring suit for
statutory violations and in this way to act as
"private attorneys general," Trafficante v.
Metropolitan Life Ins. Co., 409 U.S. at 209, 93
S. Ct. at 366-67; Bailey Co., 563 F.2d at 453;
and in permitting any person aggrieved by a
violation to file a charge and suit, both reflect
a congressional intent to extend standing to the
fullest extent permitted by Article III of the
Constitution, see Trafficante, 409 U.S. at 209,
93 S. Ct. at 366-67; Anjelino v. New York Times
Co., supra, 200 F.3d at 90-91 & n.25; Stewart v.
Hannon, supra, 675 F.2d at 849; E.E.O.C. v.
Mississippi College, supra, 626 F.2d at 482-83 &
n.7; Bailey Co., 563 F.2d at 453; Waters v.
Heublein, Inc., supra, 547 F.2d at 469-70; Gray
v. Greyhound Lines, East, supra, 545 F.2d at 176;
Hackett v. McGuire Bros., Inc., supra, 445 F.2d
at 446.
Havens and Dwivedi guide us to the conclusion
that testers who experience discrimination as
they apply for jobs have standing to sue under
Title VII. When Congress made it unlawful for an
employer "to limit, segregate, or classify his
employees or applicants in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee . . . because of
such individual’s race. . . .," 42 U.S.C. sec.
2000e-2(a)(2), it created a broad substantive
right that extends far beyond the simple refusal
or failure to hire. Cf. sec. 2000e-2(a)(1). When
a job applicant is not considered for a job
simply because she is African-American, she has
been limited, segregated or classified in a way
that would tend to deprive not only her, but any
other individual who happens to be a person of
color, of employment opportunities. In other
words, she suffers an injury "in precisely the
form the statute was intended to guard against,"
just as she would if, as a housing tester, she
were falsely informed that a vacant apartment was
unavailable. Havens, 455 U.S. at 373, 102 S. Ct.
at 1121. She therefore has standing to sue, even
if she has not been harmed apart from the
statutory violation--even if, for example, she
was not genuinely interested in the job she
applied for and in that sense was not harmed by
the employer’s refusal to hire her. See Dwivedi,
895 F.2d at 1526-27; see also Molovinsky v. Fair
Employment Council of Greater Washington, Inc.,
683 A.2d 142, 146 (D.C.1996) (per curiam)
(testers have standing to sue for sexual
harassment under local ordinance, akin to Title
VII, prohibiting sex discrimination in
employment). But see Sledge v. J.P. Stevens &
Co., 585 F.2d 625, 641 (4th Cir. 1978) ("’tester’
plaintiffs are not, of course, harmed by a
refusal to hire since they are not seriously
interested in the job for which they apply"),
cert. denied, 440 U.S. 981, 99 S. Ct. 1789(1979); Parr v. Woodmen of the World Life Ins.
Soc’y, 657 F. Supp. 1022, 1032-33 (M.D. Ga. 1987)
(plaintiff who had no genuine interest in
employment with defendant could not make prima
facie case of employment discrimination); Allen
v. Prince George’s County, Maryland, 538 F. Supp.
833, 841-43 (D. Md. 1982) (same), judgment aff’d
on other grounds, 737 F.2d 1299 (4th Cir. 1984).
Recognizing tester standing is consistent with
the statute’s purpose. Title VII reflects the
strong public interest in eradicating
discrimination from the workplace. E.g., Franks
v. Bowman Transp. Co., 424 U.S. 747, 763, 96 S.
Ct. 1251, 1263 (1976). Individuals serve that
end, as well as their own interest in
compensation for the wrongs done to them, when
they file suit to challenge discriminatory
employment practices--that is why the Supreme
Court has described them as "private attorneys
general." Newman v. Piggie Park Enters., Inc.,
supra, 390 U.S. at 402, 88 S. Ct. at 966; see
also McKennon v. Nashville Banner Publ’g Co., 513
U.S. 352, 358, 115 S. Ct. 879, 884 (1995);
E.E.O.C. v. Associated Dry Goods Corp., 449 U.S.
590, 602, 101 S. Ct. 817, 824 (1981); Alexander
v. Gardner-Denver Co., 415 U.S. 36, 45, 94 S. Ct.
1011, 1018 (1974). Testers advance that same
public interest. Indeed, because proof of
discrimination is often quite difficult to
muster--especially so in the hiring process--
testers provide evidence that, we have
recognized, "is frequently valuable, if not
indispensable." Richardson v. Howard, 712 F.2d
319, 321 (7th Cir. 1983). The fact that testers
have no interest in a job does not diminish the
deterrent role they play by filing suit under
Title VII. In that regard, testers are situated
similarly to unlawfully discharged employees who
are ineligible for reinstatement because of
wrongdoing discovered after they were fired.
Evidence of such wrongdoing limits the relief
they may obtain under Title VII, but it does not
bar them from bringing suit. McKennon, 513 U.S.
at 358-59, 115 S. Ct. at 884-85.
For these very reasons, the EEOC has likewise
concluded that employment testers have standing
to pursue relief under the statute. In 1990, and
again in 1996, the Commission issued policy
guidance statements to that effect. See EEOC,
Policy Guidance No. 915-062 ("Policy Guide on Use
of ’Testers’ in Employment Selection Process")
(Nov. 20, 1990), superseded by EEOC, Enforcement
Guidance No. N-915.002 ("Enforcement Guidance:
Whether ’Testers’ Can File Charges and Litigate
Claims of Employment Discrimination") (May 22,
1996) ,
reprinted in Fair Employment Practices Manual (BNA)
405:6899 (2000). The EEOC’s analysis, of course,
does not bind us. But as the agency charged with
enforcing Title VII, the Commission has
experience and familiarity in this field which
bestow upon its judgment an added persuasive
force. See Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65, 106 S. Ct. 2399, 2404 (1986);
Hendricks-Robinson v. Excel Corp., 154 F.3d 685,
693 n.7 (7th Cir. 1998) (collecting cases). The
Commission’s view that testers have standing to
pursue Title VII claims both informs and supports
our holding today.
Before concluding our discussion of Title VII,
we must address one other aspect of the decision
below. As we noted earlier, Judge Conlon found
that the plaintiffs failed to meet the standing
requirements imposed not only by Article III, but
by Title VII itself. 1998 WL 677165, at *3-*4.
Unless the plaintiff can establish that she was
a bona fide applicant for employment, the judge
reasoned, she lacks standing to make a claim
under either Title VII or section 1981. Id. at
*3. We make two brief points in that regard.
First, although the district judge addressed the
bona fide application as a statutory prerequisite
for standing, it really goes to the merits of the
plaintiffs’ claim. Indeed, the two cases Judge
Conlon cited in support of this requirement--
Allen v. Prince George’s County, Maryland, 538 F.
Supp. at 841-43, and Parr v. Woodmen of the World
Life Ins. Soc’y, 657 F. Supp. at 1032-33,
discussed the bona fide application as an element
of the plaintiff’s prima facie case, not
standing. We addressed the distinction in Fry v.
UAL Corp., 84 F.3d 936, 939 (7th Cir.), cert.
denied, 519 U.S. 987, 117 S. Ct. 447 (1996),
explaining that when a statute clearly does not
confer rights upon a particular class of
individuals, "a suit under the statute by a
member of that class does not engage the
jurisdiction of the federal courts," citing
Merrell Dow Pharmaceuticals Inc. v. Thompson, 478
U.S. 804, 814, 106 S. Ct. 3229, 3235 (1986). But
where the reach of the statute is not so clear,
we explained, "the question whether a particular
class is protected by it becomes just another
issue concerning the merits of the suit . . . ."
84 F.3d at 939. In this case, Kyles and Pierce
have asserted the injury-in-fact that Article III
requires. Whether they can establish a prima
facie case of employment discrimination is a
question that implicates the merits of their
claim rather than their standing to make it. See
Whitlock v. Johnson, 153 F.3d 380, 385 (7th Cir.
1998).
Second, we find no support in Title VII for a
requirement that a job applicant must have a bona
fide interest in working for a particular
employer if she is to make out a prima facie case
of employment discrimination. In contrast to
section 804(a) of the Fair Housing Act, which
makes it unlawful, inter alia, "[t]o refuse to
sell or rent after the making of a bona fide
offer," 42 U.S.C. sec. 3604(a),/5 Title VII does
not limit its protection to bona fide job
seekers. Rather, as we noted at the outset of our
analysis, the statute proscribes employment
practices which "in any way . . . would deprive
or tend to deprive any individual of employment
opportunities," sec. 2000e-2(a)(2) (emphasis
ours), and authorizes a charge "by or on behalf
of a person claiming to be aggrieved," sec.
2000e-5(b). Kyles and Pierce both claim to be
aggrieved by the discriminatory practices they
attribute to Guardian. The fact that they had no
interest in actually working for the company
certainly speaks to the nature and extent of
their injuries as well as the appropriate relief.
See McKennon, 513 U.S. at 360-62, 115 S. Ct. at
885-86. But it does not rule out the prospect
that they were injured. We have long recognized
that humiliation, embarrassment, and like
injuries--the very type of injuries that Kyles
and Pierce allege they suffered (see R. 1 at 11
para. 42)--constitute cognizable and compensable
harms stemming from discrimination. See, e.g.,
Seaton v. Sky Realty Co., 491 F.2d 634, 636-38
(7th Cir. 1974); Tyus v. Urban Search Management,
102 F.3d 256, 265 (7th Cir. 1996), cert. denied,
520 U.S. 1251, 117 S. Ct. 2409 (1997).
As individuals who applied for work with
Guardian Security and allege that they were
treated in a discriminatory fashion, Kyles and
Pierce have standing to sue the firm under Title
VII. The statute confers upon all individuals a
right to be free from racial discriminatory
practices in employment. If the plaintiffs’
allegations are true, then Guardian violated that
right and the plaintiffs suffered an actual
injury that gave them the right to sue, whether
or not Kyles or Pierce were truly interested in
employment.
B.
Section 1 of the Civil Rights Act of 1866
forbids discrimination on the basis of race in
the making and enforcement of private as well as
public contracts. Runyon v. McCrary, 427 U.S.
160, 168, 96 S. Ct. 2586, 2593 (1976). In
relevant part, the statute provides:
All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts . .
. as is enjoyed by white citizens . . . .
42 U.S.C. sec. 1981. Insofar as the statute
reaches private conduct, it reflects the exercise
of congressional authority under the Thirteenth
Amendment to relieve African-Americans of the
"badges and incidents" of slavery. Runyon, 427
U.S. at 179, 96 S. Ct. at 2598-99; see also Jones
v. Alfred H. Mayer Co., 392 U.S. 409, 439, 88 S.
Ct. 2186, 2203 (1968).
Relatively few courts have considered whether
testers have standing to challenge discriminatory
employment practices pursuant to section 1981.
The Supreme Court has yet to address the
question. Two circuits, the Third and the
Eleventh, have held that testers have standing to
challenge discriminatory housing practices under
another provision dating back to the
Reconstruction era, 42 U.S.C. sec.1982. Watts v.
Boyd Properties, Inc., 758 F.2d 1482, 1485 (11th
Cir. 1985); Meyers v. Pennypack Woods Home
Ownership Ass’n, 559 F.2d 894, 898 (3d Cir.
1977), overruled on other grounds by Goodman v.
Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985),
aff’d, 482 U.S. 656, 107 S. Ct. 2617 (1987)./6
That statute provides:
All citizens of the United States shall have the
same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and
personal property.
42 U.S.C. sec. 1982. Given the similarity in
purpose and phrasing between the two provisions,
we may assume that these circuits would have
reached the same conclusion with respect to
section 1981./7 See also Coel v. Rose Tree Manor
Apartments, Inc., No. 84 C 1521, 1987 WL 18393,
at *6 (E.D. Pa. Oct. 13, 1987) (finding that
testers have standing to challenge housing
discrimination under section 1981); Pumphrey v.
Stephen Homes, Inc., No. 93 C 1329, 1994 WL
150947, at *4 (D. Md. Feb. 24, 1994) (tester has
standing under sec.sec. 1981 and 1982 to sue for
housing discrimination), judgment aff’d in part,
rev’d in part & remanded on other grounds without
published op., 110 F.3d 60, text in Westlaw, 1997
WL 135688 (4th Cir. Mar. 25, 1997); Open Housing
Center, Inc. v. Samson Mgmnt. Corp., 152 F.R.D.
472 (S.D.N.Y. 1993) (holding that testers could
serve as class representatives in suit alleging
violations of sec.sec. 1981 and 1982, as well as
Fair Housing Act); City of Evanston v. Baird &
Warner, Inc., No. 89 C 1098, 1990 WL 186575, at
*5 (N.D. Ill. Nov. 15, 1990) (Nordberg, J.)
(finding that tester has standing under section
1982); Leadership Council for Metropolitan Open
Communities v. Chicago Southwest Holiday Inn
Operators Oak Lawn Lodge, Inc., No. 84 C 7564,
1986 WL 10360, at *1 (N.D. Ill. Sept. 8, 1986),
and 1986 WL 5651, at *4 (N.D. Ill. May 6, 1986)
(Williams, J.) (finding that tester has standing
to sue under civil rights laws, including sec.
1981); Biggus v. Southmark Mgmnt. Corp., No. 83
C 4024, 1985 WL 1751, at *5-6 (N.D. Ill. June 13,
1985) (Marshall, J.) (finding tester standing
under sec.sec. 1981 and 1982).
More recently, however, the D.C. Circuit has
confronted the question head-on and concluded
that testers lack standing to sue under section
1981 for employment discrimination. Fair
Employment Council of Greater Washington, Inc. v.
BMC Marketing Corp., 28 F.3d 1268, 1270-72 (D.C.
Cir. 1994). As in this case, the two plaintiff
testers in BMC were African-American college
students employed by the Fair Employment Council
of Greater Washington. In conjunction with white
testers, they sought job referrals from the
defendant BMC, which operated an employment
agency. The white testers both received
referrals, while the black testers did not;
indeed, the agency refused even to accept an
application from one of the African Americans.
The African-American testers contended that BMC
had violated their rights under section 1981 by
depriving them of the opportunity to enter into
contracts with the employment agency itself, as
well as the employers to which the agency would
have referred them.
The court concluded that the testers suffered
no cognizable loss of contractual rights vis a
vis either the employment agency or prospective
employers. When they approached BMC, the court
pointed out, the testers had misrepresented their
interest in employment and presented fictitious
credentials. Id. at 1270-71. In view of those
misrepresentations, any contract that the testers
might have entered into with the agency could
have been voided at the agency’s option. Id. at
1271. Being deprived of the chance to enter a
voidable contract was not, in the court’s view,
an injury cognizable under section 1981. Id. As
for prospective employers:
[T]he testers concededly had no interest in
securing a job through BMC. Indeed, they had
promised the Council to refuse any offer of
employment that they received in conjunction with
their testing activities. . . . In depositions,
both of the tester plaintiffs confirmed that they
would have rejected any job offer obtained
through a referral from BMC. . . . At most, then,
BMC deprived the tester plaintiffs of the
opportunity to refuse to enter into an employment
contract with BMC’s clients. This too is not an
injury cognizable under sec. 1981.
Id.Kyles and Pierce, of course, are in the same
position as the testers in BMC. They had no
genuine interest in employment with Guardian, and
neither would have accepted an offer of
employment had one been extended. Indeed, both
had signed agreements with LAF promising not to
accept employment with any of the firms whose
employment practices they were directed to test.
The women do allege that they suffered
humiliation and other emotional distress as a
result of Guardian’s asserted discrimination. R.
1 at 9 para. 36. But in terms of the essential
right that section 1981 protects--the right to
make and enforce a contract--Kyles and Pierce
suffered no injury. Their goal in approaching
Guardian was not to enter into a contract with
the company. At most, as the court recognized in
BMC, Kyles and Pierce were seeking the
opportunity to decline an offer of employment. 28
F.3d at 1271. Given the terms of the statute,
that interest is not sufficient to confer
standing to sue for asserted violations of
section 1981./8
Although, insofar as employment contracts are
concerned, section 1981 and Title VII share the
same purpose, the two statutes are different in
important respects. Title VII takes aim at a wide
range of racially discriminatory practices which,
among other things, either "deprive or tend to
deprive any individual of employment
opportunities . . . ." 42 U.S.C. sec. 2000e-
2(a)(2) (emphasis supplied). It also bestows on
any person "aggrieved" by a violation of the
statute the right to initiate a charge, sec.
2000e-5(b), signaling that Congress meant to
extend standing to the outer boundaries laid down
by Article III of the Constitution. See
Trafficante, 407 U.S. at 209, 93 S. Ct. at 366-
67, and the other authorities collected above at
pages 8-9 and 13. Title VII thus creates a
substantive and enforceable right to be free from
any attempt "to limit, segregate, or classify"
applicants for employment on the basis of race in
a way that might tend to deprive the applicant,
or any individual, of employment opportunities.
sec. 2000e-2(a)(2). Section 1981, by contrast,
does not proscribe any practice that might tend
to interfere with one’s ability to enter and
enforce a contract; it protects the right to
enter into and preserve a contractual
relationship, period. Moreover, there is nothing
in section 1981’s language suggesting that
Congress meant to stretch standing to the limits
of Article III. See BMC, 28 F.3d at 1278-79;
Maryland Minority Contractor’s Ass’n, Inc. v.
Maryland Stadium Auth., 70 F. Supp. 2d 580, 588
(D. Md. 1998), aff’d without published op., 198
F.3d 237, text in Westlaw, 1999 WL 827553 (4th
Cir. Oct. 18, 1999); City of Evanston v. Baird &
Warner, Inc., supra, No. 89 C 1098, 1990 WL
186575, at *4; Saunders v. General Servs. Corp.,
659 F. Supp. 1042, 1054 (E.D. Va. 1987).
Havens and Dwivedi reveal these to be key
distinctions. As both cases recognize, Congress
has the authority to create a substantive right,
the denial of which alone gives rise to a
cognizable injury and the right to sue, even if
the plaintiff does not suffer the type of core
injury that the statute protects. In Havens, the
right was one not to be falsely informed that
housing was unavailable. A tester given such
information would suffer an injury
notwithstanding the fact that she was not
actually in need or desire of housing. In
Dwivedi, the right that Congress created was the
broad right not to be subjected to discriminatory
services related to the sale of a home. Any
person subjected to such discrimination would
thus incur a cognizable injury even if she had no
genuine interest in purchasing a home.
The terms of 1981 are more narrow, however--it
protects the contractual relationship itself. The
class of persons who may bring suit is therefore
limited to persons who actually wish to enter
into (or remain in) that relationship. Because
they were not genuinely interested in employment
with Guardian, and indeed were obliged to turn
down any offer of employment that Guardian might
have extended to them, Kyles and Pierce do not
fall within this class.
To be sure, there are two Supreme Court
precedents that lend partial support to the
plaintiffs’ case for standing. In Evers v. Dwyer,
358 U.S. 202, 79 S. Ct. 178 (1958), Evers, an
African-American resident of Memphis, asked a
federal court to declare invalid a Tennessee
statute requiring segregated seating on public
conveyances. Evers himself had been evicted from
a Memphis bus under threat of arrest after he
refused to take a seat in the rear. The district
court dismissed his complaint, reasoning that
there was no "actual controversy" as required by
the Declaratory Judgment Act, 28 U.S.C. sec.
2201, because the evidence revealed that Evers
had boarded the bus solely for the purpose of
initiating litigation. However, the Supreme Court
found Evers’ motive for boarding the bus to be
immaterial.
We do not believe that appellant, in order to
demonstrate the existence of an "actual
controversy" over the validity of the statute
here challenged, was bound to continue to ride
the Memphis buses at the risk of arrest if he
refused to seat himself in the space in such
vehicles assigned to colored passengers. A
resident of a municipality who cannot use
transportation facilities therein without being
subjected by statute to special disabilities
necessarily has, we think, a substantial,
immediate, and real interest in the validity of
the statute which imposes the disability. That
the appellant may have boarded this particular
bus for the purpose of instituting this
litigation is not significant.
Id. at 204, 79 S. Ct. at 179-80 (citations
omitted). Similarly, in Pierson v. Ray, 386 U.S.
547, 558, 87 S. Ct. 1213, 1219-20 (1967), the
Court did not think that damages under 42 U.S.C.
sec. 1983 were foreclosed to a group of white and
black clergymen who were arrested after they
attempted to integrate a bus terminal in Jackson,
Mississippi, notwithstanding that the plaintiffs’
purpose in entering the terminal had been to test
their rights to unsegregated public
accommodations. "The petitioners had the right to
use the waiting room of the Jackson bus terminal,
and their deliberate exercise of that right in a
peaceful, orderly, and inoffensive manner does
not disqualify them from seeking damages under
sec. 1983." Id. at 558, 87 S. Ct. at 1220. The
Third Circuit in Meyers, 559 F.2d at 898, and the
Eleventh Circuit in Watts, 758 F.2d at 1485, both
relied heavily on Evers and Pierson in concluding
that testers have standing to bring suit under
section 1982.
These two cases cannot bear the full weight of
the plaintiffs’ burden on standing, however.
Evers makes clear that a plaintiff’s status as a
tester does not render a controversy illusory.
And Pierson confirms that a tester can suffer a
cognizable and compensable injury even if she
seeks to exercise her rights with the full
expectation that the defendant will violate them.
Yet, as with Havens, what distinguishes these
cases from the one at hand is the nature of the
right involved. When a person pays her fare and
boards a bus, or orders a meal in a restaurant,
she is actually using (or attempting to use)
those public accommodations irrespective of her
reasons for doing so; in a contractual sense, she
actually is attempting to enter into a contract.
Therefore, when she is evicted or arrested for
refusing to honor a racial barrier, she suffers
a deprivation of her rights whether she was
present to ferret out discriminatory practices or
because she genuinely needed a ride or a meal.
See Pierson, 386 U.S. at 558, 87 S. Ct. at 1220;
see also Smith v. Y.M.C.A. of Montgomery, Inc.,
462 F.2d 634, 645-46 (5th Cir. 1972). Kyles and
Pierce would be similarly situated if they
actually wanted a job with Guardian (for whatever
reason). But when someone solicits an offer of
employment with absolutely no intent to accept in
the event one is extended to her, she is not
attempting to exercise the particular right
protected by section 1981. She has no interest in
forming a contract; to put it in Evers’ context,
she would never set foot on the bus. It is for
that reason that a tester who encounters race
discrimination in the process of applying for
employment cannot sue under section 1981. The
discrimination may be altogether real, and the
tester may have suffered an identifiable injury;
but the employer has not deprived the tester of
her right to make or enforce contracts. The
tester’s injury, if any, is one that lies outside
the zone of interests that section 1981 protects.
See Morris v. Office Max, Inc., 89 F.3d 411, 414-
15 (7th Cir. 1996).
Congress, as we have emphasized throughout our
analysis, has the power to define the right more
broadly, and in so doing to bestow standing on a
larger class of individuals. If, in section 1981,
it had proscribed practices that would deprive or
tend to deprive any individual of the opportunity
to make a contract, for example, then testers
might have standing to sue under this statute as
they do under Title VII. See Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1138 (9th Cir. 2000).
But, in view of the more confined reach of
section 1981 as Congress actually did frame it,
we do not believe that Kyles and Pierce meet the
criteria that Article III imposes.
IV.
Having concluded that employment testers have
standing to sue under Title VII but not section
1981, we AFFIRM IN PART and REVERSE IN PART the district
court’s judgment, and we REMAND the case to the
court below for further proceedings consistent
with this opinion. The parties shall bear their
own costs of appeal. We thank both of the amici--
the EEOC, and the Fair Employment Council of
Greater Washington--for their briefs; and we
commend all parties on the superior caliber of
the briefing in this case.
/1 In the employment context, a "tester" is an
individual who, without the intent to accept an
offer of employment, poses as a job applicant in
order to gather evidence of discriminatory hiring
practices. See Havens Realty Corp. v. Coleman,
455 U.S. 363, 370, 374, 102 S. Ct. 1114, 1119,
1121 (1982) (discussing housing testers).
/2 For example, the resume of the minority candidate
might reflect superior work experience in terms
of the length of her prior employment or the
level of responsibility she enjoyed.
/3 The EEOC found "reasonable cause" to support
their charges of race discrimination. R. 52 Exs.
7, 8. Efforts at conciliation were unsuccessful.
/4 See Biggus v. Southmark Mgmnt. Corp., No. 83 C
4024, 1985 WL 1751, at *2 (N.D. Ill. June 13,
1985) (Marshall, J.) ("It is not the plaintiff’s
intent in seeking the information, but rather the
defendants’[intent] in making the allegedly false
statement which is important in a sec. [804(d)]
action.").
/5 Section 804(a) proscribes a variety of
discriminatory housing practices. See 42 U.S.C.
sec. 3604(a). The ban on refusals to sell or rent
on the basis of race, etc. is the only clause of
this subsection that includes the bona fide offer
requirement. Consequently, the other activities
addressed by subsection (a)--refusing to
negotiate for the sale or rental of housing,
making housing unavailable, and denying someone
housing on the basis of race, etc.--are
prohibited irrespective of whether there was a
bona fide offer. That is why we concluded in
Dwivedi that Havens’ rationale as to tester
standing extends to section 804(a) as well as the
other subsections of the statute. 895 F.2d at
1527. See Grant v. Smith, 574 F.2d 252, 255 (5th
Cir. 1978); Zuch v. Hussey, 394 F. Supp. 1028,
1050-51 (E.D. Mich. 1975), aff’d & remanded
without published op., 547 F.2d 1168 (6th Cir.
1977); United States v. Youritan Constr. Co., 370
F. Supp. 643, 650 (N.D. Cal. 1973), aff’d in part
& rev’d in part on other grounds, 509 F.2d 623(9th Cir. 1975).
/6 In City of Chicago v. Matchmaker Real Estate
Sales Center, Inc., supra, 982 F.2d 1086, the
defendants were sued for racial steering under
both the Fair Housing Act and section 1982. We
held that testers do have standing to sue, but we
framed our holding in terms of the Fair Housing
Act alone. See id. at 1095.
/7 Indeed, the Third Circuit indicated that it
intended to address standing under both statutory
provisions. See 559 F.2d at 898 ("we are required
to review the district court’s holding as it
applies to sections 1981 and 1982"). However, as
worded, the court’s actual holding is limited to
section 1982 alone. See id. ("We therefore hold
that Meyers has standing to maintain his action
under section 1982.").
/8 As our discussion makes plain, we are relying on
BMC’s rationale only insofar as it concerns the
testers’ lack of genuine interest in employment.
We find it unnecessary to consider what impact,
if any, the tester’s presentation of fictitious
credentials to an employer might have on her
section 1981 claim.