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Armed with fake résumés, well-rehearsed backgrounds, and a unanimous 7th Circuit ruling upholding their standing to sue, employment testers are now able to offer courts something that most actual victims of hiring discrimination can’t: evidence.
My beat-up maroon Toyota Corolla, a sentimental eyesore that passed for my transportation back in college, pulled into the lot of the suburban Chicago auto dealership right on time. I was always on time. The importance of punctuality had been drilled into my head since Day 1, when I had promised never again to be late, lest I risk blowing the entire operation.
It was May 26, 1994 in Skokie, Ill. Dressed in a navy sports coat and a pair of well-pressed blue slacks, I entered the show room of Fergus Nissan and walked up to the sales counter, where I was greeted warmly by a heavyset, middle-aged white man with thinning brown hair. He introduced himself as Glenn Bockwinkel, general manager, and seemed genuinely pleased to make my acquaintance. This reception, I confess, did not surprise me, even though I couldn’t tell an Altima from an Exterra and the résumé I would submit made it clear that I had never sold a car in my life.
“Are you working now?” Bockwinkel asked me.
“Yes sir, in furniture sales,” I fibbed.
“Why do you want to sell cars?”
“Because the industry is thriving, and I want to make money.”
“Who told you we had an opening?”
“Have you ever sold cars before?”
“No, but I’m eager to learn,” I said in my sincerest inflection.
Bockwinkel gave me an application and directed me to a small lounge adjacent to the cashier’s window. While filling it out, I peered across the showroom and counted seven on the sales force, all white males. Bockwinkel passed me off to Dave Holmquist, head of new employee training, and promised we’d talk again soon. I guess our 45 seconds of chit-chat had convinced him that I was second interview material.
Holmquist and I were exchanging small talk in his office when my questioner shifted into what smelled an awful lot like a sales pitch. The interview, I soon discovered, would be noticeably short on questions from employer to prospective employee. Instead, Holmquist was chummy right from the start. He offered a monologue about his past work experiences, favorably comparing the wonderful working environment at Fergus to all of his previous jobs. At the worst of those, his boss, “a black guy,” was “a real prick.” He was the “type who wore double-breasted suits,” and Holmquist said he was sure glad to be out of that place.
He asked me about my background, and I told him I had left Tennessee six months ago for a taste of big-city life. Of course, I was lying through my teeth just as surely as he was flashing his in a cheesy attempt to woo me. Holmquist promised me comprehensive on-the-job training and told me of the riches that employment at Fergus could bring. He was on the verge of buying his first house, and he had a feeling I could make a pretty penny on commissions, too. Oh, and by the way, I could leave the crummy Corolla in the driveway and ride off in a Fergus demo after 30 days on the job.
Holmquist went on and on about the perks, but it wasn’t until talk turned to the employee dress code that things got really interesting. Bockwinkel was said to prefer conservative “IBM-style” attire. Holmquist, sizing me up, said my blazer and slacks looked fine. Then, the bombshell: I should refrain from wearing “Guido ties.”
“We don’t want any Guidos here.”
Tread lightly, I thought to myself, remembering my training. This guy just fastened his own noose, let him tighten it on his own. Elaborating, Holmquist cited a local clothing store that sold “90 percent Guido ties.” Nice stuff, he told me, as long as you steer clear of the neckwear aisle. To this day, I haven’t the foggiest idea what a “Guido tie” is supposed to be, but the epithet left little doubt about the ethnicity of the wearer. Finally, in case I hadn’t picked up on his earlier opposition, Holmquist told me that Fergus had a “no double-breasted suits” policy.
Only in retrospect do I realize the irony of the role reversal: me telling used car salesmen what they wanted to hear, while they naively placed their trust in me. Maybe I would have felt a little uneasy about the deception if what Fergus was doing wasn’t so cleverly shrouded from public view. I had learned to lie for the greater good, and my conscience was clear.
Returning for my second interview, Bockwinkel was ultra-cordial from the start. “You’ve got a good look about you,” he told me as he offered me a job selling cars at Fergus, along with in-house training and a company-subsidized sales course.
Another dealership, another interview, another offer. My perfect record was intact. Seems I could barely get my foot in the door of a dealership before a red carpet was rolled underneath it. Somehow I didn’t feel like celebrating, though. I told the folks at Fergus I needed a day to think their offer over. Driving away in my rusty Corolla, replaying the day’s details in my mind for later transcription, I remembered something Holmquist had told me shortly after we met. In retrospect, it could’ve passed as the official Fergus hiring policy:
“We want our new guys to look right, act right, and sell right.”
PUT TO THE TEST
More than eight years have passed since I was a student in search of part-time work, though I confess it seems like a lot longer. This begs the question: Exactly how are my recollections so vivid and precise nearly a decade later? That’s easy. I’m sitting at my desk in Washington, D.C., reading a faxed copy of my handwritten “employment audit form,” in which I recorded even the smallest details of my application process at Fergus. Everything from the location of the sales counter to the color of Glenn Bockwinkel’s tie.
So I wasn’t looking for my big break in the automobile industry, even though I was being paid to convincingly look the part. During my last two years as an undergraduate at Northwestern University, I worked part-time as an undercover tester for the Employment Discrimination Project of the Legal Assistance Foundation of Metropolitan Chicago.
America has made substantial progress in curbing gender and racial inequality since the civil rights struggles of the 1960s, but rumors of discrimination’s demise have been greatly exaggerated. This July, a husband-wife research team from Rutgers law school celebrated their 50th wedding anniversary by releasing the most comprehensive study ever conducted on intentional discrimination in the U.S. workplace. Their study, which covered 37 million workers and nearly half of all American jobs, found that at least two million minority and female job-seekers had been visibly discriminated against in 1999. What’s more, 37 percent of employers had visibly discriminated against African-Americans, Hispanics, Asians, or Native Americans in hiring, while 29 percent of employers had visibly discriminated against women.
The employment study (www.EEO1.com), compiled from data submitted by U.S. companies with 50 employees or more, measured hiring rates in nine different occupational categories and found that discrimination was the worst at the top of the pecking order. Minorities and women seeking management jobs face a “22-percent chance they will be discriminated against – a hell of a burden to carry with you in life,” says Alfred Blumrosen, who released the study with his wife, Ruth, exactly 50 years to the month that they wed.
The Blumrosens’ findings contrast sharply with certain public perceptions about workplace fairness. A 2001 New York Times survey (commissioned as part of the newspaper’s Pulitzer Prize-winning series on race relations) found that 73 percent of white respondents felt that blacks were treated no worse than they were on the job. The Washington Post, the Kaiser Family Foundation, and Harvard University took a similar survey the same year and found 44 percent of white respondents thought blacks were “just about as well off as whites” on the job.
Employment testing helps explain the difference between perception and reality. Overt discrimination – when minorities were designated separate bathrooms, water fountains, and seats on the back of the bus – has given way to a sneakier, but no less insidious form. Fearing public condemnation (or even worse, legal action), today’s bigots seldom wear their prejudice on their sleeves. Instead, when a minority applicant comes knocking, employers will offer up a hearty handshake, a job application, even a perfunctory interview before pitching the résumé in the trash as the applicant walks out the door.
The result: White applicants often feel they were deservingly hired as the worthiest candidate, while minority applicants seldom realize when they’ve been victimized by intentional discrimination. Even when suspicion is aroused, hiring bias can be extremely difficult to prove since employment decisions are subjective and those being victimized usually know nothing about the applicant pool, the employer’s hiring criteria, or the qualifications of the person ultimately hired. Such covert discrimination requires an equally covert process to detect it.
Using employment testing, useful comparisons can be made. Take the Fergus test. As a white male, I was the control group of the experiment. The real test case was my African-American partner. We both underwent the same extensive training on how to pose as legitimate job-seekers. We drafted comparable fake résumés germane to the entry-level jobs we were seeking, only my credentials were slightly weaker to head off potential employer arguments that I was offered the job a result of superior qualifications.
My partner applied at Fergus the day before I did. When he turned in his application, he was told the person doing the hiring was out “with the owners and could be back in five minutes or three hours.” So he sat and waited. And waited. Almost an hour passed, and no one had helped him. He returned to the sales desk and found Bockwinkel, who was not, in fact, meeting with the owners but was still reportedly too busy with clients to talk. He sent my partner on his way with a promise to call back “either way this afternoon.” He never did. So my partner followed up the next day, and again he was brushed off with a promise of a callback that never came. A third and final try a week later elicited a promise from Bockwinkel that he would call back if anything “came up.” Nothing ever did. My partner was never interviewed.
Another white-black tester pair sent to Fergus received almost identical treatment. The lesser-qualified white tester had no experience selling cars yet was offered a cup of coffee, sales pointers, a subsidized training course, and an offer of employment. The black tester – whose résumé listed six years selling boats, cruisers, yachts, electronics, and cable programming – was told training was too expensive and shown the door after being informed that his lack of auto sales experience made him a “Plan B” prospect.
Today, Michael Horton is no one’s Plan B prospect. He’s a financial software analyst for Bank One in Chicago and winces when recalling the string of cold shoulders he received as an employment tester. “I remember arranging for one interview by phone, walking in, and seeing their jaws drop because they hadn’t realized I was black. Or I’d get to talk to some guy in a room, while my partner got a training program. I remember walking into one dealership wearing my newest suit, and when I went to give the guy my résumé, he just put his hand up and said, ‘I don’t need it.’ When I found out he offered my partner a job, it pissed me off.”
Sometimes discrimination isn’t so obvious. Sometimes the door isn’t slammed shut on minorities; it’s left barely cracked with a doorstop wedged underneath. The Employment Discrimination Project received a two-year, $500,000 grant from the Joyce Foundation in 2000 to conduct racial employment testing at retail stores in Chicago’s largely affluent northwest suburbs. Two sets of black-white female testers were hired to apply for jobs at 50 retail outlets in malls and suburban shopping centers.
Robyn Donaldson, one of the African-American testers, said she would’ve never known she was being discriminated against had she not learned of her partner’s treatment at the same stores. Donaldson received a handful of job offers, only to later learn the deal would have been even sweeter if her skin had been white. Comparing her treatment with her blond-haired partner’s, Donaldson discovered she was often offered a lower starting salary than her partner. Other times, she would be asked to train at a location many miles away, when no such request had been made of her partner. Or she would be called back for multiple follow-ups when the white tester got an offer right off the bat. Frequently, she would be offered the job only after her white counterpart turned the same offer down.
“They were usually super-nice to me,” says Donaldson, who is now pursuing a law degree at John Marshall Law School in Chicago. “I was always shocked at the end when I found out which places were discriminating against me. It usually wasn’t the ones I would have expected.”
FIGHTING FOR FAIRNESS
LeeAnn Lodder, director of the Chicago project since its 1993 inception, isn’t as easily surprised. She has been battling discrimination in one form or another since her first job out of college as a housing discrimination tester in her hometown of Cincinnati. In 1982, the U.S. Supreme Court ruled that housing testers had standing to sue, even though they weren’t sincerely interested in living in the places they were testing. The decision was a triumphant legal affirmation for housing testers, but within two years, it was a moot point for Lodder. “By then, every housing agency in Cincinnati knew my face, so that was the end of my days as a housing tester.”
Lodder was doing database entry work for a temp agency in 1984 when she noticed a peculiar heading for one of the applicant categories she had been asked to log in: “personal appearance.” Studying the entries in the column more closely, she discovered that all black applicants were labeled “neat.” When Lodder asked her supervisor for an explanation, she was told the designation was for affirmative action purposes. Affirmative action? Lodder thought. Then why hide it by using a code word? She reported what seemed to be clear evidence of intent to discriminate to Cincinnatti’s fair housing agency, her old employer. Lodder suggested testing be used but was told such a project would require resources that the cash-strapped agency did not have. Unwilling to let the agency win, Lodder was “forced to play a little guerilla warfare and go into the database and erase all the ‘neats.’ ”
Lodder soon went back to school to pursue a master’s degree at Columbia University’s Graduate School of Journalism, where she earned a Pulitzer fellowship that allowed her to travel to India to work as a correspondent. Lodder returned to America in 1991, settled in Chicago, and learned of a fledgling effort to develop employment testing using the Supreme Court-sanctioned model for housing testing, in which matched pairs with similar credentials posed as prospective tenants.
Employment testing offered hope to finally gather elusive proof of discrimination in the hiring context. Lodder knew that only six percent of complaints to the Equal Employment Opportunity Commission related to hiring. The EEOC – the federal agency charged with enforcing fair hiring laws under Title VII of the 1964 Civil Rights Act – was spending its limited resources on investigating more provable forms of on-the-job discrimination, such as decisions relating to raises, promotions, and demotions.
Lodder was hired by the Legal Assistance Foundation of Metropolitan Chicago to develop an objective methodology for employment testing that would stand up in court. “Few needs are more fundamental to a poor person than a job – specifically, a job that pays enough to support one’s family,” program leaders wrote in a project mission statement. “In order for low-income workers to fairly compete for jobs that will enable them to move out of the ranks of the working poor, it is especially critical to have a fair hiring process.”
I first met Lodder in 1994 after running across an ad in the classifieds for a “discrimination auditor.” Curious, I decided to apply and wound up scheduling an interview to which I arrived five minutes late. Uh oh. Lodder was friendly when we met but toward the end of our interview gave me a richly deserved scolding about my arrival time. Punctuality is paramount, she explained, because tardiness to a test interview could introduce unwanted variables into an employer’s decision-making process and taint the entire test.
Lodder, it turned out, had thought of everything. Her methodology sought to isolate all possible variables except for race or gender. She chose tester pairs similar in age, height, and build. She trained us on what to say, what not to say, how to dress, who to ask for, who to follow up with, even when to ask for a business card. She made up index cards with the 20 most commonly asked interview questions and grilled us to make certain we had our answers nailed. She reminded us to shake hands firmly and always look our questioner in the eye. She helped us draft fake résumés based on our actual life experiences and areas of knowledge, so we could BS convincingly on the fly.
She also devised an approach to writing the post-audit narratives that emphasized the objective reporting skills she had been taught at Columbia. Namely, don’t make assumptions. Don’t jump to conclusions. Don’t put words in anyone’s mouth. Avoid making value judgments. Never bait the employer (no matter what incriminating “double-breasted Guido” garbage comes out of his mouth); it’s a recipe for a successful entrapment defense. Just neutrally report what you see and hear.
The testing methods came under court scrutiny in Kyles v. J.K. Guardian Security Service Inc., the long-awaited case to determine whether employment testers have standing to sue. A federal district court ruled against the employment testers because they were not really interested in the jobs for which they applied. Lodder was confident of her chances on appeal, though, because she knew what this same U.S. Court of Appeals for the 7th Circuit had said when it heard an earlier case involving housing testers, calling the evidence they provide “a major resource in society’s continuing struggle to eliminate the subtle but deadly poison of racial discrimination.”
Said Lodder: “Courts have repeatedly found that it does not matter whether the tester really wants lunch at a segregated lunch counter, a seat at the front of the bus, or an apartment that is offered to whites but denied to African-Americans. Discrimination is illegal, and testing is necessary to supplement individual efforts to eradicate it.”
In July 2000, the 7th Circuit unanimously agreed, ruling that employment testers serve the public interest by “provid[ing] evidence that is frequently valuable, if not indepensable.” Judge Ilana Rovner, writing for the majority, noted that individuals serve the public interest “when they file suit to challenge discriminatory hiring practices. That is why the Supreme Court has described them as ‘private attorneys general.’ Testers advance that same public interest.”
After the ruling, John Henrickson, an EEOC regional attorney in Chicago, declared the 7th Circuit had “placed a big new arrow in the quiver of those seeking to end employment discrimination.” Lodder even began to see the first evidence of a deterrent effect. A write-up in an online newswire for human resources professionals entitled BEWARE OF JOB TESTERS NOW MORE THAN EVER reminded managers that discrimination claims could be avoided “by being consistent and impartial and following up with each potential employee.”
VICTORIES AND SETBACKS
Lodder estimates that the project has tested approximately1,500 Chicago-area businesses over the past decade. It’s a good thing, too, because the Blumrosens’ study found that Illinois discriminates in hiring more than any other state, Chicago more than any other city. “The level of discrimination we’ve seen here in the last decade certainly shows it’s a continuing, intractable problem,” Lodder says. “Whether it’s mailing in a résumé or walking in the door, one-half of blacks are not even considered – they never even get a chance. I thought Chicago was representative of a lot of places in the country, but I guess it’s worse.”
While rooting out racial discrimination is the Chicago project’s specialty, detecting gender bias is another major focus. In fact, the largest pre-trial settlement (most cases, including Fergus, were settled for an undisclosed amount and a hiring policy change) came in a gender discrimination case against Priester Aviation, an airplane fueling and maintenance company at Pal-Waukee Airport in suburban Wheeling, Ill.
In 1995, Christina Stops, a fuel systems specialist in the Illinois Air National Guard, who would later become a commercial airline pilot and an officer in the U.S. Air Force, inquired about a job on the Priester fuel line. She was told to consider a secretarial position instead. Devastated (“I thought that maybe the field wasn’t for women,” she said), Stops decided to file a complaint with the EEOC, and discrimination testers were dispatched to investigate.
The male tester dispatched was yours truly. I was partnered with a young woman whose résumé listed a commercial pilot’s license and four years of active duty in the Air Force. My résumé listed no aviation experience. When I mentioned in the interview that I was pursuing a pilot’s license, the line manager pointed out the window and asked if I could identify a type of plane on the tarmac. Of course I couldn’t. Well, no, I just started taking flying lessons.
Meanwhile, the assistant line manager, a flirtatious 40-something who couldn’t stop smiling and winking in my direction, declared me a “9 out of 10” after our interview and assured me the gig was mine. A one-woman refutation of the idea that it’s always men who discriminate against women, she repeatedly referred to the fuel line crew as “the guys” and the administrative staff as “the girls.” She laid out the Priester philosophy for me, without nuance: “[You] won’t see too many girls on the ramp fueling planes,” she said.
Priester wound up paying $160,000 for its transgression and agreed to change its Betty Crocker hiring policy in return for the EEOC’s promise not to sue.
The EEOC appeared on the verge of implementing employment testing on a national scale in 1998, when House Speaker Newt Gingrich made a multimillion-dollar congressional power play to squash the idea.
It all started with the EEOC’s concern about the potential impact of recently passed welfare-to-work legislation. Low-income workers, a disproportionate number of them women and minorities, would soon be required to forfeit their benefits and find jobs. The EEOC wanted to make sure hiring discrimination would not prevent them from doing so.
In December 1997, the EEOC commissioned the Employment Discrimination Project in Chicago and the Fair Employment Council of Greater Washington D.C. to launch pilot initiatives to explore whether the EEOC should use testers in its field offices to document hiring discrimination. Lodder trained staff members at 15 EEOC regional offices on the basic principles of employment testing. Each participant at the training session proposed pilot ideas for their region. The winning proposal sought to document discrimination against women seeking entry-level construction jobs in Houston.
However, as the Houston project was being conducted, political deal-making in the nation’s capital rendered the pilot moot. In 1998, President Clinton asked Congress for a $37 million (or 15 percent) EEOC funding increase. If enacted, the hike would constitute the biggest bump for the EEOC in more than 20 years, raising the agency’s annual budget from $242 million to $279 million.
But on March 3 of that year, Speaker Gingrich made what the Washington Post termed a “surprise appearance” at an obscure House subcommittee hearing to debate the Clinton Administration’s EEOC funding request. Gingrich announced that he would agree to support the historic increase, but only on one condition: The EEOC must agree to abandon the use of employment testing, which Gingrich called an effort “to create new cases.”
Despite its long history of support for employment testing, the EEOC could not afford to blow the $37 million, particularly given its current backlog of 65,000 cases. The pilots were abandoned, and the EEOC stopped using testers to gather evidence or even file cases in which testers had previously been used. “I’m a big believer in political reality,” said EEOC Commissioner Reginald Jones, whose agency was rewarded with the $37 million increase.
Having done the work anyway, Lodder decided to write and release a comprehensive 48-page report showing that testers had uncovered discriminatory hiring practices in one-third of the 43 Houston employers tested. Only no one was willing to do anything about it. Lawsuits, after all, cost money to file.
“You ever see Raiders of the Lost Ark?” Lodder asks. “Remember the end where the grail is put in the government warehouse to be forgotten about? Well, I compiled reams of evidence of discrimination against women trying to get construction jobs in Houston. That evidence now lays with the grail.”
Funding woes are a familiar nemesis for Lodder. Throughout the 1990s, she barely stayed afloat on a shoestring budget made possible by grants from the United Way of Chicago and limited funding and office space provided by the Legal Assistance Foundation of Metropolitan Chicago. The United Way well has run dry, however. So has the Joyce Foundation funding to test for suburban retail discrimination. With no outside money to sustain her work, Lodder ended her decade-long affiliation with the Legal Assistance Foundation earlier this year.
However, “the project continues,” Lodder declares when reached at her Chicago home in October. Only the setting has changed – well, that, and the name. Today, Lodder runs Civil Rights Investigations, the country’s only consulting firm that offers employment testing and training for organizations that want to employ the testing methodology on their own. Lodder is actively looking for private foundations interested in using testing to address the problems that keep people in poverty.
“We’ve established this very important precedent that testers have standing to sue,” Lodder says. “It’s an excellent legal tool that we plan to continue to use. We are also constantly looking for innovative ways to use testing evidence to change public policy and the behavior of employers who discriminate.”
Lodder has already found one innovative new use for her methodology – documenting gender and racial discrimination in the Chicago day laborer industry. As a result of the federal H-2A program (see page 20), Lodder says the number of “real jobs” being farmed out to the day laborer industry has spiked. “Labor activists have found, anecdotally, that there is rampant and blatant discrimination,” Lodder says. “Hispanics are preferred over blacks because they are more likely to be illegal and seen as easier to exploit.”
Chicago’s day laborer industry is forcing immigrants to work in sweatshop conditions, while many U.S. workers grow increasingly bitter as H-2A employees take the unskilled, minimum-wage jobs they had relied on to survive, says Dan Giloth, a day laborer activist in Chicago. Giloth’s group, the San Lucas Workers Center in the Humbolt Park neighborhood, is collaborating with Civil Rights Investigations to train actual day laborers as testers. They are being trained to observe and document workplace treatment so they can bring back evidence of sweatshop conditions, sexual harassment of women, and pay stubs with phony deductions.
With funding from the National Campaign for Jobs and Income Support, Lodder is teaching the day laborers the same techniques she uses for documenting hiring discrimination. She and Giloth hope to take the evidence they compile to the Chicago Department of Revenue, which is responsible for enforcing the city’s tough new Day Laborer Ordinance, which went into effect this July.
“We want a costly lawsuit; we want to burn the agencies and the client companies that are complicit,” Giloth says. “We really think we need to sting the industry pretty bad a couple of times so people understand there are consequences to this type of discrimination.”
Fortunately, he has found just the woman to help him do it. Bigots, beware.
By Eric Kleiman
This story was orginally Found on Legal Services Corporation in 2002 - Equal Justice Magazine http://www.lsc.gov/
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