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by Mindy Chapman, Esq.

Why does “testing” bring about that sledgehammer-in-the-stomach feeling? Maybe because, as students, we never knew quite what to expect. Now, the same is true when it comes to a recent trend in employment-law cases: applicants and employees making phone calls to secretly test whether your organization is discriminating.

While the U.S. Supreme Court has long acknowledged the importance and legality of testers in civil-rights claims, two new court cases offer critical lessons for employers:

“Hello, can I please schedule an interview?” The EEOC is suing Target Corp., claiming the company violated federal race-discrimination law by refusing to hire three black management applicants because of their race. Target had e-mailed the candidates and asked them to call and schedule interviews. All were denied interviews after their calls.

The twist: One applicant had a hunch she was being discriminated against. So, in an “experiment,” she resubmitted her application under a fictitious Caucasian-sounding name, with an address in a primarily Caucasian neighborhood. When the Target manager left a message, she asked a Caucasian friend to call back. The friend was immediately scheduled for an interview. (EEOC v. Target Corp., 7th Cir.)

“Hello, may I please check an employee reference?” As part of a discrimination settlement with an ex-employee, a company agreed to route all future reference inquiries about him to the HR department. But the ex-employee had a hunch that wasn’t happening, so he hired a private investigator to call and pose as a prospective employer.

The result: The employee discovered that supervisors were talking about his employment record (which violated the settlement). That helped the employee take steps toward reviving his lawsuit. (America v. Preston, D.D.C.)

HR best practices

  1. If you offer a candidate an interview, then follow up with an interview. Seems obvious. But if you can’t reach the applicant, try every way to get in touch so you can prove your good-faith efforts to conduct an interview.
  2. Retain documents one year. The EEOC requires employers to keep applications and other hiring-related documents for at least one year. If an employee or applicant files discrimination charges, retain personnel records until the charge is resolved.
  3. Train everyone involved how to interview fairly and consistently within the law. Focus solely on the job description and whether the applicant has the skills, talents and abilities to fulfill the requirements.
  4. Provide training on record-retention procedures. Encourage workers to reach out to HR or the legal department with questions prior to the irreversible destruction of records.
  5. Train managers how to handle reference-check calls. Centralized compliance through HR is important. If you don’t have such standard operating procedures, it is time to implement them to avoid liability.


Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC, which conducts interactive “Workplace Training that Clicks and Sticks.”SM Chapman is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial.  

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