There is little direct evidence about the nature and extent of hiring discrimination in the United States. There is no empirical evidence that discrimination has been eliminated; and even across the political spectrum there is recognition that the problem still persists. As many more claims pertaining to promotions and terminations are filed, there is a misperception that these reflect a more serious problem than that of hiring discrimination. Victims of hiring discrimination are less likely to know that they have been discriminated against, and to have access to information needed to prove it. Thus, as discrimination at the hiring stage is subtle and less detectable, it requires more sophisticated tools of detection-such as the use of testers. First, the author considers the general requirements for standing. Second, the issue of whether courts should allow standing for employment testers under § 1981, and the challenges to such an approach is addressed. Third, the author considers whether organizations aimed at eliminating discrimination in employment should have standing to bring suit, in their own right and on behalf of their members, under § 1981. Finally, recent legislation and federal agency policy in support of testers is discussed.
Note, Tester Standing in Employment Discrimination Cases under 42 U.S.C. 1981, 41 Clev. St. L. Rev. 381 (1993)