July 2, 2008

MCAD Begins Undercover Testing

Holland & Knight Alert
Paul G. Lannon
Massachusetts Commission Against Discrimination (MCAD) Chairman Malcolm S. Medley and Commissioner Martin S. Ebel recently announced that the MCAD will soon begin a testing program aimed to uncover hiring discrimination in areas that might not normally come before the commission. This testing program is part of the Equal Employment Opportunity Commission’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was started earlier this year to eliminate race discrimination in the workplace by improving public awareness and litigating discriminatory employment practices. The MCAD has hired Eric Bove to lead the testing program. His work at the Housing Discrimination Project, Inc., involved orchestrating testing programs related to discrimination in housing.

The MCAD’s testing program will begin this summer and run through spring 2009. One component of the testing program is compare-testing, in which two comparable applicants of different age, sex, color or ethnicity are sent to apply for the same position, and an analysis is performed of how they are treated and whether discrimination is present. A second component of the testing program is complaint-testing, in which applicants participate in the employer’s complaint process to determine whether discrimination exists.

The MCAD has used testers in the past to uncover age discrimination in hiring and race discrimination in housing and employment. In 1993, the MCAD conducted one such testing program to look for age discrimination against job applicants. The testing program audited more than 40 businesses in the Boston area by sending undercover investigators to apply for jobs, and then comparing the employer responses to determine if discrimination was taking place. The MCAD brought complaints against seven of the companies and found that at least four had discriminated against applicants.

The MCAD’s testing program is an important reminder that employers should ensure their human resources and hiring personnel are at all times making employment decisions in a nondiscriminatory way, preferably by following a structured process, written procedures and specific criteria. Employers should consult with legal counsel to review their employment policies and hiring and training programs.

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