No Harm, No Fraud: The Invalidity of State Fraud Claims Brought Against Employment Testers
In the summer of 1995, two female African-American students at Northwestern University began their summer jobs as part of the Legal Assistance Foundation of Chicago's ("LAFC") employment discrimination testing project.' The women, Kyra Kyles and Lolita Pierce, were hired as employment "testers" for the project, where they were to gather data about Chicago-area employers by taking part in the application process for numerous potential jobs. As part of the testing process, the project manager paired Kyles and Pierce with two white female LAFC employees, forming a pair of interviewing teams that each consisted of one African-American tester and one white tester. The two members of each team were then to pursue the same employment opportunities at a particular company.
Before the women went out to interview for actual jobs, each tester worked closely with LAFC's project manager to develop a fictitious resume that she would use during her tests in the field. These resumes portrayed the African-American testers as possessing employment credentials comparable or superior to those of their white counterparts, so that a pattern of hiring only white testers would constitute more plausible evidence of racial discrimination. In addition to the resume development program, the four testers also took part in a training program, where they learned proper interviewing skills, as well as how to react to a number of situations that they might encounter in the field. As part of the training, LAFC instructed each tester "to make positive statements about their interest in the job and ask questions about the company to indicate their interest in being hired for the position." Despite this apparent interest, however, the women were told by LAFC to decline any offers that they might receive during the course of the project.