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FAIR EMPL. COUNCIL OF GREATER WASHINGTON

June 18, 1993

THE FAIR EMPLOYMENT COUNCIL OF GREATER WASHINGTON, INC., WILLIAM DEMPS, JR., and ERNEST A. TUCKETT, III, Plaintiffs,
v.
BMC MARKETING CORP. and SNELLING AND SNELLING, INC., Defendants.


JOHNSON


The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON

The plaintiffs in this case are the Fair Employment Council ("FEC") and two black "testers" whom it sent to defendant BMC's employment agency in search of job referrals. The black testers did not receive referrals, while two white testers with allegedly comparable qualifications did receive referrals. The complaint alleges violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(b) (West 1981), the Civil Rights Act of 1866, id. § 1981, and the District of Columbia Human Rights Act, D.C. Code Ann. § 1-2512(b) (1992). Defendant Snelling and Snelling has a franchise agreement with BMC, and the plaintiffs allege that this exposes Snelling to liability for BMC's discrimination. Both defendants have filed dispositive motions.

 DISCUSSION

 1. Testers Have Standing to Sue Under 42 U.S.C. § 2000e-2(b)

 The individual plaintiffs admit that they were not actually seeking employment and would not have accepted any jobs to which the defendants referred them. See Dep. of Ernest A. Tuckett III at 78 (attached to Snelling's Mot. to Dismiss as Ex. 15); Dep. of William Demps, Jr. at 234 (attached to Snelling's Mot. to Dismiss as Ex. 16). The defendants have seized upon these admissions as proof that the plaintiffs suffered no actual injury and, therefore, lack standing to bring this action.

 The standing doctrine imposes two basic limitations upon a plaintiff's ability to bring suit in federal court: the first derives directly from the "case or controversy" requirement of Article III of the Constitution, and the second is composed of prudential barriers erected by the judiciary. The Supreme Court has distilled the "case or controversy" test of standing into three elements. A litigant seeking to invoke a federal court's authority must show (1) "'some actual or threatened injury,'" Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979)), that (2) "'fairly can be traced to the challenged action'" and (3) "'is likely to be redressed by a favorable decision,'" id. (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976)). The prudential limitations established by the Supreme Court require (1) that the plaintiff not assert a generalized grievance, Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975), (2) that the plaintiff's interest be within the "zone of interests" protected by the statute under which his claim arises, Gray v. Greyhound Lines, East, 178 U.S. App. D.C. 91, 545 F.2d 169, 175 (D.C. Cir. 1976), and (3) that plaintiffs assert their own claims, not those of third parties, Sierra Club v. Morton, 405 U.S. 727, 735, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972).

  The Supreme Court has long recognized that "testers" such as the individual plaintiffs can suffer injury within the meaning of Article III. In Evers v. Dwyer, 358 U.S. 202, 3 L. Ed. 2d 222, 79 S. Ct. 178 (1958), the Court permitted a class of plaintiffs to challenge segregated seating on buses, holding that whether they "may have boarded this particular bus for the purpose of instituting this litigation is not significant." Id. at 204. Similarly, in Havens Realty Corp. v. Coleman, 455 U.S. 363, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982), the Court held that testers had standing to seek relief for violations of the Fair Housing Act, 42 U.S.C. § 3604(d), which made it unlawful

 
to represent to any person because of race, color, religion, sex, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

 Havens, 455 U.S. at 373 (quoting 42 U.S.C. § 3604(d)). The Court observed that with this language "Congress . . . conferred on all 'persons' a legal right to truthful information about available housing," and so "[a] tester who has been the object of a misrepresentation made unlawful under [§ 3604(d)] has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a claim for damages under the Act's provisions." Id. at 373-74.

 The language of the statute at issue in this case is remarkably similar:

 
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin.

 42 U.S.C.A. § 2000e-2(b) (West 1981) (emphasis added). Just as the statute in Havens, by its terms, "established an enforceable right to truthful information concerning the availability of housing," 455 U.S. at 373, so § 2000e-2(b) by its terms establishes an enforceable right to nondiscriminatory referrals from employment agencies. The Supreme Court has recognized that "the actual or threatened injury required by Art. III may exist solely by virtue of 'statutes creating legal rights, the invasion of which creates standing.'" Id. (quoting Warth, 422 U.S. at 500). By alleging the violation of this right, therefore, the plaintiffs have alleged "a distinct and palpable injury" sufficient to confer standing. Warth, 422 U.S. at 501. *fn1"

 The authorities upon which the defendants principally rely are therefore distinguishable. BMC bases much of its argument on Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972), in which a plaintiff sued an airline that had placed newspaper advertisements seeking female flight attendants but not male flight attendants in alleged violation of 42 U.S.C. § 2000e-3(b). The Fifth Circuit permitted the plaintiff to prosecute his suit but observed, in dicta, that "to be aggrieved under this subsection a person must be able to demonstrate that he has a real, present interest in the type of employment advertised." Id. This statement was prompted, however, by the court's "refusal to rule that a mere casual reader of an advertisement that violates this section may bring suit." Id. The court apparently recognized that unlike other provisions of Title VII, § 2000e-3(b) did not contain explicit language describing what sort of person would be "aggrieved" by violation of the section and would have a right to sue under § 2000e-5(e). Clearly Congress had not intended that every reader of a discriminatory newspaper advertisement would have standing to sue the advertiser. Yet § 2000e-3(b) does not explicitly create rights but merely declares that it is an unlawful employment practice to publish advertisements containing discriminatory preferences. Unlike § 2000e-2(b) and § 3604(d), it does not vest the right to sue in "any individual" or "any person" who is a victim of the unlawful employment practice. The court in Hailes thus acted reasonably in construing § 2000e-3(b) to limit the class of "persons aggrieved" to those with an interest in employment. This reasoning therefore does not apply to § 2000e-2(b), which clearly indicates that the "individual" who fails to receive a referral is the "person aggrieved."

 Snelling, on the other hand, relies primarily upon a district court decision, Parr v. Woodmen of the World Life Insurance Society, 657 F. Supp. 1022 (M.D. Ga. 1987), in which the plaintiff was not seeking a job but was instead attempting to manufacture a lawsuit. The court found that the plaintiff's purpose in interviewing for a job was not to obtain employment, but "to let it be known that he [was] married to a black woman . . . and then to claim as the basis of a Title VII charge and civil action that he was told applying would be useless." Id. at 1032. The court then held that "[a] plaintiff whose primary purpose in interviewing for a job is to create the basis for a Title VII EEOC charge and lawsuit, is not the bona fide applicant for a job that he must be to establish a prima facie case" and therefore could not be damaged by failure to hire. Id. Parr differs from this case, however, because it involved an action for failure to hire under 42 U.S.C. § 2000e-2(a)(1), not an action for failure to provide an employment referral under § 2000e-2(b). The relevant inquiry is not, as Snelling argues, whether the plaintiffs made "a bona fide expression of interest" in employment, Snelling's Mem. in Support of Mot. to Dismiss at 32, but instead whether they sought to obtain the thing to which they had an enforceable right under Title VII. Section 2000e-2(a)(1) protects the right to nondiscriminatory hiring, but ...


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