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 because the plaintiff in Parr did not actually seek a job, he could not have been injured by the defendant's failure to hire him. Section 2000e-2(b), however, protects the right to nondiscriminatory referrals, and because the plaintiffs in this case did seek referrals, they can claim injury resulting from the defendants' failure to provide those referrals.
BMC also argues that even if the plaintiffs have suffered injury, they lack standing because they have not shown that they are "likely to suffer future injury," City of Los Angeles v. Lyons, 461 U.S. 95, 105, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983), and therefore have no right to injunctive relief. The plaintiff in Lyons alleged that when stopped for a minor traffic offense he was nearly strangled by the local police, who without provocation applied a dangerous "chokehold." Id. at 97. The plaintiff sought to enjoin future use of the chokehold, which allegedly had resulted in fifteen deaths in Los Angeles. Id. at 100. The Supreme Court declared that he did not have standing to seek injunctive relief, because "it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury." Id. at 108.
The difference between Lyons and this case, however, is that in Lyons the actions of the police officers were entirely outside the plaintiff's control. He could only become a chokehold victim if the police stopped him again, and only the police could decide whether to stop him. In this case, however, the plaintiffs are free to return to BMC at any time in search of nondiscriminatory employment referrals. Unlike the plaintiff in Lyons, therefore, they alone control the decision to initiate contact. See Tr. of Mots. Hr'g at 37-38. They, therefore, have no problem establishing a probability of future injury.
2. The FEC Meets the Requirements for Organizational Standing
To have standing on its own behalf, an organization must meet the same standing test that applies to individuals. The organization must show actual or threatened injury that is fairly traceable to the alleged illegal action and is likely to be redressed by a favorable court decision. See Valley Forge, 454 U.S. at 472. Accordingly, just as an individual lacks standing to assert "'generalized grievances' about the conduct of Government," Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974), so an "organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III," Simon, 426 U.S. at 40. If, however, an organization points to a "concrete and demonstrable injury to [its] activities," not "simply a setback to the organization's abstract social interests," the organization will have established a right to bring suit. Havens, 455 U.S. at 379. Havens makes clear, furthermore, that an organization establishes Article III injury if it alleges that purportedly illegal action forces the group to divert resources from other programs. See id.
To establish that FEC has standing, the plaintiffs allege in their complaint that
defendants' discriminatory actions have: (i) interfered with the efforts and programs of plaintiff Fair Employment Council intended to bring about equality of opportunity to minorities and others in employment in the Washington, D.C. metropolitan area; [and] (ii) forced the Fair Employment Council to devote scarce resources to identifying and counteracting defendant's unlawful employment practices.